Fair Use, Copyright Issues Pervasive On Internet
Posted on Monday, 16 of November , 2009 at 10:41 am
COMMENTARY
Issues of copyright and proclaimed “fair use” are among the most controversial issues involving the internet, along with anonymous comments, and this past week, The North Country Gazette has encountered three of the most egregious instances.
Facts and ideas can’t be copyrighted but how they are presented can be. Only creative expression, not facts or ideas, can be copyrighted so typically, one could use factual information found in other sources without liability—but they can’t take your entire article verbatim for their own use without permission.
When researching for an article involving the Schiavo case, we came upon a Google listing which looked suspiciously like our own work.
It was. Zimbio.com, owned and operated by Danny Khatib of San Carlos, Ca., had not only lifted verbatim the entire NCG exclusive commentary entitled “Where’s Michael Schiavo?”, but he had sold ads around it, making himself a handsome profit but had no permission to use our clearly marked copyrighted work for himself.
On further examination, it was learned that he had mirrored the entire North Country Gazette website, taken verbatim every article that had been published for three or four months and was marketing it for himself. Not only that, but someone under the name of “Absolute” was claiming he/she had written the articles.
“Team Zimbio” claimed that a Zimbio account under the name of “Absolute” was opened by someone “at your organization” and used the NCG news email address. Zimbio claims that the account was set up to automatically import all articles to Zimbio.
Not so, it was an impersonation and Zimbio is wholly liable as they made absolutely, no pun intended, any attempt to verify the account, to send a confirmation email, nothing. They just started lifting articles for themselves and their own profit and even after they were caught, continued their news feed, lifting not just links but the entire articles.
That entire matter has been reported to authorities and efforts are being made to identity the person who unlawfully created the account.
And then there was the matter of a animal rights group, calling themselves pet-abuse.com who helped themselves to not just one article, but two, verbatim, and claimed it was okay to do so because it was “Fair Use” and because they had identified where they stole the work from. Of course when they reprinted the articles, they conveniently omitted the copyright warning and the subscription required notice.
Undeniably the most blatant copyright violation incurred this past week was that by a poster at zetaboards.com which took for republication without permission the complete article about the Dewitt McDonald/prosecutor Kevin Baxter habeas corpus case in Erie County, Ohio even though the article was clearly marked at the top, under the copyright symbol and byline, “No reprints allowed”. Somehow apparently they didn’t think that applied to them—probably due to their unlawful concept of “Fair Use”.
Fair Use is probably one of most abused phrases on the Internet. There’s nothing “fair” about using someone’s entire work without permission, especially when you are directing traffic and potential income away from someone else’s website, especially if it’s a commercial operation. In fact, as the U.S. Copyright Office states, “Acknowledging the source of the copyrighted material does not substitute for obtaining permission”.
The concept of “Fair Use” is found in U.S. Copyright Law and allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test.
Copyright is basically the legal exclusive right of the author of a creative work to control the copying of that work—-especially as in the Schiavo articles which were and are clearly marked, ALL RIGHTS RESERVED
Therefore, anyone who uses all or substantially all of a work, particularly a literary work, is asking for trouble, and will probably be found to have exceeded the bounds of fair use. Facts and ideas can’t be copyrighted but how they are presented can be. Only creative expression, not facts or ideas, can be copyrighted so typically, one could use factual information found in other sources without liability.
The U.S. Copyright Office explains Fair Use as this:
“One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.
“Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
“The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.
“Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
“The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
“Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work.
“The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
“When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation”.
For more on Fair Use, see
http://www.citmedialaw.org/blog/2008/primer-copyright-liability-and-fair-use
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/
http://www.templetons.com/brad/copymyths.html 11-16-09
Category: Business, Consumers, Courts, Internet, Media, Nationwide, Opinion
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Comment by Claire
Made Tuesday, 17 of November , 2009 at 9:25 am
Just a thought – perhaps because the illustrious VP of the US – His Worship – Biden – thought nothing of plagiarizing someone else’s work, the sites that stole NCG’s work thinks this is okay? That’s assuming they think at all.
