Fair Use and Copyright Infringement Online

The concept of “Fair Use” is a broad and well-established set of exceptions to the protections provided by copyright law. Fair use allows portions of copyrighted works to be used for “purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research” without constituting copyright infringement. 17 USCS § 107. In considering whether a particular use of copyrighted material constitutes fair use, courts consider four primary factors:

  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 relation 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.

Id. None of the four factors is dispositive, but the fourth factor is generally considered the most important. Internet Law: A Field Guide at 198.

The statutory factors are intentionally broad, and their application is spelled out in case law decisions. While the Internet and various forms of digital media haven’t changed the basis of fair use law, they have introduced significant new difficulties by making the copying and disseminating of copyrighted works much easier.

Even though information moves and changes very rapidly on the Internet, copyright holders will seldom take the time or effort necessary to monitor every use of their content online. Generally speaking, it is neither possible nor desirable to send a cease-and-desist notice in response to every blog post or tweet that quotes a copyrighted work. Problems are generally more likely when an excerpted portion is very large or substantial, when it isn’t attributed to its rightful author, or is used in a way that harms its commercial value.

Some forms of digital copyright infringement are unambiguous, such as software piracy and peer-to-peer sharing of audio or movie files. More complicated cases arise when websites borrow, share, or use content from other websites without permission. Examples include the use of small “thumbnail” previews of copyrighted images, and linking to, reproducing or framing of copyrighted news stories. Courts have come to varying conclusions on these issues, and the law in this area continues to evolve.