Log in

No account? Create an account
recent cases Bob-Whites closed cases case file old leads old leads new leads new leads
The Misuse of Fair Use - Walking on the Edge
I don't really have a plan...
The Misuse of Fair Use
You guys, the recent shutdown of scans_daily has precipitated yet another flurry of misuses of the concept of fair use. Now, believe it or not, I actually *do* have stuff to do other than post about this stuff, but I just wanted to make a brief foray into the misunderstandings again, in hopes that this might help *someone* out there understand how this stuff works.

Please note this is not intended as specific legal advice and no one should rely on it as such. Thank you.

To begin with, if you don't know what scans_daily *was*, a good idea might be to check out the new community that has been started in its wake over on InsaneJournal: Scans Daily 2.0. That should give you some idea of what the old community was like, although obviously 5-6 years worth of lost posts can't be encapsulated by the new community.

Now, on to fair use.

Let me first state that A LOT of people get this wrong. Including authors and creators. In fact, Orson Scott Card got it wrong back in the days of the Harry Potter Lexicon trial, and Peter David seems to be getting it wrong in his most recent post regarding scans_daily (e.g. "fair use" has nothing at all to do with whether bookstore owners allow you to rifle through a book in the store. Absolutely nothing at all. The decision of bookstore owners to let you flip through a book is a marketing decision, because they want you to decide you like the book and buy it. Much in the way that many people say they have bought comics after looking through scans on scans_daily, actually. And as a side note, bookstore owners rarely hold the copyright for what they sell. So any rules they have to regulate how their books are handled would likely fall under property law or similar, not copyright law at all).

So don't feel bad! It's lawyery stuff, it's not entirely cut-and-dried, and also, it's posted about a lot by people who aren't sure what they're talking about, or are misinformed, and thus, you may have received incorrect information that is now sitting in the back of your head coloring your thoughts.

So second, I will link and excerpt two posts I made previously regarding fair use, in the hopes of saving myself some time here.

1. Lexicon trial recaps: fair use.

This was my discussion of the part of the Lexicon case ruling that dealt with fair use. It has a more in-depth discussion of the concept as it related to that case. If you want to see how it was applied, go to the link. Otherwise, here is the actual, codified test of fair use:

Fair use is codified in 17 U.S.C. sec. 107:

The fair use of a copyrighted work, ... 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.

The test is subjective, which means that the factors can be given different weights and the use as a whole is considered in the light of those factors.

The ultimate test of fair use is whether the copyright law’s goal of promoting the progress of science and useful arts would be better served by allowing the use than by preventing it.

2. My discussion of fair use in regards to Orson Scott Card's Lexicon post.

In this post I was explaining the difference between two concepts that OSC got mixed up in his article: fair use and the ideas/expression dichotomy. Here was my brief summary of fair use:

Fair use, in short, "...provides an essential safeguard to ensure that copyright does not stifle uses of works that enrich the public, such as 'criticism, comment, news reporting, teaching, scholarship, or research.'" Copyright Office, quoting 17 U.S.C. § 107. It exists for the purpose of studying what has gone before, extrapolating new ideas from old materials or creations.

Thus you might quote copiously from The Adventures of Huckleberry Finn in a paper examining Twain's use of satire to show his views of racism during that time period. Or you might display a copyrighted photograph in a photojournalism class in an assignment in which the class must try to determine the story behind the photo just by examination, in order to teach about storytelling through composition and detail. You might quote from someone's blog or an article she wrote when doing a news report. These are all examples that would likely fall under fair use, assuming that the factors for fair use were met. (For fun, examples of fair use in teaching.) The key point regarding works that are considered fair use is that they add in some way to something already in existence - by analyzing it, by discussing its ideas, by criticizing it, etc. The new work could not exist without the old, BUT if the new work has that modicum of originality which benefits the public and advances thought, it may be fair use.


OK, so now that you've seen the basic law and a few examples of fair use, a few key points:

1) Fair use is an affirmative defense, not a legal right. People forget this. People always forget this. You can't say, "I have the right to do this because of the copyright law of fair use." You can say, "If a copyright owner comes after me and sues me, I can defend my use by arguing that it was fair under the law, and I am therefore not liable. IF it meets the criteria according to the judge of my case (we are assuming the case has gone to court, here), then my use was fair."

2) Fair use *may* apply, but only if the use of the work is for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. This is not an exhaustive list, but it shows what kinds of use may be permitted. The key here is that all of these have to do with essentially, advancing someone's knowledge or understanding of the work or something related to the work, or using the work to advance thought or knowledge in some way. If you are using the work for something that doesn't do this in some way, then it's pretty much certainly not fair use.

3) Even if your use is for one of the purposes in the point above, you still have to meet the criteria listed in the statute. This includes # 3 and 4, the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. These two are key to why scans_daily would have to be really, really careful with how it used scans in order to get away with a valid fair use defense. For one, it would have to ensure that it was using a very small part of the work as a jumping-off point for a discussion, critique, or otherwise meaningful commentary of some sort (And a very small part might be one to two pages, and not even that if you are posting the one to two pages that encapsulate the heart of the work). For another, even if they're really really careful, they'd still have to show that they didn't post so much of the work that nobody would then buy it, since they could just see all or the heart of the story online.

4) FYI, (Peter David mentioned this, which is why I am) the United States has no recognized "droits moraux" or "droit d'auteur" in copyright law. Moral rights, here in the United States, are supposedly covered under laws regarding defamation or unfair competition. So saying that a copyright owner has a moral right to a work, while perhaps true in one's opinion, is not legally valid here in the U.S. under copyright law.


How all this applies to the former scans_daily:

As it stood, scans_daily was, in large part, in violation of the copyrights of the various companies. There were half comics posted (which would likely have failed factor #3), there were whole comics posted, albeit usually or always with some kind of accompanying commentary (which could have been knocked out under #4 as well as #3), and there were comics posted that didn't include much commentary other than, perhaps, "I really liked this!" Which doesn't count. On the other hand, there were also posts that included a scanned page or two, along with a "why such-and-such book or team is the greatest book or team ever and people should be reading it; here's my commentary or critique." THOSE kinds of posts would likely have survived a test of fair use, presuming, again, that the occasion arose where they would need to use that defense. But as a whole, many posts on scans_daily existed because the companies whose comics were scanned chose not to pursue the enforcement of their copyrights in that particular instance. Yes, they had the right to do so. Yes, it's entirely probable that, in terms of business sense, another option would have been much better. But in the end, there it is: Marvel had the right to go after their work being posted on scans_daily, and it could have done so whenever it wanted to (assuming it was at a time when there were posts of Marvel comics on the community). That's just the way the copyright cookie crumbles. Now another community *might* avoid this problem by being very careful about what is posted and ensuring that it follows the above guidelines - but even then, if the copyright owners choose to enforce their rights, they still run the risk of either being shut down or sued. Because as I said before, fair use is a DEFENSE. We should not forget that.

In the end, I personally think that it's a shame scans_daily was shut down, because along with being a fun and interesting community that added to comics commentary and drew in new readers, it's how I personally ended up spending oodles of money on Marvel comics. However, legally, it was their right to do what they did (if it was, in fact, Marvel who contacted LJ - it's still not entirely clear what the chain of events was). C'est la vie.

For a few more thoughts on this, you can check out:

My roundup of links about the end of scans_daily


My initial reaction to the end of scans_daily

Tags: , , , ,
Trixie feels: contemplative contemplative

24 clues shared or share a clue
q42 From: q42 Date: March 3rd, 2009 01:21 am (UTC) (current file)
Thanks for the heads up and explanation of this, I actually have a fair amount of interest in legal matters of this kind, and this touched on aspects I did not know.

Also where did you get that icon? I love that show, but have yet to see the rest...
foresthouse From: foresthouse Date: March 3rd, 2009 01:54 am (UTC) (current file)
No problem!

The quote is from "Fever" and the picture is from the one where Bernard gambles. I made the icon. :) There are more Black Books icons from me at theiconolatrist.

Black Books is a fantastic show! All three seasons are comedy gold.
kijikun From: kijikun Date: March 3rd, 2009 03:02 am (UTC) (current file)
#3), there were whole comics posted
The only 'whole' comics posted I believe were ones out of copyright. The only whole comics I can remember were EC, Creepy, and some of the older Romance comics and even then I think the comics posted from those might have been complete stories but not the whole content of that particular issues of magazine.

Edit: I'm not saying this changes things, but I'm tired of people acting like we were posting full scans of comics.

Edited at 2009-03-03 03:03 am (UTC)
foresthouse From: foresthouse Date: March 3rd, 2009 04:28 am (UTC) (current file)
Well, I personally read several full Deadpool comics in the archives there from the 1997 run. Those are definitely still covered under copyright. I can't attest one way of the other for everything, but I know for a fact those were on there.

Don't get me wrong - I loved the community and am sad it went away. I'm just saying, I know there were some whole issues up.

Edited at 2009-03-03 04:32 am (UTC)
kijikun From: kijikun Date: March 3rd, 2009 04:39 am (UTC) (current file)
At what point were they posted? If they were from some of the early years they might have been posted before we had stricter moderation. Or they were from a trade.

It is in general problematic to tell people not familiar with scans_daily that were were whole issues of anything up. Since they will assume it makes the community the same as any torrent pirating site. While s_d was violating copy right, we still should not be placed in the same category as those sites.
foresthouse From: foresthouse Date: March 3rd, 2009 04:48 am (UTC) (current file)
Since the site is gone, I can only say that they were in the archives. I can't remember when they were from.

In my opinion I am stating facts above - there were some whole issues up, as well as some posts that just had one or two scans. I don't think anything I said makes it look like it was anything like a torrent site. I'm not trying to make the comm look bad - heck, I was a member. But it's a fact that they were there.

If you read either of the other posts I wrote, which are linked here, it should be obvious that I think it was too bad scans_daily had to go, and that I think it was a valuable resource.
kijikun From: kijikun Date: March 3rd, 2009 04:54 am (UTC) (current file)
I'm not saying you personally feel s_d was the same as a pirate site or that I think you are in anyway not sincere in saying you are sorry that s_d was suspended.

I was more addressing the fact that there is a great deal of confusion by those that had never gone to scans_daily about the nature of the community. There are those that are quick to call it a pirate site and say it offered up full scans, implying that posting full issues was the norm.
foresthouse From: foresthouse Date: March 3rd, 2009 04:56 am (UTC) (current file)
There are those that are quick to call it a pirate site

No argument there. Peter David, for one. I haven't seen that many reactions calling it something like a torrent site, though.

I did add a small caveat to my post, noting that even the full scans were usually accompanied by commentary, which is true.
kijikun From: kijikun Date: March 3rd, 2009 05:01 am (UTC) (current file)
Out of curiosity I've been keeping track of of the various discussions on scans_daily. I've seen a number of people that make the scans=pirates=torrent jump. For some offering any scans without full approval of writers and publishers made the community just as bad as a torrent site.

I do apologize for not making myself for clear and coming off as I thought you were making that argument. Your post is very clear and thoughtful. Many would do good to read it.
foresthouse From: foresthouse Date: March 3rd, 2009 05:17 am (UTC) (current file)
That's interesting - and one reason it's a shame the community is gone is that people can't really see what it was really like now.

No problem - I don't want people to misunderstand what I'm saying or anything. And it's always good to hear from other perspectives.
kijikun From: kijikun Date: March 3rd, 2009 05:19 am (UTC) (current file)
The insanejournal s_d is a good demonstration of it. There are posts with commentary, and posts of 'I like this comic and wanted more people to know about it'.
foresthouse From: foresthouse Date: March 3rd, 2009 05:22 am (UTC) (current file)
Well, I'm glad to add a link to that, too.
kijikun From: kijikun Date: March 3rd, 2009 05:26 am (UTC) (current file)

I would like the bit about full scans to be more clear but it is your post and you've been more than gracious to me.
foresthouse From: foresthouse Date: March 3rd, 2009 04:51 am (UTC) (current file)
ETA: I do know they weren't from a trade, since until recently, no trades of the old Deadpool runs existed.
foxhack From: foxhack Date: March 3rd, 2009 06:02 am (UTC) (current file)
I posted a full issue of Hitman waaaaaaaaaaay back when it was fine to post a full issue. Probably like four years ago.

It wasn't common, but it used to happen.
kijikun From: kijikun Date: March 3rd, 2009 06:05 am (UTC) (current file)
That I know, but for some reason my brain divides eras of s_d up like comic book ages. And I sometimes forget that the changes in mods and rules are known to everyone. *face palms* I really need to stop doing that.
revid From: revid Date: March 3rd, 2009 03:05 am (UTC) (current file)
Thank you for the explanation. I must admit I had never heard of scans_daily before yesterday, but the whole thing has been sort of fascinating. Too bad both sides won't read this.

Edited at 2009-03-03 03:06 am (UTC)
foresthouse From: foresthouse Date: March 3rd, 2009 04:30 am (UTC) (current file)
It is too bad, isn't it? The problem with fair use and the misunderstandings on the internet is that people will sometimes say, "I don't get it" but then they will take a look at something like what I've posted and go, "OMG SO MANY WORDS" and not always read it. Which, you know, I'm not saying I blame them. It can be tricky to understand these things. But I figured I'd put it out here for people like you who might actually want to read it. :)
From: raattgift Date: March 3rd, 2009 10:44 am (UTC) (current file)

[pt 1 of 3]

Firstly, your link to the Patry article was enjoyable wrt
his thinking on joint authorship.

Secondly, a lot of what you wrote is pretty agreeable.

However, this part was not:

1) Fair use is an affirmative defense, not a
legal right. People forget this. People always forget
this. You can't say, "I have the right to do this
because of the copyright law of fair use." You can say,
"If a copyright owner comes after me and sues me, I can
defend my use by arguing that it was fair under the
law. IF it meets the criteria according to the judge of
my case, then my use was fair."

Um, so? Any discussion of (non-criminal) copyright
infringement is essentially hypothetical since in the
absence of an action at law by a private party, the law
has nothing to say about it.

You can say what you like about your (non-criminal)
unauthorized use in the absence of an action at law in a
competent federal district court. It is perfectly
reasonable to claim that you *do* have the right to a
great deal of unauthorized use because you can fall back
on fair use *if* you are sued by a party with valid
copyright in the works in question and no explicit or
implict licence exists from that or any joint copyright
holder (that last part is where Patry's article is

It would be more correct to talk about fair use as a
limited right, although that seems pretty clearly implied
by "fair". Fairness is assessed by, inter alia, the four
tests enumerated in 17 USC 107.

In [cite] the court found that there exists rights in
natural justice with respect to the unauthorised use of
works in which copyright exists that supersede the grant
of monopoly rights to the copyright holder. The
integration of that case into statute as 17 USC 107 was a
codification of some of that decision, that did not
extend, limit or substantially alter the existing common
law. Such statutory codifications are pretty ordinary in
common law jurisdictions, and are legislated for
efficiency of reference.

As touched on in your link to Patry's article, affirmative
defences are only "affirmative" in that they logically
require an admission of the plaintiff's claims of fact.
That is, "yes I did that, but I am not liable because..."
rather than "I did not do that, but if I did I would not
be liable because...".

That does not in any way erode their use as a protection
from liability; if you cannot be held liable because your
use is clearly and convincingly fair, then it is not very
meaningful to deny that you have the right to that use.

It's only because of the pecularities of the split between
private and public law in federal district courts, that it
is explicitly classed as an affirmative defence with
laches, estoppel, res judicata, etc. FRCP 8(c) simply
seeks to have an orderly justification of the fair use
claim from the defendant, for the efficiency of the court,
just as 8(b) seeks to have a clear admission or denial of
each of the plaintiff's claims, and 8(a) requires the
plaintiff to set out a short and plain statement of the
claim and jurisdiction. The point of 8(c) is to make it
clear that there is a defence that can be weighed without
a trial on the facts of the case itself.

Federal Rules of Criminal Procedure rule 12 sets out a
similar "calendar", again for the purposes of an efficient
and orderly administration of justice. Criminal
procedures 12(2) is the analogous "slot" to civil
procedures 8(c), and it's where one would generally
present an argument outlining a facial challenge to a
criminal law, or other defences that can be weighed
without a trial on the facts of the case itself.

From: raattgift Date: March 3rd, 2009 10:45 am (UTC) (current file)

[pt 2 of 3]

[cont from prev]

Returning to fair use itself, the plaintiff's attorneys
should anticipate fair use claims. In fact, they should
perform their own fair use analysis before trial, and fail
to do so at their peril. This is a pretty clear
implication of Lenz v. Universal Music Corp., where Lenz
was awarded legal costs for an improper takedown.


There are a couple of interesting footnotes in this

Footnote 1 on p 2. (cf. the whole of scans_daily being
takend own vs only one posting).

Footnote 5 on p 7. (deliberate suppression of clearly fair use)

Judge Fogel makes interesting footprints that are I think
pretty clear foreshadowing. In a previous ruling here
note Footnote 3 on page 3 (cf. use of Terms of Service as
a proxy for 17 USC 512 takedown notice).

At this point, were a person in the 9th Circuit with
copyright in a work that has been used without
authorization to take any action with respect to
takedowns, either via the DMCA mechanism or via private
discussions with the hosting parties (e.g. LJ Terms of
Service administrators), without first performing a fair
use analysis, that person would be a victim of
exceptionally bad lawyering.

I think the writing is on the wall with respect to filing
copyright infringement lawsuits without the plaintiff
first considering fair-use implications. That is,
requiring a defendant to have to affirm the fair use in
court wastes the time of the court and causes the
defendant to incur legal costs. Judge Fogel's decision to
award those costs to Ms Lenz is a pretty big highlight to
that writing.

From: raattgift Date: March 3rd, 2009 10:47 am (UTC) (current file)

Re: [pt 3 of 3]

Despite your fairly clear understanding of and references
to private copyright law, I can't understand: "As it
stood, scans_daily was, in large part, in violation of
copyrights of the various companies." The test throughout
17 USC is one of infringement and infringing use.
"Violation" is a concept of public law, and belongs in the
DNW copyright discussion vocabulary list with "illegal",
"guilty" and "criminal", which probably cause your teeth
to grind a bit too :-)

As it stood, scans_daily was, in large part,
in violation of copyrights of the various

(ITYM "infringing on" not "in violation of".)

Scans_daily had substantial noninfringing use, not only on
clear and convincing fair use grounds, but on grounds of
sole copyright, joint copyright, and explicit licence, and
there was ample clear and convincing evidence of all of
ythat. In Betamax [Sony Corp. of America v. Universal City
Studios, Inc., 464 U.S. 417 (1984)], there are solid
grounds to believe that is all that's needed to justify
scans_daily itself. *LJ* itself depends on Betamax common
law as much as the safe harbour provisions of DMCA.

From that decision:

[There must be] a balance between a copyright
holder's legitimate demand for effective - not merely
symbolic - protection of the statutory monopoly, and the
rights of others freely to engage in substantially
unrelated areas of commerce. Accordingly, the sale of
copying equipment, like the sale of other articles of
commerce, does not constitute contributory infringement
if the product is widely used for legitimate,
unobjectionable purposes. Indeed, it need merely be
capable of substantial noninfringing uses...

Note capable. Scans_daily has demonstrated
noninfringing uses.

Paraphrasing two paragraphs later in the decision: "If
there are thousands of scans_daily posters (and readers)
who make copies of pages of published comic books, web
cartoons, and user-created art ... and if the prorprietors
of some of those works welcome the practice, the activity
of supplying or moderating a forum that makes such
activity feasible should not be stifled simply because the
forum is used by some individuals to make unauthorized
reproduction of respondents' works".

That is, because scans_daily had non-infringing postings,
even apart from all the commentary and the clearly
non-infringing discussions in the comments, even
without a fair use analysis, turning off scans_daily was

Even if there are numerous cases of prima facie
infringements that probably would not be excused at trial,
should that hypothetical liability justify turning off
scans_daily entirely?

Moreover, do you really think that a federal district
court would order the takedown of the whole of scans_daily
even if a single poster was held liable for copyright
infringement after trial?

Finally, I apologize if this sounds overly aggressive or unnecessarily adversarial. It's not meant to be, and you are not the source of s_d frustration, or bad misinformation, or an appropriate target for venting at. I'm also sorry about the short lines (80 char line breaks) because I wrote all that outside the text box, and got distracted helping out a friend after finishing but before starting to paste it in here.

foresthouse From: foresthouse Date: March 3rd, 2009 08:35 pm (UTC) (current file)

Re: [pt 3 of 3]

Hi there,

Thanks for commenting. I had a longer reply but my computer crashed, so quick response to some of your points:

>>Any discussion of (non-criminal) copyright infringement is essentially hypothetical since in the absence of an action at law by a private party, the law has nothing to say about it.

That would be why I said, “IF it meets the criteria according to the judge of my case, then my use was fair.”

I.e. if the case was taken to court, then you’d use fair use to defend against the claim of copyright infringement. My point is that fair use is not a guaranteed right that can be relied upon by potential infringers. It’s not like the exclusive rights of copyright holders. It is instead a sometimes hard-to-define defense (since different circuits tend to give the factors different weights).

>>It is perfectly reasonable to claim that you *do* have the right to a great deal of unauthorized use

Sure, you can say anything in the world that you want to when it comes to infringing. But I am talking about what would happen if you look at it under the law, not what an infringing party says or thinks to him or herself.

>>That does not in any way erode their use as a protection from liability

I did not mean to imply that fair use being an affirmative defense erodes its efficacy as a potential protection from liability. And if it’s preferable, one could refer to fair use as a limitation on copyright, as the Copyright Office has in fact done. But the fact remains that fair use comes into play in court as a defense that must be raised by the person accused of infringing.

For some reason I am having trouble with my Adobe Reader (computer problems again) so I can’t read the case you linked with a pdf. Sorry!

Yes, scans_daily had many non-infringing uses, as I mentioned in my post. On the other hand, do you seriously think that posting an entire, copyright protected issue of a Marvel comic, with minimal commentary, is a clear example of fair use? There were, in fact, whole issues scanned there, whether they were from the earlier years of the community or not. Obviously I can’t go over there now and quantify what part of the community appeared to be fair use, since it’s gone now.

Also, I understand the “capable of non-infringing uses” idea, of course, but really, that defense could be used for the entirety of the internet. It’s capable of non-infringing use, but would you suggest that there would never be an infringing use found on an internet site because of Betamax? Here I am talking about posts. I wasn't looking at the community as a whole when discussing the fair use aspect.

The site was rife with copyright-protected works, and the owners of those works, if they chose to pursue legal action, may well have prevailed in having those works removed. Am I saying LJ was right to shut down the whole site? No, I’m really not. But I would say that there were many posts on there that were infringing or would not have stood up to a fair use analysis.

Moreover, I’m not even suggesting this would ever actually end up in court. So no, I’m not suggesting that a federal district court would order the takedown of the whole of scans_daily. I never did suggest that.

In summary, if you re-read what I posted about scans_daily, in discussing the community I am referring to individual posts that would or would not have stood up to a claim of copyright infringement, and stating that the community was able to exist because companies chose not to pursue their copyright claims. I doubt you’d disagree with the idea that if every company who had a copyrighted work displayed on the community pursued their legal rights and prevailed, there would be little left of the community itself. Not to mention that if they did pursue their rights, LJ and/or the mods would scrap the whole thing anyway (like LJ did here) because of the money involved in trying to defend such uses. So what I was saying is that the community existed because the companies chose not to bother with it. Once they did, *poof* there it went. Is that good? No, I don't necessarily think so, as I stated in two previous posts. But that's the way it often happens.
soleta_nf From: soleta_nf Date: March 4th, 2009 04:36 am (UTC) (current file)
Very interesting write-up. Thank you. :)
foresthouse From: foresthouse Date: March 6th, 2009 01:09 am (UTC) (current file)
No problem. :)
24 clues shared or share a clue