The Free Standards Group was an industry non-profit consortium chartered to primarily specify and drive the adoption of open source standards , founded on May 8, 2000.
92-725: All standards developed by the Free Standards Group (FSG) were released under open terms (the GNU Free Documentation License with no cover texts or invariant sections) and test suites, sample implementations and other software were released as free software . On January 22, 2007, the Free Standards Group and the Open Source Development Labs (OSDL) merged to form The Linux Foundation , narrowing their focus to promoting Linux in competition with Microsoft Windows . FSG
184-697: A prima facie case can be defeated without relying on fair use. For instance, the Audio Home Recording Act establishes that it is legal, using certain technologies, to make copies of audio recordings for non-commercial personal use. Some copyright owners claim infringement even in circumstances where the fair use defense would likely succeed, in hopes that the user will refrain from the use rather than spending resources in their defense. Strategic lawsuit against public participation (SLAPP) cases that allege copyright infringement, patent infringement, defamation, or libel may come into conflict with
276-483: A thumbnail in online search results did not even weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use". However, even the use of a small percentage of a work can make the third factor unfavorable to the defendant, because the "substantiality" of the portion used is considered in addition to the amount used. For instance, in Harper & Row v. Nation Enterprises ,
368-408: A Fair Use Standard . Blanch v. Koons is another example of a fair use case that focused on transformativeness. In 2006, Jeff Koons used a photograph taken by commercial photographer Andrea Blanch in a collage painting. Koons appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. Koons prevailed in part because his use was found transformative under
460-423: A fair use defense would likely succeed. The simple reason is that the license terms negotiated with the copyright owner may be much less expensive than defending against a copyright suit, or having the mere possibility of a lawsuit threaten the publication of a work in which a publisher has invested significant resources. Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use
552-446: A force, right? We just unified electro-weak, ok? The grand unified field theory still escapes us until the document licences too are just additional permissions on top of GPL. I don't know how we'll ever get there, that's gravity, it's really hard. The GNU FDL requires that licensees, when printing a document covered by the license, must also include "this License, the copyright notices, and the license notice saying this License applies to
644-518: A licensee is not allowed to save document copies "made" in a proprietary file format or using encryption. In 2003, Richard Stallman said about the above sentence on the debian-legal mailing list: This means that you cannot publish them under DRM systems to restrict the possessors of the copies. It isn't supposed to refer to use of encryption or file access control on your own copy. I will talk with our lawyer and see if that sentence needs to be clarified. A GNU FDL work can quickly be encumbered because
736-838: A long period of discussion and negotiation between and amongst the Free Software Foundation, Creative Commons, the Wikimedia Foundation and others had produced a proposal supported by both the FSF and Creative Commons to modify the Free Documentation License in such a fashion as to allow the possibility for the Wikimedia Foundation to migrate the projects to the similar Creative Commons Attribution Share-Alike (CC BY-SA) license. These changes were implemented on version 1.3 of
828-491: A message," and that he was not "trying to create anything with a new meaning or a new message." However, the artist's intended message "is not dispositive." Instead, the focus of the transformative use inquiry is how the artworks will "reasonably be perceived". The transformativeness inquiry is a deceptively simple test to determine whether a new work has a different purpose and character from an original work. However, courts have not been consistent in deciding whether something
920-612: A negotiated settlement. In August 2008, Judge Jeremy Fogel of the Northern District of California ruled in Lenz v. Universal Music Corp. that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material. The case involved Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania , who made a home video of her thirteen-month-old son dancing to Prince's song " Let's Go Crazy " and posted
1012-470: A new, different title must be given and a list of previous titles must be kept. This could lead to the situation where there are a whole series of title pages, and dedications, in each and every copy of the book if it has a long lineage. These pages cannot be removed until the work enters the public domain after copyright expires. Richard Stallman said about invariant sections on the debian-legal mailing list: The goal of invariant sections, ever since
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#17327874806951104-448: A non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or licence agreements may take precedence over fair use rights. The practical effect of the fair use doctrine is that a number of conventional uses of copyrighted works are not considered infringing. For instance, quoting from a copyrighted work in order to criticize or comment upon it or teach students about it,
1196-506: A non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial. Fair use is decided on a case-by-case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. The Oracle America, Inc. v. Google, Inc. case revolves around
1288-434: A separate two-volume work of his own. The court rejected the defendant's fair use defense with the following explanation: [A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede
1380-562: A similar defense. However, the Court in the case at bar rejected the idea that file-sharing is fair use. A U.S. court case from 2003, Kelly v. Arriba Soft Corp. , provides and develops the relationship between thumbnails , inline linking , and fair use. In the lower District Court case on a motion for summary judgment , Arriba Soft's use of thumbnail pictures and inline linking from Kelly's website in Arriba Soft's image search engine
1472-739: A use from being found fair, even though it makes it less likely. Likewise, the noncommercial purpose of a use makes it more likely to be found a fair use, but it does not make it a fair use automatically. For instance, in L.A. Times v. Free Republic , the court found that the noncommercial use of Los Angeles Times content by the Free Republic website was not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for. Richard Story similarly ruled in Code Revision Commission and State of Georgia v. Public.Resource.Org , Inc. that despite
1564-472: A work against adverse criticism. As explained by Judge Leval, courts are permitted to include additional factors in their analysis. One such factor is acknowledgement of the copyrighted source. Giving the name of the photographer or author may help, but it does not automatically make a use fair. While plagiarism and copyright infringement are related matters, they are not identical. Plagiarism (using someone's words, ideas, images, etc. without acknowledgment)
1656-552: A work does not bar a finding of fair use. It simply makes the third factor less favorable to the defendant. For instance, in Sony Corp. of America v. Universal City Studios, Inc. copying entire television programs for private viewing was upheld as fair use, at least when the copying is done for the purposes of time-shifting . In Kelly v. Arriba Soft Corporation , the Ninth Circuit held that copying an entire photo to use as
1748-451: Is a general exception that applies to all different kinds of uses with all types of works. In the U.S., fair use right/exception is based on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market of the original work. The doctrine of "fair use" originated in common law during the 18th and 19th centuries as a way of preventing copyright law from being too rigidly applied and "stifling
1840-434: Is a matter of professional ethics, while copyright is a matter of law, and protects exact expression, not ideas. One can plagiarize even a work that is not protected by copyright, for example by passing off a line from Shakespeare as one's own. Conversely, attribution prevents accusations of plagiarism, but it does not prevent infringement of copyright. For example, reprinting a copyrighted book without permission, while citing
1932-531: Is classified as an 'affirmative defense,' we hold—for the purposes of the DMCA—fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is "authorized by the law" and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c)." In June 2011, Judge Philip Pro of
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#17327874806952024-504: Is considered a fair use. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though they may sell their review commercially; but
2116-463: Is the extent to which the use is transformative . In the 1994 decision Campbell v. Acuff-Rose Music Inc , the U.S. Supreme Court held that when the purpose of the use is transformative, this makes the first factor more likely to favor fair use. Before the Campbell decision, federal Judge Pierre Leval argued that transformativeness is central to the fair use analysis in his 1990 article, Toward
2208-639: Is transformative. For instance, in Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013), the court found that Green Day's use of Seltzer's copyrighted Scream Icon was transformative. The court held that Green Day's modifications to the original Scream Icon conveyed new information and aesthetics from the original piece. Conversely, the Second Circuit came to the opposite conclusion in a similar situation in Andy Warhol Foundation for
2300-593: Is undisputed that Hoehn posted the entire work in his comment on the Website. ... wholesale copying does not preclude a finding of fair use. ... there is no genuine issue of material fact that Hoehn's use of the Work was fair and summary judgment is appropriate." On appeal, the Court of Appeals for the Ninth Circuit ruled that Righthaven did not even have the standing needed to sue Hoehn for copyright infringement in
2392-594: The Debian project, Thomas Bushnell , Nathanael Nerode, and Bruce Perens have raised objections. Bruce Perens saw the GFDL even outside the "Free Software ethos": "FSF, a Free Software organization, isn't being entirely true to the Free Software ethos while it is promoting a license that allows invariant sections to be applied to anything but the license text and attribution. [...] the GFDL isn't consistent with
2484-646: The District of Nevada ruled in Righthaven v. Hoehn that the posting of an entire editorial article from the Las Vegas Review-Journal in a comment as part of an online discussion was unarguably fair use. Judge Pro noted that "Noncommercial, nonprofit use is presumptively fair. ... Hoehn posted the Work as part of an online discussion. ... This purpose is consistent with comment, for which 17 U.S.C. § 107 provides fair use protection. ... It
2576-664: The Free Software Foundation (FSF) for the GNU Project . It is similar to the GNU General Public License , giving readers the rights to copy, redistribute, and modify (except for "invariant sections") a work and requires all copies and derivatives to be available under the same license. Copies may also be sold commercially, but, if produced in larger quantities (greater than 100), the original document or source code must be made available to
2668-746: The 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union , the National Coalition Against Censorship , the American Library Association , numerous clinical programs at law schools, and others. The " Chilling Effects " archive was established in 2002 as a coalition of several law school clinics and
2760-535: The 80s when we first made the GNU Manifesto an invariant section in the Emacs Manual, was to make sure they could not be removed. Specifically, to make sure that distributors of Emacs that also distribute non-free software could not remove the statements of our philosophy, which they might think of doing because those statements criticize their actions. The GNU FDL is incompatible in both directions with
2852-542: The Copyright Act of 1976, which is codified at 17 U.S.C. § 107 . They were intended by Congress to clarify rather than to replace, the prior judge-made law. As Judge Pierre N. Leval has written, the statute does not "define or explain [fair use's] contours or objectives." While it "leav[es] open the possibility that other factors may bear on the question, the statute identifies none." That is, courts are entitled to consider other factors in addition to
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2944-487: The Document in any medium, either commercially or noncommercially" and therefore is incompatible with material that excludes commercial re-use. As mentioned above, the GFDL was designed with commercial publishers in mind, as Stallman explained: The GFDL is meant as a way to enlist commercial publishers in funding free documentation without surrendering any vital liberty. The 'cover text' feature, and certain other aspects of
3036-458: The Document". This means that if a licensee prints out a copy of an article whose text is covered under the GNU FDL, they must also include a copyright notice and a physical printout of the GNU FDL, which is a significantly large document in itself. Worse, the same is required for the standalone use of just one (for example, Misplaced Pages) image. Several Wikimedia projects have over the years abandoned
3128-527: The Document, but exist as front-matter materials or appendices. Secondary sections can contain information regarding the author's or publisher's relationship to the subject matter, but not any subject matter itself. While the Document itself is wholly editable and is essentially covered by a license equivalent to (but mutually incompatible with) the GNU General Public License , some of the secondary sections have various restrictions designed primarily to deal with proper attribution to previous authors. Specifically,
3220-535: The EFF to document the use of cease and desist letters. In 2006 Stanford University began an initiative called the " Fair Use Project " (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations. Examples of fair use in United States copyright law include commentary, search engines, criticism, parody , news reporting, research, and scholarship. Fair use provides for
3312-524: The GFDL if such fair use is covered by all potential subsequent uses. One example of such liberal and commercial fair use is parody . Although the two licenses work on similar copyleft principles, the GFDL is not compatible with the Creative Commons Attribution-ShareAlike license . However, at the request of the Wikimedia Foundation , version 1.3 added a time-limited section allowing specific types of websites using
3404-455: The GFDL to additionally offer their work under the CC BY-SA license. These exemptions allow a GFDL-based collaborative project with multiple authors to transition to the CC BY-SA 3.0 license, without first obtaining the permission of every author, if the work satisfies several conditions: To prevent the clause from being used as a general compatibility measure, the license itself only allowed
3496-482: The GFDL. In the case of Baidu, Misplaced Pages representatives asked the site and its contributors to respect the terms of the licenses and to make proper attributions. Some critics consider the GFDL a non-free license. Some reasons for this are that the GFDL allows "invariant" text which cannot be modified or removed, and that its prohibition against digital rights management (DRM) systems applies to valid usages, like for "private copies made and not distributed". Notably,
3588-645: The GPL—material under the GNU FDL cannot be put into GPL code and GPL code cannot be put into a GNU FDL manual. At the June 22–23, 2006 international GPLv3 conference in Barcelona, Eben Moglen hinted that a future version of the GPL could be made suitable for documentation: By expressing LGPL as just an additional permission on top of GPL we simplify our licensing landscape drastically. It's like for physics getting rid of
3680-625: The Parliament of Great Britain, created copyright law to replace a system of private ordering enforced by the Stationers' Company . The Statute of Anne did not provide for legal unauthorized use of material protected by copyright. In Gyles v Wilcox , the Court of Chancery established the doctrine of "fair abridgement", which permitted unauthorized abridgement of copyrighted works under certain circumstances. Over time, this doctrine evolved into
3772-492: The Second Circuit in Cariou v. Prince , 714 F.3d 694 (2d. Cir. 2013) shed light on how transformative use is determined. "What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work." The district court's conclusion that Prince's work was not transformative is partly based on Prince's deposition testimony that he "do[es]n't really have
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3864-493: The U.S. Supreme Court held that a news article's quotation of fewer than 400 words from President Ford 's 200,000-word memoir was sufficient to make the third fair use factor weigh against the defendants, because the portion taken was the "heart of the work". This use was ultimately found not to be fair. The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original work. The court not only investigates whether
3956-466: The U.S. are located in a different section of the statute. A similar-sounding principle, fair dealing, exists in some other common law jurisdictions but in fact it is more similar in principle to the enumerated exceptions found under civil law systems. Civil law jurisdictions have other limitations and exceptions to copyright. In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in
4048-617: The Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d. Cir. 2021). In that case, the Warhol Foundation sought a declaratory judgment that Warhol's use of one of Goldsmith's celebrity photographs was fair use. The court held that Warhol's use was not transformative because Warhol merely imposed his own style on Goldsmith's photograph and retained the photograph's essential elements. Although the Supreme Court has ruled that
4140-570: The artist) into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect. This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than laws about copyright. The statutory fair use provision
4232-542: The authors of prior versions have to be acknowledged and certain "invariant sections" specified by the original author and dealing with his or her relationship to the subject matter may not be changed. If the material is modified, its title has to be changed (unless the prior authors permit to retain the title). The license also has provisions for the handling of front-cover and back-cover texts of books, as well as for "History", "Acknowledgements", "Dedications" and "Endorsements" sections. These features were added in part to make
4324-434: The availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional. To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are not protected by copyright —only their particular expression or fixation merits such protection. On
4416-429: The case matter was narrowed down to whether Google's use of the definition and SSO of Oracle's Java APIs (determined to be copyrightable) was within fair use. The Federal Circuit Court of Appeals has ruled against Google, stating that while Google could defend its use in the nature of the copyrighted work, its use was not transformative, and more significantly, it commercially harmed Oracle as they were also seeking entry to
4508-470: The change to occur before August 1, 2009. At the release of version 1.3, the FSF stated that all content added before November 1, 2008, to Misplaced Pages as an example satisfied the conditions. The Wikimedia Foundation itself after a public referendum, invoked this process to dual-license content released under the GFDL under the CC BY-SA license in June 2009, and adopted a foundation-wide attribution policy for
4600-495: The copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement. The U.S. "fair use doctrine" is generally broader than the " fair dealing " rights known in most countries that inherited English Common Law . The fair use right
4692-406: The court clarified that this is not a "hard evidentiary presumption" and that even the tendency that commercial purpose will "weigh against a finding of fair use ... will vary with the context." The Campbell court held that hip-hop group 2 Live Crew 's parody of the song " Oh, Pretty Woman " was fair use, even though the parody was sold for profit. Thus, having a commercial purpose does not preclude
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#17327874806954784-457: The creation of the thumbnails. To the contrary, the thumbnail searches could increase the exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgment after Arriba Soft had experienced significant financial problems and failed to reach
4876-454: The defendant's right to freedom of speech , and that possibility has prompted some jurisdictions to pass anti-SLAPP legislation that raises the plaintiff's burdens and risk. Although fair use ostensibly permits certain uses without liability, many content creators and publishers try to avoid a potential court battle by seeking a legally unnecessary license from copyright owners for any use of non-public domain material, even in situations where
4968-474: The defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the copyright owner, who must demonstrate the impact of the infringement on commercial use of the work. For example, in Sony Corp v. Universal City Studios , the copyright owner, Universal , failed to provide any empirical evidence that
5060-450: The entertainment industry. This prompted him to invoke the fair use doctrine, which permits limited use of copyrighted material to provide analysis and criticism of published works. In 2009, fair use appeared as a defense in lawsuits against filesharing . Charles Nesson argued that file-sharing qualifies as fair use in his defense of alleged filesharer Joel Tenenbaum . Kiwi Camara , defending alleged filesharer Jammie Thomas , announced
5152-451: The ethos that FSF has promoted for 19 years." In 2006, Debian developers voted to consider works licensed under the GFDL to comply with their Debian Free Software Guidelines provided that the invariant section clauses are not used. However, their resolution stated that even without invariant sections, GFDL-licensed software documentation is considered to be "still not free of trouble" by the project, namely because of its incompatibility with
5244-669: The fact that it is a non-profit and did not sell the work, the service profited from its unauthorized publication of the Official Code of Georgia Annotated because of "the attention, recognition, and contributions" it received in association with the work. Another factor is whether the use fulfills any of the preamble purposes, also mentioned in the legislation above, as these have been interpreted as "illustrative" of transformative use. In determining that Prince's appropriation art could constitute fair use and that many of his works were transformative fair uses of Cariou's photographs,
5336-418: The fact that the GFDL "does not allow for easy duplication and modification", especially for digital documentation. The GNU FDL contains the statement: You may not use technical measures to obstruct or control the reading or further copying of the copies you make or distribute. A criticism of this language is that it is too broad, because it applies to private copies made but not distributed. This means that
5428-498: The factors to be considered shall include: 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. The four factors of analysis for fair use set forth above derive from the opinion of Joseph Story in Folsom v. Marsh , in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce
5520-404: 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
5612-830: The film in a history book on the subject in Time Inc v. Bernard Geis Associates . In the decisions of the Second Circuit in Salinger v. Random House and in New Era Publications Int'l v. Henry Holt & Co , the aspect of whether the copied work has been previously published was considered crucial, assuming the right of the original author to control the circumstances of the publication of his work or preference not to publish at all. However, Judge Pierre N. Leval views this importation of certain aspects of France's droit moral d'artiste ( moral rights of
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#17327874806955704-503: The film's use of their footage, specifically footage of the firefighters discussing the collapse of the World Trade Center . With the help of an intellectual property lawyer, the creators of Loose Change successfully argued that a majority of the footage used was for historical purposes and was significantly transformed in the context of the film. They agreed to remove a few shots that were used as B-roll and served no purpose to
5796-402: The first fair use factor. The Campbell case also addressed the subfactor mentioned in the quotation above, "whether such use is of a commercial nature or is for nonprofit educational purposes." In an earlier case, Sony Corp. of America v. Universal City Studios, Inc. , the Supreme Court had stated that "every commercial use of copyrighted material is presumptively ... unfair." In Campbell ,
5888-458: The four statutory factors. The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. In the 1841 copyright case Folsom v. Marsh , Justice Joseph Story wrote: "[A] reviewer may fairly cite largely from
5980-419: The greater discussion. The case was settled and a potential multimillion-dollar lawsuit was avoided. This Film Is Not Yet Rated also relied on fair use to feature several clips from copyrighted Hollywood productions. The director had originally planned to license these clips from their studio owners but discovered that studio licensing agreements would have prohibited him from using this material to criticize
6072-422: The legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor test . The U.S. Supreme Court has traditionally characterized fair use as an affirmative defense , but in Lenz v. Universal Music Corp. (2015) (the "dancing baby" case), the U.S. Court of Appeals for the Ninth Circuit concluded that fair use was not merely a defense to an infringement claim, but
6164-411: The license more financially attractive to commercial publishers of software documentation, some of whom were consulted during the drafting of the GFDL. "Endorsements" sections are intended to be used in official standard documents, where the distribution of modified versions should only be permitted if they are not labeled as that standard anymore. The GFDL requires the ability to "copy and distribute
6256-487: The license that deal with covers, title page, history, and endorsements, are included to make the license appealing to commercial publishers for books whose authors are paid. Material that restricts commercial re-use is incompatible with the license and cannot be incorporated into the work. However, incorporating such restricted material may be fair use under United States copyright law (or fair dealing in some other countries) and does not need to be licensed to fall within
6348-432: The license, which includes a new provision allowing certain materials released under the (GFDL) license to be used under a Creative Commons Attribution Share-Alike license also. Material licensed under the current version of the license can be used for any purpose, as long as the use meets certain conditions. The license explicitly separates any kind of "Document" from "Secondary Sections", which may not be integrated with
6440-522: The major free software licenses. Those opposed to the GFDL have recommended the use of alternative licenses such as the BSD License or the GNU GPL. The FLOSS Manuals foundation, an organization devoted to creating manuals for free software, decided to eschew the GFDL in favor of the GPL for its texts in 2007, citing the incompatibility between the two, difficulties in implementing the GFDL, and
6532-480: The mobile market. However, the U.S. Supreme Court reversed this decision, deciding that Google's actions satisfy all four tests for fair use, and that granting Oracle exclusive rights to use Java APIs on mobile markets "would interfere with, not further, copyright's basic creativity objectives." In April 2006, the filmmakers of the Loose Change series were served with a lawsuit by Jules and Gédéon Naudet over
6624-525: The modern concepts of fair use and fair dealing . Fair use was a common-law (i.e. created by judges as a legal precedent ) doctrine in the U.S. until it was incorporated into the Copyright Act of 1976 , 17 U.S.C. § 107 . The term "fair use" originated in the United States. Although related, the limitations and exceptions to copyright for teaching and library archiving in
6716-578: The music company had acted in bad faith by ordering removal of a video that represented fair use of the song. On appeal, the Court of Appeals for the Ninth Circuit ruled that a copyright owner must affirmatively consider whether the complained of conduct constituted fair use before sending a takedown notice under the Digital Millennium Copyright Act, rather than waiting for the alleged infringer to assert fair use. 801 F.3d 1126 (9th Cir. 2015). "Even if, as Universal urges, fair use
6808-438: The original artwork was. Second, the photographs had already been published, diminishing the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by
6900-464: The original author, would be copyright infringement but not plagiarism. The U.S. Supreme Court described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc. This means that in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement. Thus, fair use need not even be raised as a defense unless
6992-422: The original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy ." A key consideration in later fair use cases
7084-403: The other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy , for example, was purchased and copyrighted by Time magazine. Yet its copyright was not upheld, in the name of the public interest, when Time tried to enjoin the reproduction of stills from
7176-482: The plaintiff first shows (or the defendant concedes) a prima facie case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount , for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense. In addition, fair use is only one of many limitations, exceptions, and defenses to copyright infringement. Thus,
7268-442: The results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation. In evaluating the fourth factor, courts often consider two kinds of harm to the potential market for the original work. Courts recognize that certain kinds of market harm do not negate fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield
7360-466: The use of Betamax had either reduced their viewership or negatively impacted their business. In Harper & Row, the case regarding President Ford's memoirs, the Supreme Court labeled the fourth factor "the single most important element of fair use" and it has enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music Inc that "all [four factors] are to be explored, and
7452-496: The use of GFDL, among them the English Misplaced Pages, which has relicensed the files. Wikivoyage , a web site dedicated to free content travel guides, chose not to use the GFDL from the beginning because it considers it unsuitable for short printed texts. Fair use Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from
7544-597: The use of application programming interfaces (APIs) used to define functionality of the Java programming language, created by Sun Microsystems and now owned by Oracle Corporation. Google used the APIs' definition and their structure, sequence and organization (SSO) in creating the Android operating system to support the mobile device market. Oracle had sued Google in 2010 over both patent and copyright violations, but after two cycles,
7636-475: The use of content from Wikimedia Foundation projects. There have currently been no cases involving the GFDL in a court of law, although its sister license for software, the GNU General Public License , has been successfully enforced in such a setting. Although the content of Misplaced Pages has been plagiarized and used in violation of the GFDL by other sites, such as Baidu Baike , no contributors have ever tried to bring an organization to court due to violation of
7728-425: The use of the original work, and substitute the review for it, such a use will be deemed in law a piracy ... In short, we must often ... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. The statutory fair use factors quoted above come from
7820-452: The very creativity which [copyright] law is designed to foster." Though originally a common law doctrine, it was enshrined in statutory law when the U.S. Congress passed the Copyright Act of 1976 . The U.S. Supreme Court has issued several major decisions clarifying and reaffirming the fair use doctrine since the 1980s, the most recent being in the 2021 decision Google LLC v. Oracle America, Inc. The 1710 Statute of Anne, an act of
7912-635: The video on YouTube . Four months later, Universal Music , the owner of the copyright to the song, ordered YouTube to remove the video under the Digital Millennium Copyright Act . Lenz notified YouTube immediately that her video was within the scope of fair use, and she demanded that it be restored. YouTube complied after six weeks, rather than the two weeks required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for her legal costs, claiming
8004-540: The work's recipient. The GFDL was designed for manuals , textbooks, other reference and instructional materials, and documentation which often accompanies GNU software. However, it can be used for any text-based work, regardless of subject matter. For example, the free online encyclopedia Misplaced Pages uses the GFDL (coupled with the Creative Commons Attribution Share-Alike License ) for much of its text, excluding text that
8096-453: Was amended in response to these concerns by adding a final sentence: "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." The third factor assesses the amount and substantiality of the copyrighted work that has been used. In general, the less that is used in relation to the whole, the more likely the use will be considered fair. Using most or all of
8188-429: Was an expressly authorized right, and an exception to the exclusive rights granted to the author of a creative work by copyright law: "Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright." Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A ,
8280-600: Was found not to be fair use. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation , who argued that it was fair use. On appeal, the Ninth Circuit Court of Appeals found in favor of the defendant, Arriba Soft. In reaching its decision, the court utilized the statutory four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution as
8372-668: Was imported from other sources after the 2009 licensing update that is only available under the Creative Commons license. The GFDL was released in draft form for feedback in September 1999. After revisions, version 1.1 was issued in March 2000, version 1.2 in November 2002, and version 1.3 in November 2008. The current state of the license is version 1.3. On December 1, 2007, Misplaced Pages founder Jimmy Wales announced that
8464-407: Was responsible for the following work groups, and transferred responsibility to The Linux Foundation: The Free Standards Group also had individual memberships; the board of directors was elected annually by all of the membership. GNU Free Documentation License The GNU Free Documentation License ( GNU FDL or GFDL ) is a copyleft license for free documentation, designed by
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