Fair Use Law: Can Companies Ever Ignore It?

Fair use is a subjective doctrine determined by the courts, which can be used to protect businesses from copyright violations. However, some companies are abusing copyright laws by targeting lawful fair use of their work. This is having a negative impact on the internet, with a massive amount of content being permanently removed. This raises the question: can companies ignore fair use law?

Copyright holders' misuse of the DMCA system

The Digital Millennium Copyright Act (DMCA) was passed by Congress in 1998 to address the relationship between copyright and the internet. It allows copyright owners to inform online service providers about infringing material so it can be taken down. However, an increasing number of copyright holders are misusing this system to target even lawful fair use of their work.

The current DMCA system enables these aggressive copyright owners by providing virtually no penalties for failing to consider common exceptions to infringement, like fair use. This has resulted in a massive amount of content being permanently removed from the internet, even though much of it is lawfully and fairly used. For example, a record company accidentally removing a music video from their own artist.

One solution is education—not just for users but for DMCA complaint submitters too—about when fair use applies in the context of their sites. Another issue is that it’s easy on many websites to submit a DCMA takedown notice, but not as easy to submit a DMCA counter-notice for improperly targeted content.

Internet companies need to be more active on copyright issues, serving as the first line of defence in protecting the fair uses of content that have helped to make their platforms so popular. Fair use of content drives consumer demand for online information and services. It has also transformed the internet from a passive information library to an active, participatory, sharing web.

The power differential of takedown notices

However, there is a growing concern that copyright holders are misusing this system to target even lawful fair use of their work. The current DMCA system enables these aggressive copyright owners by providing virtually no penalties for failing to consider common exceptions to infringement, such as fair use. As a result, a massive amount of lawfully and fairly used content is being permanently removed from the internet.

Internet companies have an opportunity to address this issue by being more active on copyright issues and serving as the first line of defence in protecting the fair uses of content that have helped to make their platforms so popular. One solution is to provide education to users and DMCA complaint submitters about when fair use applies in the context of their sites. Additionally, it should be made easier to submit a DMCA counter notice for improperly targeted content.

Fair use is not a set of hard and fast rules, and it can be subjective depending on the work, how it was used, and the perceived financial impact of the possible copyright violation. In the vast majority of cases, works used in the furtherance of a commercial enterprise do not qualify as fair use. However, there are a few types of material that are typically protected by the fair use doctrine, including commentary and critique.

The role of internet companies in protecting fair use

However, an increasing number of copyright holders are misusing the DMCA system to target even lawful fair use of their work. The current DMCA system enables these aggressive copyright owners by providing virtually no penalties for failing to consider common exceptions to infringement, like fair use.

Internet companies need to be more active on copyright issues, serving as the first line of defence in protecting the fair uses of content that have helped to make their platforms so popular. One obvious solution is education—not just for users but for DMCA complaint submitters too—about when fair use applies in the context of their sites.

Fair use is not a set of hard and fast rules; this doctrine is determined by the courts and can be subjective depending on what the work is, how it was used, and the perceived financial impact of the possible copyright violation. In the vast majority of cases, works used in the furtherance of a commercial enterprise do not qualify as fair use.

The subjective nature of fair use

Fair use is a subjective doctrine that is determined by the courts and can vary depending on the nature of the work, how it was used, and the perceived financial impact of the possible copyright violation. This means that companies cannot ignore fair use law, but they can misuse it to their advantage. For example, an increasing number of copyright holders misuse the DMCA system to target even lawful fair use of their work. This results in a massive amount of content being permanently removed from the internet, even though it was lawfully and fairly used.

To avoid this, internet companies need to be more active on copyright issues and serve as the first line of defence in protecting the fair uses of content. This can be done through education – for users and DMCA complaint submitters – about when fair use applies in the context of their sites.

Additionally, it is important to note that in the vast majority of cases, works used in the furtherance of a commercial enterprise do not qualify as fair use. However, there are a few types of material that can be expected to be protected by the fair use doctrine, including commentary and critique.

Commentary and critique as protected material

Fair use is not a set of hard and fast rules. It is determined by the courts and can be subjective depending on what the work is, how it was used and the perceived financial impact of the possible copyright violation. In the vast majority of cases, works used in the furtherance of a commercial enterprise do not qualify as fair use. However, there are a few types of material that you can expect to be protected by the fair use doctrine. These categories include commentary and critique.

Copyright owners send notices to web companies who host content, and the companies must then remove the content or risk legal liability themselves. The DMCA system works well in many cases, but an increasing number of copyright holders misuse this system to target even lawful fair use of their work. The current DMCA system enables these aggressive copyright owners by providing virtually no penalties for failing to consider common exceptions to infringement, like fair use.

One solution is education – not just for users but for DMCA complaint submitters too – about when fair use applies in the context of their sites. It’s easy on many websites to submit a DCMA takedown notice, but not as easy to submit a DMCA counter notice for improperly targeted content.

Frequently asked questions