Copy right infringement and fair use

The one that is stating the truth about both copyright infringement and fair use

Fair use is a US legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. It is similar to the fair dealing doctrines used in some countries outside the United States. While according to the Supreme Court fair use is an affirmative defense, in Lenz v. Universal Music Corp.,[1] (the "dancing baby" case), the United States Court of Appeals for the Ninth Circuit concluded that fair use was not merely a defense to an infringement claim, but was an expressly authorized right, and an exception to the exclusive rights granted to the author of a creative work by copyright law. "Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright." Examples of fair use in United States copyright law include commentary, search engines, criticism, parody, news reporting, research, and scholarship. Although related, the limitations and exceptions to copyright for teaching and library archiving in the U.S. are located in a different section of the statute. Fair use provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test.

The term "fair use" originated in the United States.[2] A similar-sounding principle, fair dealing, exists in some other common law jurisdictions but in fact it is more similar in principle to the enumerated exceptions found under civil law systems. Civil law jurisdictions have other limitations and exceptions to copyright.

Fair use is one of the traditional safety valves intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing certain limited uses that might otherwise be considered infringement. The 1709 Statute of Anne, an act of the Parliament of Great Britain, created copyright law to replace a system of private ordering enforced by the Stationers' Company. The Statute of Anne did not provide for legal unauthorized use of material protected by copyright. In Gyles v Wilcox,[3] the Court of Chancery established the doctrine of "fair abridgement," which permitted unauthorized abridgement of copyrighted works under certain circumstances. Over time, this doctrine evolved into the modern concepts of fair use and fair dealing. Fair use was a common-law doctrine in the U.S. until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107.

In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical programs at law schools, and others. The "Chilling Effects" archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist letters. Most recently, in 2006, Stanford University began an initiative called "The Fair Use Project" (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations.

-From Wikipedia, the free encyclopedia17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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 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.

Copyright infringement is the use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.

Copyright infringement disputes are usually resolved through direct negotiation, a notice and take down process, or litigation in civil court. Egregious or large-scale commercial infringement, especially when it involves counterfeiting, is sometimes prosecuted via the criminal justice system. Shifting public expectations, advances in digital technology, and the increasing reach of the Internet have led to such widespread, anonymous infringement that copyright-dependent industries now focus less on pursuing individuals who seek and share copyright-protected content online, and more on expanding copyright law to recognize and penalize – as "indirect" infringers – the service providers and software distributors which are said to facilitate and encourage individual acts of infringement by others.

Estimates of the actual economic impact of copyright infringement vary widely and depend on many factors. Nevertheless, copyright holders, industry representatives, and legislators have long characterized copyright infringement as piracy or theft – language which some U.S. courts now regard as pejorative or otherwise contentious.[1][2][3]

The terms piracy and theft are often associated with copyright infringement.[4][5] The original meaning of piracy is "robbery or illegal violence at sea",[6] but the term has been in use for centuries as a synonym for acts of copyright infringement.[7][8] Theft, meanwhile, emphasizes the potential commercial harm of infringement to copyright holders. However, copyright is a type of intellectual property, an area of law distinct from that which covers robbery or theft, offenses related only to tangible property. Not all copyright infringement results in commercial loss, and the U.S. Supreme Court ruled in 1985 that infringement does not easily equate with theft.[1]

The practice of labelling the infringement of exclusive rights in creative works as "piracy" predates statutory copyright law. Prior to the Statute of Anne in 1710, the Stationers' Company of London in 1557, received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labelled pirates as early as 1603.[7] The term "piracy" has been used to refer to the unauthorized copying, distribution and selling of works in copyright.[8] Article 12 of the 1886 Berne Convention for the Protection of Literary and Artistic Works uses the term "piracy" in relation to copyright infringement, stating "Pirated works may be seized on importation into those countries of the Union where the original work enjoys legal protection."[8] Article 61 of the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires criminal procedures and penalties in cases of "willful trademark counterfeiting or copyright piracy on a commercial scale."[9] Piracy traditionally refers to acts of copyright infringement intentionally committed for financial gain, though more recently, copyright holders have described online copyright infringement, particularly in relation to peer-to-peer file sharing networks, as "piracy."[8]

Richard Stallman and the GNU Project have criticized the use of the word "piracy" in these situations, saying that publishers use the word to refer to "copying they don't approve of" and that "they [publishers] imply that it is ethically equivalent to attacking ships on the high seas, kidnapping and murdering the people on them."[10]

Copyright holders frequently refer to copyright infringement as theft. In copyright law, infringement does not refer to theft of physical objects that take away the owner's possession, but an instance where a person exercises one of the exclusive rights of the copyright holder without authorization.[11] Courts have distinguished between copyright infringement and theft. For instance, the United States Supreme Court held in Dowling v. United States (1985) that bootleg phonorecords did not constitute stolen property. Instead, "interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: '[...] an infringer of the copyright.'" The court said that in the case of copyright infringement, the province guaranteed to the copyright holder by copyright law – certain exclusive rights – is invaded, but no control, physical or otherwise, is taken over the copyright, nor is the copyright holder wholly deprived of using the copyrighted work or exercising the exclusive rights held.[1]