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Testing the Fair Use Balance

Copyright Clearance Center VP on Righthaven and Fair Use

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Remember Righthaven? That’s the company with the business model of suing bloggers over copyright that ignited one of the more recent fair use controversy debates. A report last month from Fortune about the company asked questions like: "Could clicking a Like button lead to a lawsuit?" and "Are the days of posting stories to Facebook, emailing articles to friends, or printing out pieces numbered?" and suggested that social media could be "maimed". For further context read our previous coverage here and here

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While we even found that to be a bit sensational at the time, words from Copyright Clearance Center Vice President, General Counsel and Secretary Frederic Haber seem to confirm that. He shared some commentary on the subject with WebProNews.

When asked whether he though social media sharing and emailing of articles was in jeopardy, his response was: "In jeopardy from copyright?  No, copyright helps make all of that possible. Without copyright, it’s much less likely that either the software or the articles would have existed to be shared. Users have always shared materials that they read or experienced and wanted to bring to the notice of their friends and social circles, and copyright has never stopped that; on the other hand, going into the publishing business by distributing other people’s creations to strangers with whom you have no connection rather than creating things yourself is another matter."

"Social media sharing between friends or within social circles shouldn’t impede publishers’ and creators’ ability to profit from their content, and neither should wider sharing of focused selections where the person doing the sharing is actually saying something like ‘look how great this is!’ or ‘can you believe that he said this?’ Then the person doing the sharing is actually making a contribution to society, even if in only a small way, and that is exactly the kind of thing that fair use protects. Simply making a copy in order to save someone else from having to buy her own is something else."

The definition of fair use often seems a little blurry because of the gray areas (particularly online). When asked how fair use is defined for digital content, Haber said, "Fair use is a remarkable tool developed by federal judges over 170 years to balance the rights of copyright holders with the Constitutional injunction that copyright is intended ‘to promote the progress of Science’, which necessarily means that users must be able to use copyrighted works in some ways without being deemed infringers."

"In the Copyright Act of 1976, Congress finally enshrined fair use in statute, but did not define it because what is fair use and what is not vary so widely with circumstances," he continued. "Instead, Congress adopted and refined a test that judges had been developing over the years, directing a court to look at all the circumstances surrounding a use and make a judgment as to the appropriate way that a copyright holder’s rights and a user’s fair use privilege can best be balanced.  That’s the famous ‘four factor’ test of Section 107 of the Copyright Act."

"A fair use, then, is defined for digital content exactly as it’s defined for all other content. It’s a use that benefits society generally but does not unreasonably interfere with a copyright holder’s right to exploit and protect its creative output (a right which is itself intended to encourage the creation of more creative output for the ultimate benefit of society). The four factor test is technology-neutral, much as copyright itself is technology-neutral, because it is intended to address the needs and rights of people (and not technologies) in as balanced a fashion as possible."

"The question as to whether a use is a fair use is always whether the use goes beyond that which is reasonable in the circumstances (with the four factors as a guide to doing that analysis) or unreasonably interferes with a copyright holder’s rights to, for example, earn the money through selling copies of her work that she needs to earn to make MORE copyrighted works for others to experience and share.  With that as the standard, social media sharing or emailing articles between friends shouldn’t be at risk."

As for Righthaven’s practices, Haber had the following to say: "Righthaven appears to be using the courts to test the fair use balance by responding to some users’ use with an allegation that goes beyond that which is reasonable in the circumstances and interferes with the copyright holder’s right to benefit from its own creative output. Here, the creator of content (the newspaper) is conveying its right to sue to another party – Righthaven – which appears to be more prepared to test the fair use claim (than a newspaper which would rather focus on its core business), but the issue should be the same. Copyright holders have long sought court protection against infringers, including those who allege fair use but are not in fact making fair use."

At last count, the number of Righthaven’s lawsuits was up to 225, and they were also going after content providers that didn’t even have sites

Do you agree with Righthaven’s practices? Tell us what you think.

Testing the Fair Use Balance
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  • http://freestatesrights.blogspot.com mrhossc

    I am not a high techie and sometimes miss the big point when it comes to the way the internet is used. But, for the life of me, it is kind of hard to find a site at the present time that does not have all kinds of social share buttons for the reader to use. I know there are some exceptions for various reasons that involve sales and profit. I agree that they need protection. But just about everything else is like yesterday’s newspaper. Once it is out, it is quickly forgotten by the masses and something new is sought. Because it is quickly forgotten by the masses, is the best reason to describe why it is important for others to pick it up and share it again and again. This, by it’s own action, shows how beneficial it is to the original source. For example. Word of mouth (so to speak) is for more effective than any email campaign. So, where is the damage or infringement implied? Therefore, I find Righthaven’s lawsuits in the same catagory as an ambulance chaser. Check my blog at http://freestatesrights.blogspot.com to see how I use social media and other means to forward what I deem worthy.

    • phawke

      I’m not sure on this; but, if someone puts a “share” button of some type near their original content, wouldn’t that be legally construed as permission to use? Any copyright attorneys out there?

      • http://www.technicolorgoldfish.net ScienceLives

        A “share” button makes it easy for people to link to content … basically driving traffic to that web page for others to see it. This is totally different than copying and pasting content onto another site. If a link is shared, the original author gets both the credit and the traffic (and potentially ad revenue).

  • http://centerforsocialmedia.org/fair-use Pat Aufderheide

    Communities of practice that have clarified their interpretation of fair use have been able to expand their access to their right of fair use. (And yes, it’s a right, just like the right of self-defense; the fact that it is only actively invoked when you are challenged does not diminish its stature as a right.) Communities such as documentary filmmakers, online video makers, media literacy teachers, communication scholars, poets, and others have all created codes of best practices in fair use. They are all available on our site at http://centerforsocialmedia.org/fair-use. These codes have proven to be legally sturdy, and very reliable for everyone from individual creators to television programmers and even insurers. These codes establish what are the safe-harbor areas for fair use for your field. The Center for Social Media is now interviewing journalists about their experiences with fair use (if you’re interested, contact us at socialmedia AT american.edu). We believe that both mainstream and informal-sector journalists routinely and vigorously employ fair use, and that there are also some practices that fall outside the bounds of safe-harbor practices. If journalists can clarify what their routine expectations are for fair use–which will mean identifying as fair use practices they often simply take for granted, such as quoting people they interview without permission–then they will be asserting the balance in copyright that is essential to maintain freedom of speech and cultural creation. At the same time, they will be staking a legitimate claim to the rights they have as copyright holders, which are also part of the balance of copyright.

  • Mr. King

    It’s only a matter of time before the Nevada District Court shuts down Righthaven as none of the cases have gone to trial. Those cases that have had a motion to dismiss were granted. The others are settled out of court for a couple grand. Some are just sitting on the dockets. Hence Righthaven’s urgency at getting as much money as it can before the courts finally weigh in. They’ve only been at since March 2010. Plus, I have a feeling a class-action suit against Righthaven is just around the corner, if not already in the works.

    • phawke

      Here’s a good article on them: http://opinion.latimes.com/opinionla/2010/11/righthaven-copyright-lawsuits-as-a-business-model.html. Sorry, but their whole business premise seems like such a scam.

  • http://www.CaptainCyberzone.Com Captain Cyberzone

    To pirate anothers work and claim it as one’s own or not to even imply that the work is that of another should be punishable (as it is) by law. Copyright laws were created implicitly to address this issue.

    As the publisher of a “content” site I use both original and “farmed” content, both are “sourced”… this is called “footnoting” and is precisely why footnotes were created. (To allow the use of part of anothers work [that is to say] to help complete your work while acknowledging the fact that you used anothers work and are pointing out exactly what you used and by whom and the origins of it’s content. This was a subject matter that was a part of every mandatory aged student’s courses! If it no longer is then this subject , obviously, must be addressed to and by the Department of Education).

    I have no problem with any of my work being used by another so long as my contributed content is properly “sourced”.
    My site attracts “eyes” that would never have seen some of the original content on the original published site … solely because that site is not on their radar or shunned because of some social stigma or ideology!
    I look at this as being a form of advertising for them and for me and my work when I’m “content farmed” (again, so long as the content is properly sourced).

    As far as Google’s latest algorithm teak down-rating sites like mine under the pretext of copyright infringement concern (of which my site is not culpable of) I would have to say that this is highly hypocritical of Google as “content farming” is exactly what Google is doing with “Google Images”!

    I do hope that I am wrong with thinking that Google’s new algorithm teak is a blanket bot scan and does look for “Source” amongst the body of the work/content … otherwise this is a case of the pot calling the frying-pan black.

    • phawke

      There is a bit of confusion on the Internet in dealing with “farmed” content. Footnoting and attributions only go so far. If you are only publishing on your personal web site a small portion of an article that someone else wrote, for example, and footnote the attribution to the original author, then this is fair use — professional writers generally use the rule of thumb of less than 50 words quoted. If you use the entire article or a good portion of it without first getting permission to use it from the author, even with attribution, this is copyright infringement. You could be sued for this type of use. The biggest problem is that, with the Internet, you have a lot of people who do not know completely the copyright law using content from others, which means a lot of abuses. Many people believe that if they only change the title and the first sentence of each paragraph they are safe – again, this is infringement. For your content site, just ask to use the info. Most writers will give you permission with attribution, and it generally only takes a short email. Better safe than sorry.

  • Swenpge

    Anyone that produces nothing and only plans to make money by suing people does not have a moral high ground. Righthaven lawyers are copyright trolls.

  • http://www.ebling-jewelry.com Jaded1

    From my own personal experience, it appears that it’s ‘anything goes’ online, unless you have an entire legal team that is dedicated to tracking and prosecuting all copyright breaches.
    Almost as soon as I launched my website, I started to see my site’s headline ‘Bling It On!’ – which was my own personal creation – being used by others in their online advertising! Needless to say I was less than impressed. I sent a rude anonymous email to the owners of one of the sites that was using my headline – warning them to stop breaking the law! But hey, the way I see it, this is the occupational hazard of creativity and originality – there are always plenty of ‘followers’ ready to use your ideas for their own personal gain. But I take solace in the knowledge that they’ll never be able to come up with any new ideas…..but I’ve got tons of them!!

    • phawke

      “Blink it on”, though very inventive, is a phrase that to be protected from use by others would need to be trademarked. It’s not a copyright issue, but one of trademark infringement. If you didn’t trademark it, which you still could, then there is no infringement. Sorry.

  • http://gilmorehorsemanship.com North Carolina1

    I have a number of websites for different subject matter. Frankly, I don’t care how people use my contents as long as they give attribution. If they link to it, that’s fair use. If they use on their website and give attribution as part of another ‘work’, that’s fair use. If they use it as a footnote, that’s fair use. Allowing fair use with attribution is good policy and good publicity!

  • http://www.kevinlomas.net./ Guest

    Is this site in the USA? Fair Usage in the UK applies to ISPs who cut or strangle your on-line down/uploads if they think you are using their services too much. Even Unlimited ones do it, and a lot!
    But from the replies I see here it is perhaps not about that! Confusing …

    Ok, I am a writer and artist and try to earn a living from it, so no one should take any content unless it says they can. Simple. But unless you find it in use somewhere without permission, how would you know? and if you found out, just what could you do about it if they say “so?” Lawyers cost a lot of money, and in some counties they turn a blind eye to copyrights anyway.
    Before the internet it was never a big problem, because it was hard for people to steal things, but now it is easy for anyone to copy anything on a webpage via a simple click and most people do not seem to think it is wrong. Granted, the illegal sharing of music gets big press, but stealing and sharing art and text does not, and let’s face it, what is the point of trying to sue some kid sat in his bedroom?

  • http://hallwaltz.com/ Ccbw

    They way I see it if you are putting something online you should be aware of the potential exposure and understand the inherent risks associated with that.

    Give credit where credit is due, isn’t that why we put things online? for people to see and read or watch etc. what we put online.

    If your worried about privacy don’t put it online, DUH!

  • http://www.antellus.com Guest

    The problem with going after violators of copyright is that their content may be already distributed all over the internet, and finding every instance of use is not possible. Instead of suing, Righthaven should be drafting a list of “fair use” rules that everyone can follow. The free exchange of ideas should not be infringed, but blatant use of someone else’s content for monetary gain is what we should be focused on. Righthaven is an instance of litigation gone wrong, and they are more akin to ambulance chasers instead of protectors of creative rights. I applaud the idea of going after scofflaws, but going after everyone who shares a book (for example) with their friends is treading on first amendment constitutional rights. Righthaven will quickly find their cases tossed out because of their claim to be on the moral high ground and they will have wasted their clients’ time and money. Not a good way to build up credibility.

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