Wednesday, July 28, 2010

Fair Use? Part 2

Yesterday, I wrote briefly about copyright basics.  Today, I want to talk about possible defenses to claims of copyright infringement.  The three most common defenses I have read for copying are that (1) the copying is not being done with the intent to make money, (2) it's my own take on the matter, or (3) it’s only fair use. Let's address those.  Before we do, remember that these are defenses. In other words, these come into play once you've been already called out. And, like any defense, it's up to you to prove it.

No Monetary Gain – A common defense is that the poster or author did not copy the article in an attempt to make money, therefore, they have nothing to be afraid of.  A similar comment is that the infringement was committed by a non-profit organization, so the prohibition does not apply.

Well, not quite.  17 U.S.C. § 501(a) is very clear: "Anyone who violates any of the exclusive rights of the copyright owner ... or of the author ... is an infringer of the copyright or right of the author, as the case may be."  Whether committed by a non-profit, or without the intent to make any money, copyright infringement is copyright infringement.  It's still against the law.

Now, where money does make a different is in the type of penalty prescribed.  Normally, copyright infringers are subject to a long list of civil penalties, including monetary fines.  17 U.S.C. § 502 - 505.  However, if  the infringement is for monetary gain, the law provides for criminal penalties.  17 U.S.C. § 506(a)(1).  Your choice.  Now, while I prefer civil penalties to criminal ones, I'd rather miss the whole party altogether, if you don't mind. 

Independent Creation – In our current context, this is least likely to be a viable defense. To argue independent creation is to argue that the copier came up with the posted information without knowledge of or access to the original news article. Typically, in postings, the writer will write something along the lines of, “I found this article on the Villageville Rag and Rumor, and it really makes me [insert snarky comment here].” Well, there you go. You mentioned where you got the story, so it’s going to be really hard to argue that you came up with it independently of the news source.

What if you don’t mention it? Well, besides the fact that it is bad practice and dishonest to pass off someone else’s work as your own, you’re still not home free. If the article is available to a lot of people (like for instance, through the internet) and is strikingly similar to your posting, the courts will likely assume you had access to and copied from the original. So again, this is not the one to hang your hat on.

Fair Use – This is by far, the most common, and the most effective of the defenses.  Of course, it is only effective if it actually applies.

So, what is fair use?  Fair use is codified in 17 U.S.C. § 107 and applies to use of the created work for "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research..."  This is not all inclusive, but serves as a guide.  So, on its face, copying to a blog or forum posting may be fair use provided that it is done for one of the suggested exceptions.

However, there are several important factors that the court will review.  The factors are laid out in the same code section:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; -- in other words, are you copying the work for one of the reasons listed above, or merely because you like the article and want to repost it and save the reader the trouble of registering or going to the original site?

(2) the nature of the copyrighted work; -- are you copying something that is in the public domain, is it fiction or non-fiction?

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; -- Here, less is better.  Did you copy the entire article?  Also, even if only a small amount was copied, was it the most important part?

and (4) the effect of the use upon the potential market for or value of the copyrighted work. -- This element reviews both the specific and broader effects.  If you are copying the entire article, you are depriving the author or owner of any revenue he or she would make when the article is viewed on the original site.  Also, if this practice were allowed, it would diminish the ability for authors and creators to control their market for their product (the articles), since their work could be pasted elsewhere to diminish their site traffic and potential revenue. 
Proposed solution?
It is likely preferable to just copy a small amount (to make your point) and drive the reader to the original site so they can read it on their own.  While even this area of law is not settled, the consensus seems to be that as long as the author has not prohibited linking, this may be the safest route to go.  This is also preferable because readers can read any updates or comments generated by the original article.
Just my two cents.


Sailorcurt said...

The problem with the links on Clayton Cramer's site is that the entire "article" reprinted was only a few sentences.

If you try to print a small percentage of the article, you end up with just a couple of meaningless words that don't convey what you're trying to convey.

Also, what about the fact that the reprint included a citation and link to the source? Is that not indicative that there was no intent to infringe the original author's copyright?

Lawyer said...

Sailor Curt,

The law is developed in the gray. When an issue is black or white, it is typically easy to resolve. There may be a lot of saber rattling, but everyone soon stands down.

What Righthaven is doing is singling out one or two (or more) posts that, in their mind, cross the line. There may be others that don't, but they pick the one that best suits their purpose. Then, they press the issue with those, hoping for a quick settlement. Some of these may indeed seem perfectly permissible, but the gray areas are where the conflict happens. And it is by resolving the conflicts in these gray areas that new law is hashed out. While I don’t personally care for their tactics, Righthaven may push the issue to the point where new interpretations allow us to have a better understanding of where that line actually exists.

One more thing—even if the copying was done without intent to infringe, courts can still determine that there was infringement. Typically, intent plays a bigger part when the court is determining whether to award punitive damages.