Fair Use2:Net Changes Law

There Ought to be a Law Series SM

Fair Use And the Internet

In Part 1 we explored the law of Fair use. In this part 2 we examine some of the many cases in which the law is interpreted in the world of the Internet, data exchange and instant, inexpensive publication of downloadable materials worldwide.

There are two major camps of thought on this issue. On one extreme are scientists, researchers, data users and educators who tend to desire almost absolute free use of most materials, especially data. The other end of this spectrum are the owners of data, text, photos, videos, and eventually, more music, film and other entertainment. In between are the most of the rest of us. And until the extremes are happy with the result, it may take a long time until there are truly international rules on what is fair use. This discussion is about U.S.A. Law, which has no "extraterritorial effect" in any other countries.

Under "standard" copyright thinking it is a technical infringement to copy or prepare derivative works of, distribute, sell and in other ways deal in any quantity of another's copyrightable materials without permission. It is well settled that copying lines of text from an Internet source and pasting it onto another site is a "copying." Even temporarily caching materials being sent is a technical "copy" of that file, though not necessarily infringing. Look back at Part 1 to know about the following aspects of the law and see why this has become a fuzzy issue.

The Purpose and Character of the Use: Though One court said, "... the fair use factor[s] of purpose and character of use 'is not an all-or- nothing matter.' (Quoting from the Twin Peaks case, 996 F.2d at 1374.) It requires a more nuanced analysis: it asks whether and to what extent the new work 'adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.'" (Citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).)

A new case of author's rights against database uses of once paper articles, Tasini vs. NY Times (U.S.C.A. 2nd Circ. (NY) #979181, Sept. 1999) deals with the Times agreement with Lexus, a major online database company. The works were republished as electronic data at profit to the Times. The Times attempted to argue out of royalties and infringement, that they were "revisions" under 17 U.S.C. 201(c) which provides, "Contributions to Collective Works.--Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." The court did not agree and held the Times liable for infringement. The case is illustrative of how the copyright law protects wholesale lifting and no matter how recast, the copy is not allowed to be a fair use.

It is always best, if needed, to have written licenses to use other's materials. Fair use is a part of the copyright law that creates categories of works that ought to be allowed to be copied without fear of infringement liability. Like all other things in cyberspace, fair use is changing.

The factors that weigh against fair use include if the use is "commercial," the a measurable effect on the potential market, not educational, newsworthy or for research.

The effect on the potential market is illustrated by the case of Castle Rock vs. Carol Publishing Group (955 F.Supp. 260 (SDNY, 1997). This deals with the famous Seinfeld TV show. The weekly program is a branch of the performing arts. Infringing on this show was a book about the show presenting character's "personalities and lives." Though the producers of the TV show did not print such a book (so it was not in their market), the book spoof was held to be not a fair use despite that fact that its publishers argued it was a "parody," another factor tending toward Fair Use. The book as a text used no actual TV clips and paraphrased quotes from several shows and presented a lot of "quiz" materials. It was a market the TV producers had not even entered into, yet because it was a market (books about Seinfeld) that the TV producers might have gotten into, the book was considered an infringement.

Commercial Use: The U.S. Supreme Court in Sony Corp. v. Universal City Studios, Inc. , 464 U.S. 417, 451 (1984), one the major cases on technology, held that "every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright. ..." and, "Even copying for noncommercial purposes may impair the copyright holder's ability to obtain the rewards that Congress intended him to have."

In Association of America v. Diamond 180 F.3d 1072 (1998) the court amplified the Sony case and emphasized that on the topic of Internet use of music files, "Rio merely makes copies in order to render portable, or "space-shift," those files that already reside on a user's hard drive.... see Sony Corp. of America v. Universal, holding that "time-shifting" of copyrighted television shows with VCR's constitutes fair use under the Copyright Act, and thus is not an infringement.... Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act."

Nature of Use: Scholars: In Harper & Row, Publishers, Inc. v. Nation Enters. , 471 U.S. 539, 562 (1985)the Supreme Court held that, "Fair use distinguishes between a true scholar and a chiseler who infringes a work for Profit.'' In this case, Nation Magazine copied 300 words from President Ford's published memoirs, not found to be "hot news."

Radio Broadcasts on Internet: For example, Infinity Broadcast v Media Technology (Kirkwood) (U.S. 2nd Circuit Court of Appeals (1998) Docket No. 97-7764 ) a NY federal appeals court stated that where Kirkwood had made a telephone rebroadcast for a certain audience market of radio broadcasts, there was no fair use. In a 1999 case, a service gathered stories from the Japanese Nikkei News services, translated them into abstracts for its readers, and again not a fair use (because the stories were used in whole and edited into English) (Nihon Keizai Shimbun V Comline Business U.S.C.A. 2nd Cir Docket No. 98-7842).

News and Adding to the Copy: Fair use may not apply to commercial uses of copyrightable materials unless there is a "productive" or "transformative" use in the sense that the copier is engaged in creating a work of authorship whereby he adds his own original contribution to that which is copied. One court recently held, regarding use of newsworthy film footage, "Although such transformative use is not absolutely necessary for a finding of fair use, ... the more transformative the new work, the less will be the significance of other factors, like commercialism..." (Los Angeles News Service V. Reuters Television International, (1998) 149 F.3d 987).

CONFU And Its Progeny So what next? CONFU is a UN convention that was dedicated to the internationalization of consistent rules on fair use. It is necessitated by the internet and use of a lot of copyright materials online. See http://www.uspto.gov/web/offices/dcom/olia/confu/confurep.htm a Report to the U.S. Congress on the results of CONFU for the U.S., for much more. For now, CONFU has finished and there are many reports on proposed guidelines for different materials, such as multimedia in which classroom uses can be fair use under the proposals. Keep watching this major issue.

That is the law. What OUGHT it to be? What ideas on this do you have?
Comments to: ought@iplegal.com