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IP: Copyright: Fair Use

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[Fair Use] has been viewed by courts as a safety valve that accommodates the exclusive rights conferred by copyright with the freedom of expression guaranteed by the First Amendment. -- Judge Kaplan in Universal City Studios, Inc. v. Reimerdes, 111 F.Supp. 294, 322 (SDNY 2000) (finding that the hacker group 2600 had violated the DMCA by posting the DVD encryption breaking program DeCSS on their website).

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]


Fair Use and Online Video
by American University School of Communications

Derived From: 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

Derived From: Copyright Policy: Creativity and Innovation in the Digital Economy, The Department of Commerce Internet Policy Task Force, July 2013

The fair use doctrine, developed by the courts and codified in the 1976 Copyright Act, is a fundamental linchpin of the U.S. copyright system. [17 U.S.C. § 107] Along with the idea/expression dichotomy, the fair use doctrine is a critical means of balancing “the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.” [464 U.S. at 429] It is also a vital “built-in First Amendment accommodation[]” in copyright law. [132 S. Ct. 873, 890 (2012)] Because fair use requires an assessment of the “fairness”" of the use in question, based on a balancing of several factors, it is inherently fact-intensive. Accordingly, in any area where there is not yet established precedent, it may be difficult for prospective users of copyrighted works to predict whether a fair use defense will succeed or fail.100

The corresponding advantage of fair use is its flexibility; the doctrine is highly adaptable to new technologies and has already played an important role in the online environment. Fair use has been applied by the courts to enable, among other things, the use of thumbnail images in Internet search results, [336 F.3d 811, 815-16 (9th Cir. 2003); , 508 F.3d 1146, 1163-68 (9th Cir. 2007); , No. 12 Civ. 1087, -- F. Supp. 2d --, 2013 WL 1153979 (S.D.N.Y. Mar. 21, 2013) (rejecting fair use defense for subscription news clipping service that used algorithm similar to search engines to locate and excerpt news stories).] caching of web pages by a search engine,[412 F. Supp. 2d 1106, 1117-23 (D. Nev. 2006)] and a digital plagiarism detection service.[562 F.3d 630, 637-45 (4th Cir. 2009).]

The status of several types of common digital uses remains unsettled, however. While time-shifting of over-the-air broadcast programming has been held to be fair use,[464 U.S. at 429] similar consumer activities known as “format-shifting” and “space-shifting” that involve the copying of entire works to permit personal use on different types of devices have not yet been definitively addressed by U.S courts.[Register of Copyrights, 162-66 (Oct. 2012)] It is an open question whether having paid for enjoyment of a work in one format or location should eliminate the need to pay again for its enjoyment in a different format or location.

Over the years, as the courts have defined the contours of fair use, there have been several public and private initiatives aiming to provide greater specificity and predictability to its application. At the time of enactment of the 1976 Copyright Act, a set of guidelines for educational users (“Classroom Guidelines”) were adopted and approved by Congress.[H.R.REP.NO.1476 at 68-71(1976)] Once digital technologies became prevalent, the Working Group on Intellectual Property Rights convened a Conference on Fair Use (CONFU) in 1994 “to bring together copyright owner and user interests to discuss fair use issues and, if appropriate and feasible, to develop guidelines for fair uses of copyrighted works by librarians and educators.”107 After a four-year process, no consensus was achieved on the overall scope of fair use guidelines, although one set of such guidelines was developed for educational multimedia. CONFU also resulted in proposals for fair use guidelines for digital images and distance learning that were circulated for discussion.108 Despite the lack of consensus, the guidelines and proposals that came out of that process remain useful resources.

More recently, others have undertaken efforts to develop fair use guidelines for various user communities. American University’s Center for Social Media, in conjunction with the University’s Washington College of Law, has created a set of tools for creators, teachers, and researchers to better understand the application of fair use to their particular disciplines. The Copyright Advisory Office established at Columbia University in 2008 has collected and developed resources on the relationship between copyright law and the work of the university community, including a fair use checklist. And the College Art Association recently announced a major grant to develop a code of best practices for fair use “in the creation and curation of artworks and scholarly publishing in the visual arts.”

The Story of Casey Jones & Mickey Mouse

Albert Einstein reportedly said, "The secret to creativity is knowing how to hide your sources." Sir Isaac Newton said, "If I have seen further it is by standing on ye shoulders of Giants." Both acknowledge that their genius did not come out of the ether, but was based on work that had come before them.

The modernist philosophy held the belief that it could create something completely new. It failed.

The postmodernist philosophy acknowledges that creativity is premised on taking that which already is, and creating a new variation to a theme: playing with it, rearranging it, or putting it in a way that has never been seen before.

That which is known as creativity is in so many ways a "derivative work." It is why it is important to have an intellectual property regime that acknowledges this and promotes the advancement of knowledge through the ability to take what is, and make it anew.

At the core to the copyright story is Disney. It has been said that copyright terms get extended every time Disney's copyrights come close to expiration, and that US copyright policy is about the protection of US copyright holders such as Disney and Hollywood . Disney is has the reputation of suing for anything that comes close to their intellectual property.

But there is another story that involves Disney and copyright. Here is how the story goes:

Creativity as mashup. For creativity and the advancement of knowledge to thrive, intellectual property law must be in tune with the Jeffersonian policy objectives.

References

Caselaw

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

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