Bill Patry, in reporting on a case involving the issue of which version of a screenplay to compare to another work to establish the similarity of an infringing work to the work it supposedly infringed, The Patry Copyright Blog: And in the end, touches on a matter of great importance to all creative enterprises: the implications of "intermediate use" as fair use.
Intermediate use was established in software cases in the 90's (Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527 (9th Cir. 1993). For an interesting discussion of the Sega case and a later case also from the 9th Circuit, see Robert Donahoe's article. This concept that intermediate uses are fair means that software engineers can make a copy of a work for the purposes of getting at the ideas inside it, for example, for reverse engineering software. In the end, the new software, when compared to the original, must not infringe, but it's ok to have made a copy in the first place to borrow that which is legal to borrow.
This idea is not limited to software. Patry indicates its usefulness in the film case he reviews above, but also comments generally that the principle allows us to start with another work and use it as we like, so long as our final version of our work borrows only that to which we are legally entitled. This would include ideas of course, but also bits and pieces that would constitute fair use. Making intermediate use of others' works is a staple in the art world, in music, and increasingly, of all forms of creativity on the network. If you Google 'intermediate use,' you'll find many examples of cases that support its status as fair use in a wide variety of contexts. This is another example of the expanding understanding of the vital role fair use plays in the creation of new works.
On the other side, however, there are still vast holdouts against the idea that fair use is vital. Patry references sampling in another blog post: Amen Brother). The video he links to explains both the importance of fair use to the music industry, and the erosion of protection for it in the last 10 to 15 years. It's well worth the 18 minutes that it takes to listen to the video (yes, listen to... it's not much visually, but really tells an important fair use story).
