What is Fair Use

FAIR USE AND CONSUMER RIGHTS Andrew Prillaman1 1 Andrew Prillaman Sophomore CS major Georgia Southern University EagleId#7043 Abstract – Consumer rights can essentially be defined as limitations on the exclusive rights granted to copyright holders. Among the rights are things such as the Fair Use doctrine and First Sale. These limitations form part of the core rights that consumers having in the usage of the media, both tangible and intangible, that they purchase. However, larger media groups have made efforts to circumvent these limitations and impose strict rules on how copyrighted works can be used post first sale. Most of these efforts have been to the detriment of consumers. Without these restrictions many of the technologies we take for granted would not exist in their current forms. for a temporary injunction to prevent it from being sold. The RIAA believed that the device did not meet the requirements for a “digital audio recording device” as outlined under the Audio Home Recording Act of 1992. However, the court felt that the Rio, which had a hard drive, did not constitute a “digital audio recording device” because it was unable to directly record audio from a transmission. Instead the Rio could only make copies of files on a computer, and thus was not covered by the same restrictions as a “digital audio recording device”. FAIR USE TODAY These two cases created precedents that are the basis of modern fair use. They made legal and allowed for the creation of such devices as iPod's, CD/DVD burners and for websites such as YouTube. WHAT IS “FAIR USE” Fair is a concept in US copyright law that allows for the usage of a copyrighted work for the purposes such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”.[1] There are four factors that must be weighed when determining if the usage of a copy righted work is “Fair Use”  Devices like the iPod rely on fair use    The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes[1] The nature of the copyrighted work[1] The amount and “substantiality” of the portion used in relation to the copyrighted work as a whole[1] The effect of the use upon the potential market for or value of the copyrighted work.[1] SONY V. UNIVERSAL STUDIOS Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984). When Sony initially released the Betamax format it, was quickly sued by Universal Studios on the grounds that the Betamax would allow for the easy infringement of Universals Copyrights. The repercussions of this case were important for both consumers and technology creators. The courts ruled against Universal on the grounds that “the public cannot be denied the lawful uses just because some (or many or most) may use the product to infringe copyrights”. This established precedent that it was legal for a consumer to create a recording of a copyrighted work for personal use.[6] Many of the Videos hosted on web sites like YouTube would be illegal without fair use. RIAA V DIAMOND MULTIMEDIA In 1998 Diamond Multimedia released the “Rio PMP300“. It was one of the first MP3 Players available. Before it was able to be put on the market, the RIAA sued EXAMPLES OF FAIR USE You Tube Guitar Lesson  Usage of copyrighted music Parody/Cover of a song  Usage of copyrighted song Videogame Reviews  Usage of Copyrighted pictures  Usage of Copyrighted software  Usage of Copyrighted Music Most any website, magazine, or blog that attempts to talk about anything of any importance. http://eff.org/ http://www.groklaw.net/index.php REFERENCES [1] ""§ 107. Limitations on Exclusive Rights: Fair Use." Legal Information Institute Cornell University Law School. 21 Apr. 2008 . "EFF:Fair." Electronic Frontier Foundation. 21 Mar. 2002. 27 Apr. 2008 . "EFF:First Sale." Electronic Frontier Foundation. 21 Mar. 2002. 27 Apr. 2008 . "RIAA V.Diamond." Harvard Law. 28 Apr. 2008 . "Software license agreement." Wikipedia, The Free Encyclopedia. 15 Apr 2008, 02:18 UTC. Wikimedia Foundation, Inc. 28 Apr 2008 . "EFF:the Betamax Case." Electronic Frontier Foundation. 28 Apr. 2008 . "UMG Says Throwing Away Promo Cds is Illegal." Electronic Frontier Foundation. 28 Apr. 2008 . CONSUMER RIGHTS In recent years many media companies have attempted to reduce and restrict consumer rights like fair use and first sale. Typically this is done by forcing consumers to agree to license agreements. These licenses are based on the idea that a consumer does not buy a piece of copyrighted material, instead the consumer licenses it. This is an attempt at using contract law to increase the control a copyright holder has over works.[5] This is most commonly seen with software EULA's. However attempts have been made in recent years to extend this practice into music and video. This is typically achieved via “shrink wrap” licenses and Digital Rights Management. In many cases copyright owners desire to have total control over how copyrighted media is used once purchased by a consumer. These goals are usually completely at odds with many of the limitations imposed on copyrights.[3] [2] [3] [4] [5] [6] [7] CURRENT CASES INVOLVING CONSUMER RIGHTS Universal Music Group has sued Roast Beast Music(and others) for auctioning off promotional music cds on ebay. In the view of UMG they still retain control of promotional materials given out for free too groups like radio stations. They base their argument on the application “Label Licenses” that state "promotional use only, not for resale". If UMG is correct in their assessment, then they could have free reign to make all secondary markets(Used sales and the entire rental industry) for their media video and audio illegal. However, groups like the Electronic Frontier Foundation feel that this is a clear violation of the first sale doctrine that limits copyright holders control after selling a copyrighted work. Because of this they have counter sued on the behalf of Roast Beast Music and are fighting UMG in court. In a related case, UMG has gone as far as to suggest that simply throwing away a promotional cd is a form of “unauthorized distribution”[6] CONSUMER RIGHTS GROUPS