BBS in a Box 11/AMUG BBS in a Box Volume XI (April 1994) (MacWizards).iso/Files/Publish/E-G/Fair Use

Text File | 1993-04-25 | 5.7 KB | 132 lines | [TEXT/EDIT]

     A number of questions I have received so far address the
question of whether copying copyrighted materials for
"personal use" is permissible and thus touch, directly or
indirectly, on a copyright doctrine known as "fair use."
Rather than try to analyze each of the numerous specific fact
situations presented by your questions, which would tend to
confuse the issue, I have prepared the following brief
discussion on the fair use doctrine and personal copying.

                                   -- D.N.



                PERSONAL COPYING AND "FAIR USE"


Copyright Law Background:

     In order to understand the fair use doctrine, a brief
introduction to copyright law is necessary.  The copyright law
confers a number of exclusive rights on the owner of a
copyright, the most significant of which is the right to
prevent unauthorized copying.  Ordinarily, if a person copies
a copyrighted work -- which could include a motion picture, an
audio CD, computer software, a digitized image, or a book on
gardening -- without the copyright owner's permission, he or
she has committed an act of infringement and is potentially
liable for damages.  This result holds true even if the
copying is for strictly for personal use -- currently the
copyright law recognizes no broad exception for "personal"
copying.  Of course, given the small likelihood of being sued
by a copyright owner for truly personal copying, such
activities are quite commonplace.  Nevertheless, any such
infringement is a violation of the law.

Fair Use Doctrine:

     Although the copyright law does not excuse copying simply
because it is of a personal nature, there is a general
exception included in the law for any copying that constitutes
"fair use" of the copyrighted work.  The Copyright Act
provides:

          [T]he fair use of a copyrighted work, including
          such use by reproduction in copies . . . for
          purposes such as criticism, comment, news
          reporting, teaching (including multiple copies
          for classroom use), scholarship, or research,
          is not an infringement of copyright.  In
          determining whether the use made of a work in
          any particular case is a fair use the factors
          to be considered shall include --

               (1)  the purpose and character of the use,
          including whether such use is of a commercial nature
          or is for nonprofit educational purposes;

               (2)  the nature of the copyrighted work;

               (3)  the amount and substantiality of the
          portion used in relationship to the copyrighted work
          as a whole; and

               (4)  the effect of the use upon the potential
          market for or value of the copyrighted work.

(17 U.S.C. Section 107)

     The question of whether a particular use constitutes a
"fair use" under this section depends on a detailed analysis
of the particular facts of the case in light of the four
factors mentioned in the statute.  Nevertheless, several
general rules of thumb can be gleaned from the court decisions
on fair use:

     1.   If the use is for non-commercial purposes it is much
more likely to be held to be a fair use.

     2.   Uses that involve "scholarly" pursuits, such as
academic research or literary criticism generally are the most
favored by the courts.

     3.   Uses that involve copying only a modest portion of
the copyrighted work stand the best chance of being considered
fair use (e.g., selective quotation from a book).  If the use
involves copying all of the copyrighted work, or those
portions that make up its essence, a finding of fair use is
unlikely.  For example, the U.S. Supreme Court ruled that
printing a substantial portion of President Ford's memoirs in
a magazine -- enough so as to make it likely that people
who read the magazine article would forego buying the book --
did not constitute fair use, even though such use arguably was
in the context of news reporting.

     With the foregoing in mind, one might be led to ask:  so
why isn't "personal copying" a fair use?  While personal
copying seems to fit squarely within the first factor favoring
non-commercial uses, the courts have found that the other
factors trump any finding of fair use.  Personal copying
usually means copying the entirety of a work (e.g., copying a
complete videocassette), and thus runs afoul of the third
factor mentioned in the statute (my rule of thumb #3).  In
addition, the courts have found such personal copying at odds
with the fourth criteria mentioned in the statute:  the effect
of the copying on the legitimate market for the copyrighted
work.  Every "personal" copy made of a CD, videocassette,
computer program, or other copyrighted work deprives the
copyright owner of a potential sale of that work.

     Of course, as might be expected, there is a slight
wrinkle.  In the Sony v. Universal City Studios case (also
known as the "Betamax case") the U.S. Supreme Court held that
home taping of programs from off-the-air commercial television
for purposes of "time shifting" is a permissible fair use
under the copyright laws, and thus not an infringement.  Time
shifting, according the Court, means taping a program for
later viewing.  The Court specifically did not address whether
creating a library of taped programs is permissible, thus the
legality of such copying is still an open question.

     Although some commentators believe the courts are heading
toward adopting the view that personal copying does constitute
fair use, the law is not there yet.  With the exception of
"time shifting," it would be unwise to advertise one's copying
of audio CDs or computer disks to the respective record or
software companies unless you want to become a party to the
test case that finally decides this issue.