U.S. Code Sec. 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the 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 The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Overview

Standard disclaimer: I am not a lawyer.

For the sense in which it is used in the link from the front page of Everything, "fair use" refers to the right to quote small portions of a published work for the purpose of review or parody.

However, for some time, fair use has also allowed limitless duplication of purchased media, as long as all copies were for the sole personal use of the owner. Hence, if you wanted to copy your CDs to cassette for your Walkman or car stereo, why that was perfectly all right (and referred to as "spaceshifting"). In fact, blank cassette tape packages routinely say they are "perfect for CD!" and recent commercials for CD burners have featured teens making their own mix CDs and taking them to dance clubs.

VCRs were also ruled fair game for fair use, when the Supreme Court decided a lawsuit brought by the MPAA in favor of the VCR manufacturers--by taping shows off of TV, you're "timeshifting" them for your own benefit, and that is fair use.

However, fair use has become a particularly hot topic in recent months because of the great DeCSS DVD debacle, and because of My MP3.com.

DeCSS and DVD

The Digital Millenium Copyright Act, or DCMA, introduced a strange new wrinkle to copyright law by making it illegal to circumvent any form of copy protection, or create tools for doing so--even if the purpose for which you are circumventing it is to exercise fair use rights over media you own. This means that corporations now get to rewrite the copyright laws of the land, severely hampering fair use.

The deCSS utility was primarily meant to allow the fair use of DVDs, unlocking the CSS anti-piracy encryption so DVDs could be played on Linux, BSD, and other non-mainstream operating systems which had no DVD player software yet available. However, because it also allowed copying of DVD VOB files (and thus possible (though not probable) DVD piracy), and more importantly broke the DVDCCA's monopoly on licensing DVD players, it sparked a major court battle. The viability of our copyright system today hangs in the balance.

My MP3.com

The other great test of fair use wending its way through the courts today is My MP3.com--a system that allows a consumer to put a music CD in his CD-ROM drive to let the software verify that he owns it, after which he can have the music on that CD streamed to him anywhere on the Internet thanks to My MP3.com's servers. The RIAA and recording studios argue that this is infringement of their copyright--especially since MP3.com is making money off of it with banner ads--whereas MP3.com lawyers claim it is spaceshifting and therefore fair use. This case is also awaiting a decision from the courts.
The Register (http://www.theregister.co.uk/) has an article ("Linux users protest DVD regs on Capitol Hill", http://www.theregister.co.uk/000505-000015.html) on this subject, which raises a number of points.

It points to two parts of the Digital Millennium Copyright Act (I quote their article):

The killer point in the article, however, is this:

This obstacle not only allows Hollywood to restrict access to the material it distributes; it also means that the MPAA can influence the very range of content available to consumers. The DMCA gives the movie industry power to control film distribution, which it is free to abuse secure under the aegis of a law purporting to protect its copyrights.

The remainder of the article makes some other interesting points - but the above are about Free Speech. Surely this is enough to get US Citizens off their collective backside?

The fair use section of American copyright code is purposely vague. At any given time, there are only nine Americans who know what fair use is. Any guidelines you may have heard about what constitutes fair use are merely suggestions the Supreme Court can choose to take into consideration when coming up with their decision.

So when people assure you that their posts fall under "fair use", they are either justices of the Supreme Court or are talking out of their ass.

Fair use is what maintains the balance between copyright and the First Amendment. Most simply, it requires that the public be able to copy/perform/display some of a work without getting permission from its copyright holder. So the film critic doesn't need authorization to take a clip of the movie she pans, and the rap artist doesn't need permission to make a parody.

Fair use is an indefinite standard, codified at 17 U.S.C. 107 in a four-factored test. That means no one can say definitely that "copying 1 page is fair use but copying 10 is not" -- it all depends on the circumstances; copying an entire article may be fair for classroom use. Its vagueness is one of its virtues, however, leaving fair use adaptable to changing circumstances.

Fair use is under attack by the anticircumvention provisions of the DMCA. Yet even the Supreme Court itself has said that fair use cannot be determined mechanically: "[t]he task [of fair use analysis] is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994). (That case approved as fair use 2 Live Crew's song "Oh Pretty Woman", parodying Roy Orbison's "Pretty Woman.")

Title of the book and CD released by Negativland following their court case against U2 and documenting the same. The court case started after the release of a Negativland single titled U2 with an unauthorized cover of the U2 track 'I Still Haven't Found What I'm Looking For'. Among other themes, this record was about U2, the band, and the U2 the American Spy Plane. Fair Use, the book, takes on these themes once again, after the original Negativland's U2 release was forced out of circulation by U2's label.

Sometime after the end of the court case, Negativland released a CD titled Dispepsi, where the title was never present as this but always as senseless anagrams of it, to avoid law-suits by Pepsi - once that the theme for this was also soft-drinks - or to play with the idea of law-suits...

The book is a manifest in favor of Fair Use of any recorded and copyrighted material in the process of the creation of art, and among the many pages of reproductions of legal documents related to the case some very interesting stuff can be found, like the transcription of a telephone interview with U2's guitar player The Edge done by Negativland themselves...

Issue by Seeland Records, 1995, Seeland 013CD-B

Fair Use, Copyright, and Risk

I am not a lawyer!
(I.e., this is not valid legal advice)

The best place for information on copyright can be found at the Library of Congress' web site for copyright information:
http://www.loc.gov/copyright/

The Library of Congress Fact Sheet (FL 102) on fair use states: "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." According to Title 17, sec. 107 of the United States Code, the four elements to be considered in determining fair use are:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the 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.

Since the wording in the United States Code on fair use is undeniably ambiguous, it is only through litigation that specific cases of copyright infringement are resolved. Anyone can claim the application of fair use, but whether such a claim is valid or not is only resolved by litigation from an aggrieved copyright holder. It is via the judiciary that the fair use provisions actually get weighed and applied. Inspection of such cases indicates that financial damage to the copyright holder is the most probable cause of litigation.

This leads to an interesting conclusion:

The application of fair use is related to the claimant's level of risk tolerance.
Whether they understand it, or not, the potential fair user considers these two questions:
  1. To what extent does a claim of fair use actually satisfy the ambiguous wording of the law?
  2. What is the likelihood that the copyright holder will litigate?
Copyright lawyers get paid beaucoup bucks to advise individuals and corporations on these issues.

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