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internet: Copyright and Fair Use

Learn how to use copyright and stay legal in the K-12 classroom. K-12 WHAT IS LEGAL IN THE SCHOOL CLASSROOM?


2015 YouTube Pays Users' Legal Bills to Defend Fair Use Google has strengthened its stance towards wrongful DMCA notices that serve to intimidate YouTube users. Drawing a symbolic line in the sand, Google says it will cover legal costs associated with defending four videos which all use copyrighted content but are protected under 'fair use' legislation, should they be targeted by rightsholders. Copyrighted movies, TV shows and music when used in certain ways can be legally shown on YouTube, even without copyright holders' permission. Under U.S. law the concept is known as 'fair use' and it enables copyrighted material to be used for purposes including criticism, news reporting, teaching and research.


9/14/15 Judges ruled that copyright holders "must consider the existence of fair use before sending a takedown notification." Universal's view that fair use is essentially an excuse to be brought up after the fact is wrong, they held. UMG's view of fair use solely as an "affirmative defense" is a misnomer. "Fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses," wrote US Circuit Judge Richard Tallman for the majority. In an opinion (PDF) published this morning, the three-judge panel found that Universal Music Group's view of fair use is flawed.

2/26/15 Who's The Fairest Of Them All:
5 Useful Articles ­- Vol. 3 Issue 3
by Parker Higgins & Sarah Jeong @sarahjeong
1. The FU Defense
2. The Next Great Godwin's Law
3. Idiots, Part I
4. Idiots, Part II @Cryptomeorg is claiming that the Oscar-winning documentary Citizenfour is now in the public domain which it isn't.
5. A Tyler-Made Suit

Paul Alan Levy
Public Citizen Litigation Group

1600 - 20th Street, NW Washington, D.C. 20009
(202) 588-1000

November 14, 2013
Judge Denny Chin ruled this morning that Google's program of scanning books into digital form, providing the digital copies to libraries, and making snippets of the digital copies available on its search engine in response to searches to which the snippets are relevant, are protected against copyright litigation by the defense of fair use.
As I argue in this short blog post, the discussion of fair use will be influential for years to come, but even more important is that the case was decided instead of being settled. Too many federal judges these days believe that their job is to encourage parties to settle their disputes instead of “imposing” on the judicial process to decide their cases. But thank goodness that Judge Chin refused to accept the settlement.

Purdue University Fair Use


FL-102, Reviewed June 2012

July 2012 The Obama campaign released a surprisingly effective attack ad: Mitt Romney's dreadful singing of "America The Beautiful" played over stock visuals of empty factories. Romney's counter ad ridiculed Obama's singing of Al Green's Let Stay Together at a campaign stop. Then SONY BMG, the song's intellectual proprietor, issued a copyright claim (take down notice) to kill it. Romney's campaign claims that this is baloney because their deployment of the Obama footage is fair use and they are correct.

Hathi Trust a partnership of academic and research institutions offering a collection of millions of titles digitized from libraries around the world.

"What is a copy?"

That's an issue that the 2nd Circuit struggled with answering in the 2008 "Cablevision" case, where Hollywood studios attempted to shut down a DVR service that allowed users to store TV programming remotely.
In that decision, the justices examined the transitory duration of data buffering and whether works are "fixed" in a tangible medium, and expressed some skepticism with studio arguments about copies being made along the way. But the 2nd Circuit handed Cablevision a win mostly on grounds that its remote DVR was merely acting at the behest of its users.

The Real Goal Of Regulating Buffer Copies? So Hollywood Can Put A Tollbooth On Innovation 2/6/2012
This is about legislating chip designs and software architecture, and the only people allowed in the room are entertainment execs. The future of silicon itself hangs in the balance. The leaked copy of TPP actually says in Article 4, Section 1:
Each Party shall provide that authors, performers, and producers of phonograms have the right to authorize or prohibit all reproductions of their works, performances, and phonograms, in any manner or form, permanent or temporary (including temporary storage in electronic form).
The Trans-Pacific Parntership agreement (TPP) an international agreement was negotiated in absolute secrecy. Once again dissecting the leaked document. Cory Doctorow, over at Boingboing recently highlighted how TPP will seek to regulate buffer copies:

One jaw-dropping leak is that that the treaty contemplates requiring licenses for ephemeral copies made in a computer's buffer. That means that the buffers in your machine could need a separate, negotiated license for every playback of copyrighted works, and buffer designs that the entertainment industry doesn't like -- core technical architectures -- would become legally fraught because they'd require millions of license negotiations or they'd put users in danger of lawsuits.
This isn't the first time that buffer licensing was proposed. Way back in 1995, the Lehman white paper, proposed by Clinton's copyright czar to Al Gore's National Information Infrastructure committee, made the same demand. It was roundly rejected then, because the process was transparent and the people who would be adversely affected by it (that is, everyone) could see and object to it.


What are your Fair Use Rights?

U. S. Copyright Law Title 17 - Section 107 is the section of copyright law that addresses FAIR USE.

Fair Use Limitations: Section 107 of the Copyright Act sets forth the four fair use factors which should be assessed in each instance, based on the particular facts of a given case, to determine whether a use is a "fair use."
The limitations and conditions set forth in these guidelines do not apply to works in the public domain (See Chart for details) - such as U.S. government works or works on which copyright has expired for which there are no copyright restrictions.

Fair Use Limitations: Section 107 of the Copyright Act statute states: use for criticism, comment, news reporting, [education] teaching (including multiple copies for classroom use), scholarship, or research is not an copyright infringement. This is a use of a copyrighted work that is different than educational use. You can reproduce a portion of something for the purpose of analyzing and criticizing this portion, this is also within fair use. It may be fair use for a student to simply incorporate a copyrighted work into a school project for creative or illustrative purpose, when the audience remains the classroom, but it would not be fair use to post that project on a public school site. The public posting would remove the 'educational purpose' protection. However, if a student incorporates a portion of a copyrighted work into a project for the purpose of criticism, then it would meet the standards of fair use to post this either internally or externally. The privilege of fair use does not end when a student leaves the schoolhouse gate. The educational privilege would end at this limit. But the criticism privilege would continue. ~ Nancy Willard

What is Fair Use really?
The fair-use doctrine, allows reproduction of copyrighted works for noncommercial purposes like "criticism, comment, news reporting, teaching, scholarship, or research." But there is the Digital Millennium Copyright Act's "safe harbor" provision, which holds that a Web site is not liable for any infringing material posted on it, as long as the site's operators remove that material when asked to do so by a copyright holder. ( this came from the Viacon vs. Google Youtube suit)


Fair Use

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way authors have expressed themselves. It does not extend to any ideas, systems, or factual information conveyed in a work.

The safest course is to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation. The Copyright Office can neither determine whether a particular use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

FL-102, Reviewed June 2012


New Program Urges Students to Resist the RIAA

The Digital Freedom Campaign believes that the best way to reach college students about the appropriate uses of technology is to engage them, not to prosecute them," a spokesman for the group said in a written statement. "While illegal music downloads continue to be a serious challenge on college campuses, students are the catalysts of the digital age and are far more likely to respect the rights of artists if their digital freedoms are respected as well."

You're not buying music, you're buying a key,” says Larry Kenswil, the president of the eLabs division of the Universal Music Group

EMI Music Launches DRM-Free Superior Sound Quality Downloads Across Its Entire Digital Repertoire 4/1/07

Always Check Current Fair Use Law

Boucher and Doolittle Introduce the FAIR USE Act of 2007

Article 1.
Section. 8.
Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

"There's nothing in the Constitution that "protects" the rights granted under the exclusive rights clause in the sense people usually think of rights protected by a Constitution. "Constitutionally protected Rights" encapsulates this deception. Remember it actually says "The Congress shall have Power . . . " -- which demonstrates that the Rights in question are statutory, not the fundamental rights one might think is being presented, which was settled in the first major Supreme Court copyright case, Wheaton v. Peters. The fact that it's up to Congress to devise what exclusive rights policy will best promote the progress of science and the useful arts, is a bubble many "DRM" proponents would like to burst. The term "DRM" is the same sort of deception."
~ Seth Johnson

"The rights that copyright holders get are *statutory* rights, not constitutional ones; the Constitution merely empowers Congress to define what rights are appropriate, and it's done so in a way that creates a set of rights smaller than the set of powers that current technologies seek to claim for the sellers.
One of the problems with D-"R"-M is that the "rights" it seeks to "protect" usually go well beyond what Congress has legislated -- to a point where they are not rights at all, but just grabby.
Two examples will make this clear.
(1) The Supreme Court has said that we have a right to "time shift" a broadcast -- record it now, play it later. Some DRM systems try to make this impossible.
Calling that "rights" protection is misleading, since what's being stopped isn't part of the right.
(2) The copyright statute gives us all a right of fair use. D-"R"- M that makes any copying impossible isn't illegal -- but it's "protecting" the content in a way that materially exceeds the scope of the right granted by copyright law.
If the average person "knows" something different -- for example "knows" that Copyright comes straight from the Constitution without the mediating institution of Congress whether acting alone or implementing treaties -- then, once again, the average person "knows" something that ain't so
. ~ A. Michael Froomkin

"The technical term Digital Rights Management is about "digital rights" -- as in access rights to digital information. Whether those digital access rights correspond or not to legal rights is an open, local and variably-understood question. It may well be that DRM imposes access restrictions that are not legal in some jurisdictions, while they are legal in others. OTOH, technically, "protection" is not the same as "rights". ~ Ed Gerck


Standard English Language



Standard Technical Language

DRM was coined by those who wish to claim as "rights" some things which are not actually their rights, or are at best contested. In other words, the "R" in the term "DRM" begs an important legal question. I wish people would instead use the term "TPM" (Technological Protection Measures) because at least it is neutral on whether or not those who deploy them have a "right" to do what they're doing in locking up information. And TPM happens to be the term used in the WIPO treaties, too. ~ Peggy Radin

CCIA Fair Use Economy Represents One-Sixth of U.S. GDP

Sep 12, 2007 WASHINGTON D.C. - Fair Use exceptions to U.S. copyright laws are responsible for more than $4.5 trillion in annual revenue for the United States, according to the findings of an unprecedented economic study released today. According to the study commissioned by the Computer and Communications Industry Association (CCIA) and conducted in accordance with a World Intellectual Property Organization methodology, companies benefiting from limitations on copyright-holders' exclusive rights, such as “fair use” - generate substantial revenue, employ millions of workers, and, in 2006, represented one-sixth of total U.S. GDP.
The exhaustive report, released today at a briefing on Capitol Hill, quantifies for the first time ever the critical contributions of fair use to the U.S. economy. The timing proves particularly important as the debates over copyright law in the digital age move increasingly to center stage on Capitol Hill. As the report summarizes, in the past twenty years as digital technology has increased, so too has the importance of fair use. With more than $4.5 trillion in revenue generated by fair use dependent industries in 2006, a 31% increase since 2002, fair use industries are directly responsible for more than 18% of U.S. economic growth and nearly 11 million American jobs. In fact, nearly one out of every eight American jobs is in an industry that benefits from current limitations on copyright.
“As the United States economy becomes increasingly knowledge-based, the concept of fair use can no longer be discussed and legislated in the abstract. It is the very foundation of the digital age and a cornerstone of our economy,” said Ed Black, President and CEO of CCIA. “Much of the unprecedented economic growth of the past ten years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and nonlicensed manner. To stay on the edge of innovation and productivity, we must keep fair use as one of the cornerstones for creativity, innovation and, as today's study indicates, an engine for growth for our country” .

CCIA Releases Copyright Economic Study Showing Value Of Exceptions Jul 12, 2011

How To Register a DMCA Take Down Agent

To Avoid Intellectual property law, and civil liability risk Register a DMCA takedown agent with the U.S. Copyright Office, and enjoy a legal “safe harbor” from copyright lawsuits over third-party posts, such as reader comments. A site has to, among other things, register an official contact point for DMCA takedown notices. If you run a U.S. blog or a community site that accepts user content, you can register a DMCA agent by downloading this form (.pdf) and sending $105 and the form to Copyright RRP, Box 71537, Washington, D.C., 20024

Most users, about 70 per cent share content via email. Most people share between 150 and 200 words of a story, and that falls in the realm of "fair use". Facebook is a distant second and only about 4% use Twitter. We find that people are three times more likely to click on a link they see in an email, versus about 1.4 times on Facebook.

Copyright Cheat Sheet

US Library of Congress: Copyright Is Destroying Historic Audio

(Speech)"Free as Air, Free As Water, Free As Knowledge" 'What is the distinction of fair use and why is it important?b ~ Stewert Brand

A NOBEL AND GREAT TEACHER proves Copyright Owners Exaggerate Their Rights
Wendy Seltzer, a law professor who used to work for the EFF and who founded the awesome Chilling Effects a clearinghouse for providing an archive of various takedown notices, has apparently received her first DMCA take down notice. Seltzer posted a snippet from the Superbowl for her students to see.
The Irony and the Absurdity.
A law professor puts up a short clip for educational purposes (fair use allows both short clips and educational uses of content) for the sake of showing how the NFL exaggerates its copyright control -- and the NFL responds by then sending a DMCA takedown notice to better highlight how they not only exaggerate their claims, but then misuse the law to shut down fair use as well.
The NFL would not intentionally help Seltzer demonstrate how they abuse the law by trying to takedown her example of how of their exaggerated statement which proves Seltzer's point!


Boundless, the textbook alternative company, has released its content under Creative Commons.