“You cannot rely on fair use to protect a general policy because fair use
determinations are made on a case-by-case basis.”
It is often suggested that because some of the factors in fair use law have to do
with the nature of the work that is being used, the user is required to conduct a
fresh (and presumably arduous) legal analysis for each individual work she
uses. In that case, it would be impossible to rely on fair use for a general policy
or class of uses going forward. But if that were true, there would be no VCR (and
no DVR), no Google, no compatible-software industry, and no Daily Show. Each
of these relies on the general applicability of fair use every day, and would be
crippled if the “case-by-case” legend were true.
In reality, Google is not required to have a lawyer review each Web site its
robots crawl before adding the site to its database, nor does Motorola have a
full-time legal staff checking whether every program on television qualifies to be
recorded on a set-top box. Software engineers rely on case law that allows them
to reverse engineer platforms and make compatible programs using fair use.
The Daily Show surely does have a legal staff, but the show would never have
been conceived if it could not generally rely on fair use of clips from other
shows as the core of its nightly formula.
A good faith actor can and should rely on fair use to adopt a general policy
or standard of practice where it can argue with confidence that the same fair use
argument will apply in every case. The “case-by-case” legend need not stymie
libraries and schools that are considering a broad policy such as allowing video
“Fair use is a defense, not an exemption, and accused infringers will bear
a heavy burden of proving in court that their use was fair.”
This urban copyright legend suggests fair use is a mere excuse for infringing
behavior, impugning its moral status relative to other exceptions as well as
implying that fair users (unlike, say, users who invoke Section 108) are
presumed infringers and must do more to prove their actions are legitimate.
The net effect is that librarians and administrators are made to feel like scofflaws
when they rely on fair use and to perceive an inflated risk that they will be
found guilty of infringement.
On the moral question, the text of Section 107 is clear: “the fair use of a
copyrighted work…is not an infringement of copyright.” The fair user is not an
infringer who has gotten off the hook by providing an excuse. Her actions are
Urban Copyright Legends
C O N T I N U E D
JUNE 2010 RESEARCH LIBRARY ISSUES: A BIMONTHLY REPORT FROM ARL, CNI, AND SPARC