Fair Use Doctrine

Fair Use: The Basics

The fair use clause is one of the Copyright Act's most important provisions. The clause, which is codified at Section 107 of the Copyright Act, allows teachers, news reporters, critics, researchers, and others to use copyrighted materials in certain circumstances without having to pay royalties or be held liable for copyright infringement.

The strength of the "fair use" privilege, however, has been eroded by a combination of technology and legislation. As more copyrighted works are produced digitally, manufacturers embed digital "locks" within the products' code, making it impossible for customers to use the item as they see fit. Additionally, recent legislation like the Digital Millennium Copyright Act has sanctioned copyright owners' ability to digitally lock their content, and criminalizes attempts to break such locks, even if the conduct otherwise would be proper under the "fair use" privilege.

Another major “fair use” issue is raised by “peer-to-peer” file sharing software capable of both infringing and non-infringing uses. On July 27, 2005, the Supreme Court in MGM v. Grokster held that while P2P software is capable of non-infringing uses, if a distributor “induces” infringement, as shown by clear expression or other affirmative steps, it is liable for the resulting acts of end-user infringement. Libraries and other fair use advocates applauded the Court’s failure to overturn the landmark 1984 “Sony Betamax” ruling that the distributor of a technology with both infringing and non-infringing uses is not liable for infringement by the end user.

Fair use issues are intertwined with digital rights management ("DRM") and Digital Millennium Copyright Act ("DMCA") issues. For more information on those issues, please see the DRM and DMCA sections of our web site.

Materials

The following information will help AALL members understand the fair use doctrine and how it affects libraries and librarians.

Member Articles

• No articles available at this time.

Documents

• Benefit Authors without Limiting Advancement or Net Consumer Expectations Act ("BALANCE Act") (http://tinyurl.com/plvod) Rep. Zoe Lofgren (D-CA) has re-introduced legislation that will allow consumers to make copies of purchased digital media for use in their car, computer or mobile device. The bill also affirms the application of the fair use privilege to digital works and transmissions.(H.R. 4536, 109th Congress). The co-sponsors are Rep. Rick Boucher (VA) and Rep. John Doolittle (CA) The bill was referred to the House Judiciary committee on Dec. 14, 2005. (THOMAS)
  • Press Release (Rep. Lofgren web site) http://www.house.gov/lofgren/news/2003/030304.htm
  • Business Software Alliance opposition (BSA website) http://tinyurl.com/k87fa
• Boucher Re-Introduces Digital Fair Use Bill (http://www.ll.georgetown.edu/aallwash/aa01082003.html) : Rep. Rick Boucher (D-VA) has re-introduced a bill that reaffirms fair use in the digital age. The bill is entitled the "Digital Media Consumers' Rights Act of 2005." (H.R. 1201, 109th Congress) The bill was referred to the House Subcommittee on Commerce, Trade and Consumer Protection. (THOMAS)
  • DMCRA Overview (Rep. Boucher web site) http://www.boucher.house.gov/index.php?option=com_content&task=view&id=22&Itemid=
  • Section Analysis (Rep. Boucher web site) http://www.boucher.house.gov/index.php?option=com_content&task=view&id=23&Itemid
• Consumer Technology Bill of Rights: A consumer manifesto for the digital age. (DigitalConsumer.org)
• What is Fair Use?: A primer on the fair use provision of the Copyright Act. (ALA Washington Office)
• Copyright & Fair Use: Information clearinghouse on the Copyright Act's fair use clause. (Stanford University Libraries)
• Fair Use Guidelines: Fair use guidelines for librarians that apply to a variety of media, under a variety of circumstances. (Copyright Management Center, Indiana University-Perdue University Indianapolis)
• Fair Use in the Electronic Age: A joint statement by the nation's library associations concerning the continued importance of fair use during a time when copyrighted works are created digitally. (Association of Research Libraries)
  

Case Notes

• MGM v. Grokster, ___ U.S. ___ , 125 S.Ct 2764 (June 27, 2005) http://www.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf * More information on the case, including links to an extensive list of amicus briefs, can be found on the Electronic Freedom Foundation’s web site at http://www.eff.org/IP/P2P/MGM_v_Grokster/

*Adobe Acrobat reader necessary to view documents.