Cybertelecom Federal Internet Law and Policy An Educational Project

IP: Copyright: Fair Use

Not every unauthorized use of content will land you in the tank. There are a plethora of chat rooms and email groups that discuss every aspect of everything. For example, in the course of dissecting the work of Kierkegaard, a discussant may find oneself posting a small passage from Fear and Trembling to elucidate an existential perspective. Is this problematic? Does copyright curtail the never ending marketplace of ideas? Most likely, this example would not run afoul of the law as a result of Fair Use.[17 USC § 107]

Fair Use gives users of material certain limited ability to use the material regardless of permission. Critics can cite portions of copyrighted works in their reviews. Educators can use words in the classroom. Small portions of works can be shared among friends. Fair use is the recognition that the ability to carry on democratic dialogue and to intelligently discuss and critique material is dependant upon the actually use the material.

A court will, when considering whether a use constitutes fair use, generally consider four factors (below). No specific weight is given to the different factors and they are not necessarily equally weighted (there is some judicial suggestion that the fourth factor is the first among equals).[Library of Congress 2002] Fair use is described not as a right of use but rather as a defense to copyright liability. Having established that there is a copyright owner and that there has been a reproduction, the defendant carries the burden to establish that the use was fair use.[Kelly v. Arriba Soft][Los Angeles Times v. Free Republic]

Even with these four factors, one person's fair use can still be another's infringement. The Library of Congress offers the following advice:

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney. [Library of Congress 2002]

Library of Congress: Fair Use 1999:

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

FL-102, June 1999

Caselaw

• Betamax Case,
• A&M RECORDS, INC. v. NAPSTER, INC. 239 F.3d 1004 (9th Cir. 2001)
• Campbell v. Acuff-Rose Music, Inc.,
  510 U.S. 569 (1994)
• Stewart v. Abend, 495 U.S. 207 (1990)
• Harper & Row, Publishers, Inc. v. Nation Enterprises,
  471 U.S. 539 (1985)
• Sony v. Universal City Studios, 464 U.S. 417 (1984) (VCRs time shift)
• Los Angeles Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669 (D.C. CA March 31, 2000): Defendant Free Republic was a bulletin board website where members could post full news articles for discussion. Some of these articles were full texts of Washington Post or Los Angeles Times articles found on their respective news sites. The newspapers took offense and sued. Free Republic argued that that the use of these articles in this fashion, in order to engage in discussion, debate, and discourse, meant the action was protected by Fair Use. The court was not persuaded. The articles had been copied in full; there was little transformative use; and defendant's behavior directly effects plaintiff's market for online viewing of the articles.
• Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116 (CD Ca Dec. 1999): Defendant operated a visual search engine which crawled the Internet gathering images and producing thumbnail picture results in response to searches. Plaintiff was a photographer who ran a website displaying some of his own photographs. When those photographs were captured in defendant's search engine, plaintiff sued. The court held that the search engine, which displayed thumbnail images of material collected, constituted fair use, concluding

  Defendant never held Plaintiff's work as its own, or even engaged in conduct specifically directed at Plaintiff's work. Plaintiff's images were swept up along with two million others available on the Internet, as part of Defendant's efforts to provide its users with a better way to find images on the Internet. Defendant's purposes were and are inherently transformative, even if its realization of those purposes was at times imperfect. Where, as here, a new use and new technology are evolving, the broad transformative purpose of the use weighs more heavily than the inevitable flaws in its early stages of development.

  Sec. II.A.5..

• Sega v Accolade
• VideoPipeline v. Disney
• Emerson v. Davies, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845) ("“in truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.”")

Legislative History: H.R. Rep. No. 94–1476 at 65–70, reprinted in 1976 U.S. Code Cong. & Ad. News 5659, 5678–83

Links

• NYFairUse.org

Papers

• Library of Congress, Fair Use 2002
• Library of Congress: Fair Use 1999
• Fair Use Principles for User Generated Content, PK

News

• Videos Demonstrate The Complexities Of Fair Use, Techdirt 11/5/2007
• The economic value of "fair use", Google 9/14/2007
• Fair Use: Worth More To The Economy Than Copyright?, Techdirt 9/14/2007
• Fair Use?, Tech Lib Front 8/29/2007
• News Agency's Lawsuit Tests Fair Use In The Internet Age, Infoweek 3/22/2005