Sutphin Essay 1

Lindsey Sutphin
Issues in Professional and Public Discourse
March 3, 2010

Evaluating Fair Use on the Internet

Introduction

Now, the court system and most Americans would probably agree that photocopying a book and posting it online is an example of copyright infringement. However, what about posting a news story to one’s Facebook page? What if a father posts a video of his daughter’s dance recital and gets sued by the rights holder to the music in the video? These types of Web 2.0 technologies based upon social aspects are blurring the lines of what constitutes fair use.

Fair use in the United States was a part of common law until it was incorporated as part of the Copyright Law of 1976, and is a part of the copyright law that allows limited use of copyrighted material without permission from the owner of the rights. The term “fair use” is deliberately ambiguous and open to interpretation. Many of the laws and court cases involving copyright claims and fair use follow precedent from past cases. However, with advent of the Internet and the digital age, allegations of copyright infringement and the fair use defense have increased. Even more recently, the social uses of the Internet, especially for news, has caused more questions as to what fair use actually is.

The Associated Press and Fair Use on the Internet

“We can no longer stand by and watch others walk off with our work under misguided legal theories.”
-William Dean Singleton, Chairman of the Associated Press

Recently, the Associated Press (AP) has filed several copyright infringement suits against websites claiming fair use as a defense. The AP claims that sites that use works belonging to news organizations must obtain permission and share revenue with them. They have threatened legal action against Google, Yahoo, and Drudge Retort, a parody of Drudge Report, among others.

While Google, Yahoo, and other major sites do have an agreement for some of the AP’s content to appear on their pages, the sites that appear as results on the search engines may not be covered by those agreements. In cases such as this, Sue Cross, senior vice president of the AP, says their goal is to ensure that the top search results for news are “the original source or the most authoritative source,” not websites that have copied or shortened the story. However, according to Google spokesperson Gabriel Stricker:

“We believe search engines are of real benefit to newspapers, driving valuable traffic to their Web sites and connecting them with readers around the world … We believe that both Google Web Search and Google News are fully consistent with copyright law – we simply link users to the site at which the news story appears.”

The significance of this situation is that the AP is basically taking on the role as representative for the entire news industry, especially that of large newspapers, which own the AP.

Monetary Value of Fair Use on the Internet

“As the United States economy becomes increasingly knowledge-based, the concept of fair use can no longer be discussed and legislated in the abstract. It is the very foundation of the digital age and a cornerstone of our economy … the Internet itself depends on the ability to use content in a limited and nonlicensed manner.”
-Ed Black, president and CEO of Computer and Communications Industry Association

With the current financial problems facing the newspaper industry, it is no wonder that the AP would try to regulate the online news world to their monetary benefit. And according to the Computer and Communications Industry Association (CCIA), there is quite a bit of money to be had from fair use content online. In 2007, CIAA released a study using methodology from the World Intellectual Property Organization that found that fair use exceptions to United States copyright laws were responsible for more than $4,500 billion in annual revenue. It also found that 11 million American jobs and 18% of economic growth were directly gained from fair use dependent industries.

The Digital Millennium Copyright Act (DMCA) and Fair Use

“This new right could well prove to be the legal foundation for a society in which information becomes available only on a pay-per-use basis … copyright law is not just about protecting information. It’s just as much about affording reasonable access to it as a means of keeping our democracy healthy and doing what the Constitution says copyright is all about: promoting ‘Progress in Science and the Useful Arts.’ “
-Representative Bliley in 1998 at a hearing concerning the DMCA bill

In the late nineties, once the Internet starting becoming a part of the average American’s life, concerns about the application of existing copyright laws began to arise. The United States signed treaties in the World Intellectual Property Organization Geneva Conference in 1996, and the Digital Millennium Copyright Act was an implementation of that agreement. Signed into law by President Clinton in 1998, the DMCA:

  • Limits the liability of Internet service providers for possible copyright infringement by its users,
  • Expects service providers to remove material from its users’ sites if it appears to be copyright infringement,
  • Increases penalties for copyright infringement on the Internet, and
  • States that “nothing in this bill shall affect rights, remedies, limitation, or defenses to copyright infringement, including fair use.”

However, while the DMCA does not disallow using fair use as a defense against copyright infringement allegations, it does not contain provisions concerning linking to copyright-protected content. As I examined earlier, the most controversial aspect of current copyright law is whether or not merely linking to copyright material is considered fair use or infringement. Currently, there have been no cases in the United States where a website owner has been penalized for linking to copyrighted material.

Most criticism comes from Internet users who have received take-down notices from the DMCA. Under DMCA regulations, the mere allegation of copyright infringement by the rights owner constitutes grounds for content removal. In one case, Lenz v. Universal Music Corp., a mother had received a take-down notice after she posted a 29-second video to Youtube of her son dancing to “Let’s Go Crazy” by Prince. Universal, owner of the song’s rights, claimed copyright infringement and Youtube removed the video. The court found in Lenz’s favor and set a very important precedent on fair use and the Internet: Copyright holders must in good faith consider fair use before making allegations of copyright infringement.

Conclusion

I think fair use also needs to be applied differently for different industries. I think the Associated Press is taking the correct action in regulating how much of their content can be shared by sites not in agreement with them. I think the entertainment industry should be handled in an entirely different manner, specific to the needs of users and rights holders.

Reading about all the debate concerning fair use and the Internet, I have determined that whether or not one looks at the Internet as a commercial or an information tool determines how one sees fair use. However, since the Internet is both a commercial and informational network, the debate will probably never be truly settled. I think revisions to copyright law will be made, and should be made. The DMCA is now over a decade old, and the Internet has changed so much that new issues need to be addressed, such as whether or not linking to copyright material is legal, and the boundaries of fair use between social and commercial purposes. These are all issues that need immediate and constant attention, because thanks to the connectivity granted by the Internet, we are a quickly-changing, well-informed populace.

Works Cited

“A citizen’s legal guide to the Digital Millennium Copyright Act (DMCA).” 1 November 2007.
New Media Rights. < http://www.newmediarights.org/guide/legal/copyright/citizens_
s_legal_guide_digital_millenium_copyright_act_dmca>.
“The Digital Millennium Copyright Act.” 8 Feb 2001. The UCLA Online Institute for Cyberspace Law
and Policy
. <http://www.gseis.ucla.edu/iclp/dmca1.htm>.
“Economic Contribution of Industries Relying on Fair Use.” Computer and Communications
Industry Association
. 2007. <http://www.ccianet.org.org/CCIA/files/ccLibraryFiles/
Filename/0000000085/FairUseStudy-Sep12.pdf>.
“Mom Sues Universal Music for DMCA Abuse.” 24 July 2007. Electronic Frontier Foundation.
<http://www.eff.org/deeplinks/2007/07/mom-sues-universal-music-dmca-abuse>.
Perez-Pena, Richard. “AP Seeks to Rein in Sites Using Its Content.” 6 April 2009. The New York
Times
. <http://www.nytimes.com/2009/04/07/business/media/07paper.html/?fta=y>.
Thi Phan, DanThu. “Will Fair Use Function on the Internet?” Columbia Law Review. Vol 98, No. 1
(Jan 1998). Pp. 169-216. <http://www.jstor.org/stable/11233977>.

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