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DMCA fair use and commercial nature limits

Publisher tips by Donald K. Burleson

August 2010

Note:  I am not a lawyer, and this is not legal advice.  If you want legal advice, see an attorney, not a web page.

I make my living creating and buying intellectual property, and I thank God that Americans are protected by the DMCA.  Some common questions arise when dealing with people who copy-paste your work include:

  •  Is it a copyright violation when somebody only copies two sentences from your work?

  •  Is it a copyright violation when a business competitor quotes your work in order to defame you?

  •  What can you do when somebody refuses to acknowledge that they have copy-pasted material belonging to another person?

  •  What if a business competitor is quoting my copyrighted material to defame me?  Are dirty tricks covered under the fair use exception?

The US Codes for the DMCA lists the exceptions to fair use, and it is deliberately vague about the amount of stolen text that constitutes fair use. 

While the text of the copyright law lists only vague details about what constitutes fair use, the law deliberately does not address details, such as the amount of content that constitutes a copyright violation, leaving the judges to evaluate each case on its own unique merits. 

In some cases, quoting a single sentence cannot be justified under the fair use exception, and a single sentence constitutes a copyright violation:

  • Heart of the work:  A single sentence may be a copyright violation if it sums-up the conclusion of the entire copyrighted work.

  • Dirty Tricks: When it's being used for a "commercial purpose", like a business competitor using a single sentence out-of-context to defame the copyright holder.

  • Unfair Interference:  News reporting services have been issuing DMCA takedown notices for even the smallest quotes when it interferes with their right to have the reader see their original work

Let's see what I found on the Interweb about the limits of fair use.

Is it fair use when somebody copies one sentence?

The answer appears to be “it depends”.  The fair use exclusion to copyright law makes specific exception to allow for legitimate academic criticism (by a nonprofit for educational purposes), but it specifically notes that “fair use” is not allowed for those you copy the content of others for use of a “commercial nature”.

A not-for-profit publisher has far more latitude than a business competitor who is copying the content.  When a publication of a commercial nature quotes copyright material in order to defame their competition, this would rightfully not be covered under “fair use” exception.

Further, copying of a commercial nature is even more onerous when they take the quote out-of-context with the intent of defaming the copyright owner.

The commercial nature exclusion to fair use?

For example, in 2010, the Associated Press and the New York Times determined that any news reporting body who copied their content, even just a single sentence was infringing upon their copyrights. 

In sum, it appears that if a business competitor copies your material in order to interfere with your right to do business, then it is not covered under “fair use”:

  •  A news reporting bureau has the right to demand total compliance from other news bureaus, even if they only copy a single sentence.
  •  A business competitor cannot quote copyrighted material (even a small quote) in order to defame the copyright owner or to induce readers not to do business with them.

Can I file a DMCA takedown notice without consulting an attorney?

In general, lawyers say that if you truly believe then the stolen content exceeds the fair use limits, you are OK.  The Good Faith doctrine applies for DMCA takedown notices, and so long as you are not doing it falsely or for malicious purposes, you do not need to hire an attorney to determine whether it might be OK under fair use.

Case law suggests that while a copyright owner must consider “fair use” before submitting a DMCA takedown notice, but some lawyers say that so long as you believe in good faith that the copies infringe on your copyrights, then you cannot be convicted for perjury in the sworn statement required for a DMCA takedown notice.

For example, Attorney Ray Nimmer notes that if you can prove that the material is copyrighted and copied, you cannot be faulted for asking the host to remove it:

“DMCA Section 512 gives copyright owners an efficient means of responding to online infringements and provides a safe harbor protection for online providers. 

But some courts suggest that “good faith” in sending a take-down notice may require the copyright owner to evaluate whether the online copying is fair use, these decisions undermine the notice and take down system. 

Ordinarily, however, it means being “honest” and not necessarily “careful.” 

“A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake.

Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner….”

The evolving landscape of DMCA fair use

In sum, beware that the DMCA is not specific, and that the current state of the DMCA evolves as the case law evolves. 

  • The DMCA is deliberately vague about how many words exceed fair use.  This depends on the nature of the quote and whether it is being used for commercial purposes.
  • Fair Use allows latitude for non-profit educational purposes and parody, but it specifically limits fair use for commercial purposes.
Note:  I am not a lawyer, and this is not legal advice.  If you want legal advice, see an attorney, not a web page.



Note: The opinions expressed on these pages are the sole opinion of Donald K. Burleson and do not reflect the opinions of Burleson Enterprises Inc. or any of its subsidiaries.

Suggestions?  We are always seeking new tips for the professional at leisure, and any suggestions would be most welcome.  If you find an error or have a suggestion for improving our content, we would appreciate your feedback. 

Copyright � 1996 -  2010 by Donald K Burleson. All rights reserved.