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Fair Use and Internet Time as Relevant Factors to Copyright Infringement

The U.S. Copyright Act, codified under 17 U.S.C. § 101 et seq., protects copyrighted works from infringement from wrongful users. This federal law aims to protect unique works while still allowing for creativity and future creations. To that end, individuals charged with copyright infringement can avoid liability entirely under a valid fair use defense. The fair use exception, which is codified under 17 U.S.C. § 107, provides that instances of work that fall within this exception do not constitute infringement.

How Do Courts Apply the Fair Use Exception?

Since courts have not adopted a test or set of factors to determine when the fair use defense applies, judges will look to the totality of circumstances on a case-by-case basis to determine whether the defense is appropriate. This exception allows the courts to avoid applying the statute so strictly that it prevents creativity. In Religious Technology Center v. Netcom On-Line Communication Services, Inc., the United States District Court for the Northern District of California found the fair use exception applies when a work is used for “criticism, comment, news reporting, teaching, scholarship or research.” Under the fair use exception, courts must consider the following factors: (1) purpose and character of the use; (2) nature of the work; (3) amount of the work used in comparison to the entire work; and (4) effect of the use on the potential value of the work. However, this is not a total list of considerations and courts will often look to any unique factors that affect the outcome of the case.

Do Courts Consider Additional Factors if the Alleged Copyright Infringement Takes Place Over the Internet?

When courts look to the fair use exception in cyberspace, they will also consider the amount of time the work appears on the Internet and the location of the work on the Internet. In a cyber era, Internet users can access and distribute copyrighted work in very short periods of time. The amount of time a copyrighted work appears on the Internet and its location on the Internet will determine the degree of harm to the future market value of the copyrighted work.

For example, posting something on the Internet may allow an international audience indefinite access to copyrighted work. Therefore, courts will consider how long the work will appear on the Internet. Additionally, the location of copyrighted material on the Internet is a relevant factor because the degree of online traffic on that site will determine the potential for on-going infringement. In general, websites with very limited traffic do not pose the same risks as very popular websites.

At the Law Offices of Salar Atrizadeh, we guide our clients in legal matters regarding all aspects of copyright law by using extensive knowledge and skills to create innovative solutions. Please contact us today to set up a confidential consultation.