3 years ago1,000+ Views

The U.S. 9th Circuit Court Supports Fair Use!

You can read the full opinion here, but if you're not well-versed in legalese, here are the facts: In a case that's been ongoing for eight years (which feels like an eternity in internet years), the Court ruled in favor of the claim made by Plaintiff Stephanie Lenz that Universal Music Corporation had misrepresented a DMCA claim against her. The court ruled that copyright holders (in this case Universal) must consider fair use when issuing a take down notice for content posted on the internet.

Okay... what's "fair use"?

"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 2. is for nonprofit educational purposes; 3. the nature of the copyrighted work; 4. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work."
Essentially, you are allowed to reproduce part of a copyrighted work as long as it is for a limited purpose. Parodies, criticisms, and educational tools are all protected as fair use. It is not a copyright infringement to quote a song lyric in a music review, or copy a quote from a book in your term paper to help you illustrate a point (the quote should be authorized so your teacher knows you're not plagiarizing, but that's another issue). The court ruled that fair use is wholly authorized by the law, and that a copyright holder must consider fair use when issuing a take down notice, which is also required by the DMCA (Digital Millennium Copyright Act). Which means copyright holders are able to be held accountable for their take downs.

This also means that fanworks (including fanart, vidding, and fanfiction) have more legal protection than they did before.

This is awesome news.

While fair use and transformative fanworks have been difficult to define, both legally and within the fan community, this decision favors people who are remixing and recreating their own works based on copyrighted material. To quote
"Does this mean that creative fans will suddenly start experiencing fewer DMCA takedowns? Possibly, but also maybe not. But it does mean that if a creative fan gets a DMCA takedown/notification about fanworks (especially when there’s no commercial sale) the fan can and should push back on whether the sender has actually considered fair use; if it’s obvious that they haven’t, the creative fan may be able to seek damages."
Computer programs and bots are still fair game, which means that take down notices can be issued via an automated system. And unless you can prove that there's some malevolent reason behind a take down, you're not likely to claim any serious damages. But if you think your work is fair use, you're empowered to push back against the claim.

tl;dr: Time to write some fic.

@VixenViVi I think my first ff was probably anime... but I think HP was one of my first great loves. I'm amazed at how emotionally attached to those stories I am, decades later.
@LizArnone it's basically me and my entire life and how I feel about everything ever XD
@shannonl5 That. Was. Amazing. Like perfect
The Total Best News IN THE WHOLE WORLD #MakinGamesLIVE
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