Fair use stages a comeback: New protections against copyright abuse
The poster child for misguided technology-related legislation is the Digital Millennium Copyright Act of 1998 (DMCA), which the Electronic Frontier Foundation calls “fundamentally flawed” and “long past due for reform.” A principal reason for the criticism lodged against the DMCA is that the law makes it difficult or impossible for consumers to exercise legal fair-use exceptions to copyright restrictions.
The Fair Use Doctrine has been called “the most troublesome in the whole of copyright law” (Dellar v. Samuel Goldwyn, 1939), as Anthony Prince explains in an article on the Tennessee Library Association site. Section 107 of the U.S. Copyright Act lays out a four-factor test:
To help potential copyright infringers determine whether they fall under the fair-use exception, many organizations have devised fair-use checklists, such as the one provided by Columbia University (pdf).
Google Books’ ‘transformation’ of copyrighted material qualifies it as fair use
Last month the U.S. Court of Appeals for the Second Circuit ruled in Authors Guild v. Google Inc. that Google does not infringe on book authors’ copyright when the service reproduces the book contents as part of its Google Books and Library Project. As Meg Charendoff, Tal Dickstein, and W. Allan Edmiston write in an October 23, 2015, article on JD Supra Business Advisor, the court applied the four-factor fair-use test and concluded that Google’s use was “highly transformative” under the purpose-or-character factor because it “communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge,” despite being commercial in nature.
The court found that the second of the four factors applies to Google’s use because “the secondary use transformatively provides valuable information about the original” rather than serving as a substitute. While the third factor would seem to weigh against Google because the copyrighted work is substantially reproduced, the court found that copying any less than the entire book would defeat the purpose of the search function that transforms the work, pointing out that using the entire work doesn’t in itself preclude a finding of fair use.
Perhaps the trickiest part of the ruling is the effect of Google’s use on the potential market and value of the books. Even if someone finds the information they’re looking for by searching the book’s contents and thus need not purchase a copy of the book, the court claimed that small bit of information “will often be factual in nature” and therefore does not fall under copyright protections. Also, the court ruled that the effect of the use on the book’s sales or value must be “meaningful and significant,” as the Washington Post’s David Post writes in an October 17, 2015, article.
The prevailing sentiment of the analysts is that the ruling will benefit the public by making information more accessible. The Authors Guild intends to take the case to the Supreme Court as it fights for a writer's right to make a living.
(By the way, Medium’s Karim Boubker knows why so many writers arent making any money. It’s not because of the Internet or any other outside source. It’s because they aren’t good enough… yet. All they have to do is keep working and striving to be better. They have to be patient, though – Boubker says it may take them a decade to make a nickel off their scribblings. We'll be rolling in dough when we're 90 and too feeble to do anything with it.)
Library of Congress expands its fair-use protections for digital products
In an October 27, 2015, article, the EFF lauds recent changes enacted by the U.S. Library of Congress to extend fair-use protections to ripping DVDs and Blue-ray discs; running video games on servers after their publishers have abandoned them; jailbreaking and otherwise modifying phones, tablets, and other devices; and modifying the software and digital devices in your car.
However, the EFF claims that the real consumer protections from copyright abuse are part of the proposed Unlocking Technology Act and similar efforts intended to limit the scope of the DMCA’s Section 1201.
The dancing baby is now free to ‘Go Crazy’
The EFF was also partially delighted and partially disappointed at the result in Lenz v. Universal Music Corp., et al., 2015 U.S. App. LEXIS 16308, the so-called dancing-baby case. The plaintiff uploaded a 29-second video of her baby dancing to Prince’s “Let’s Go Crazy” to YouTube, intending to share it only with friends and family, and the defendant issued a take-down notice.
Daniel Nazer writes in an October 20, 2015, article that the decision requires copyright holders to consider fair use before they issue a take-down order, which is the good news. The bad news is that the copyright holders can be excused for sending false infringement notices if they “subjectively believed that the material they targeted was infringing, no matter how unreasonable that belief.” (Emphasis in the original.)
As Nazer notes, the ruling “creates a perverse incentive for copyright owners to not learn about the law before sending a takedown.” That can’t be good – at least not for us fair users.
Blogger’s use of unflattering photo to ridicule, satirize subject is fair use
In Raanan Katz v. Irina Chevaldina, Case No. 14-14525 (11th Cir., Sept. 17, 2015) (per curiam), a blogger was charged with copyright infringement for using an unflattering photo of a businessman on a blog she created to publicize the businessman’s shady practices. As McDermott Will & Emery’s Ulrika E. Mattsson writes in an October 30, 2015, article on Lexology, the court found the defendant Chevaldina’s use of the photo of plaintiff Katz as transformative under the first of the four factors required for a fair-use exception to copyright protection.
Chevaldina’s use was for a different “function and meaning” than the photo’s original use, according to the court. Also, Chevaldina’s use of the photo was non-commercial, used to educate the public about Katz’s business practices, and no impairment to the value of the photo to the plaintiff because Katz had no interest in publishing the photo. Finally, the use was primarily factual rather than creative, and the photo had been published previously, both of which militated toward a finding of fair use.
So, what’s it all mean? Slowly but surely, copyright law is evolving to keep pace with technology, and the way people use technology, while ensuring that creators’ right to profit from their creations is protected – without infringing on the right of the public to benefit from fair use of new technologies and the creations they make possible.