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BREAKING NEWS & VIEWS
The Web and Big Profits Put Fair Use to the Test The same can't be said about the fair use doctrine in Section 107 of U.S. copyright law—especially when it comes to the Web—but the fact is these days you can't afford to be in the media business without a basic understanding of the rights and opportunities that fair use affords you. Established as a concept hundreds of years before the Internet and codified in the Copyright Act of 1976, the essence of fair use is that there are circumstances where copyrighted material may be used without the permission of the rights holder. Its four main pillars (below) help the courts measure whether a copyrighted work used without permission of the rights holder is legal: 1. The purpose and character of how you are using the copyrighted work. 2. The nature of the copyrighted work. 3. The amount and substance of the copyrighted material used relative to its whole. 4. The effect of the use on the market value of the copyrighted work. In addition to these pillars, most fair use cases center on whether the original copyrighted work has been "transformed" or changed sufficiently enough to avoid being considered infringement. Classic pre-Internet examples of fair use like commentary and book and movie reviews are pretty well understood. Even basic online behaviors like "linking" are generally considered acceptable. The continued rise of social media, user-generated content and aggregation, however, are more complicated and are adding new fuel to the debate over when fair use becomes copyright infringement. With so much money at stake and dramatic shifts in who's making it and who isn't, the battle continues to rage. Just last spring, the Associated Press charged that Google News and other aggregators were essentially stealing content by building businesses with AP stories and not sharing revenue. Ironically, Google News takes very small snippets of each article compared to sites like Huffington Post, The Daily Beast, Silicon Alley Insider and scores more that regularly use far bigger excerpts in their curated pieces. Despite the AP's claims, the prevailing belief for most aggregators and curators is that prominent links back to the original source material are a benefit to the rights holder. Additionally, most sites appear to be "transforming" the original content to stay within the bounds of fair use. (For more on why expert curation is a smart business model, see previous Minsider column.) When it comes to social networks, user-generated content and sites like YouTube and Twitter, there are other issues to deal with. For instance, who's at fault when a third-party posts content they don't own the rights to? The Digital Millennium Copyright Act (DCMA) of 1998 gives operators so-called "safe harbor" or protection for questionable postings, but that didn't stop Viacom from filing a $1 billion infringement lawsuit against YouTube in 2007. It's likely, however, that the suit spawned YouTube's introduction of "content management tools" to help rights holders police how their works are used on the site. The far more interesting development from the Viacom/YouTube situation is the revenue opportunity that has grown out of the content management tools. Rather than simply being used to remove videos, the YouTube tools have become a way for rights holders to make money. The "JK Wedding Entrance" video on YouTube, which became all the rage this past summer and has now surpassed 30 million views, is a great example. Rather than demand that the JK video be removed for its unauthorized use of Chris Brown's song, "Forever," the record company (Jive/Zomba) added click-to-buy links on the video. Sales of the year-old song skyrocketed on both iTunes and Amazon. With the ever-changing nature of the Web, it's hard to tell where the issue of fair use versus copyright infringement will ultimately end up. What is clear, however, is that fair use will remain a hot topic, and that staying informed about its twists and turns falls into the realm of smart businesspeople, not just lawyers. Minsider columnist Daniel Lagani served as president of the Fairchild Fashion Group, overseeing media brands including WWD, WWDMen’s and WWD.com; Footwear News; Fairchild Summits, Books and Classifieds; and Fashioncareers.com. If you have breaking news to share please contact Steve Smith at ssmith@accessintel.com More Breaking News & Views
Breaking News & Views Archives COMMENTS
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We at the Center for Social Media agree that fair use is a critical tool for a participatory digital era, and that it is as valuable to copyright holders as to new users. It reduces friction in the licensing system, and opens up new opportunities for expression. It is much easier to use, however, than you describe here, when communities of use interpret it. We have worked with several--documentary filmmakers, online video makers, and teachers of media literacy among others--and their codes of best practices can be helpful to others as well. Check them out at centerforsocialmedia.org/fairuse.
Posted by Patricia Aufderheide on Sunday, November 1, 2009 @ 09:25 AM
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 Manager, Digital Media, NCC Media
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