Teaching You The Rules Of The Internet: Fair Use Is Fair Play

by Angie [A Whole Lot of Nothing] on January 19, 2012

in Blogging,How To Use The Internet,Observations

Oprah: Helping me make a point and teach a lesson since 1976.

I’m not a lawyer*, but I play one on the internet.

Since pretty much my whole life online is spent in a perpetual state of snarkasm, I figured it was time for me to actually read some laws about what I do.

This also proves that I’m in a perpetual state of procrastination.

And what with all of this SOPA/PIPA/LMNOP juggernaut happening around my workplace, I figured I could use my wee brain to actually learn something. I read up on the bill going before Congress, tried to understand what it would mean for the internet, and put together a list of resources for which you can learn, too. I’m a giver.

Basically what I’m pretty sure SOPA/PIPA says is that if you or your website or any of your comments include a link to or an actual something with a copyright, your internet service provider can put a blockade on your website. With just an accusation by the copyright holder of fault on your part, your ISP prevents your site from being reached. No cease & desist, no court order, no investigation. BOOM. DONE. Your site is blocked.

But Pangie, what about Fair Use? 

Friends, until this week, I had only heard a whiff of what Fair Use really is and how it affects me. Being the investigative journalist I am not, I looked it up.

I don’t think there’s a more vague addendum to a law than that of Fair Use.

Oprah doesn't understand it either.

Granted, I haven’t spent much time reading actual laws. Just like any Terms & Conditions to which I sign my name, I assume my peachy personality will get me out of being held liable for anything I say and do.

I earn my meager contribution to the family budget with my peachy personality, using images I find on the internet to enhance my hilarity.

According to Fair Use, I’m all good. It’s OK to use images and video in a satirical manner (phrases bolded to draw attention to my point).

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.”

Laws are hard, Oprah.

Well well well. It looks to me like, as long as I’m using an image in parody to parody the “work,” no trouble for this girl.

But wait.

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.

So, there’s no specific rule on what exactly can be used or not used or be legal or illegal?

What the crap, U.S. Government? Where’s the examples of what’s cool and what’s not? I need pictures and illustrations, lawmakers!

Thank Baby Jeebus and Oprah for Stanford University and Google because I found a better explanation:

A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that, by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to “conjure up” the original.

… a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.

But what, pray tel, is the definition of parody?

A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way.

Ridicule while using the original work is permitted.

I play a lawyer on the internet, so I’m thinking, Pangie, you’re all good in the hood doing what you do. You CAN use images to make a comedic point, as long as I’m ridiculing the original work.

As long as I’m making fun of something to make what I post funnier, it’s legal?

HALLELUJAH!

Oprah says, "HALLELUJAH!"

My life on the interwebs is saved.

For now.

dun dun dunnnnnn…

*I’m really not a lawyer, so take everything I said here with some question in your head that I could be 99% wrong. What you read here cannot be held up in court as any sort of evidence for anything. Except if you need to prove I’m a badass, and then, and only then, can you use this information in any scientifical or lawyerly ways to prove I’m Awesome.

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{ 5 comments… read them below or add one }

1 alimartell January 19, 2012 at 1:04 pm

I have three books about copyright and fair use. I took at least one course in graduated school about it.

But the internet, man.
It broke all the rules…and now everything is, well, GRAY.

It makes my head spin, actually.

Reply

2 Angie [A Whole Lot of Nothing] January 20, 2012 at 11:08 pm

The internet RULES.

Reply

3 Ren January 20, 2012 at 11:09 am

Umm… so you’re parodying/ridiculing pictures of Oprah?

Aside from its vagueness, the other big problem with fair use is that it is still copyright infringement, it’s just an “affirmative defense” against the infringement being illegal. This puts it in the “guilty until proven innocent” category.

It would be really nice if any anti-Internet-piracy legislation that actually got passed including some explicit “fair use” exemptions that were defined specifically as *not* infringement. Stuff like background music in a not-for-profit shared video or reduced resolution images used to make a salient point.

While I am not a lawyer either, I think the only thing that protects your use of the Oprah images is the largess of their owners.
An Awesome post on Ren´s blog … The Rumors…

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4 Cynthia Fussell O'Donnell January 20, 2012 at 11:10 am

I am a lawyer, although I don’t usually play one on the internet. It sounds to me like you got this one exactly right. It is quite confusing. Because it is so confusing and the costs of defending against an accusation of copyright infringement so expensive, certain companies have been known to initiate litigation based on what is quite certainly fair use just to harass the user into settling the lawsuit by paying the copyright owner.

My main concern with SOPA (whatev) is that if ISPs can block a site upon the mere allegation of copyright infringement, then anyone can potentially block a site just by claiming that any use of copyrighted material is improper use. Assuming that the use would be considered fair use under the parody defense, the site owner would still bear the responsibility for proving that (i.e., site remains dark until the owner manages to prove that the use is fair use).

I don’t know how the site owner does that. And I don’t think it will be easy for the average site owner to challenge allegations of infringement, even where the use clearly falls under the fair use (parody) defense.

While the current system (federal court system) is far from perfect and is subject to abuse by a few bad acting companies. It does require much more effort on the part of the owner of a copyright (“Owner”). They must file a complaint, have the infringing party (“Infringer”) served with the complaint. If the Infringer fails to answer the complaint, the Owner may move for the court to enter a default and a judgment (such as a cease and desist letter or monetary fine). Then, if the Infringer fails to comply with the court’s order, the copyright owner could take his judgment to the ISP and have them block the site.

SOPA bypasses all of this and requires no notice to the owner of the site prior to blocking it.

Ok, that’s all. Must go. The toddler is hungry.

Reply

5 Angie [A Whole Lot of Nothing] January 20, 2012 at 11:07 pm

I’m so so so glad you said something, especially “It sounds to me like you got this one exactly right.”

Now that SOPA/PIPA has been delayed indefinitely, I’m really not worried about my Fair Use rights.

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