In the US, when is fair use a defense to copyright infringement? What is fair use in the US? When would it be a successful defense to copyright infringement?
An affirmative defense In the US, fair use (17 USC §107) &quot;is an affirmative defense&quot; (Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994)). It need not be raised unless the plaintiff establishes that the defendant's activity would otherwise be infringing. When fair use is raised as a defense, the burden is on the defendant to prove the elements of fair use. A four-factor balancing test Here is the text of 17 USC 107: Notwithstanding the provisions of sections 106 and 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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. &quot;Congress meant §107 to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way and intended that courts continue the common-law tradition of fair use adjudication.&quot; (Campbell, quoting from H. R. Rep. No. 94-1476). Factor 1: Purpose and character of use The statute explicitly lists several purposes which would weigh in favor of a finding of fair use: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. However, that list is only illustrative, not exhaustive. Commercial use weighs against fair use. Nonprofit use weighs in favor of fair use. Parody is another purpose which greatly affects the analysis, especially as it interacts with factor 4. Factor 2: The nature of the copyrighted work &quot;[T]he scope of fair use is generally broader when the source of borrowed expression is a factual or historical work&quot; (Campbell). &quot;[I]nformational works, such as news reports, that readily lend themselves to productive use by others, are less protected than creative works of entertainment.&quot; (Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984)) Factor 3: Amount and substantiality of the portion used in relation to the copyrighted work as a whole &quot;The extent of permissible copying varies with the purpose and character of the use.&quot; (Campbell) For example, full reproduction of an entire work was allowed in Sony. However, in Harper &amp; Row v. Nation Enterprises, 471 U.S. 539 (1985), taking just 300 words from a 7,500 word excerpt of President Ford's memoirs was not found to be fair use because it took the &quot;heart of the book&quot;. The amount and substantiality of the taking is judged with respect to the original work. How much of the original was taken? &quot;A taking may not be excused merely because it is insubstantial with respect to the infringing work. As Judge Learned Hand cogently remarked, 'no plagiarist can excuse the wrong by showing how much of his work he did not pirate.'&quot; (Harper &amp; Row) Factor 4: Effect of the use upon the potential market for or value of the copyrighted work If the use new work takes the place of the original, thereby decreasing its market or value, that weighs against a finding of fair use. However, parody or criticism, simply by decreasing the value of the work it is critical of, does not suffer the same fate. &quot;The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop. [...] [T]he law recognizes no derivative market for critical works.&quot; (Campbell) Parody and criticism might decrease the value of the original, not by taking its place, but rather, by saying something negative about it. Protection of that type of speech is one of the goals of the fair use defense. Transformativeness The four factors are not to be &quot;treated in isolation, one from another.&quot; &quot;All are to be explored, and the results weighed together, in light of the purposes of copyright.&quot; (Campbell) However, the court recognizes that &quot;[t]he central purpose of this investigation is to see, in Justice Story's words, whether the new work merely supersedes the objects of the original creation&quot;, &quot;to what extent the new work is transformative&quot;. &quot;[T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.&quot; (Campbell) Case-by-case analysis &quot;The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.&quot; (Campbell) In general, it is not possible know ahead of time whether a fair use defense would be successful in a particular case. Example cases Perhaps the best way to learn how the courts apply these four factors is to look at example cases. The US Copyright Office hosts a Fair Use Case Index that lets you browse by subject matter and jurisdiction. Stanford hosts a smaller collection of examples.
A few years ago, there was a trial in the USA about some short sound on some music CD: One party claimed that one piece of music on the CD contained a sound of less than one second length which is copied from another CD without the permission of the copyright owner of the other CD. It could never be found out if this claim was really true. The court's decision was: If it is not possible to distinguish between a copy and a work that does not depend on the other work at all, it is not a copyright infringement - even if the sound has been copied from the other CD. For this reason, I'd guess that a 4x3 image would not be a copyright infringement, yet, while 60x45 would definitely be one. Just for reference: The same image as 3x4 and as 45x60:
It isn’t theft Theft requires depriving the legal owner of possession permanently. In concept it’s closer to fraud than theft, however, copyright violation is its own crime - neither theft nor fraud. In casual usage, you can call it theft if you like - or pomegranate, or Howard. Whatever gets your point across.
No. The Creative Commons license seeks to promote recognition of the original author's work through attribution, but does not provide the same framework for enforcement that the DMCA would. The proper approach in cases such as the deleted Wikipedia article and subsequent reuse would be to provide a courteous notice to Wikipedia of your original publication and ask to be listed as the original author or be provided attribution. In the absence of relief there, then what rights you have would be determined by the Wikipedia Terms of Service. Since, and I am assuming here, that you are not generating billions of dollars on the original publication in royalties, seeking to bring a DMCA type enforcement on a Wikipedia article dispute would be like trying to swat a fly with a sledgehammer. (or more commonly in divorce, two people having hearing and spending thousands of dollars on attorney's fees fighting over a blender -- they are free to do it, but they would have been much better off buying 500 new blenders...) Keeping perspective and providing a courteous letter is probably your most cost efficient first step in situations like this. And in all areas of law, just remember, you catch more flies with honey than you do with salt. (meaning taking the courteous approach usually affords better results than a scalding letter breathing hell-fire and brimstone) In followup to earlier comment: Presuming you would be covered by the World Intellectual Property Organization Treaty on Copyright of 1996 (as a U.S. Citizen you would be), and your copyright is on file with the United States Copyright Offices (same presumption) as prerequisite to suit, then there is nothing that prevents you from invoking the protections under general copyright law and under the DMCA (inlcuding the Takedown provisions). Note: these are not the only prerequisites to taking action, but instead the minimum critera to qualify, and note this does not pass on the wisdom of doing so (there are often significant consequences to improperly invoking previsions of certain acts).
In general, using content provided by another who incorrectly posted it under a permissive license, such as a CC license, does not grant a valid license from the real copyright holder. That is, if A writes some code (or a song, or creates an image, or whatever else), it is protected by copyright. If B then posts it to the web, with a statement that it is released under a particular license, without having obtained permission from A, then B's &quot;release&quot; is of no value, because B had no rights to grant. If C downloads and uses this content, relying on B's license, then A could take legal action against C. C would probably be considered (in the US) an &quot;innocent infringer&quot; which reduces the minimum statutory damage amount, but does not otherwise change C's legal position. A could, if it chose, bring suit and possibly obtain a judgement including some damages. But to return to the practical case of code posted on one of the SE sites. Given the comparatively short code sections usually posted, and that they do not usually form a complete working program, and given further the stated educational purpose of SE, it is likely that in US law such a posting would constitute fair use, and in the law of other countries fall under one or another exception to copyright. That is a general conclusion, the details would matter. I have not heard of a case similar to that suggested in the question. I find it unlikely that an SE poster would post copyright-protected code without permission, that is valuable enough to be worth an infringement suit, and substantial enough and having enough effect on th market for the original to be outside the protection of fair use. Such a situatiion is, of course, possible, even if unlikely. Note that a cease-and-desist letter is not a court order, and is really only a threat of court action. its only legal effect is to put the recipient on notice, so that continued infringement is not without awareness of the copyright claim. To have legal effect the claimant must actually bring an infringement suit, which is not without cost.
Yes. Money damages can be awarded in this circumstance and would likely be awarded if the infringement was found to have occurred and not to have been fair use. Even in the absence of proof that any profits are made, there are statutory damages that can be awarded on a per offense basis for copyright violations, and trademark cases in addition to having statutory violations can measure damages by harm to the trademark owner and not just unjust enrichment to the infringer.
US law simply prohibits copying, not possession of a pixel. If you copy 90% of a work, you are still copying, infringing on the creators exclusive right. Same is true if you copy 20%, and so on. The pertinent first question is, how do the courts decide if there has been copying? This is a factual matter decided on the basis of preponderance of evidence. Defense will argue, very persuasively, that it is more likely that the presence of an identical pixel in two works is purely coincidental (likewise, the appearance of the word &quot;is&quot; in two texts is purely coincidental&quot;). We can imagine future technology with megabyte pixels, where the particular &quot;white&quot; pixel is unique to the original work, and no reasonable fact-finder could hold that the later word accidentally stumbled onto exactly that pixel. The second thing that has to be established is that the degree of copying &quot;matters&quot;, starting with Perris v. Hexamer, so that to be infringing, the degree of copying must be more than minimal. Courts have long relied on the notion of &quot;substantial similarity&quot;, where you know it when you see it, that is, ordinary observation would cause it to be recognized as having been taken from another work. There is no bright line drawn by Congress of SCOTUS regarding how much copying is &quot;material&quot;. It is extremely unlikely that a reasonable line could be drawn that would render single-pixel copying &quot;material&quot;.
Both the displayed site (including all text and images) and the html, css, javascript and other code that generates the display are protected by copyright. This is true in pretty much every country. You would not be able to reuse them lawfully without permission, unless an exception to copyright applies. If no exception applies, and you have not obtained permission, this is copyright infringement. In most cases copyright infringement is treated as a tort (a civil matter), not as a crime. This means that law enforcement generally will take no action and have no interest in such a situation. The copyright owner could sue for infringement, and possibly collect money damages. In the US, statutory damages can be as high as $30,000, or up to $150,000 for &quot;wilful&quot; infringement, or as low as $750 (per work infringed). Or actual damages can be collected instead. In other countries, actual damages plus costs of suit are more likely, but the rule can be different in each country. The possible exceptions to copyright vary significantly in different countries. In the US the major exception is Fair use. See Is this copyright infringement? Is it fair use? What if I don&#39;t make any money off it? and I have a question about copyright. What should I read before I ask it? for more information In general short snippets of code can probably be used under fair use, but substantial parts of the code or the displayed site are less likely to qualify as fair use. And if it is illegal then why are there so many legal open source or paid software and applications for cloning of website like httrack, cyotek, webcopy etc? Most of these tools have legitimate uses, including learning how a site is constructed without distributing copied content; and cloning or partial cloning of a site with permission. Even if the tools were mostly used for unlawful copying, that might well not be a high priority for law enforcement, and cross-border law enforcement (which this in many cases would involve) is often much harder for the police and other authorities.