Fair Use

Center for Social Media Launches Its Code of Best Practices in Fair Use for Online Video

Sam Bayard — Mon, 07 Jul 2008 12:14:28 -0400

Today, the Center for Social Media at American University released its Code of Best Practices in Fair Use for Online Video, a publication meant to help online video creators, service providers, and copyright holders to interpret the copyright doctrine of fair use. The Code (full-text pdf) provides a guide to "current acceptable practices, drawing on the actual activities of creators" and backed by a panel of legal and media scholars, including Berkman fellow Lewis Hyde, Anthony Falzone from Stanford's Center for Internet and Society, Henry Jenkins from M.I.T., and Pamela Samuelson from U.C. Berkeley. Pat Aufderheide and Peter Jaszi of American University coordinated the project.

The Code, which takes an optimistic view on fair use ("Fair use is flexible. It is not uncertain or unreliable."), identifies six common situations that online video makers may face:

Commenting on or critiquing of copyrighted material
Using copyrighted material for illustration or example
Capturing copyrighted material incidentally or accidentally
Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon
Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion
Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements.

For each of these factual situations, the Code provides a general principle to follow, while noting important limitations and potential pitfalls. I'm sure that content owners will dispute some of the guidance in the Code, but upon an initial perusal it strikes me as an excellent treatment of a potentially tricky area. More importantly, as the Code explains it, the principles outlined are not legal arguments but evidence of current, commonly held understandings among online video creators and other creative communities, such as documentary filmmakers. The point of the exercise is to build common practices and understandings, not to argue abstractly about the law.

The Code draws on two previous and highly influential publications from the Center for Social Media: The Documentary Filmmakers' Statement of Best Practices in Fair Use and Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video.

(Note: Lewis Hyde and the CMLP are both affiliated with the Berkman Center for Internet & Society. Pamela Samuelson is a former fellow of the Berkman Center.)

Associated Press Sends DMCA Takedown to Drudge Retort, Backpedals, and Now Seeks to Define Fair Use for Bloggers

David Ardia — Mon, 16 Jun 2008 17:57:04 -0400

Last week, the Associated Press ("AP") sent a takedown request under the Digital Millennium Copyright Act to Rogers Cadenhead, the founder of Drudge Retort, a liberal alternative to (and parody of) the well-known Drudge Report, demanding that he remove six user-submitted blog entries and one user comment on the site that contained quotations from AP articles. Today, the New York Times reported that AP was reconsidering its request while it creates a set of guidelines for bloggers and websites that excerpt AP material.

The Drudge Retort is a community site similar to Digg and Reddit, allowing its users to contribute blog entries, comments, and links to interesting news articles. According to Cadenhead, none of the six posts republished the full text of an AP story; instead, each contained quotes ranging in length from 33 to 79 words (although the posts have been removed, Cadenhead has provided a summary of them here).

Of course, you might be skeptical whether such minimal -- and no doubt widespread -- quoting of AP content is actually copyright infringement, and you'd be right. Indeed, a number of prominent bloggers took AP to task (see here and here) for sending the takedown notice and ignoring what has become the general practice in the blogging community of using headlines and excerpted quotes from MSM sources. As Jeff Jarvis notes, the AP "is ignoring the essential structure of the link architecture of the web. It is declaring war on blogs and commenters."

In fact, it is very likely that the posts AP is complaining about on Drudge Retort are permissible fair uses under the Copyright Act. First, several posts appear to be offering commentary on recent news items. The use of another's copyrighted work for the purpose of criticism, news reporting, or commentary, will generally weigh in favor of fair use.

Second, all of the posts use fewer than 80 words from the original AP articles. While there is no bright line that defines how much of a copyrighted work can be copied and still be considered fair use, courts will consider the amount and importance of the material copied in assessing what is permissible. I can't tell how long the original AP articles were, but it's likely that all of the articles were substantially longer than 80 words.

Third, it is hard to see how the posting of AP headlines and 80 word snippets could possibly impair the market for the original AP articles (when evaluating fair use claims, courts are most concerned with whether the copying will undercut the market for the original work). Instead, the posts AP is complaining about would seem to be doing just the opposite. Users of Drudge Retort, and sites like it, post these headlines and snippets for the very purpose of alerting others that some interesting piece of news exists. These snippets invariably include links to the original articles and serve to drive traffic to the site hosting the original AP story.

While the June 10, 2008 takedown request from AP only mentions copyright infringement as a justification for the removal, a June 3 letter sent by AP's Intellectual Property Governance Coordinator, Irene Keselman, also asserted a "hot news" misappropriation claim:

AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes "hot news" misappropriation.

It doesn't appear, however, that AP is continuing to pursue its "hot news" claim against Drudge Retort, and for good reason. This little known legal doctrine, which saw its genesis in 1918 in International News Service v. Associated Press, 248 U.S. 215 (1918), seems to have fallen out of favor because the 1976 Copyright Act preempts all legal and equitable rights that are equivalent to the exclusive rights offered by federal copyright law. As a result, in National Basketball Ass'n v. Motorola, 105 F.3d 841, 844 (1997), one of the few cases to address a "hot news" claim, the Second Circuit set an exceptionally high standard for such claims to be viable, requiring, among other things, that the information be time-sensitive; the defendant be in direct competition with the plaintiff; and the continued publishing of the "hot news" would so reduce the plaintiff's incentive to produce the product or service that its existence or quality would be substantially threatened.

Accordingly, to succeed with a "hot news" misappropriation claim, AP would have to prove not only that Drudge Retort is a direct competitor to AP, but also that its headlines and text were time-sensitive and Retort's use of this content would so harm the 1,500 member news cooperative that the continued publication would threaten AP's existence.

Perhaps because AP recognizes that its legal claims against Drudge Retort and its users are weak or because it has realized that its "heavy handed" approach might be counterproductive, it announced that it would rethink its policies toward bloggers and come up with a set of guidelines for others to use its articles.

I think it's laudable that AP is rethinking its approach and planning to meet with representatives of the Media Bloggers Association and others, but let's be clear here. While AP is entitled to issue a set of guidelines for the use of its articles, these guidelines are not legally enforceable and they cannot narrow the scope of what is permissible under the fair use doctrine. The blogging community needs to be careful not to allow these guidelines to become a de facto set of norms that constrain the permissible uses of news content.

Fair use permits a broad array of innovative and transformative uses of copyrighted material. It also is essential to ensuring that copyright holders don't trample on First Amendment rights. In the end, AP and other news organizations will be better off if they work together with bloggers and community news sites to expand, enhance, and contextualize news. Let's hope the AP's guidelines take this into account.

UPDATE: On June 20, 2008, Cadenhead and AP announced that they had settled their copyright dispute. The six posts in question, however, remain inaccessible on the Drudge Retort.

(You can follow further developments in the AP's dealings with Drudge Retort in our Legal Threats Database entry: Associated Press v. Drudge Retort.)

Metallica's Management Suppresses Reviews, Metallica Puts Them Back Up

Matt C. Sanchez — Fri, 13 Jun 2008 10:07:37 -0400

In an interesting counterpoint to Prince’s latest takedown exploits – see Sam’s recent posts – rock band Metallica recently “ear spanked” its management for demanding that websites take down reviews of unreleased Metallica songs. While the reviews are back online after the short downtime, the dispute raises copyright issues worth further discussion.

Last Wednesday, June 4, Metallica representatives hosted an invitation-only listening party in London for U.K. music writers, previewing six of the band’s new songs. Several attendees promptly posted their impressions about the new songs online. QPrime, Metallica’s management company, just as promptly told at least four sites – Metal Hammer, Rock Sound, Classic Rock, and The Quietus – to remove the reviews. The sites complied.

At first glance, it seems the reviewers shouldn't have had anything to be afraid of. The most obvious claim against the reviewers would have been breach of a non-disclosure agreement, a standard procedure for leaks coming from such clandestine screenings. However, The Quietus editor Luke Turner said the band's representatives didn’t ask attendees to sign any such agreement, negating any contract claims.

Criticism of the songs typically would have posed no copyright issues either. Because the reviewers quoted lyrics from the unpublished songs, however, they may have opened themselves up to a copyright infringement claim. U.S. and U.K. law protect quotes used in the course of criticism under the doctrines of fair use and fair dealing, respectively, but both condition this protection to some extent on whether the content had already been made available to the public.

Absent the public availability issue, the reviewers would have had a relatively straightforward fair use defense under U.S. copyright law. In fair use cases involving criticism, the purpose of the use – the first factor in the fair use balancing test – tends to weigh in favor of fair use. Criticism is a core First Amendment pursuit and is well-protected by the law, so this factor outweighs most concerns raised by the other three factors involved in a fair use analysis.

Because the copyrighted work here was not yet available to the public, the fourth factor – the effect on the market for the original work – takes on a larger role in the analysis. Courts in some cases restrain uses of copyrighted content that otherwise would constitute fair use on the theory that advance availability of the content could effect the market for the original. See Publaw’s discussion of Harper & Row v. Nation Enterprises. Metallica could argue that the reviewers’ advance use of the lyrics would harm the market for the album by weakening the "new-ness" of the experience. Still, this is a weak argument under U.S. law given that this aspect of a fair use analysis primarily is concerned with uses that could “take over” the market for the original work, and a critique of an album is hardly a replacement for the album itself.

The outlook in the U.K. is bleaker, and since the situation has so many U.K. ties it's possible Metallica would have pursued claims under U.K. law. While fair dealing is similar to U.S. fair use in its favored treatment of criticism, it explicitly denies any protection to copying of works that have not yet “been made available to the public.” For more on U.K. copyright law and fair dealing, see JISC Legal and Wikipedia.

It isn’t clear what satisfies the “made available” standard – the requirement did not exist until a 2003 amendment – but it’s unlikely that Metallica's invitation-only event would cut it. The reviewers could say Metallica made the content available by screening it for music writers without having them sign non-disclosure agreements – basically, that “made available to the public” fairly should imply “made available to someone you know is going to make it available to the public.” Alternatively, the reviewers could argue that the private screening constituted a “public performance,” but this would be a difficult argument given the restricted, invitation-only access to the event.

To add one more wrinkle to the analysis, U.S. and U.K. cases involving prepublication use tend to involve cases where the user didn’t have permission to access the unreleased material. Permission to access isn’t the same as permission to copy, but it’d be interesting to see if Metallica’s screening of the songs would affect the analysis.

Taking all of that into consideration, my intuition is that the reviewers would have a strong fair use argument under U.S. law but probably would not under U.K. law. Either way, they would have had plenty of cause for concern if Metallica had filed a copyright infringement lawsuit.

To follow further developments in this matter, see the legal threat entry Metallica v. The Quietus in our database.

(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

Highlights from the Legal Guide: An Overview of Copyright

CMLP Staff — Fri, 09 May 2008 16:31:06 -0400

This is the ninth in a series of posts calling attention to topics we cover in the Citizen Media Legal Guide. In this post, we highlight the section on copyright, which provides an overview of this important area of law and offers practical advice to citizen media creators on how to use the copyrighted works of others and protect their own work from exploitation.

Before we jump into the copyright overview, which is reprinted below, we would like to thank Allan Ryan, who is the Director of Intellectual Property at Harvard Business School Publishing. In addition to writing a large portion of the copyright overview, Allan provided invaluable feedback on the intellectual property sections of the guide and kept us focused on the unique needs of citizen media.

Copyright Overview

A basic understanding of copyright principles is essential for any blogger, researcher, reporter, photographer, or anyone who publishes their creative works. It’s important for two reasons. First, you should understand how you can properly make use of someone else’s work – quoting from it, reprinting it, summarizing it, even satirizing it. And second, you should understand how you can protect your own legal rights in what you create, so that others don’t take unfair (even unlawful) advantage of it.

Like any area of the law, copyright can get complex at its outer limits. However, a working knowledge of copyright law is not hard to acquire and will guide you through nearly all the situations you are likely to face in your day to day work.

Let’s start with some of the building blocks. First, all copyright law is federal law and therefore uniform across the country (in theory). States have no role, because the Constitution gives Congress the sole "power . . . [t]o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Congress first exercised this power to establish copyrights (and patents) in its first meeting in 1791, and it has regularly revised and updated the law ever since. Though the last comprehensive copyright revision was enacted in 1976, Congress has passed many new copyright laws and amended others – sometimes after highly contentious lobbying and debate – in the digital era.

Second, copyright law covers an extraordinarily broad range of creative work. The law calls them "works of authorship" but copyright protects almost all creative work that can be written down or otherwise captured in a tangible medium:

Literary works – which is basically prose, whether a news story, scientific paper, novel, poetry, or any other form of "words-only" (or words-and-pictures) creative work.
Musical works – both the lyrics and the music, whether from advertising jingles to symphonies.
Dramatic works – plays, including any accompanying music.
Pictorial, graphic, and sculptural works – photographs, drawings, paintings, and any other kind of two- or three-dimensional art.
Motion pictures and other audiovisual works – movies, television shows, YouTube videos, and any kind of multimedia.
Sound recordings – in addition to the copyright on words and music (above) a separate copyright protects a recording artist’s rendition of a work
Architectural works – blueprints and similar plans for buildings.

For more information on works protected under copyright law, see the section in this guide on Copyrightable Subject Matter.

Owning a copyright gives you the exclusive right to publish, copy or otherwise reproduce the work; to distribute the work publicly (or not so publicly); and to perform or display the work, if it is a work of performance or visual art. Owning a copyright also gives you the exclusive right to prepare "derivative works," which are the original works in new forms – for example, a translation into another language, or a movie made from a novel, or a revised or expanded edition of an existing work. Someone who does these things without your permission is infringing your copyright, and the law provides recourse to you. For more details on the exclusive rights granted to a copyright owner, see the section on Rights Granted Under Copyright.

Third, copyright is extraordinarily easy to acquire. In fact, you really need do nothing at all – the law provides that copyright springs to life and protects an author’s work from the time the work is “fixed in a tangible medium of expression…from which [it] can be perceived reproduced, or otherwise communicated . . . .” So when words are put on paper, or paint to canvas, or sights to a videotape, digital camera or cellphone, or even when any of the above are stored in a computer’s memory – they’re copyrighted. That’s it. They don’t have to be published. There is no requirement to put a copyright notice on it (though that is often helpful). There is no requirement that it be registered with the Copyright Office in the Library of Congress (though commercial publishers routinely do that, to show up in the database of copyrighted works.) If you are interested in registering your work with the Copyright Office, consult the section on Copyright Registration and Notice.

The law requires only that copyrightable works of authorship be "original" – but that is an easy hurdle to clear. Unlike the patent laws, there is no requirement that a work be innovative, meritorious, or even particularly bright or interesting. A work of authorship just can't be a copy of anyone else's work, and it must have some modest degree of creativity to it. In 1991, the Supreme Court ruled that an ordinary white-pages telephone book was not sufficiently creative to be copyrighted, but that gives you an idea of how low the barrier is. Any "work of authorship" that you create in the honest application of your own skills will likely be sufficiently "original" to be protected by copyright.

So what is the catch? None, really, but there are two cardinal principles of copyright that – fortunately – limit its reach. First, copyright protects the form in which ideas are expressed (the essay, the novel, the news story in the paper or on the blog) but it does not protect the ideas themselves. Nobody owns ideas. You might write the most insightful, original, and brilliant blog post on how to achieve peace in the Middle East or reduce carbon emissions, but from the moment you publish the post anyone may seize upon that idea to expand upon it, analyze it, criticize it, or discuss it in any way they like. What they can’t do is reprint your expression of the idea, without your permission. (And, at least in academia and among reputable publications, they ought not to present the idea as their own, or even to discuss it without first acknowledging that it is your idea. However, because copyright does not protect ideas, the law does not punish plagiarism of ideas. For more information on the distinction, refer to the section on Copyright Infringement.)

Second, copyright does not protect facts. No matter how long and hard you work to uncover and report facts, no matter how significant the impact of your reporting, you don’t own those facts. Anyone can repeat them, so long as they do not copy your story itself. By the same token, of course, you can appropriate facts that someone else has reported, without copyright concerns. (You ordinarily have an ethical obligation to credit the source of your facts, but it’s not a copyright obligation.) For more information on the types of works not covered by copyright, consult the section on Works Not Covered by Copyright.

As these principles suggest, copyright in its classic formulation is an effort to balance two often-conflicting goals. We want to encourage people to report the news, create art, publish works of history and science, and generally advance knowledge. The law provides the creators the exclusive ownership of their works for a limited time so that they can make money from them. On the other hand, we want to encourage a free flow of ideas, discussion, and intellectual synergy. Facts and ideas are put into the public domain at the moment of birth. In the words of Oliver Wendell Holmes, "the best test of truth is the power of the thought to get itself accepted in the competition of the market…. That at any rate is the theory of our Constitution." Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

This effort to achieve balance naturally produces conflict. How can you challenge a blog post proposing a new way to reduce carbon emissions unless you can quote from the copyrighted post itself? Requiring you to get the original author’s permission would certainly inhibit the free flow of ideas and would come very close to giving that author control over the idea. To ease this conflict, the law recognizes a principle known as "fair use," which is simply the freedom to quote from another’s copyrighted work in the course of creating your own copyrighted work.

There have always been unspecific but sensible limits to this principle – you generally can't, for example, “quote” another’s work by reprinting it in its entirety, even if you threw in a few new words of your own (on the other hand, if the original work was only a few paragraphs long, you might even be able to do that in some circumstances). Generally, courts recognize that if the borrowing is not excessive, that if it advances the creation of a new work, and if it does not undercut the market for the original work, the use is fair. The section on Fair Use in this guide provides more information on the fair use doctrine.

In the digital era, "fair use" has become a battleground. No one challenges the original principles, but instant reproduction and worldwide distribution of any digital work is within everyone’s reach. Some creators of copyrighted works – record labels and movie distributors most prominently – have imposed electronic lockdowns, known as digital rights management, on their works. This has led some to claim that these lockdowns extinguish their fair use rights.

There is another aspect to this political battle. The Constitution authorizes Congress to protect writings and discoveries for "limited times." In the 19th century, a "limited time" meant no more than 28 years after publication. For most of the 20th century, it meant up to 56 years. But since 1998, it has meant for the life of the author and for an additional 70 years. So, if a 25-year old author creates a work in 2008 and lives another 60 years, that work is protected by copyright until 2138, an extraordinary 130 years. By that measure, most of the works of Henry James and Mark Twain would still be copyrighted today. Many critics of the current copyright structure point to this lengthy protection as an unwarranted distortion of “limited time,” but the Supreme Court upheld the law in 2003. (As a rule of thumb, any work published before 1923 is probably now in the public domain; any work published since then probably is not, but there are exceptions to both those guidelines.)

Because a copyright is intangible property (hence, "intellectual property," a field that also includes patents, trademarks, trade secrets, and now URLs and domain names), it can be bought, sold, given away, bequeathed at death, and licensed to others. Indeed, licensing is an active field in copyright law. An author’s contract with a publisher is a license; while the author may retain the copyright, the publisher shares the revenue and edits, prints, and distributes the work. Works may also be sold outright, as newspapers often require freelancers to do. Ownership may also vest in the employer from the outset, if creating copyrighted works is part of one’s employment. For more information, visit the sections on Licensing Your Content and Getting Permission to Use the Work of Others to use someone else's work.

There are other aspects to copyright law that can be useful to know. For example, works of the US Government are never copyrighted and hence can be reproduced without payment or permission. Copyrighted works such as music, movies, and drama may be performed or displayed (but not copied) without permission in the course of face-to-face teaching and distance learning in schools and universities. A library user is generally entitled to make a single copy of a copyrighted work for private study and scholarship.

In the sections that follow, we lay out further specifics about the principles described above. This guide is not a full treatise on copyright law, but it does provide what we hope is a good understanding of what you need to know, both to make intelligent use of others’ creative works and to protect your own.

What Copyright Covers - Describes copyrightable subject matter and the rights granted under copyright.

Copyright Ownership - Explains different types of authorship, the registration and notice process, and how to license your work to others.

Using the Work of Others - Describes the types of works not covered by copyright, the doctrine of Fair Use, linking to another's work, getting permission to use another's work, the issues that arise from circumventing copyright controls, and copyright infringement.

Notice-and-Takedown - Outlines the steps involved in issuing and responding to a DMCA takedown notice related to copyrighted material and explains the immunity provision for user-submitted content under the DMCA.

Crazy Legal Battle Between Newspapers Settles, But Leaves Worrisome Fair Use Decision Intact

Sam Bayard — Wed, 07 May 2008 22:49:31 -0400

Many readers are probably familiar with the meltdown of the Santa Barbara News-Press, a local daily newspaper in Santa Barbara, California. Starting in 2006, reporters and editors of the newspaper clashed with now-infamous Wendy McCaw, controlling shareholder of Ampersand Publishing LLC, which owns the paper. Tensions swirled around McCaw's perceived intervention in editorial and reporting judgments, traditionally left to the paper's professional staff. The controversy resulted in a slew of resignations and firings, chronicled in the documentary film, Citizen McCaw. The brouhaha spurred a bizarre lawsuit over copyright infringement, which pitted the News-Press against another local paper, the Santa Barbara Independent. According to the Independent, the defendant in the lawsuit, the case recently settled. While this might come as a relief to the Independent, it leaves a questionable fair use decision on the books.

The trouble began when Nick Welsh, an editor with the Independent, posted a copy of an unpublished News-Press article (obtained from an unknown source) on the Independent's website. The draft article, written by former News-Press reporter Scott Hadley, provided a fact-based account of the resignations of several key News-Press staffers. When the News-Press declined to publish Hadley's article and instead published a "note to readers" from Wendy McCaw, Hadley resigned in protest. Approximately a week later, the draft article showed up mysteriously at the Independent's office, and Nick Welsh used it to write a critical blost post -- Angry Poodle: The Poodle Barks Again. The post commented on Hadley's resignation and criticized the News-Press for publishing McCaw's "note to readers" instead of Hadley's article. Welsh included a hyperlink in the post that led to a scanned PDF copy of the entire Hadley draft hosted on the Independent site. According to Welsh, he posted the draft in order to expose and criticize what he saw as the censorship of an unflattering article.

Ampersand Publishing sued the Independent in federal court in California, claiming that Welsh's posting of the draft article constituted copyright infringement. The complaint included other legal claims, including a crazy theory that the Independent had misappropriated the News-Press's trade secrets by acquiring and publishing the draft article. For details on the lawsuit and links to court documents, see our database entry, Ampersand Publishing v. Santa Barbara Independent. The most interesting legal issue in the case is fair use, and the Independent asked the court back in September to grant it summary judgment on that ground. At the same time, the News-Press moved for summary judgment as well, arguing that Welsh's use was not fair as a matter of law. Despite the newsworthiness of the very existence of the draft article itself, and the clearly critical bent of Welsh's use of it, the court held in a November 2007 decision that it was not fair use, essentially handing a victory to the News-Press on its copyright claim. I would have blogged about this decision earlier if I had known about it, but I just found it today, so here goes.

On the first fair use factor -- the purpose and character of the use -- the court found that the Independent's use of the draft article for purposes of criticism was "transformative," but found that it used more of the article than was necessary to achieve its critical purpose. The court noted that another local paper, the Santa Barbara Nexus, had also published an account of the resignations relying on the draft article, but had only summarized the article's contents and selected a few quotes, without publishing it in its entirety. The court's reasoning, while not wholly unreasonable, disregards the fact that Welsh's objective in using the article may have been different from that of the Nexus. He wasn't simply reporting on the resignations. He was criticizing the paper for publishing "defensive editorializing" (his lawyers' words) rather than Hadley's unflattering factual account. If we credit the Independent's argument, as the court was obliged to do on a motion for summary judgment, Welsh used the article to set up a contrast between two drastically different accounts, and it is not clear that he could have achieved this contrast effectively without using the entire Hadley draft. At least in this author's view, it is dangerous to have a court taking such a narrow view of what is and is not necessary for successful criticism. The court's conclusion on this first factor also poisoined its analysis of the third fair use factor -- the amount and substantiality of the portion used.

Perhaps the greater blunder was the court's analysis of the fourth fair use factor -- the effect of the use upon the potential market for or value of the copyrighted work. Here, it is hard to get past the obvious conclusion that the Independent's use could not have harmed the market for the draft article because there was not, and never could be, a market for a draft article that the News-Press had decided not to publish. Moreover, the news content in the draft article was stale -- the local and national press had already covered the events referred to in it. And, because of its critical character, Welsh's use of the draft did not function as a substitute for the original work, which is the type of economic harm that copyright law protects against. The court danced around these issues, relying on what looks to me like formalist reasoning wholly divorced from the actual economic realities at stake.

Admittedly, other courts have held that a plaintiff's decision not to publish a work does not mean there is no harm to the "potential market" for it, and the Supreme Court has indicated that fair use has a narrower scope when it comes to unpublished works. But those cases involved unpublished works that possess great economic potential (e.g., J.D. Salinger's unpublished letters, which would go for millions) or works on their way to publication (like Time's interview with President Ford). Here, even if the News-Press changed its mind and decided to publish Hadley's draft article, it would be worthless from an economic standpoint (and was already largely worthless at the time Hersh posted it). This case looks more like Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004), where the court held that Internet posting of unpublished Diebold emails was fair use, in part because of the critical purpose of the use and in part because there was no conceivable market for the emails. In addition, in this case, as in Diebold, it is apparent that the reason the copyright owner was asserting copyright was to suppress criticism and commentary, not to protect its economic interests from a substitive use.

So, the lawsuit is over and the newspapers can go back to their business. But, because there will be no appeal to the Ninth Circuit on the fair use ruling, we're left with what I fear may be a dangerous precedent for cases involving critical uses of copyrighted materials on the Internet. Maybe the facts are too unique to make this case cause for much concern. I don't know, I'm still digesting it.

Rowling v. RDR Books: Harry Potter Lexicon Trial Starts Today

Sam Bayard — Mon, 14 Apr 2008 10:35:20 -0400

The trial in Rowling v. RDR Books starts today in the United States District Court for the Southern District of New York. The New York Times reports that Rowling herself will take the witness stand. At issue, of course, is whether Steven Vander Ark's print version of the Harry Potter Lexicon website infringes Rowling's copyrights in her enormously popular books. Rowling contends that Mr. Vander Ark's book merely repackages her fictional content, while RDR Books, Mr. Vander Ark's publisher, maintains that his work "provides a significant amount of original analysis and commentary concerning everything from insights into the personality of key characters, relationships among them, the meaning of various historical and literary allusions, as well as internal inconsistencies and mistakes in the novels."

Sounds like an entertaining question of fact for Judge Patterson, who is presiding over the bench trial. In the background is the burning question whether the Harry Potter Lexicon looks more like The Seinfeld Aptitude Test from Castle Rock Entertainment, Inc. v. Carol Publishing Group, 150 F.3d 132 (2d Cir. 1998), or the Beanie Babies Collector's Guide from Ty, Inc. v. Publications International Ltd., 292 F.3d 512 (7th Cir. 2002). This should be fun.

Rowling v. RDR Books: Fair Use Is Like Gumbo

Sam Bayard — Mon, 17 Mar 2008 10:26:18 -0400

Derek Bambauer at Info/Law has an excellent post on the Harry Potter Lexicon lawsuit, Rowling v. RDR Books. Bambauer analyzes Rowling's copyright claim and RDR Book's fair use defense and concludes that the celebrity author will likely prevail. While reasonable minds differ on this point (see, e.g., Tim Wu's article in Slate), everyone should be able to appreciate Bambauer's use of figurative language:

Fair use is like gumbo: you dump everything in together, mix it, simmer, and see how it tastes in the end.

An apt description -- it captures colorfully the inherent difficulty in predicting the outcome of a court's fair use analysis. The district judge handling the case has decided to combine the previously scheduled preliminary injunction hearing with a trial on the merits, which is set to begin April 14. We're looking forward to a good meal.

YouTube Removes “Shred” Parody Videos; WIRED Puts Them Back Up

Matt C. Sanchez — Fri, 29 Feb 2008 09:47:52 -0500

Earlier this month, some of the most creative and entertaining parody videos on the Web were pulled from YouTube over dubious copyright claims. The disputed works, known as the “shred” videos, are a series of parodies in which Finnish media artist Santeri Ojala overdubs performances of legendary guitarists such as Steve Vai, Carlos Santana, and Eric Clapton. Ojala replaces the audio tracks of the guitarists' performances with his own (intentionally) bad guitar playing.

Because Ojala is a skilled guitar player himself, the horrific sounds match closely with the guitar hero's hand and finger movements, which makes the videos that much more surreal. Other rock stars unwary enough to enter the screen during the guitarists' performances get similar treatment – in one notable clip, Ozzy Osbourne's clapping to the beat is reduced to a rhythmless patter that wouldn't have cut it in a backyard birthday celebration, much less a rock show.

The juxtaposition of the guitarists' rock-star stage antics and “rockin” facial expressions with Ojala's amateurish noodling was humorous and well-executed enough to warrant attention from WIRED, Guitar Player magazine, and the Jimmy Kimmel Live! television show, among others. Guns N' Roses guitarist Slash, who was a guest on the same episode of Jimmy Kimmel's show, jammed with Ojala after Ojala performed a live parody of a Slash concert video on the show.

In January or February, YouTube recieved three complaints regarding the videos, which appear to have come from artists that Ojala had parodied. In response, YouTube took down the videos and disabled Ojala's account. According to Listening Post, a WIRED.com blog, YouTube's parent company Google has a policy of disabling accounts that have "multiple copyright infringement claims filed against them." At this point Ojala has not taken action to reinstate his account; Listening Post quotes Google as saying that this would require that Ojala "hire a lawyer and appeal the artists' infringement claims."

This situation highlights one of the problems with the DMCA takedown notice framework, especially as it pertains to foreign content creators such as Ojala. These videos are clear examples of parody, which means that Ojala would have a strong fair use defense to the guitarists' copyright claims. If Ojala had sent a counter-notice asking that the videos be put back up pursuant to 17 U.S.C. § 512(g), YouTube would have been legally required to do so – at least in order to stay in the safe harbor against wrongful takedown liability – and it is unlikely that the guitarists would have prevailed if they would have pursued a claim in federal court. It's even likely that the guitarists wouldn't have pursued a claim at all. In order to send a counter-notice, however, Ojala would have had to agree to the jurisdiction of the federal district court in the district where YouTube is located. Ojala also would have had to agree to accept service of process from the person who sent the original copyright complaint (see 17 U.S.C. § 512(g)(3)(D). Without a voluntarily agreement, such as automatic consent under the DMCA, there would probably be no way to sue Ojala in the U.S. for copyright infringement.

This puts Ojala in a dilemma. He cannot get his content put back up without sending a counter-notice, and he can't send a counter-notice without placing himself at the mercy of the U.S. court system. For Ojala, a native of Finland, you can be sure this is not an attractive prospect. While the DMCA theoretically allows us to take a stand for free speech, it is unrealistic to expect this to offer much solace to U.S.-based content creators who can't afford to defend a case in federal court and foreign content creators like Ojala who don't want to submit to the jurisdiction of a U.S. court, which necessarily involves significant if not crippling costs and inconvenience.

Thankfully, there are others who are willing to take a stand for Ojala's speech rights. WIRED blog Underwire – which along with Listening Post has covered the situation in a number of posts – has put up copies of several of the shred videos. The videos are hosted at WIRED.com, rather than YouTube, and thus are safe from removal so long as WIRED is willing to stand behind Ojala.

It remains to be seen whether YouTube ever will reactivate Ojala's account or whether the shred videos will result in liability for Ojala. For now, Ojala still is making new and increasingly complex shred videos, as can be seen on his website.

(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

Savage v. CAIR: The Council on American-Islamic Relations Asks Court to Dismiss Michael Savage's Lawsuit

Sam Bayard — Thu, 31 Jan 2008 11:11:14 -0500

I've blogged before about the Savage v. CAIR lawsuit, in which the conservative talk show host claims that CAIR violated his copyright (and the Racketeer Influenced and Corrupt Organizations Act!) by posting and commenting critically on an audio clip from one of his shows, in which Savage makes all sorts of hateful and inaccurate claims about Muslims and the Islamic faith. To put it mildly, I disagree with Savage's position in the lawsuit -- it is a blatant attempt to misuse copyright law in order to squelch criticism.

Great news! The Electronic Frontier Foundation and Davis Wright Tremaine LLP are representing CAIR, and they have filed an answer and moved for "judgment on the pleadings," asking the court to dismiss the lawsuit because it is "simply a camouflaged defamation or disparagement claim dressed as bogus copyright and RICO claims . . . Savage's legal broadside specifically targets CAIR as a civil rights organization and its core political speech responding to and criticizing Savage's inflammatory political rhetoric." (from the EFF). The brief arguing in favor of dismissal is excellent. Its introductory argument on the copyright claim is worth reproducing here:

CAIR's use of limited audio excerpts from Savage's radio program is, without question, speech protected not only by the First Amendment but explicitly by the Copyright Act. 17 U.S.C. § 107; see Hustler Magazine Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1153-55 (9th Cir. 1986). The fair use doctrine exists precisely to prevent copyright holders from doing what Savage attempts here -- abusing a limited monopoly granted to encourage creativity to punish dissenters and to chill speech aimed at criticizing copyrighted works. For all his ironic appeals to the First Amendment, Savage asks this Court to punish CAIR for publicly criticizing the offensive content of his radio program. That CAIR's criticism might result in Savage losing popularity (and advertisers) is of no moment to either a free speech or copyright infringement analysis and indeed, should be expected in the marketplace of ideas that the First Amendment and Copyright Act strongly protect. As a matter of law, Savage's copyright infringement claim must be dismissed.

Brilliant argument. CAIR's lawyers have also chosen the right procedural mechanism for raising the affirmative defenses of fair use and the First Amendment. In a motion under Federal Rule of Civil Procedure 12(c) for judgment on the pleadings, unlike a motion to dismiss under Rule 12(b)(6), a court may consider affirmative defenses.

Thus, unless the court goes completely off track, CAIR should not run into the sort of shallow reasoning found in the 43SB.com case (all the buzz this week), in which the court refused to look beyond the plaintiff's ownership of copyright in its cease-and-desist letter and completely ignored the obvious fair use and First Amendment concerns. This kind of shallow legal analysis leads to a distorted picture of copyright law and, worse, it stacks the deck against speech, giving the benefit of the doubt to frivolous claims and making Internet speakers bear the burden of extended litigation. I look forward to the CAIR court's decision with anticipation -- Internet speakers certainly could use a clear, recent case to help fight back against copyright overreaching.

Primer on Copyright Liability and Fair Use

CMLP Staff — Thu, 24 Jan 2008 23:49:38 -0500

As a lead up to the launch of the Citizen Media Law Project's Legal Guide later this month, we are putting up longer, substantive blog posts on various subjects covered in the guide. This post is the second in our series of legal primers. The first addressed the subject of immunity and liability for third-party content under section 230 of the Communications Decency Act. In this post we discuss copyright and fair use in the context of citizen media.

I. COPYRIGHT PROTECTION AND FAIR USE

A broad array of creative, expressive media are subject to copyright protection, including literature, photographs, music compositions and recordings, films, paintings and sculptures, and news articles – any “original work of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. Citizen media creators who use the works of others need to be careful that they do not open themselves to copyright liability when doing so.

Fortunately, there are several circumstances in which the work of others may be used without liability. Bare facts and ideas, government documents, and items in the public domain are not subject to copyright, and some materials may be published under a Creative Commons license or other license that permits reuse. In addition, the doctrine of fair use provides that copyrighted materials may be used without the consent of the original owner in certain situations, such as when using excerpts for criticism or news reporting.

A. What can be copyrighted?

Because only creative expression, not facts or ideas, may be copyrighted, you can typically use bare factual information found in other sources without liability. There are some situations in which a compilation of facts may be protected if the creator of the original publication selected, coordinated, or arranged the facts in an original way. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344 (1991). However, in these situations the raw facts may still be copied at will. If you copy historical facts, current events, or other ideas and facts from another resource, you should be careful not to copy the method of expression in the original source.

It is also worth noting that linking to copyrighted material will not subject you to copyright liability. Courts have consistently held that no copying is involved in the act of hyperlinking. See Ticketmaster Corp. v. Tickets.com, Inc., 2000 U.S. Dist. LEXIS 4553 (C.D. Cal. 2000). Although some websites may try and prohibit 'deep linking' (i.e., linking to a page within a website other than the home page), these prohibitions are not legally enforceable.

In addition, works by the U.S. Government are not copyrightable, 17 U.S.C. § 105, which includes "work prepared by an officer or employee of the United States Government as part of that person's official duties." 17 U.S.C. § 101. Thus, not only may you freely copy documents and other material produced by the federal government, but also the texts of speeches by government officials made in their official capacities.

B. Fair Use

The policy behind copyright protection is aimed not at the rights of those who produce content, but at the "promotion of the sciences and the useful arts." Because allowing authors to enforce their copyrights in all cases would actually hamper this end, the fair use doctrine was adopted to permit uses of copyrighted materials that are considered to be beneficial to society, many of which are also entitled to First Amendment protection.

Fair use will not permit you to merely copy another’s work and profit from it, but when your use contributes to society by continuing the public discourse or creating a new work in the process, fair use might come into play. Fair use thus has its origins in both the First Amendment and the general policies regarding creative endeavors that form the basis of the copyright code.

Fair use, which is now a part of the Copyright Act itself, is defined in the Act as follows:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(1) the purpose and character of the use, including whether such use is of a 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; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Unfortunately, there is no clear formula that you can use to determine the boundaries of fair use. Instead, a court will weigh these four factors holistically in order to determine whether the use in question is a fair use.

In order for you to assess whether your use of another's copyrighted work will be permitted, you will need an understanding of why fair use applies, and how courts interpret each part of the test.

1. Purpose and Character of Your Use

If you use another's copyrighted work for the purpose of criticism, news reporting, or commentary, this use will weigh in favor of fair use. See Campbell v. Acuff-Rose Music, 510 U.S. 569, 578 (1994). Purposes such as these are often considered "in the public interest" and are favored by the courts over uses that merely seek to profit from another’s work. Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, 1203 (N.D. Cal. 2004). When you put copyrighted material to new use, this furthers the goal of copyright to "promote the sciences and the arts."

In evaluating the purpose and character of your use, a court will look to whether the new work you've created is "transformative" and adds a new meaning or message. To be transformative, a use must add to the original "with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U.S. at 579. Although transformative use is not absolutely necessary, the more transformative your use is, the less you will have to show on the remaining three factors.

Courts originally presumed that if your use was commercial it was an unfair exploitation. Court later abandoned that assumption because many of the enumerated purposes (such as news reporting) are conducted for profit. Although the commercial nature of the use is still part of the analysis, courts will look to the degree to which it is commercial and will not disfavor a transformative use merely because it makes a profit. Accordingly, the presence of advertising on a website would not, in of itself, doom one’s claim to fair use.

If you merely reprint or repost a copyrighted work without anything more, however, it is less likely to qualify for protection under this prong. If you include additional text, audio, or video that comments or expands on the original material, this will enhance your claim of fair use. In addition, if you use the original work in order to create a parody this may qualify as fair use even without commentary directed toward the original work.

Moreover, if the original work or your use of it has news value, this can also increase the likelihood that your use is a fair use. Although there is no particular legal doctrine specifying how this is weighed, several court opinions have cited the newsworthiness of the work in question when finding in favor of fair use. See, e.g., Diebold, 337 F. Supp. at 1203 (concluding "[i]t is hard to imagine a subject the discussion of which could be more in the public’s interest”), Norse v. Henry Holt & Co., 847 F. Supp. 142, 147 (N.D. Cal. 1994) (noting "the public benefits from the additional knowledge that Morgan provides about William Burroughs and other writers of the same era").

2. Nature of the Copyrighted Work

In examining this factor, a court will look to whether the material you have used is factual or creative, and whether it is published or unpublished. Although non-fiction works such as biographies and news articles are protected by copyright law, their factual nature means that one may “rely more heavily” on these items and still enjoy the protections of fair use. Unlike factual works, fictional works are typically given greater protection in a fair use analysis. However, this question is not dispositive, and courts have found fair use of fictional works in some of the pivotal cases on the subject. See, e.g., Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984).

The published or unpublished nature of the original work is only a determining factor in a narrow class of cases. In 1992, Congress amended the Copyright Act to add that fair use may apply to unpublished works. See 17 U.S.C. § 107. This distinction remains mostly to protect the secrecy of works that are on their way to publication. Therefore, the nature of the copyrighted work is often a small part of the fair use analysis, which is more often determined by looking at the remaining three prongs.

3. Amount and Substantiality of the Portion Used

Unfortunately, there is no single guide that definitively states how much of a copyrighted work you can use without copyright liability. Instead, courts look to how such excerpts were used and what their relation was to the whole work. If the excerpt in question diminishes the value of the original or embodies a substantial part of the efforts of the author, even an excerpt may constitute an infringing use.

If you limit your use of copyrighted text, video, or other materials to only the portion that is necessary to accomplish your purpose or convey your message, it will increase the likelihood that a court will find your use is a fair use.

Of course, if you are reviewing a book or movie, you will need to reprint portions of the copyrighted work in the course of reviewing it. Even substantial quotations may qualify as fair use in "a review of a published work or a news account of a speech that had been delivered to the public or disseminated to the press" Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 564 (1985). However, substantial quotations from non-public sources or unpublished works do not enjoy the same protections. Id.

4. The Effect of Your Use Upon the Potential Market for the Copyrighted Work

In examining the fourth factor, which courts tend to view as the most important factor, a court will look to see how much the market value of the copyrighted work is affected by the use in question. This factor will weigh in favor of the copyright holder if “unrestricted and widespread” use similar to the one in question would have a “substantially adverse impact” on the potential market for the work.

Although the copyright holder need not have established a market for the work beforehand, he or she must demonstrate that the market is "traditional, reasonable, or likely to be developed." Ringgold v. Black Entertainment TV, 126 F.3d 70, 81 (2d Cir. 1997). An actual effect on the number of licensing requests need not be shown. The fact that the original work was distributed for free, however, may weigh against a finding that the work had publication value. See Nunez v. Caribbean Int'l News Corp., 235 F.3d 18, 25 (1st Cir. 2000). Likewise, the fact that the source is out of print or no longer sold will also weigh in favor of fair use.

The analysis under this factor will also depend on the nature of the original work; the author of a popular blog or website may argue that there was an established market since some such authors have been given contracts to turn their works into books. Therefore, a finding of fair use may hinge on the nature of the circulated work; simple e-mails such as those in Diebold are unlikely to have a market, while blog posts and other creative content may fit the mold of those turned into published books or otherwise sold. In addition, the author of a work not available online, or available only through a paid subscription, may argue that the use in question will hurt the potential market value of such work on the Internet.

Assessing the impact on a copyrighted work’s market value often interplays with the third factor because the portion of the work used will often determine how much value remains. For instance, the publication of five lines from a 100 page epic poem will be treated differently than the publication of the entirety of a five-line poem.

This fourth factor is concerned only with the remaining value in the copyrighted work itself; the fact that the use may otherwise financially harm the copyright holder (such as negative publicity) is not part of the analysis. Diebold, 337 F. Supp. 2d at 1203; see also Campbell, 510 U.S. at 591-92 (“[W]hen a lethal parody. . . kills demand for the original, it does not produce a harm cognizable under the Copyright Act.”). The fact that the use being challenged creates or improves the market for the original work will likewise favor a finding for fair use on this prong. See Nunez, 235 F.3d at 25 (finding fair use when the publication of nude photos actually stirred the controversy that created their market value and there was no evidence that the market existed beforehand).

C. Publishing the Contents of Factual Research

As previously mentioned, you may make use of the facts you draw from research reports without violating the copyright of the author. As long as you do not copy the creative expression of those ideas or the specific arrangement of the facts, fair use need not even apply since those aspects of the report are not copyrightable. Research reports created by the U.S. Government, including those of Congress and executive agencies, are also in the public domain.

Moreover, fair use may also protect your use of even copyrighted materials in research reports. For example, quotes from research reports that are used for news reporting may be used if the factors discussed above indicate fair use.

D. Publishing the Contents of Private Letters and E-Mail (including letters from lawyers threatening legal action)

Fair use may protect the publication of the content of private letters and e-mail, including communications from lawyers threatening legal action. As mentioned above, unpublished materials sometimes enjoy greater protection than published documents. Although an author may argue that the "unpublished" nature of his or her correspondence warrants a finding against fair use, such an argument carries weight only when the use involves a heretofore secret work “on its way” to publication.

Recently, two students at Swarthmore college posted an e-mail archive of internal e-mails among Diebold employees; an online newspaper linked to the archive in an article critical of Diebold’s voting machines. A court held that although the letters were not published, they were nonetheless protected by fair use. Diebold, 337 F. Supp. 2d at 1203. Applying the four fair use factors, the court found the fourth factor entirely lacking because Diebold had no intention of selling the archive for profit, they were not denied any value when it was published online. The court also noted the students and newspaper use was intended to support criticism of the company, which was a transformative use under the first factor.

II. DIGITAL MILLENNIUM COPYRIGHT ACT

Even when you have a strong argument that your use of another's copyrighted work is a fair use, you may still find that your hosting provider has taken down your material in response to a "cease and desist" letter sent by someone claiming copyright infringement. The Digital Millennium Copyright Act (DMCA) provides that Internet Service Providers (ISP) or Online Service Providers (OSP) that take down material in response to such a claim do not face liability themselves for copyright violations. 17 U.S.C. § 512(a). Although the DMCA does not impose automatic liability on service providers that do not take down allegedly infringing materials, litigation-averse companies may routinely take down material upon receipt of such a notice to stay within the DMCA’s safe harbor.

To prevent misuse of this procedure, the DMCA provides penalties for copyright holders if they "knowingly and materially" misrepresent that copyright infringement has occurred. 17 U.S.C. § 512(f).

In the Diebold case discussed above, the students and newspaper filed an action under this provision of the DMCA. When Diebold sent cease and desist letters to their hosting providers, the students and newspaper filed a lawsuit, alleging that because there was no possible copyright protection for the e-mail archive, Diebold’s letters contained “material misrepresentations.” The court agreed and held that Diebold's use of the DMCA's take-down procedure was improper, finding that some materials in the archive were not copyrightable content and that the student and newspaper's use of copyrighted material was a fair use. Diebold, 337 F. Supp. 2d at 1198.

III. THE IMPACT OF WIDESPREAD PUBLIC DISSEMINATION ON COPYRIGHT

A copyrighted work cannot enter the public domain through widespread distribution. A work enters the public domain when the copyright expires, usually 70 years after the author’s death. 17 U.S.C. § 302. No actions by third parties can end the copyright protection of a particular work (although the author herself can disclaim copyright).

Wide distribution of a copyrighted work may, in some cases, strengthen a claim of fair use. If such circulation was done without the copyright holder's permission, however, it will not support a finding of fair use. Nevertheless, if the copyright holder widely posted the work in question, this may indicate that a subsequent use of the work is a fair use. For example, wide posting by the author herself may weaken the argument that the infringing use hurt the market value.

IV. CONCLUSION

While there is no definitive test for determining whether your use of another's copyrighted work is a fair use, there are several things you can do to minimize your risk of copyright liability:

Use only as much of the copyrighted work as is necessary to accomplish your purpose or convey your message;

Use the work in such a way that it is clear that your purpose is commentary, news reporting, or criticism;

Add something new or beneficial (don't just copy it -- improve it!);

If your source is nonfiction, limit your copying to the facts and data; and

Seek out Creative Commons or other freely licensed works when such substitutions can be made and respect the attribution requests in those works.