Fair use

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Editor-In-Chief: C. Michael Gibson, M.S., M.D. [1]

Fair use on the Internet

A recent court case, Kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use. On appeal, the 9th Circuit Court of Appeals found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgement after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.

Common misunderstandings

Because of the deliberate ambiguity of fair use, it is commonly misunderstood. Here are some of the more common misunderstandings with explanations of why they are wrong:

  • It's copyrighted, so it can't be fair use. Fair use describes conditions under which copyrighted material may be used without permission. If a work is not copyrighted, it's in the public domain and can legally be used without regard to fair use law.
  • Acknowledgement of the source makes a use fair. Giving the name of the photographer or author may help, but it is not sufficient on its own. Note that plagiarism is a matter of professional ethics, not of copyright — copyright law protects exact expression, not ideas, and so while citing the source for an idea prevents plagiarism, it is not necessarily needed to avoid infringing copyright if exact words are not used. On the other hand, one can plagiarize a work that is not protected by copyright.
  • Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account.
  • The lack of a copyright notice means the work is public domain. Not always true. United States law in effect since March 1, 1989 has made copyright the default for newly created works. For works produced between January 1, 1978 and March 1, 1989, copyright notice is required; however, registration was not required [2]. Any American works that did not have formal registration or notice fell into the Public Domain if registration was not made in a timely fashion. For international works, the situation is even more complex. International authors who failed to provide copyright notice or register with the U.S. copyright office are given additional contemporary remedies which may restore American copyright protection given certain conditions. International authors/corporations who fail to meet these remedies forfeit their copyright. An example of a company who failed to prove copyright was Roland Corporation and their claimed copyright on the sounds contained in their MT-32 synthesizer.
  • It's okay to quote up to 300 words. The 300-word limit is reported to be an unofficial agreement, now long obsolete, among permissions editors in the New York publishing houses: 'I'll let you copy 300 words from our books if you let us copy 300 words from yours.' It runs counter to the substantiality standard. As explained above, the substantiality of the copying is more important than the actual amount. For instance, copying a complete short poem is more substantial than copying a random paragraph of a novel; copying an 8.5x11-inch photo is more substantial than copying a square foot of an 8x10-foot painting.

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