When the world’s first copyright law was passed in 1710, I can’t even imagine that the British Parliament would have ever envisioned people flinging pirated copies of movies all over the Internet whatever that would have seemed like thousands of times every day. Yet that’s exactly what eventually happened and seeing as many of our copyright laws were meant for the pre cyberspace era the way the copyright works online is often quite messy. Although this post is based around us copyright law similar concepts exist in many other countries as well.
So one of the main reasons that copyright laws even exist is to encourage people like musicians, software developers, and game designers to come up with creative stuff. I mean do you think that mark wahlberg would have starred in that awful movie the happening if there wasn’t a copyright holder there to cut him a fat paycheck. So perhaps it isn’t surprising that usually when you hear a new story about a high-profile copyright case it’s where some copyright infringer either made tons of money off of bootlegging copies of something or where some bigshot movie studio comes after someone for cutting into their profits by distributing one of their films for free.
Even if the infringer isn’t making any money but let’s assume that like most people you are running a huge bootleg operation and are concerned about whether you can do something like share a screenshot from a movie on your blog or play a song in the background of a Youtube upload. This is where fair use comes into play and a really important concept that’s misunderstood by a lot of people. In a nutshell, most kinds of creative work including songs, books and the poems that you wrote when you’re a sixteen-year-old scene kid have automatic copyright that applies as soon as they’re created. But that doesn’t mean no one else can ever use them fair use helps keep people from getting sued for copyright infringement as long as they’re using stuff well fairly.
But what constitutes fair that’s a pretty subjective question that courts use several factors to answer but generally speaking the most important one is whether you’re costing someone money by how you’re using their stuff even though any reproduction without permission of a copyrighted work is technically infringement even if you’re just reposting some cool picture you found as your Facebook cover photo. That being said if one day you get a nasty letter from someone’s lawyer you can probably assert fair use if you’re not affecting someone’s bottom line. On the other hand, simply posting something with a disclaimer that the content isn’t yours doesn’t automatically make it fair use if your seeding a torrent of the copyrighted song fair use will not save you from the wrath of recording studio even if you say this isn’t mine I’m not making money off of it. Since people are just going to download the song anyways for free instead of paying for it on iTunes or wherever else the company will see it as a hit to their bottom line whether or not that person would have bought the song at all or not.
This concept also comes to play if you’ve ever spent any time reading or writing fanfiction it’s pretty popular for a fanfic writer to put a disclaimer at the top claiming that they don’t own the characters but since copyright law also gives the right to make derivative works to the original creator, for example a movie book or game sequel it’s theoretically possible for fanfic writers to get in trouble with publishers though many authors notably JK Rowling of harry potter Fame have given their blessing to fanfic writers so long as they’re not trying to sell their stories. And of course, content creators are under no obligation to let people use their stuff even if they aren’t making money off of it but at least the way we think about laws in an age where anything can be uploaded in them a matter of seconds seemingly they’re catching up to reality even if the process is a bit slow.
One appeals court in the U.S recently ruled that fair use should not just be a legal excuse for infringement but instead a right that shouldn’t constitute infringement at all after universal issued a takedown notice after a woman uploaded a 30-second clip of her kids dancing to a print song meaning it may be the case soon where major companies have to think before just flagging everything they can. We’ve also seen the proliferation of sites that use things like creative commons licenses to allow for free reuse of lots of different types of content Wikipedia is a good example of this and we’ve also seen the end of heavy-handed lawsuits from entertainment industry associations against people who shared one or two songs often unwittingly but even though the powers-that-be seem to be trying to make it a bit easier for folks who aren’t intentionally doing anything wrong do be careful about what you share or host online and remember not to buy Game of Thrones episodes on USB sticks from that dude that hangs out in the alley.