Know Your Rights: How does fair use work?

Know Your Rights is Engadget's new technology law series, written by our own totally punk copyright attorney Nilay Patel. In it we'll try to answer some fundamental tech-law questions to help you stay out of trouble in this brave new world. Disclaimer: Although this post was written by an attorney, it is not meant as legal advice or analysis and should not be taken as such.


Why're you doing a KYR on fair use? It's all right there in the name, isn't it?

If only it were that simple. Like so many other legal terms, the hardest thing about understanding fair use isn't how it works, but rather that it has such an appealingly simple name -- one that seems to invite a lot of off-the-cuff interpretation.

Well, that's stupid. Why not just make it simple?

Because then lawyers would be out of their jobs, obviously.

That can't be the reason.

Yes, but it's much funnier than the real one.

Try me.

Well, even though it occasionally seems like it, judges and juries don't just get to do things as they see fit -- they have at least try and build upon the foundation of the existing law. Law works a lot like code in that way -- there's a reason it's called the United States Code. So the words "fair use" are really just a pointer to a specific section of the Copyright Act and the case law that's developed around it. While that might seem needlessly complicated, it means that the legal system is at least trying to enforce a consistent, rational definition of a word like "fair," which means different things to different people.

That's great, but what does that have to do with me? I just want to post photos on my blog, or rip CDs.

Well, although there are certain specific things, like criticism, parody, and teaching, that are specifically protected as fair use, it's not a blanket protection against copyright infringement actions -- courts evaluate fair use on a case-by-case basis. So even though you may think that your sweet parody of "Gimme More" is covered by fair use, you can't just ignore a letter from Britney's lawyers -- you have to show how your specific use was fair under the rules.

So what are the rules?

It's a little more complicated than this, but there are four basic things people talk about when deciding if a use is "fair":

• The "purpose and character" of the use: Are you straight-up selling photos you found on Flickr? Or are you just reposting them and commenting on them?
• The nature of the original work: Are you just reciting facts from a non-fiction book? Or are you posting all the CGI scenes from Transformers?
  
• The "amount and substantiality" of the original work you're using: Are you taking the whole photo? The most important part of the book? Or just quoting a from a scene?
  
• The effect on the market value of the original work: Is your use killing the value of the original? How so, and how much?
  

That seems complicated, but understandable.

Ah, but remember, law is code -- each of those four rules is a pointer to decades of case law teasing out exactly what does and doesn't cross the line, and how the rules work together. Just mentioning that you think your use falls under these rules doesn't mean that your use is fair.

So how am I supposed to know what's fair and what's not?

Well, just keep it simple, think about the rules, and use your common sense. Are you reviewing something? You're probably fine to use a small piece of whatever you're reviewing, but not the whole thing. Are you making a parody? You can probably use as much of the original as it takes to establish what you're doing. On the other hand, just lifting other people's photos for your blog and claiming your use is fair just because you provided attribution probably isn't going to pass muster.

I thought you said you couldn't just figure it out from the words "fair use."

Um.

Freakin' lawyers.

Like I said, we've got to stay in business somehow -- and showing fair use in a court setting is a lot different than just screaming "FAIR USE!!!!!!1111" on a message board. But in the end, copyright law and fair use aren't any different than all the other laws that impact your life: if you're respectful of other people's works and aware of the rules, chances are you're going to be fine.

Sweet. Can I repost this whole thing on my blog?

Only in rap parody form -- anything else gets the hammer.

Want to know more? Check out these two great guides to fair use on the web:

Read -- Stanford's excellent fair use site
Read -- The Fair Use Network

[Luke @ Sep 21st 2007 8:12PM]

Great new segment. I like it.

[RyanTV @ Sep 21st 2007 10:24PM]

Yah, these are extremely informative, much more entertaining, and even better written than those GOD AWFUL "Switched On" by Ross Rubin articles that we have to endure. Jesus Christ, I've seen more creativity come out of a 9th grade creative writing class than from that guy.

[Rod Munch @ Sep 21st 2007 8:33PM]

Seems fair enough. Now then back to uploading DVD rips of 24 onto my pay-4-play website!

[Brian @ Sep 21st 2007 8:33PM]

I like it. :)

Thank you.

[strider_mt2k @ Sep 21st 2007 8:38PM]

Good stuff!

I think I saw a piece on Boing Boing where someone actually explained fair use through the use of snippets from various Disney movies.

Either way, good stuff!

[The Monitor @ Sep 21st 2007 8:41PM]

http://youtube.com/watch?v=CJn_jC4FNDo

[Luigi193 @ Sep 21st 2007 9:03PM]

I look forward to this posts!!! Great job Nilay!!!

[John @ Sep 21st 2007 9:15PM]

I think you should have emphasized the most important aspect of "fair use" - it is a legal concept ruled on a case-by-case basis, and thus it is more likely than not that if you are told to take down something that you feel is 'fair use', you will have to go to court to overturn the ruling. Like the DMCA, you are wrong until you can prove you're right, and it's a huge hassle to prove that you are right, no matter how obvious it is to you, and just trying to prove you're right to the company will get you nowhere unless you can make a case so blatantly obvious that you can get attention from other people.

[JLH @ Oct 22nd 2007 9:20PM]

A significant debate is underway in the courts, the Congress and federal regulatory agencies regarding decisions that are being made within the electronics, content and computer industries - about how to best protect copyrighted material in a digital world. Right now the internet is not safe for users to view or download files without potentially infringing on copyrights and suffering large fines, penalties or even worse.

An ever-increasing number of unlicensed downloads are taking place in private homes all over the world. According to recent data, over twelve million people are simultaneously sharing 1.08 billion music, movie, and software files on the Internet at any given moment.

Imagine a person or child sitting down in front of a Television with a remote and selecting a few dozen channels or video on demand selections and finding out later that they have committed copyright infringement and are being asked to pay several hundred thousand dollars in fines. What makes this even worse is there is really no way to determine if a certain piece of content is appropriate for use, copyrighted or not, until the damage is already done.

A typical internet user does not build the internet applications, program the search engines, or manage the internet networks that they use. More could be done with these key elements of the internet to insure that standards are set that provide a higher degree of safety from copyright infringement or exposure to inappropriate content. We live in a society that requires people to wear seat belts; Why?, because they provide an additional layer of protection from unnecessary injury.

A national copyright and rating database could serve as a seat belt for the internet to protect users from injury as well. Copyrighted materiel could be registered along with an associated audience rating of the content allowing internet applications, search engines and network operators to establish national standards for digital rights management.
Now is the time for us all to work together to provide a level of protection from unnecessary injury and make the internet safe again for average citizens in their homes.

Thank you for your leadership in this important social and technological issue.

[Daryl Herbert @ Sep 21st 2007 11:24PM]

Link to "Stanford's excellent fair use site":
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html

[Brian @ Sep 22nd 2007 12:01AM]

rap parody - reference to 2 live crew?

[Hollywood Ron @ Sep 22nd 2007 10:43AM]

Word to your mother.

[Fred @ Sep 22nd 2007 12:27AM]

Great segment, and you obviously know your audience, but I have one big question about "Fair Use" that this doesn't address at all. Doesn't the whole "Fair Use" concept also include some right to use legally purchased media "privately" in any manner I choose (i.e. not publicly) -- rights which the DMCA directly conflicts with?
For example: "back ups" -- as long as I don't give all my friends copies of these "back ups", they are for the purpose of protecting my personal media, but the DMCA often prevents me from making even private copies. Also, private exhibition of the media is allowed, but I can't sell tickets to the show, because that makes it no longer "private" (no matter how exclusive). Even for private showings, I often can't play it on multiple monitors in different rooms simultaneously, because the DMCA and related DRM restrictions prohibit me from using the technologies necessary for this type of viewing. I also can't put the media on a private web site, that can only be accessed by friends, even though I could easily go out to Time Square and raise a PMP playing the same media over my head, for every stranger there to see, because the first is obviously more "public" than the second??

[Nilay Patel @ Sep 22nd 2007 2:23AM]

It's a complicated issue, but basically the Supreme Court has ruled that specific activitie are fair use, by relying on the "market" factor: for example, since taping a show that's broadcast freely over the air doesn't really cause any damages to the market for television shows, timeshifting was ruled fair use. That's the crux of the famous Betamax case. Of course this was decided in 1984, before 1TB DVRs were even dreamed of, but that's the factor that comes up most often when private, non-commercial uses are analyzed in a fair use context.

[//austin @ Sep 22nd 2007 3:10AM]

The DMCA prevents the distribution or providing of tools to circumvent copyright controls (17 U.S.C. s1201(b)(1)). However, using any of those tools, provided they result in fair use, is not a violation of the DMCA (17 U.S.C. s1201(c)(1)).

What is fair use? Any time you deny the copyright holder the ability to profit from their contribution will NOT be fair use, within the realm of reason. If you purchase a CD, you can not reasonably ask everyone else in your house to wear earplugs as you listen to it. However, if you distribute copies to your friends, they will not purchase the CD, which denies the artist the income from that sale.


Mr. Patel, engadget;
I'd like to see a brief article on licensing and IP. From what I've seen, the most confusing thing for people is that you don't actually "buy" the song, you're only purchasing certain rights from the copyright holder. Once there, most people understand that you can not give away rights that you don't have.

[triky @ Sep 22nd 2007 12:45AM]

As alluded to my another poster, your "totally punk copyright attorney" might have mentioned that if the content owner disagrees with the "fair use" then it will be resolved in a federal lawsuit with most intellectual property litigators charging between $250 and $500 per hour and up depending on the market. And "fair use" is an affirmative defense and defendant relying on it has the burden of proof. So one best be sure it's a "fair use."

[Nilay Patel @ Sep 22nd 2007 2:05AM]

The case-by-case nature of fair use is explicitly dealt with in the post, I'm not sure to what you're taking exception.

As for your other point, there really isn't any other way for a claim of fair use to work. Fair use is defined as being an exception to the copyright of the author, so if someone says "You're infringing my copyrights!" you can say, "Nope! fair use!" and then show how the use is fair. The other alternative -- a presumption of fair use to be overcome by some showing by the copyright holder -- suffers from exactly the same problems in reverse, only the people getting shafted by legal fees would be small and independent authors. Since the purpose of copyright is to encourage creation, our system tends to skew such costs away from authors to create additional incentive. How else would you propose things work?

[JJ122 @ Sep 22nd 2007 2:35PM]

Is it just me or does anyone else think that it should be "prove me guilty" instead of "I have to prove me inocent"? and really I have never heard(sp) of a copyright holder that was small, being a person or company that makes less then say 5 mill. off of copyrights, sueing people it seems like its only the RIAA and the MPAA that sue people.

[triky @ Sep 22nd 2007 4:13PM]

"The case-by-case nature of fair use is explicitly dealt with in the post, I'm not sure to what you're taking exception."

I'm not taking exception, I'm pointing out the PRACTICAL result of the "case-by-case nature". It's EXPENSIVE to defend an action in a fed. district court. And certain plaintiffs will rely on this to take action against a defendant who could probably win, if they could pay to defend the action.

"As for your other point, there really isn't any other way for a claim of fair use to work."

Your phrasing "a CLAIM of fair use to work" avoids the issue. Section 106 says "Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights". This clear LIMITATION on copyright law could reasonably be interpreted as a right which content owner/plaintiff must overcome to make out a prima facie case of infringement. I did not say that is how it works. I'm merely responding to the ludicrous notion that it could not be any other way other then burden on defendant to prove.

Regards.

[p-diddy @ Sep 24th 2007 1:56PM]

Triky, I'm not following your point. Even though the defendant has to affirmatively prove his use is fair use, the plaintiff still has to prove the infringement in the first place. If the plaintiff can't prove that the defendant infringed his copyright, then the affirmative defense is not necessary. Therefore, the defendant is still "innocent until proven guilty."

[pedrombracho @ Sep 22nd 2007 2:21AM]

you should put more often this segment... something like two times per week .. or three.. i dunno but is a great segment, people like it, is fresh and interesting, so.. think about it.. although i'm in a diferent country (venezuela) andi bet none of this laws are the same one on my country.. we have a dictator here.. :S he's the law and if you don't like it you can go :S and the same law today could be diferent tomorrow, just because his mood.. damm you chavez.. shame on you

[Ravi @ Sep 22nd 2007 11:38AM]

Nilay, I'd love if you could clarify one item that I havent found when searching:

Are you allowed to use Creative Commons photos that do not allow commercial use (as so many on Flickr are copyrighted) on blogs that have Adsense?

I see so many blogs that do this, but I have to assume that it's a legal gray area. I'd greatly appreciate if you could explain this.

[AndiN @ Sep 24th 2007 2:02PM]

That's because, as mentioned before, legal action is expensive -- whether you're the defendant or the plaintiff. Most small and independent copyright holders can't afford to do much more than ask the infringer to stop.

And the DMCA actually skews things toward a "prove me guilty" situation, since it enables people to upload or post things that violate copyright UNTIL they are asked by the copyright holder to take it down, rather than requiring them first to certify that they have permission to post the work. So the onus is placed on the copyright holders to scour the web looking for people who are stealing their work -- time better spent, IMO, creating new content for us to enjoy.

[fred @ Sep 22nd 2007 2:52PM]

In addition's to Stanford's fair use site, the Fair Use Network is another fantastic set of resources on fair use, brought to you by NYU Law's Brennan Center for Justice.

[BB @ Sep 23rd 2007 11:19PM]

Great series. I would love to see some examples that are more common than iPhone stuff - e.g. copying music for many home/auto/mobile devices, use by multiple family members, making backups of CDs/DVDs so our originals don't get hosed, etc (I'd never keep an original CD in a hot car!).

It'd also be great to see a point/counterpoint - e.g. here's what the EFF has to say, here's what the RIAA has to say. Maybe even what the Copyright office has to say.

[tmac @ Sep 25th 2007 12:03AM]

Is there some kind of time limit? Say I wanted to use music or parts of a movie in a film I was making, and it's kind of parody, but not black and white. At what point (how many years, if any) does something like that become public domain that is more available. From what I understand, it works that way with patents. Does the same concept apply?

[M-CAT @ Oct 30th 2007 7:34PM]

If I wanted to use a recording of my favorite song behind a picture slideshow of my wedding for the free distribution to friends and family, would that qualify under fair use?

[horsenbuggy @ Dec 4th 2007 4:44PM]

"On the other hand, just lifting other people's photos for your blog and claiming your use is fair just because you provided attribution probably isn't going to pass muster."

This is such an important point. There are a ton of blogs that do nothing except post (through tags) copies of other people's photos. They don't check the copyright of the photo.

I found one today that had two disclaimers posted to acknowledge that "these photos don't belong to the blog owner." But there was one of my photos, posted along with the description that I entered on Flickr. I continue to be shocked at how misguided people are. This guy didn't even ask if he could use my "All rights reserved" photo on his blog.

I gave him a piece of my mind, but I know he's not going to stop. He's going to continue to steal photos and none of the other photographers will know about it.

By the way, I have an RSS feed of a Google search for links back to my Flickr stream. It helps me catch this kind of stuff when people link directly to my images. But it doesn't help when people just right click save as and host the image on their own site.