“Fair Use” – Copyright in Cyberspace Adapted by Jack Davis from “Cyberspace Law for Non-Lawyers” Larry Lessig, David Post, Eugene Volokh ©1999 – Social Science Electronic Publishing, Inc. Permission granted to use for educational purposes to Joe Radford University, 1997.

Copyright In Cyberspace - You buy a piece of software and it to 5 friends - You download an article from a newspaper’s Web page and post it on your web page - You take a post from one news group and forward it to another news group. - You respond to someone’s discussion list post, and quote part of his post in yours.

Copyright Law Each of the preceding examples implicates copyright law. (for each one there’s a possible violation of the law) Each of the preceding examples implicates copyright law. (for each one there’s a possible violation of the law) Copyright law usually: - gives a copyright owner the exclusive right to control copying, - of a writing (or recording or picture or electronic transcription). Copyright law usually: - gives a copyright owner the exclusive right to control copying, - of a writing (or recording or picture or electronic transcription).

Warning!!! Copyright law can be maddeningly vague, and copyright law online is doubly vague. Copyright law can be maddeningly vague, and copyright law online is doubly vague. It’s very uncertain in some areas. It’s very uncertain in some areas. Under these circumstances, it’s better that we understand the possible implications. Under these circumstances, it’s better that we understand the possible implications.

How do we obtain a copyright? You have it the moment it’s written!!!! - You don’t have to send it to the Library of Congress. - You don’t have to put a notice on it. You have it the moment it’s written!!!! - You don’t have to send it to the Library of Congress. - You don’t have to put a notice on it. Two limitations: - Extremely short writings - if you copy what someone else has done, your work is not copyrighted Two limitations: - Extremely short writings - if you copy what someone else has done, your work is not copyrighted

Electronic Copying Can Infringe A Copyright download an article and forward to a news group – could be an infringement download an article and forward to a news group – could be an infringement someone saves your in an archive – could be an infringement someone saves your in an archive – could be an infringement you quote someone’s newsgroup post in your response – could be an infringement you quote someone’s newsgroup post in your response – could be an infringement

An Infringement If a work is copyrighted and - (almost everything is) If a work is copyrighted and - (almost everything is) If you make a copy and If you make a copy and you weren’t specifically authorized to do so then you weren’t specifically authorized to do so then you’ve violated the copyright law you’ve violated the copyright law

Copies could be legal if: because they are explicitly allowed - the copyright owner grants permission because they are explicitly allowed - the copyright owner grants permission because they are “Fair Uses” or because they are “Fair Uses” or because they are allowed by “Implied Licenses” because they are allowed by “Implied Licenses”

Copying Includes It covers copies of “Less Than the Whole” thing It covers copies of “Less Than the Whole” thing It covers paraphrases, so long as they are close enough. If you translate an article into another language or make a movie based on a book that’s close enough. It covers paraphrases, so long as they are close enough. If you translate an article into another language or make a movie based on a book that’s close enough. It covers “Manual or Mechanical” copies It covers “Manual or Mechanical” copies It covers personal copying as well as business copying It covers personal copying as well as business copying

It’s OK to Copy Facts and Ideas Copying “FACTS” from someone’s else’s work isn’t considered copying. If a physicist discovers a new law of nature, or a historian uncovers some new facts about the past, everyone is free to copy this information. This is true even if they’ve put years of effort into their discoveries. But, copying the “words” someone uses to express facts or the “selection” or arrangement still isn’t allowed.

It’s OK to Copy Facts and Ideas Copying an “IDEA” from someone else’s work isn’t considered copying for copyright purposes (though it some situations it could be a violation of patent law). So, even if you’re the first person to think of writing a script for TV for crime scene investigators, everyone is free to copy this idea. People aren’t free to copy the words you use to express this idea.

An Owner’s Conduct May Create an “Implied License” that allows copying You post and I quote your message. Probably not a violation, your posting of the message to a bulletin board almost certainly gives others an “implied license”. You post and I quote your message. Probably not a violation, your posting of the message to a bulletin board almost certainly gives others an “implied license”. However, you send a personal message to one person, reasonable people would generally not assume that the author is allowing the recipient to forward the message. However, you send a personal message to one person, reasonable people would generally not assume that the author is allowing the recipient to forward the message.

An Owner’s Conduct May Create an “Implied License” that allows copying Someone sends a message to a discussion list. It’s not clear whether reasonable people would assume that they are allowed to forward it to other lists. A lot might depend on the list’s customs and whether it’s open to the public. Someone sends a message to a discussion list. It’s not clear whether reasonable people would assume that they are allowed to forward it to other lists. A lot might depend on the list’s customs and whether it’s open to the public. It should be clear that this is a VERY mushy test. Implied licenses can be revoked by the owner, just by saying so in a way that potential copiers will see. It should be clear that this is a VERY mushy test. Implied licenses can be revoked by the owner, just by saying so in a way that potential copiers will see.

“Fair Use” Copies The “fair use doctrine” asks several questions – 1) Is your use noncommercial? 2) Is your use for purposes of criticism, comment, parody, news reporting, teaching, scholarship, or research? 3) Is the original work mostly fact (as opposed to mostly fiction or opinion)? The “fair use doctrine” asks several questions – 1) Is your use noncommercial? 2) Is your use for purposes of criticism, comment, parody, news reporting, teaching, scholarship, or research? 3) Is the original work mostly fact (as opposed to mostly fiction or opinion)?

“Fair Use” Copies (Cont.) 4) Has the original work been published (as opposed to only sent to a few people)? 5) Are you copying only a small part of the original? 6) Are you copying only a relatively insignificant part of the work? 7) Are you adding a lot new to the work? 8) Does your conduct leave unaffected any profits the copyright owner can make?

“Fair Use” Conclusions The more YES answers there are to the above questions, the more likely it is that your use is legal. The more NO answers that there are the more likely that its illegal. The more YES answers there are to the above questions, the more likely it is that your use is legal. The more NO answers that there are the more likely that its illegal. However, it’s murky water, so whenever possible get permission. There are no guarantees. However, it’s murky water, so whenever possible get permission. There are no guarantees.

“Fair Use” – Rules of Thumb If you’re copying only a LITTLE BIT – for text, this generally means no more than a couple of paragraphs here or there, but it could be less if you’re copying from a work that’s already quite short – your use is probably FAIR. If you’re copying only a LITTLE BIT – for text, this generally means no more than a couple of paragraphs here or there, but it could be less if you’re copying from a work that’s already quite short – your use is probably FAIR.

“Fair Use” – Rules of Thumb If you’re copying more than a little bit, but you’re doing it for (a) Systematic News Reporting, (b) Critical Commentary, or (c) Parody, your use is probably FAIR. If you’re copying more than a little bit, but you’re doing it for (a) Systematic News Reporting, (b) Critical Commentary, or (c) Parody, your use is probably FAIR. If you’re copying unpublished work – that the copyright owner hasn’t displayed to all comers – then your use is probably NOT FAIR. If you’re copying unpublished work – that the copyright owner hasn’t displayed to all comers – then your use is probably NOT FAIR. Personal – You may get away with it but in most cases, probably not. Personal – You may get away with it but in most cases, probably not.

“Fair Use” – Rules of Thumb Outside the area covered by the first three rules, there are two more: Outside the area covered by the first three rules, there are two more: Commercial copying is generally UNFAIR. (This just means the copier is making money.) Commercial copying is generally UNFAIR. (This just means the copier is making money.) NONCOMMERCIAL copying is generally fair UNLESS the text you’re copying is available for sale. NONCOMMERCIAL copying is generally fair UNLESS the text you’re copying is available for sale.

“Fair Use” Examples You get a personal message and you pass it on to one other person. PROBABLY UNFAIR You get a personal message and you pass it on to one other person. PROBABLY UNFAIR You download an article from a newspaper’s web site and post it to a news group. PROBABLY UNFAIR You download an article from a newspaper’s web site and post it to a news group. PROBABLY UNFAIR You key in an article from a paper or magazine that doesn’t have a web site and post it. PROBABLY UNFAIR You key in an article from a paper or magazine that doesn’t have a web site and post it. PROBABLY UNFAIR

“Fair Use” Examples You forward someone’s message from one publicly accessible news group to another news group. PROBABLY FAIR You forward someone’s message from one publicly accessible news group to another news group. PROBABLY FAIR You quote a few sentences from a new article that you downloaded. PROBABLY FAIR You quote a few sentences from a new article that you downloaded. PROBABLY FAIR You copy code from a text book to use for your business web site. PROBABLY UNFAIR You copy code from a text book to use for your business web site. PROBABLY UNFAIR Case study Case studyCase studyCase study

Liability of Service Providers Say you post a copy of WordPerfect on an America Online bulletin board. You’re obviously infringing – you’ve made a copy of someone else’s copyrighted work, and you almost certainly don’t have a good defense. Say you post a copy of WordPerfect on an America Online bulletin board. You’re obviously infringing – you’ve made a copy of someone else’s copyrighted work, and you almost certainly don’t have a good defense. What about AOL? Copyright infringement has been a “strict liability” offense – you’re liable even if you didn’t know. What about AOL? Copyright infringement has been a “strict liability” offense – you’re liable even if you didn’t know.

Liability of Service Providers Suits have been won against providers in these kinds of situations. Suits have been won against providers in these kinds of situations. However, a new case held that the service provider wasn’t doing the “copying”. Its computer is making the copy based on the “users” instructions. So, in this case only the user that issued the instructions was held liable. So, a service provider is only liable if it’s a “contributory infringer”. However, a new case held that the service provider wasn’t doing the “copying”. Its computer is making the copy based on the “users” instructions. So, in this case only the user that issued the instructions was held liable. So, a service provider is only liable if it’s a “contributory infringer”.

Liability of Service Providers Now service providers are “contributory infringers” if – Now service providers are “contributory infringers” if – - it knew of the infringement, - or had reason to know of the infringement, - the service provider must take reasonable steps to determine whether the post is actually an infringement, once notified. It doesn’t have a responsibility to look for infringements.

Summary Be careful!!! Be careful!!! if what your about to copy hurts someone through loss of income or invasion of privacy or any other “reasonable” way, think very carefully before you copy. if what your about to copy hurts someone through loss of income or invasion of privacy or any other “reasonable” way, think very carefully before you copy. There are lots of cases currently pending concerning copyright violations, some involve criminal prosecutions. There are lots of cases currently pending concerning copyright violations, some involve criminal prosecutions.