In one of my classes at Penn State we are learning about some very controversial topics in the tech realms including DRM (digital rights management), Net Neutrality, and Fair Use. I listen to and read a lot of tech news and these subjects are heavily discussed, mostly with contempt. So, in the learning tradition of a current student, I decided that a group of posts about these subjects were warranted. I would like to define and briefly discuss these controversial topics in plain English.
So really, what is Fair Use?
In a nutshell, Fair Use or Limitations on Exclusive Rights is a copyright law that allows an artist’s or company’s copyrighted work to be legally used as long as it is “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.“ In other words, any type of copyrighted work that is used for these purposes does not require permission to be used.
This seems very tricky. The description of “commenting” does seem a bit broad to me. If I post a copy of a Britney Spears song on Tech Hacker and comment on Britney’s shear brilliance at song writing, would that be Fair Use? This is where the “rules” of Fair Use get cloudy, so of course there is a “four-factor balancing test” which is basically a way to figure out if something is Fair Use or not.
The Balancing Test
Here are the four-factors that determine whether my critique and comment on Britney’s song is Fair Use or not:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; an
- the effect of the use upon the potential market for or value of the copyrighted work.
These seem somewhat straight forward but I believe that these guidelines can be misconstrued and confusing. I think that it would be important for these four factors to be clarified, but of course, they have not. This leads to much confusion, especially on the sites like YouTube, Google Videos, etc., where users can upload whatever they want. What happens is that when the RIAA (RIAA bio to come) sees something that is in question of Fair Use, they order a “take-down” notice to YouTube. Without reviewing the claim first, YouTube has to take the “questionable” content down. The content in question is then posted for review in court where any copyright violations will be declared or the content usage will be reviewed as Fair Use. Seems a little backwards doesn’t it?
Criticism
Personally I think that a Fair Use law is important. It is important to protect artist’s and company’s copyrighted work from being used by another entity for profit. I understand this. The biggest problem that I have with Fair Use is that it is very vague and left to a judges interpretation; an interpretation that can change when their opinion of the law changes.
The Fair Use law, in my opinion, needs to be revamped and clarified. I will, in the near future, go into a little more depth about each “balancing test” procedure and why they may or may not work.
Hopefully this clarifies what Fair Use is and to finish everything off I have included some links that explain it a little further.
Related links
US Code Collection - Cornell University
Wikipedia Article
US Copyright Office - Fair use
Fair Use FAQ
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