Copyright and fair use (2): Agenda Faromet

Tim Faith Recent cases

This is a transcript of the presentation given by Agenda Faromet at the March 1st 2014 SL Bar Association presentation on Copyright and Fair Use.

If you have come to this page first, please read the introductory notes for details on the presentation and its purpose. Links at the foot of this page provide access to the other sections of this transcript.

In this section, Agenda examines the concept of fair use and dispels some common misconceptions and corrects some misunderstandings surrounding it before touching upon DMCA.

AF-002 Copyright-Internet

00:00 OK, thanks, everybody for being here.  so Tim already covered the basics of copyright. I’m not going to go back through that. But i will talk about why we care so much on the Internet. and we care so much on the Internet because the Internet is all about infringement. It’s how the internet works.

00:23  Transmission of content on the Internet. especially in a place like Second Life, in a place like any social media network –  even e-mail: the basics of how e-mail works when you quote somebody’s e-mail, it relies on reproduction, distribution, derivation; all of these things that copyright is giving someone exclusive control over. And so if we didn’t have something like fair use, then we would never be able to function, especially on the Internet. The Internet relies on the document of fair use.

01.01: So there’s a famous article once of someone counting the number of times he infringed copyright in one day, and it was something like 88 times in one day. And if it weren’t for the ability to do so because of fair use, he would have racked-up millions of dollars in statutory copyright damages. Fair use allows us to function in the modern world.

AF-003 Copyright Fair UseSlide

01:26: So let’s talk about fair use. The Ninth Circuit, this past year, said – I’m just going to quote exactly what they said:

The Copyright Act exists “‘to stimulate artistic creativity for the general public good.’” It does so by granting authors a “special reward” in the form of a limited monopoly over their works. However, an overzealous monopolist can use his copyright to stamp out the very creativity that the Act seeks to ignite. To avoid that perverse result, Congress codified the doctrine of fair use.

02:04 [in response to a comment from the audience on the matter of content theft]: Let me pause for a second. Can we talk about theft later? Because that’s not what I’m talking about here. We’re not talking about copybotting and all of that stuff. We’re not talking direct ripping-off [of] people’s items and malicious, wholesale theft. That’s not fair use. We’re going to talk about that later, and we’re going to answer questions in a bit; but that’s totally different. So before we derail, let’s talk about what fair use is, and what some of the differences between fair use and actual infringement are, because that’s what I’m actually about to get into. We need to talk about what fair use is before we can talk about what infringement is.

2:50: So Fair use allows the monopoly that copyright grants, and copyright grants a very powerful monopoly, and without the ability to have the buffer of fair use, things would get unbalanced very quickly.

AF-004 Fair Use Facotrs

03:06: So Tim talked about the four fair use factors. I’m going to go through them in a little bit more detail, just because I’m about to talk about some of the confusion that crops-up around them. So there are four factors that a court will look at when asking whether or not something is fair use.

03:23: They’re going to ask about the purpose and the character of the use, and that looks at things like is the use of a commercial nature or is it for non-profit or educational purposes?  What they’re looking for is whether the use has supplanted the original, has it replaced the original on the market, or whether it has transformed the original into an entirely new work. So the more transformative the new work is, the less significant the other factors will be – and we’re going to see that more and more, sort-of. This is a big deal in some of the upcoming cases that Tim and I are going to talk about in a minute.

04:02: So the second thing that people ask about is the nature of the copyrighted work, and this is usually a less important factor, but it counts. so courts recognise that some works are more deserving of strong copyright protection than others. So they recognise a greater need to disseminate some works, like news. News should be disseminated more and more. So a bare, factual compilation is not as deserving of strong copyright creation as a purely creative work. Purely creative works get more copyright protection.

04:41: So the third thing that courts look at is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. They look at what was used compared with the original, and they ask whether the use was more than necessary. But sometimes it may be necessary to use the entire original work. And as we’re about to see in Cariou, this factor is certainly in flux.

05:08: Finally, courts consider the effect of the use on the market for, or the value of, the copyrighted work. Courts don’t consider the particular use in question, but whether all such uses, if they were widespread and unrestricted, would have an adverse effect on the market for the original, or for derivative works of the original or for licensed works of the original. so that’s certainly something to consider, and i think this is becoming more and more important.

AF-005 Misconceptions-1

05:39: So let’s talk about misconceptions., things that people may assume about fir use but might not be quite the case. People will look at something and say, “Oh, this is obviously fair use. This is obviously something that is OK.” There is no such thing as a “definite” case of fair use; even lawyers will sit here and argue about it. Fair use is always determined on a case-by-case basis, there is no white line. What one person thinks is fair might not be fair to another person.  Usually the person who created the original work doesn’t think it’s very fair at all. And if the person claiming fair use and the person owning the original don’t agree on whether the use is fair, the only person who can decide is a judge, and that gets expensive. So there’s not “obvious” fair use.

06:28: People may assume that if they change it, it’s fair use. People will say, “Oh, if you just make a couple of changes, it’s going to be fair.” That’s not necessarily true, because usually those changes will create a derivative work, which as Tim went over, that is one of the exclusive rights. Only the author gets to make derivative works. So only J.K. Rowling had the right to make the Harry Potter books into movies, those are derivative works. So in a Second Life context, the creator of a mesh shirt is the only person that gets to sell that shirt with different textures or different sizes. So you don’t get to just take something and change it, you have to make it into your own work.

AF-006 Misconcpetions-2

07:13: So what about transformative use? Isn’t that automatically fair use? So people automatically assume that if a use is transformative, it automatically qualifies for fair use; and that’s not the case. Courts will ask whether the use as transformed the original into a new work, and that question is pretty significant, because if the transformation is thorough enough, the goal of copyright is furthered without the market for the original being impacted. But it’s really hard to determined whether a use is transformative or whether it’s just derivative. And only a judge can make that decision. and as we’re going to discuss, the question od what is transformative use is really a major issue in copyright law these days. And how much you have to change something before it’s transformative or not is a huge question, and people disagree, and that’s really in flux. We’re going to see that it might just be that you have to put it in a different context, or tell a really good story.

08:24: So, if I see something that’s on the Internet, then I can use it, it’s totally fair. And that’s not true. The internet is a rich source of material and a source of inspiration, but most of the stuff on the Internet is protected by copyright, and I think most of the people who are here will agree with me on that. There is content on the Internet that is not protected by copyright, such as material in the public domain, or material that the author has intentionally placed out for free.

08:58: But just because something is widely accessible to the public doesn’t mean that it is in the public domain. Yes, Creative Commons licensing makes a lot of work available for free, but it is still licensed, and you have to comply with those licenses.

AF-007 Misconceptions-3

09:13: So if I use just a little bit of the original, there’s a specific amount I can use, if I use 10 seconds of a movie clip, that’s fair use. If I use just a few words out of a book, then that’s fair use. Nope. There’s no exact amount or exact percentage of an original that you can or cannot use fairly. The distinction between fair use and infringement is not clear, it’s not easily defined, there’s not a specific number of lines or words or notes that can be safely taken or used without permission. Courts repeatedly stress that reproduction of an entire work may still be fair use; on the other hand, reproduction of only a few words may not be fair use. It really depends on what those words are.

10:07 [in response to an audience comment]: Dictionaries are a different issue. Dictionaries are facts. You can’t copyright the dictionary because it is facts. Facts are not copyrightable.

10:18: So next. “I’m not making any money off of it, it’s not a commercial use, so therefore it’s a fair use.” How many times do we here that? I hear it weekly, and it drives me up the wall. Whether the use  is for a commercial purpose is not even one of the four factors. It is part of one of the four factors, so it’s not that important. The questions is: what are you doing, what is the purpose of your use? and if you think about it, if you’re in second Life, and you’re selling goods, you’re selling clothes, you’re selling skins, you’re selling hair. If a new store opened-up right next to yours, giving away free, full-perm versions of all of your goods, that’s not for a commercial purpose; they’re not making any money off of it, [but] they are destroying the market for your goods, and so it has a huge effect on the market. And so it’s not that they’re not making any money off of it, it’s the effect on the market, and it still has a commercial purpose; it’s destroying you. So that’s what courts look at.

11:32: Next: if I credit the original author, it’s fair use. It doesn’t matter if you credit the original author; just sticking the “copyright by blah”, doesn’t make something fair use. It is the use itself that determines whether or not the use is fair, not whether or not the original work is credited. However, we talked about Creative Commons licensing, and sometimes part of their licence says all you have to do is credit the original author and then you’re good to go. So, comply with that, you’re fine.

AF-008 Misconceptions-4

12:06:  I’m doing criticism, so it’s fair use. OK, maybe. you’re getting closer here. There are certain categories that are likely to be found fair, so criticism, comment, news reporting, teaching, scholarship, research. Criticism can take many forms [such as] parody or satire. Parody is more likely to be found fair use, but satire might not be; and the reason is that they are two different things.

12:36: Parody is a work that ridicules another work, usually a well-known work by imitating it in a comic way. So parody needs to mimic the original work in order to make its point.

12:49: Satire mimics or makes fun of something about human vices, and so it doesn’t need to use a copyrighted work in order to make its point. You can make satire out of anything.

13:02: So now that we’ve got a good baseline, all of that is the same all over the world? No. Fair use is what it is in the United States. If you’re in another country, you need to check that country’s copyright laws or you might be in Australia, and they might have done something completely different and thrown it all out the window.

AF-009 Fair Use-Internet

13:25: So we’ve talked about why the Internet requires the function of fair use. What I will mention is the DMCA, which I imagine a lot of you are familiar with. And with the DMCA, two years ago, a case held that under the DMCA, a copyright holder must consider likely claims of fair use prior to requesting a take-down notice.

AF-010 Fair Use-DMCA

This is the Lenz case, I don’t know if you’re familiar with it, but Stephanie Lenz posted a video on YouTube of her baby dancing to Lets Go Crazy by Prince; it was just a little clip of Let’s Go Crazy.

The video in question in Lenz v Universal (2007)

Universal Music issued a take-down notice, and did so with a sort-of blanket … they issue take-down notices all the time, they didn’t even look at the video. and Lenz sued, pointing out the DMCA requires that Universal have a good faith belief that they were entitled to a take-down. But they didn’t even look at the video, they didn’t think about whether or not that video was fair. And since they didn’t consider fair use, they didn’t meet that standard, and the court agreed. So if you’re making DMCA take-downs, you have to consider fair use.

14:42: And now I’ll sort-of back-up and we’ll talk about infringement, real infringement, that a lot of Second Life content creators suffer. where people are doing nothing bur flat-out reproducing content on Second Life. Where they’re copybotting, they’re using automatic means to reproduce goods, and that’s not going to be fair. That’s going to be – and again, there’s no white line for fair use, but when you’re taking something that a person is selling, and you’re making an exact reproduction of it and then you’re selling it; that doesn’t meet any of the four factors. And so issuing a DMCA take-down, you could go ahead with that and you wouldn’t have to make a fair use consideration there. It’s counterfeiting, it is Second Life’s version of counterfeiting.

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