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Copyright: Fair Use Is Your Friend

Nine out of 10 people would probably tell you copyright is all about big companies maximizing their revenue from the content they own at the expense of the consumer. (The 10th person would tell you copyright is a cornerstone of our American way of life, but he'd turn out to be lawyer for the RIAA, the Recording Industry Association of America). In fact, copyright is as much about your right to make fair use of copyrighted content as it is about the "intellectual property" of corporations. For 11 minutes of quiet, reassuring good sense on the subject I recommend a podcast interview with Anthony Falzone, executive director of the Fair Use Project at Stanford University.

The file is on the Web site of IMN, a company that provides Web-based communications like e-mail-newsletter software-as-a-service. The podcast is an interview by Rodney Green, who's IMN's VP of corporate development

Falzone does most of the talking and he makes refreshingly good sense. He offers a definition of fair use and provides some examples from the latest fair-use case law. He outlines four factors that help determine whether a use of copyrighted material is fair, and emphasizes the transformative nature of the use, which was a concept that was new to me. What he says is that if your use of a copyrighted work doesn't serve a substantially different purpose that its original use, then you're probably violating its copyright: if you intend to criticize something on a TV news program, for example, but merely rerun the entire program and add a comment at the end, you haven't transformed it sufficiently to defend against copyright violation.

His comments got me thinking about what's going to fill up the unlimited storage being offered by Yahoo and other software-as-a-service sellers. There are going to be big databases built that move content from behind fences like subscription requirements and put them out in the open. I expect companies from The Wall Street Journal to eBay will build whole departments of people dedicated to enforcing their "intellectual property" rights similar to the efforts the record companies have made to root out sampling by rappers.

(Tangential thought: Wouldn't it be interesting to have the defendant in one of the RIAA's anti-piracy "intellectual property" cases offer, as a defense, the claim that the music in question was so dumb that it couldn't be protected by any definition of the word "intellectual"?)

The podcast is aimed at IMN customers who use content, some of it copyrighted, for commercial purposes. If you're in that category, do yourself a favor and give Falzone 11 minutes. You'll be smarter about copyright, and more confident about using copyrighted materials correctly.

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