It’s most likely true that more than a few of you have heard of DMCA, as in the Digital Millennium Copyright Act. And if you’re heard of that, you probably have heard the term Fair Use thrown around as well.
According to Wikipedia, the plain English definition of DMCA is:
…it criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as Digital Rights Management or DRM) that control access to copyrighted works and it also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself.
Example: If you seed a torrent of an MP3 where the audio work is owned by a record company, you could be charged with a DMCA. Why? Because you are circumventing the method in which the record company sells the song digitally, such as iTunes. You didn’t write the song; you don’t own it; you have no permission to distribute it; you cannot distribute it, period.
Fair Use is a doctrine in US copyright law. It allows you limited (keyword there) use of copyrighted material without permission of the original author.
DMCA is spelled out in such a way where it’s (mostly) not open to interpretation. Fair Use on the other hand can be interpreted in many ways. An excellent article, Fair Use in a Nutshell: A Roadmap to Copyright’s Most Important Exception, is well worth the time to read.
The best way to understand Fair Use is by citing example.
Reviews of things fall under Fair Use. If I buy a hard drive from a specific manufacturer and that hard drive fails within a month, I would write a bad review. I can name the company and brand. I can take a photo of the hard drive and show the company’s logo. None of this infringes the copyright of any intellectual property of the manufacturer.
Quotes of things with proper attribution fall under Fair Use. This happens on the internet all the time. If I read an Associated Press article and feel I can use it for my own article here on PCMech, I can quote an excerpt provided I don’t claim authorship of the quote and give proper attribution to the source (usually provided as the name of the source with an accompanying link).
Is there abuse of DMCA and/or Fair Use?
Yes. For any law or doctrine there will always be someone who will test the limits of what they can get away with and at times break those limits.
Part of the problem with the DMCA is not the law itself, but rather people’s interpretation of it. As such there are many false DMCAs claimed; that is abuse of the law.
Example false DMCA claim:
You write an original song and record it. Then you post it on YouTube. Another user takes a 10-second clip of the song, makes his or her own video, includes that clip and says you’re the worst songwriter that’s ever lived. You’re angry; you’re upset. You elect to use DMCA because you believe that user took your song without your permission.
That user didn’t need your permission. It was a review of your song that included a clip (i.e. a figurative quote) and was 100% legal to take and use.
The fact someone reviewed your song and didn’t like it does not grant you any power to take someone’s opinion away, because that someone didn’t steal anything from you.
Example of improper Fair Use:
You buy a book that is currently on the New York Times Best-Seller List. The book is a mystery novel.
On your blog, you write a review of the book and quote the last part which unravels the entire mystery, thereby ruining the story for anyone who reads your article but hasn’t read the book yet.
You are entitled to your opinion, but you’ve directly quoted something that is vital to the sale of the book. This is improper Fair Use.
You should read up and understand how DMCA and Fair Use works
You do not need to have a law degree or read hundreds of documents to understand what DMCA and Fair Use is all about. If you get the basics of how they work, you’re far better off – especially if you write your own blog and it contains reviews.
Possibly the best reason to get educated on this stuff is to know what happens if you use DMCA or Fair Use improperly. Either can get you in serious legal trouble if not used for their intended purposes. So when you make videos, blogs, etc. on the internet, it’s in your best interest to know what is and isn’t legal.
Last note: For those across the pond, your version of DMCA is called the Copyright Directive.
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