FAIR USE: THE LEGAL USE OF COPYRIGHTED MATERIAL

This document was last updated on January 17, 2012.

Disclosure: This document is intended as an overview of copyright and fair use. It is written for content creators on the Internet. It will be updated based on changes to the law and in response to questions from the content creation community. This document is not intended as legal advice and should be used only for informational purposes. Compendium prepared this in collaboration with the law firm Alerding, Castor, & Hewitt LLP. You should consult an attorney when dealing with legal questions regarding copyright law.

The fair use debate has persisted for many years and the Internet is only fueling it further. Major players on both sides of the arguments have great interest in the way laws in this area are formed. This topic is not going away anytime soon and all parties using the Internet for their services need to stay informed.

You are not alone if you find yourself confused by laws. They are numerous, complex, and often times downright scary. This document is meant to provide a general informational overview of copyright law in the United States so that you don’t wrongly hold back your creative talents. One of the main points of discussion is the fair use doctrine which places limits on the copyright owner’s protections and gives the rest of us a little freedom to touch upon their works. You will also find information about recent legislative proposals relating to copyrights, so that you can keep an eye out for changes that may affect you down the road. As you will see throughout, sometimes the mere names of the laws can be overwhelming but hopefully this document will provide some comfort.

Current Regulations SOPA PIPA

Recent legislation effecting copyrights and fair use includes The Digital Millennium Copyright Act of 1998 (“DMCA”). The DMCA brings U.S. law into accordance with international treaties relating to copyrights and adds several regulations to the copyright arena. You might be most interested in the Online Copyright Infringement Liability Limitation Act (“OCILLA”). Online service providers (“OSP’s”) must follow the rules set forth in OCILLA in order to avoid getting into hot water. Google, Facebook, and LinkedIn each qualify as an OSP. Generally, OSP’s must create a system for copyright holders to notify them if their users are infringing. Then the OSP’s must take steps to stop the infringement. If you have something taken down pursuant to this system, you will be notified and you will have the opportunity to defend your use of the alleged infringing material. You may want to contact an attorney if this happens to you. Also, according to the DMCA, you cannot go around the technological measures used by copyright owners to protect their works or tamper with copyright management information. The DMCA is not meant to limit or modify the fair use doctrine, but you need to be aware of how the two interact.

The Stop Online Piracy Act (“SOPA”) is a bill currently under review by the House of Representatives House Judiciary Committee. Essentially, if SOPA is enacted it will allow copyright holders and law enforcement agencies to take action against websites contributing to copyright infringement; what amounts to contribution and the degree of contribution necessary for punishment are just a few of the topics being debated. In its current form, the bill would allow law enforcement officials to force Internet service providers to block their subscribers’ access to infringing sites, often referred to as blacklisting, as well as forbidding other companies from linking or providing services to or from those sites. The idea is to cut the infringers off at the roots. The ripple effect through the Internet from this type of bill would be vast.

The Senate Judiciary Committee recently approved a similar bill known as the Protect IP Act (“PIPA”). This was a small triumph for the proponents of this type of legislation because formerly proposed laws on this topic have failed to make it this far in the legislative process. This bill has the same basic components of SOPA. If you are using the Internet for your craft, you should keep an eye on the progress of this type of legislation as it will have many implications for you. Under these bills, if you are classified as contributing to infringement or as working with an infringing site, it could be detrimental to your viability.