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Re: [ARSCLIST] Protecting LPs thru the mail
You are right, section 108 is not "fair use", but it is directly on point to the question being discussed, the interlibrary loans of phonorecords. Sec. 108 is a much broader exemption from infringement than the case law you are referring to-- if the institution and sound recordings qualify.
From: Bob Olhsson
This is still not "fair use." It is a very specific exemption for a very specific group.
"Fair Use" means that a court has held that making a copy within a very narrow, specific context is not infringement. For example it was held that making a backup copy of software sold on a floppy disk is "fair use" because a defendant was able to demonstrate to a judge that it was unreasonable to expect floppy disks to perform in an appropriately reliable manner relative to the cost the software. Backup of software distributed in any manner other than a floppy disk is not "fair use" although most developers grant a right to make backups in their software license.