Category: Fair Use

This week, we’ll look at fair use cases and learn about their effect on and meaning for the work that we do. Read the first post in our series about Fair Use Week 2018.

A music publisher, a rap artist, an irreverent parody, and a lawsuit—what do all of these have to do with how we use fair use in a university environment?

Watch! Parody and Fair Use: Campbell v. Acuff Rose

Quite a bit, as it turns out. In the last few decades, the concept of transformational fair use ties into the first factor of a fair use analysis—the purpose and character of the use. Judge Pierre Leval’s 1990 commentary, “Toward a Fair Use Standard” in the Harvard Law Review, first laid out the case for transformative fair use. Leval argued that the analysis of the first factor should turn on “whether, and to what extent, the challenged use is transformative” (p.1111). Continue reading “What Does It Mean to Be Transformative?”

Today, February 26, marks the beginning of Fair Use Week 2018; a time for us to celebrate and talk about one of the most useful, flexible, and maddening doctrines in copyright law. This week, we’ll look at four fair use cases and learn about their effect on and meaning for the work that we do.

Fair use is not unique internationally, but it is most well-developed in the U.S., in part because of our need to harmonize the rights of copyright and the rights of the First Amendment. In many ways, fair use is a creature of the law of equity—the law of common sense and fairness. At the same time, its flexibility can sometimes make it opaque to the person who first encounters it. Nevertheless, most of us in the academy, whether we know it or not, use fair use all the time as we write, teach, research, and create. Continue reading “Fair Use Week 2018: Creation and Communication in the Academy”

Google recently announced that they will offer legal support to protect certain parties who are clearly following fair use rules when uploading content to YouTube. They specifically stated, “[t]hrough this initiative, YouTube indemnifies creators whose fair use videos have been subject to takedown notices for up to $1 million of legal costs in the event the takedown results in a lawsuit for copyright infringement.”

YouTube’s website lays out the four factors of fair use which must always be taken into consideration when uploading a video which contains any kind of material copyrighted by someone else. The website also has a policy in place for video uploaders who use copyrighted content, but do not meet the standards of fair use. If the copyright owner discovers that their protected content is being used in a video not authorized by them, the uploader of that video receives something called a Content ID. After this, the copyright owner gets to decide the next step. They can exchange use of the copyrighted content for displaying ads during the video, or they could completely block the video from being seen, mute the copyrighted material, or restrict the video to certain platforms. If a video is removed due to the rights holder sending a complete legal request to do so, then the uploader of that video receives a copyright strike on their account. Three of these strikes and you’re out, your account will be terminated.

The new fair use defense policy would not apply in situations such as this, because Content IDs and copyright strikes on YouTube accounts only occur when the use of the work is not determined to be fair. The policy will offer “legal support to a handful of videos that [YouTube] believe[s] represent clear fair uses which have been subject to DMCA takedowns. With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.”

Lawsuits can become exorbitantly expensive, especially when up against a large company or corporation with deep pockets that owns a lot of intellectual property and aggressively protects it. So this new policy should be a great incentive for video uploaders to be more careful when selecting what content to use and how to fairly use it.