Bifalgorithm post · Property · 13.05[E][4][c], p. 13-84 (1982). Proof of actual harm, or

Even Probable

Even Probable (Property · 13.05[E][4][c], p. 13-84 (1982). Proof of actual harm, or) — "even probable harm, may be impossible in an area where the effect of a…

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  • Copyright infringement may be established through a reasonable possibility of harm from the proposed use.
  • Proof of probable harm may be impossible when the effects of a new technology are speculative.
  • Requiring such proof could confine copyright rights to present technology and reduce their future value.
  • The copyright owner therefore must demonstrate a reasonable possibility that harm will result.
  • When a use creates no benefit for the public at large, protection should not be denied merely because the potential harm has not yet occurred.
  • The Studios identified several ways in which VTR recording could damage their copyrights.
  • VTR recording could reduce the Studios’ ability to market works in movie theaters.
  • VTR recording could reduce the rental or sale of prerecorded videotapes or videodiscs.
  • VTR recording could reduce the rerun audience and the license fees available for repeated showings.
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Even Probable

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Property

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"even probable harm, may be impossible in an area where the effect of a new technology is speculative, and requiring such proof would present the “real danger … of confining the scope of an author’s rights on the basis of the present technology so that, as the years go by, his copyright loses much of its value because of unforeseen technical advances.” Register’s Supplementary Report 14. Infringement thus would be found if the copyright owner demonstrates a reasonable possibility that harm will result from the proposed use. When the use is one that creates no benefit to the public at large, copyright protection should not be denied on the basis that a new technology that may result in harm has not yet done so. The Studios have identified a number of ways in which VTR recording could damage their copyrights. VTR recording could reduce their ability to market their works in movie theaters and through the rental or sale of pre- recorded videotapes or videodiscs; it also could reduce their rerun audience, and consequently the license fees available to them for repeated showings. Moreover, advertisers may"

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