Fair Use Fridays: ALA - Fair Use Guidelines "Of Little Practical Help"

From Daniel Lee, Undergraduate Services Librarian at the University of Arizona (full text on American Library Association website here)

Section 107 of the Copyright Act of 1976 defines fair use. It is a vague definition, intentionally so, presenting broad principles with no reference to numerical limits on the portion of a work used, or the length of time a work can be used. This vagueness provides tremendous flexibility, but also leads to much uncertainty. Applying the statute to a particular proposed project can result in multiple, quite reasonable interpretations. In an effort to combat this uncertainty and make fair use more predictable, representatives of both copyright holders and consumers have often met to develop guidelines that provide the sort of specificity that many find desirable.



The most well known of these guidelines are the CONTU Guidelines on Photocopying Under Interlibrary Loan Arrangements, adopted in 1978, and the Agreement on Guidelines for Classroom Copying in Not-for-profit Educational Institutions with Respect to Books and Periodicals (often referred to as the "Classroom Guidelines"), adopted in 1976. More recently, attempts were made to reach similar agreements for educational multimedia, electronic reserve, and distance learning. For the most part, agreement could not be reached as copyright owners believed the proposed guidelines to be overly permissive, and library and educational representatives found the proposals to be too restrictive.


The failure of the recent negotiations and almost 25 years of experience with the earlier guidelines have led many to conclude that fair use guidelines, by their very nature, fail to capture the principles embodied in fair use and are of little practical help.

A Powerpoint on fair use for librarians here. 

CONTU Guidelines here.

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Fair Use Fridays: Myths About the Copyright Act's Fair Use Provisions

Myths about the fair use doctrine, article here
Academics fighting back....

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Fair Use Fridays: Fair Use Is A "Bit of a Loophole For Students and Teachers"

Another horrifically bad and misleading copyright video aimed at children. It doesn't mention the US Constitution. It doesn't reference the First Amendment. It refers to fair use as "a bit of a loophole for students and teachers".

This one gets a D-. It at least mentions the public domain, a concept left out of a number of the other copyright educational videos.

More botched fair use education by YouTube here.

Even scarier here.

Some hope from a copyright librarian here.

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Lies, Damned Lies and Copyright (Mis)Information

A great talk by Nancy Sims, a copyright librarian from the University of Minnesota here.

67% of university faculty did not realize that they owned copyrights...

A+ on copyright law for Nancy Sims.   My take on YouTube's failure here.

Nancy's very very smart survey will surprise many. Her discussions of responsible fair use and giving in to fear are really thoughtful.

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Fair Use Fridays: "Most Copyright Holders Have Never Heard of Fair Use"

From "Clip Show - A Practical Guide to Fair Use"

When Copyright Holders Attack

After the film has been released, expect to get calls from copyright holders upset about your use of their footage. Most copyright holders have never heard of Fair Use, and you should allow some money in your budget to have your attorney call and talk through the evidence you have. If you have been responsible in your Fair Use decisions, most complaints will only require one phone call from your attorney to make them go away. We encountered a handful of copyright holders from some very large corporations who were not pleased that their clips had been used in our film, but we were well prepared by our attorneys and had no problem avoiding any legal claims.

Full story from the maker of Bigger Stronger Faster here.  Watch the film here.


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Fair Use Fridays: Copyright PSA for the Users: Sing Along!

A video by Michael RobbGrieco showing copyright from a copyleft perspective.    The video contains a singalong critique of "overstated" owner's rights illustrating a view of the fair use doctrine 17 USC 107.   Isn't that the Twitter bird they are painting?

More on the fair use doctrine here.

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Fair Use Fridays: AAMD Says Lousy Quality = Fair Use

The Association of Art Museum Directors has issued a fair use policy.   According to them ,working with low quality digital thumbnails is fair use.  Full policy here.   More fair use guidelines here.

Section 107 of the Copyright Act embodies the fair use doctrine.  17 USC 107.  More on the fair use doctrine here.

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Is Using A Wireless Router Copyright Infringement? Or a Defense? (UPDATED)

From Boston College's website here

Common Examples of Copyright Infringement


•Joining a file-sharing network and downloading unauthorized copies of copyrighted music for free.

•Sharing unauthorized MP3 copies of a song on the Internet or through a file-sharing network.

•Using a wireless router in your room; others may share illegal material through your router, giving the appearance that you are the guilty party.

•Emailing copies of a copyrighted song to all of your friends.

•Transferring copyrighted music using AIM or other instant messaging services.

•Burning CD copies of music you have downloaded and then giving them to all your friends.


This is the first time I have heard that colleges and universities are teaching America's youth that using a wireless router constituted copyright infringement, can anyone educate me as to where this came from?

I have excerpted below the three federal opinions mentioning wireless routers, in each, having a wireless router was a potential defense to copyright infringement.

From Capitol Records Inc. v. Thomas-Rasset 2009 WL 1664468, 7 (D.Minn. 2009)



Therefore, given the evidence that there is no wireless router involved in this case, the Court excludes Kim's opinion that it is possible that someone could have spoofed or hijacked Defendant's Internet account through an unprotected wireless access point. Similarly, because Kim explicitly testified that this case does not involve any “black IP space,” or any “temporarily unused” IP space (Kim Dep. 110-11), he is not permitted to opine at trial that hijacking of black IP space or temporary unused IP is a possible explanation in this case.

From Arista Records, Inc. v. Musemeci 2007 WL 3124545, 5 (E.D.N.Y. 2007)


In connection with a motion to vacate a default judgment, a defendant must present more than conclusory denials when attempting to show the existence of a meritorious defense. See Enron Oil Corp., 10 F.3d at 98. “The test of such a defense is measured not by whether there is a likelihood that it will carry the day, but whether the evidence submitted, if proven at trial, would constitute a complete defense.” Id (citations omitted) (emphasis added). To set aside a default, the movant must “support its general denials with some underlying facts.” Sony Corp., 800 F.2d at 320-21.



Here, defendant has failed to make an adequate showing of a meritorious defense. Despite this circuit's strong preference for resolving cases on the merits, see Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir.1983), I find that defendant has made no statement of facts which, if proven at trial, would constitute a complete defense to plaintiffs' claims. Defendant has offered little more than conclusory denials of the alleged infringement. While defendant claims that he uses an unsecured wireless router at his residence, which could have been used by an outside party to commit the alleged infringing activity,FN7 this does not constitute a complete defense. Furthermore, plaintiffs have identified the screen name that was used to commit the alleged infringing activity as “jAcKiEecUddlEsSs@KaZaA.” ( See Gutierrez Decl. ¶ 18.) Defendant admits that he has a daughter named Jacqueline. ( See Tr. at 16.) This is unlikely to be a coincidence. I therefore find that defendant has not established a complete defense to plaintiffs' allegations.

 From  Motown Record Co., LP v. DePietro 2007 WL 576284, 2 (E.D.Pa.,2007)
Defendant's refusal to cooperate with Plaintiffs has persisted throughout the discovery process. Defendant initially refused to provide any written discovery to Plaintiffs.FN14 On at least two different occasions, Defendant refused to answer questions related to the case by asserting her Fifth Amendment privilege against self-incrimination, even though no criminal investigation or charges were pending against her.FN15 These refusals to cooperate forced Plaintiffs to seek Orders from this Court compelling Plaintiff to provide written discovery and to be deposed.FN16 Thereafter, Plaintiff was deposed a second time and submitted responses to previously issued interrogatories. During discovery, Defendant acknowledged that she was the only person who had access to her computer,FN17 that her live-in boyfriend was the only other person in her apartment for any extended period of time, FN18 and that she never used a wireless router or wireless service to connect to the Internet.FN19More on fair use guidelines here.

UPDATE
Techdirt attracts over 170 comments on the story here.   Many commenters say that the BC policy is a poorly-worded security warning and that people should secure their routers to avoid unauthorized use.

Zeropaid comments here.

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Fair Use Fridays: Girl Talk Goes Cinematic

Girl Walk // All Day from jacob krupnick on Vimeo.

Derivative works from derivative works: music and choreography and film from the remix culture. Saw this video on Techdirt who fears copyright infringement claims and comments here.

Beautiful music and dance video, great shots of the Staten Island Ferry and Lower Manhattan.

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Fair Use Fridays: Epigraphs, Fair Use and Poetry

The lady doth protest too much, methinks ... (Hamlet's remarried mother telling Hamlet she doesn't like his play about a lady saying she will never remarry...)  William Shakespeare, Hamlet, Act III, Scene 2.

Below is an excerpt on how to cite such introductions to a blog post, a book, a chapter, etc. consistent with the Center for Social Media's Code of Best Practices in Fair Use for Poetry.

5. EPIGRAPHS
DESCRIPTION: The use of quotations from poems to introduce chapters or sections of other works is a time-honored literary practice. Generally speaking, these quotations are selected for the connection to the text in question, although occasionally they may be introduced for merely frivolous or decorative purposes. Members of the poetry community generally found this practice to be non-controversial.

PRINCIPLE: Under fair use, an author may use brief quotations of poetry to introduce chapters and sections of a prose work or long poem, so long as there is an articulable relationship between the quotation and the content of the section in question.

LIMITATIONS:
■Quoted passages should be reproduced as accurately as possible to reflect the poet’s underlying creative choices, except to the extent that modification is specifically justified by the purpose of the use.
■Authors should provide conventional attribution to sources unless the original is readily recognizable by the intended audience or the absence of proper attribution is justified by the purpose of the use.
■An author employing multiple epigraphs should draw from multiple sources unless there is specific justification for limiting quotations to one or a few sources.


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Fair Use Fridays: Are Harvard's Fair Use Guidelines Copyrightable?

Harvard University's Copyright Law Guidelines (copied in its entirety bearing a copyright notice 2008).

Copyright Law Guidelines


When copying materials from books, journals, and other publications, HFS Centers will abide by federal copyright laws. Instructors, colleges, universities, copy shops and their employees that illegally reproduce copyrighted materials can be held responsible for copyright infringement, a federal crime. For this reason, all materials reproduced by HFS must meet the "Fair Use" guidelines laid down by the federal government. HFS is not able to obtain copyright permissions under any circumstance.

Published works enter the public domain 95 years after the death of the author UNLESS ownership rights have been transferred to another person, corporation, or estate who renews the copyright ownership with the federal government. Therefore it is best to assume that ALL published work are still protected under copyright law. A work's being "out of print" does not mean that it has entered the public domain.

Fair Use

The guidelines collectively known as "Fair Use" establish the types of teaching, research, and classroom use copying that are lawful without first obtaining permission from the copyright owner. Each copy made under fair use requires a notice of copyright.

A single copy is permitted of the following:

•Chapter from a book

•Article from a periodical or newspaper

•Short story, short essay, or short poem

•Map, chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper

Multiple copies are permitted (up to the number of students in a class) if and only if the copying meets all of the following three tests: brevity, spontaneity, and cumulative effect.

Brevity Guidelines:

•Poetry: Complete poem of less than 250 words; excerpt of not more than 250 words

•Prose: Complete article, story, or essay of fewer than 2,500 words; excerpt of not more than 10 percent from longer works

•Illustration: One map, chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue

•Map, chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper

Spontaneity Guidelines:

•The decision to use the work is at the inspiration of the individual teacher AND

•The time between the decision to use the work and the most effective use of the work in the classroom must be so close that obtaining copyright permissions would not be feasible

Cumulative Effect Guidelines:

•The copying is only for one course and will be used for just one class term

•Not more than one short poem, article, story or essay may be copied from the same author

•Not more than two excerpts may be copied from the same author

•Not more than three poems, articles, stories, essays, or excerpts from the same collective work or periodical volume

•Multiple copying is limited to nine instances per class during one term

Copies are NEVER permitted without first obtaining copyright:

•An entire book, collective work, journal, or periodical volume, regardless of its print status

•Workbooks, tests and answer sheets

•When planning in advance to distribute a number of different works in a course pack or course reader. If you need assistance printing a course pack, please consult with your Department Administrators.

For more information on copyright laws, please contact the Harvard University Office of the General Counsel, or you may visit the US Copyright Office website to answer any questions regarding Harvard's copyright policies.



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