Along with the previously discussed alternatives for avoiding or limiting liability for infringement (see discussion of licensing in this post on Safe Harbors for On-Line Service Providers) there is the doctrine of fair use. Fair use is a defense to copyright infringement, which is codified in 17
U.S.C. § 107 of the Copyright Act. Fair use allows copyrighted work to be used without authorization from the copyright owner for purposes such as criticism, comment, news reporting, education, and parody.
Four Fair Use Factors
The copyright holder’s rights are balanced with the public’s interest in the work by considering the following four factors:
- the purpose and character of the use, including its commercial nature
- the nature of the copyrighted work
- the amount and substantiality of the portion that is used compared to the entire work
- the effect on the potential market for the copyrighted work.
The four fair use factors are applied the same in the on-line context as they would be with a more traditional form of alleged copyright infringement. In L.A. Times v. Free Republic, 54 U.S.P.Q.2d 1453 (C.D. Cal. 2000), a publisher sued the owner and operator of an electronic bulletin board for copying and posting the publisher‘s news articles on the bulletin board. Although the bulletin board functioned mostly as a site for political commentary, the court rejected the defense of fair use because the amount of copying and the effect on the potential market for the copyrighted work both weighed in favor of protecting the publisher’s rights.