The Limitations of Fair Use

Filed as Features on February 18, 2008 9:31 am

When it comes to matters of copyright, many bloggers are simply asking for trouble and don’t realize that they are doing so.

They take images and put them in their entries without a thought to where they got them, they take articles, in whole or large part, without a thought to who wrote wrote it and tell themselves that their copying of the content is protected by fair use.

This type of behavior is not only very risky, but also shows a lack of understanding of what fair use is, how it works and what it was designed to protect. This causes many bloggers, especially new ones, to put themselves in risk that they never would have otherwise.

To make fair use work, it is important that we not only understand what it protects, but also what the limitations of it are and understand both the actions it doesn’t protect as well as the headaches it can’t prevent.


The Very Basics

In a previous article on this site, I wrote about the basics of fair use and the four factors for determining whether a use was likely to be considered fair or an infringement.

However, for the purpose of this article, it is important to note that fair use is not a right of the user, but rather, a limitation on the rights of the copyright holder. It allows limited, unauthorized copying of a work in certain situations. This means that fair use is not a right that you have, but rather, a defense that is available to you in the face of an alleged infringement.

The intent of fair use is to prevent copyright law from being used to stifle free speech. It favors limited copying of works for use in commentary, criticism, education and parody. It does not favor large-scale verbatim copying, especially for commercial, non-transformative use.

As such, despite the tendency of some on the Web to believe that virtually all copying, especially attributed copying, is fair use, only a small amount is. The types of uses that are considered fair are actually very narrow in scope.

Worse still, there is no magic formula for considering what is and is not fair use. Though some talk about a ten percent rule or a x-seconds rule, fair use is decided on a case-by-case basis by weighing the facts of the case. What is considered “fair” in one case by one judge could be ruled an infringement in another.

In short, fair use is a narrow, vague and misunderstood limitation of one’s copyright. Some have gone so far as to call it have described it as “the most abused concept in copyright law” and it is clear that much of the time someone claims fair use when copying a work, they are, at best, in a gray area.

However, the legal ambiguities are not the only reason to avoid leaning heavily on fair use. Even when a use is as “fair” as possible, there are problems that could come back to haunt bloggers.

A Date in Court

Perhaps the greatest limitation to fair use is that, since it is not a right you have, but a defense against a claim of infringement, the only way to establish your claim definitively is in court.

This means that, if you use someone else’s content and rely upon fair use, even if your use is completely legal under the law and as clear-cut as possible, there is nothing to stop the copyright holder from filing suit against you. Furthermore, they can also file a DMCA notice against the content, removing it from the Web for a period of at least 10-14 days or get it removed from the search engines as well.

If a copyright holder believes that your use of their work is infringing and are motivated enough to pursue the matter, they can do so and the dispute can drag on for a very long time. Along the way, these kinds of cases usually generate a lot of legal expenses, wasted time and headaches.

Even if the case is dismissed and the copyright holder is ordered to pay the defendant’s legal expenses, a drastic step generally only reserved for extreme cases, there is still the issue of lost time and added stress, neither of which can be undone.

That’s why most people, when thinking about legal issues, don’t necessarily want to know if they can win in court, but rather, how to stay out of it in the first place. If that’s the case, then reliance on fair use, especially in gray cases that could go either way in court, is generally not the best approach.

Because, in those cases, even if you “win”, you often end up losing in many different ways.

Staying Safe

As usual, the best way to avoid a copyright conflict is to use only your own work. Use only pictures you took, articles that you wrote and avoid using anything created by any one else.

Of course, that is both impractical and undesirable. To take that to its natural end, you’d have to write your own blogging software, create your own themes, use your own artwork and write every word on your site. Few people are capable doing that and ever fewer would have the desire to do so.

With that in mind, the best course of action is to, whenever possible, seek out works licensed in a way to permit reuse. When dealing with content, you are most likely looking for Creative Commons licensed work. However, some sites such as the Stock.XCHNG offer free and permissive licenses without the use of CC.

Though using such works doesn’t provide a perfect shield against conflict, especially in cases where the copyright holder did not authorize the work to be licensed as such, it is far safer than simply copying a work without any form of permission and relying on fair use to protect you.

If you do have to turn to fair use, make sure that your use is as far from infringing as possible. To do that, I recommend the following steps:

  1. Focus on commentary and criticism: Make sure that you are using the work to talk about it. Using a passage from a book to review it, quoting from an essay to rebut it or showing a clip from a TV show to comment on it are all likely fair uses.
  2. Use as little of the work as possible: Use short quotes when practical and only thumbnails of images. Really hone in on what you need to use and leave out anything you don’t.
  3. Attribute obsessively: Always make sure that you attribute the works you use, not just to help strengthen your point, but to show good faith. Though not always important to a fair use argument, it discourages any potential conflicts before they happen.
  4. Focus on transformation: Finally, and most importantly, make sure that your use of the work does not replace the original, but expands upon it. When using someone else’s work, as yourself the question “Do people, after seeing my use of the content, have a reason to view the original?” If the answer is no, then the use is much more questionable than it would be otherwise.

It is important to remember that no amount of good faith can completely ensure that you will never be involved in a copyright dispute, there are some rightsholders that take things to an extreme and clamp down on all reuse, but most recognize the importance of fair use and will not raise an issue so long as the use itself is not questionable.

Conclusions

If copyright law were like our highways, fair use would be a seat belt. Seat belts are important safety devices and everyone should use them religiously, but the only time they get tested is when we’re already involved in a crash.

The same as no one would speed down the wrong side of the road and trust that their seat belt will protect them, we on the Web should not flaunt copyright law and rely on fair use to save us. Not only is it a brutal way to learn exactly how little protection it provides in many cases, but it isn’t worth wrecking other things to test it.

Fair use is an important right and flexing it in the manner it was designed is critical for many reasons, however, it can not be used as an artificial excuse for what amounts to little more than copyright infringement.

After all, we’re all neighbors on the Web and that entails being good neighbors. That means treating others well when using their work and respecting author’s wishes so far as practical.

Content creators, on the other hand, have an obligation to help protect the rights of those who do use their content and not use copyright law as a club to stifle free speech. That not only hurts the freedom of expression, but in the long run, also hurts copyright law itself.

No one wins in a conflict between free speech and copyright, it is in everyone’s best interest to avoid those conflicts altogether.

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  1. By Andrew Flusche posted on February 18, 2008 at 12:02 pm
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    Jonathan,

    What a great article! It goes well with an article I wrote on fair use basics. I love that you emphasis fair use as a defense. That’s a huge key.

    Andrew

    Reply

  2. By infmom posted on February 18, 2008 at 2:15 pm
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    I wish I had had resources like this when my former employers printed out multiple copies of the entire public content of my blog (nearly all of which was written when I was NOT on the job, but which blew the whistle on continuing abuses on the job site). Unfortunately, I could not afford a lawyer to defend me in the subsequent hearings, and thus could not effectively tell their lawyer he was full of it when he said doing that was perfectly legal and copyright law didn’t apply.

    Oh well, water under the bridge, and I’ve gone on to better things since then!

    Reply

  3. By Jonathan Bailey posted on February 19, 2008 at 9:56 am
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    Andrew: Thank you for the high praise, that means a great deal coming from you. I’ve been an admirer of your blog for some time.

    Thank you for stopping by and I agree completely that more emphasis needs to be put on fair use as a defense. Many people seem to think that fair use followed “We hold these truths to be self evident”.

    Reply

  4. By Copyright articles posted on February 25, 2008 at 11:05 pm
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    Nice article, it contains valuable information. The best way to avoid a copyright conflict is to use only your own work. To make fair use work well, it is important that we should understand what it protects, and also the limitations of it.

    Reply

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