This guide will be built upon over time. For now, it contains a guide to Fair Use.
So what is Fair Use?
Fair Use is, first of all. A highly subjective legal concept. It should not be relied upon too greatly. Every judge will interpret it very differently. It should not be considered an appeal to rely upon.
How do you tell if something qualifies as fair use?
For the purpose of demonstration, I'll show you using the example of one of the characters from the Modder's Guild header. Let's go with Sheogorath. Everyone likes him.
For Sheogorath to be allowed to participate in the group photo, he needs to be tested by the five point test of Fair Use. I will use wikipedia as a source for this, since it's easily accessible to people for the purpose of scrutiny.
1. Purpose and character of the use
"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."
I don't think Sheogorath's appearance here is going to bring me all too much in terms of a profit margin, and, as for making something new and forwarding knowledge? I won't be so arrogant as to say the Modder's Guild does that. That's up for you to decide. But, it tries to do that. Which means I can demonstrate it.
2. Nature of the copyrighted work
"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 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 the film in a history book on the subject in Time Inc v. Bernard Geis Associates."
This holds little relevancy to Sheogorath's appearance in my picture. He's not sourced from any artwork, he's just a 3d render. The nature of his copyright is entirely conceptual. Which, for non commercial purposes, is usually safe when it's to a trivial degree such as this. Simply put: You can create a 3d model from scratch that looks like your favourite gun from Call of Duty. But you can't directly port the 3d model itself from the game. That's my understanding of this point, anyhow. Feel free to correct me.
3. Amount and substantiality
"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."
This is very similar to point 2. Since the copyright here is entirely conceptual, and not related to any direct materials associated with the work. Sheogorath passes on point 3 as well.
4. Effect upon work's value
I won't include the summary of wikipedia's writing on this one. It's self explanatory. Are people flocking to buy my picture featuring Sheogorath, or is Sheogorath somehow undermining the market demand for the Shivering Isles DLC? Answer is no. Their profit margins remain unaffected.
5. Other factors
This is technically not an actual point. But you should consider it as such. One particularly important factor is attribution. In my case it's fairly self evident. Most people here know where Sheogorath comes from. You know he's not my original creation. So attribution isn't too important. But there are times where it's less obvious, and then you could get into trouble unless you acknowledge the copyrighted work isn't yours.
So it looks like Sheogorath is good to join in the group picture. Say CHEEEEEEESE!
...and yarn. Of course.
I hope this helps explain things to the layman, and like I said, I'm not a lawyer. I just need to deal with these laws a lot in my line of work. So if we have any legal experts around. Corrections are welcome.
2. Personal Use
I'd like to tell you about this since I see a lot of badly written permissions where people try to dictate to users what they can or cannot do with files. Truth is, once you download it, what you do is none of their business. As long as it's not published.
Personal Use allows you to: Edit files. Look inside them and check out data. Make your own alterations to the file. And basically anything you can imagine, provided that it stays on your computer.
The moment you publish it without their permission, then you've violated the licence. But when people write things like:
" DO NOT EDIT THIS UNDER ANY CIRCUMSTANCES "
They're just being ignorant of your rights as a user. Nobody's allowed to tell you what you do with your files on your computer. That's just ridiculous. Especially since a vital part of learning new things with any software development, is to reverse engineer other people's applications to understand their methods. It's perfectly fine provided nothing is redistributed.
3. Legal violation, and Contract Violation
Now, this topic is about the difference between violating a contract, and violating a law. Because there is a great distinction. You should understand your rights in this, because believe me, you have a lot of them.
Many special interests groups, such as Web Sheriff, will sometimes send takedown requests that consist of some rather fabricated notions. Usually at the behest of large publishers like Warner Brothers. We're neutral on the topic of copyright here. We're not just going to side with everything these special interests groups are saying. If they're wrong, we'll point it out.
Now, in this particular type of Email threat, they will often refer to DMCA as a type of violation. But the DMCA laws only apply to a particular set of countries.
One such exception, is Sweden. A famous Swedish file distributor, whose name I won't mention since that's not the topic at hand. It's just a good example case. Anyhow, this file distributor, got a threat from Web Sheriff, stating they had violated the DMCA and could face prison time. Now, the distributors did do some illegal things, and have been imprisoned. But it wasn't because of the DMCA. Which is my point. As far as the DMCA went, they had no obligations. Because they were in Sweden.
This type of legal threat is highly dishonest, and could even violate ethic standards for lawyers. They're relying on how the recipient doesn't know their rights. If they have a legitimate case, then they should have no need to refer to legal obligations the accused have no obligation towards.
Now, if it is a law you've violated, that applies to your region. Then yeah, you're in trouble. But, if you ever get a threat or takedown notice regarding TERMS OF USE.
Then, it's different. Because for that to apply, you need to have agreed to the terms in the first place. Sometimes you agree to them by just launching a game. Or clicking "I agree" on the installation client. Sometimes it's a warning at the start of a film. We've all seen them, and they only apply if you have clicked agree, or pressed "play" on the film and so on.
BUT, if you haven't been exposed to the Terms at all, and can prove it. Then, they have no case, and no right to threaten you. If you for instance watched the video on the internet, and no terms were mentioned. Then it's the uploader of the video who is liable. Not you.
It's only when you violate terms that you agree on, that it's a contract violation. THAT is when they can take you to court.
This is also important for publishers to understand. If the Terms are unclear, and people can avoid them. Then they can argue with you, if they've used your content wrongfully. Always be clear towards people about their obligations.
So, important to know:
If you are a publisher: - Make your TOS clearly visible. - Research the laws that apply to the person you think have violated your copyright. - Make sure you understand the difference between legal violation, and contract violation.
If you have been wrongfully accused of copyright violation:
- Cite the laws and rights that vindicate you.
- Be polite. Because 1. These people are tying to cause trouble for you, and 2. For all we know, it's an honest misunderstanding. Getting friendly opens more constructive dialogue.
- Ask them to present proof. Burden of proof is on them. For all you know, they have nothing, and hope you will panic. Always try to call a bluff. Internet vigilante groups are usually not the most honest types.
- If it goes any further, ask them what agency they represent. Ask them to confirm their identity. If they demand any payments such as fines, or outside court settlements in a specified sum. Then you need to confirm their identity. Because a takedown notice is a polite warning to make sure you don't have to pay anything, or go to court. You have a chance to remove the content all together if it turns out you made a mistake. If the first time warning demands money, then chances are, you're being scammed.
I put this down because it is very common that lawyers will rely on your ignorance to make a case. There is a reason people stereotype them as lairs and crooks. This is obviously not true of all lawyers, but the reputation exists for a reason. Try to be as informed as you can, and be sceptical if you face a legal threat. Look it up, ask for legal advice yourself, and make sure that they respect your rights as well as you respect theirs.
Good to know (1 comment)
So what is Fair Use?
Fair Use is, first of all. A highly subjective legal concept. It should not be relied upon too greatly. Every judge will interpret it very differently. It should not be considered an appeal to rely upon.
How do you tell if something qualifies as fair use?
For the purpose of demonstration, I'll show you using the example of one of the characters from the Modder's Guild header. Let's go with Sheogorath. Everyone likes him.
For Sheogorath to be allowed to participate in the group photo, he needs to be tested by the five point test of Fair Use. I will use wikipedia as a source for this, since it's easily accessible to people for the purpose of scrutiny.
1. Purpose and character of the use
"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."
I don't think Sheogorath's appearance here is going to bring me all too much in terms of a profit margin, and, as for making something new and forwarding knowledge? I won't be so arrogant as to say the Modder's Guild does that. That's up for you to decide. But, it tries to do that. Which means I can demonstrate it.
2. Nature of the copyrighted work
"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 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 the film in a history book on the subject in Time Inc v. Bernard Geis Associates."
This holds little relevancy to Sheogorath's appearance in my picture. He's not sourced from any artwork, he's just a 3d render. The nature of his copyright is entirely conceptual. Which, for non commercial purposes, is usually safe when it's to a trivial degree such as this. Simply put: You can create a 3d model from scratch that looks like your favourite gun from Call of Duty. But you can't directly port the 3d model itself from the game. That's my understanding of this point, anyhow. Feel free to correct me.
3. Amount and substantiality
"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."
This is very similar to point 2. Since the copyright here is entirely conceptual, and not related to any direct materials associated with the work. Sheogorath passes on point 3 as well.
4. Effect upon work's value
I won't include the summary of wikipedia's writing on this one. It's self explanatory. Are people flocking to buy my picture featuring Sheogorath, or is Sheogorath somehow undermining the market demand for the Shivering Isles DLC? Answer is no. Their profit margins remain unaffected.
5. Other factors
This is technically not an actual point. But you should consider it as such. One particularly important factor is attribution. In my case it's fairly self evident. Most people here know where Sheogorath comes from. You know he's not my original creation. So attribution isn't too important. But there are times where it's less obvious, and then you could get into trouble unless you acknowledge the copyrighted work isn't yours.
So it looks like Sheogorath is good to join in the group picture. Say CHEEEEEEESE!
...and yarn. Of course.
I hope this helps explain things to the layman, and like I said, I'm not a lawyer. I just need to deal with these laws a lot in my line of work. So if we have any legal experts around. Corrections are welcome.
2. Personal Use
I'd like to tell you about this since I see a lot of badly written permissions where people try to dictate to users what they can or cannot do with files. Truth is, once you download it, what you do is none of their business. As long as it's not published.
Personal Use allows you to:
Edit files.
Look inside them and check out data.
Make your own alterations to the file.
And basically anything you can imagine, provided that it stays on your computer.
The moment you publish it without their permission, then you've violated the licence. But when people write things like:
" DO NOT EDIT THIS UNDER ANY CIRCUMSTANCES "
They're just being ignorant of your rights as a user. Nobody's allowed to tell you what you do with your files on your computer. That's just ridiculous. Especially since a vital part of learning new things with any software development, is to reverse engineer other people's applications to understand their methods. It's perfectly fine provided nothing is redistributed.
3. Legal violation, and Contract Violation
Now, this topic is about the difference between violating a contract, and violating a law. Because there is a great distinction. You should understand your rights in this, because believe me, you have a lot of them.
Many special interests groups, such as Web Sheriff, will sometimes send takedown requests that consist of some rather fabricated notions. Usually at the behest of large publishers like Warner Brothers. We're neutral on the topic of copyright here. We're not just going to side with everything these special interests groups are saying. If they're wrong, we'll point it out.
Now, in this particular type of Email threat, they will often refer to DMCA as a type of violation. But the DMCA laws only apply to a particular set of countries.
One such exception, is Sweden. A famous Swedish file distributor, whose name I won't mention since that's not the topic at hand. It's just a good example case. Anyhow, this file distributor, got a threat from Web Sheriff, stating they had violated the DMCA and could face prison time. Now, the distributors did do some illegal things, and have been imprisoned. But it wasn't because of the DMCA. Which is my point. As far as the DMCA went, they had no obligations. Because they were in Sweden.
This type of legal threat is highly dishonest, and could even violate ethic standards for lawyers. They're relying on how the recipient doesn't know their rights. If they have a legitimate case, then they should have no need to refer to legal obligations the accused have no obligation towards.
Now, if it is a law you've violated, that applies to your region. Then yeah, you're in trouble. But, if you ever get a threat or takedown notice regarding TERMS OF USE.
Then, it's different. Because for that to apply, you need to have agreed to the terms in the first place. Sometimes you agree to them by just launching a game. Or clicking "I agree" on the installation client. Sometimes it's a warning at the start of a film. We've all seen them, and they only apply if you have clicked agree, or pressed "play" on the film and so on.
BUT, if you haven't been exposed to the Terms at all, and can prove it. Then, they have no case, and no right to threaten you. If you for instance watched the video on the internet, and no terms were mentioned. Then it's the uploader of the video who is liable. Not you.
It's only when you violate terms that you agree on, that it's a contract violation. THAT is when they can take you to court.
This is also important for publishers to understand. If the Terms are unclear, and people can avoid them. Then they can argue with you, if they've used your content wrongfully. Always be clear towards people about their obligations.
So, important to know:
If you are a publisher:
- Make your TOS clearly visible.
- Research the laws that apply to the person you think have violated your copyright.
- Make sure you understand the difference between legal violation, and contract violation.
If you have been wrongfully accused of copyright violation:
- Cite the laws and rights that vindicate you.
- Be polite. Because 1. These people are tying to cause trouble for you, and 2. For all we know, it's an honest misunderstanding. Getting friendly opens more constructive dialogue.
- Ask them to present proof. Burden of proof is on them. For all you know, they have nothing, and hope you will panic. Always try to call a bluff. Internet vigilante groups are usually not the most honest types.
- If it goes any further, ask them what agency they represent. Ask them to confirm their identity. If they demand any payments such as fines, or outside court settlements in a specified sum. Then you need to confirm their identity. Because a takedown notice is a polite warning to make sure you don't have to pay anything, or go to court. You have a chance to remove the content all together if it turns out you made a mistake. If the first time warning demands money, then chances are, you're being scammed.
I put this down because it is very common that lawyers will rely on your ignorance to make a case. There is a reason people stereotype them as lairs and crooks. This is obviously not true of all lawyers, but the reputation exists for a reason. Try to be as informed as you can, and be sceptical if you face a legal threat. Look it up, ask for legal advice yourself, and make sure that they respect your rights as well as you respect theirs.