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Content, Writing and Copyright Forum

    
Fair Use.and Adsense?
when are you not protected from fair use?
skunker




msg:3146282
 1:40 am on Nov 5, 2006 (gmt 0)

We all know about "Fair Use" and how it protects you from copyright liability, however once you slap on adsense on your website, is it no longer an "educational" website? Since you are making money from the traffic (which is coming to your site for the content), are you no longer protected under "fair use". I bet if this is the case, a huge chunk of us here in this community would be sued.

Any thoughts?

 

KenB




msg:3146331
 3:59 am on Nov 5, 2006 (gmt 0)

The best answers to your questions about fair use can be found at [chillingeffects.org...]

Basically there is a great amount of misunderstanding about fair use and the claims of educational fair use are generally overstated and based on false premise. In this case your question starts on the false premise that educational use protects you from liability.

Adding AdSense to any content would significantly weaken any fair use claims as it would show an attempt to profit off of works.

In regards to Internet publishing one very good case to research is L.A. Times v. Free Republic.

skunker




msg:3146569
 3:33 pm on Nov 5, 2006 (gmt 0)

THank you KenB, I am pretty well versed on Fair Use as I use it for some of my sites.

However, I think it's a very serious question to ask how many of us here in this forum use adsense along with our editorial, news, and critism content.

CNN, for example, deals 99% with copyrighted material in a news format, but they have commercial advertisements. Is that almost the same for websites that are educational, but use adsense?

just a thought. I'll read up more on it.

KenB




msg:3146659
 6:02 pm on Nov 5, 2006 (gmt 0)

I think the following will really help understand the fair use question, because while you state you are well versed in the fair use clause your question indicates a great misunderstanding of fair use.

Example 1:
A news website or print magazine publishes an article and your "educational" non-profit site republishes said article without permission. This would be copyright infringement and IS NOT a protected activity under Fair Use doctrine (see L.A. Times v. Free Republic [law.uh.edu]).

Example 2:
A news website or print magazine publishes an article and you write a brief summary of the article in your own words, maybe quote only a couple sentences of the article, and publish this summary on your website for people to discuss providing a link to the parent article. This would in all likelihood be protected under fair use doctrine regardless of whether your site was "educational" or not.

It should be noted that very often whether something is "educational" use is defined NOT by the intended use of the work, but by the institution publishing said works and said institution must be a bone fide educational institution. Under Australian copyright law, which uses the term fair dealings instead of fair use, they go so far as to explicitly name the institutions deemed to be "educational" institutions for the purpose of their copyright laws (only four are listed).

In most instances what people think is an educational use is not recognized as such when it comes time to interpreting the fair use statutes in the court of law.

hunderdown




msg:3146697
 6:57 pm on Nov 5, 2006 (gmt 0)

KenB, aren't there other kinds of fair use? If one quotes a book or article as part of a commentary on it, can't that be fair use? I thought that fair use could also come into play in journalism.

KenB




msg:3146728
 7:39 pm on Nov 5, 2006 (gmt 0)

Quoting an entire article as part of a commentary on the article IS NOT protected by fair use. Again see the L.A. Times vs. Free Republic case I linked to above.

Also take some time to read the Chilling Effects website, which I linked to and their discussion on fair use. In particular look at the following FAQ: [chillingeffects.org...]

The more of a document or article you use the less likely it is that your actions will be protected under fair use. Likewise the greater the potential to negatively impact the copyright owners ability to commercially exploit their work (e.g. by creating a competitive copy of the original work) the less likely it is that the derivative work will be protected by fair use.

Because web based derivative works have a greater ability to harm the commercial viability of the original work (e.g. duplicate content penalties, competition in search engines, etc.) one should assume that much less of the original document could be used and still be protected by the fair use provision.

Remember that the are four factors courts will look at in regards to fair use are:
1 the purpose and character of the use,
2 the nature of the copyrighted work,
3 the amount and substantiality of the portion used, and
4 the effect of the use on the potential market for or value of the copyrighted work.

Of these four factors the fourth factor is considered to be the most important.

skunker




msg:3146765
 8:38 pm on Nov 5, 2006 (gmt 0)

KenB,
Thanks for those links! Great info. I am going to be retracting a bit more of some of my content due to this new info. Thanks.

BigDave




msg:3148100
 12:11 am on Nov 7, 2006 (gmt 0)

Quoting an entire article as part of a commentary on the article IS NOT protected by fair use.

That is not true as an absolute. It depends on many other factors. It is very difficult to successfully quote a whole article as Fair Use, but it is not impossible.

For example, there is an extremely newsworthy document, and you break it up, annotating, commenting or rebutting every point in that document. You will have quoted the entire document in pieces. Depending on all the other factors, you might have a good chance of getting a fair use ruling in your favor.

KenB




msg:3148310
 4:47 am on Nov 7, 2006 (gmt 0)

For example, there is an extremely newsworthy document, and you break it up, annotating, commenting or rebutting every point in that document. You will have quoted the entire document in pieces. Depending on all the other factors, you might have a good chance of getting a fair use ruling in your favor.

I'd say this would be a VERY difficult case to win and it would take an extreme amount of original documenting and like you said it would be an extreme case. So yes in theory there could be instances of taking an entire article could be protected under fair use provisions. This would be such an extreme case that for all tense and purposes what 99% of people do when copying articles is not protected under fair use provisions. It is also risking a really expensive legal fight even if one does win so it had better be a really important reason to take such a great legal risk.

BigDave




msg:3148330
 5:30 am on Nov 7, 2006 (gmt 0)

Oh, far more than 99% of the people that copy an entire article are asking for a losing lawsuit.

But I wasn't just making such a case up. It is actually a fairly common case, and any lawyer worth their salt would not recommend filing suit.

The real key is there has to be overwhelming public interest in the news story.

For example if a manufacturer of a product produces an internal memo about the fact that they know the product is dangerous, that memo is copyrighted by default as soon as it is created.

No legitimate news company would ever be concerned about copying the entire memo verbatim without even interspersing commentary.

A slightly less newsworthy item they might only mix with commentary rather than presenting it all in one piece. Other memos might only get selective quotes.

There are also very valid educational and parody reasons to claim an entire work as Fair Use. In the US you don't have to be an official newspaper or official educational institution to gain the ability to claim the rights under those clauses, but it sure helps. The New York Times doesn't have to prove it is a news source, but buywidgetsnow.com will have to jump through those hoops.

All that said, if you are going to claim Fair Use on an entire work, you better have a good IP lawyer advising you. I have some totally non-commercial, informational websites; I know a hell of a lot more than most people about copyright law; there is no way that I would dare copy anyone else's complete work, trying to claim "Fair Use". If you think you can do that, and you haven't talked to an attorney, you are asking for what you get.

KenB




msg:3148388
 7:07 am on Nov 7, 2006 (gmt 0)

BigDave, I think we are pretty much in agreement, but I think a lot of people wouldn't understand what we mean and would still be foolish enough to try to claim fair use even after reading this thread.

I really do recommend that people read up on the case L.A. Times v. Free Republic. It is very important reading on this issue. Also anybody who can not afford a good lawyer had better error on the side of caution. It is not wise to be an activist for expanded fair use rights if one can't afford the fight.

Mickelodian




msg:3159121
 10:05 pm on Nov 16, 2006 (gmt 0)

So an advert then...lets say an Adwords Advert... that's copyright to the 'Original Author' like a company who produced it.

If it has a URL in like adwords ads do...there could be no doubt in the mind of any Judge and Jury that an advert is OWNED by the person who has their URL down the bottom and a timestamp in Google adwords to show WHEN they created it!

So if somebody takes my advert 'VERBATIM' from Google and puts it on their website...connects it to their adsense account (with or without Google's permission but certainly without my permission) and allows it to enter the engines listings...again without my permission and makes money from CLICKS then both Google and the Offender are guilty...

My thinking is that both the original infringment, copying, etc is a violation and also the engine would be guilty since both are making money from the original work and the original author is paying the copyright theifs for his own work through Adwords?
yes? no? Anyone?

[edited by: Mickelodian at 10:08 pm (utc) on Nov. 16, 2006]

BigDave




msg:3159578
 7:52 am on Nov 17, 2006 (gmt 0)

So an advert then...lets say an Adwords Advert... that's copyright to the 'Original Author' like a company who produced it.

Not likely with and AdWords advert. There is a very good chance that the advert is too short to receive any copyright protection at all

This isn't even a Fair Use issue, it is a "there ain't no copyright in the first place" issue. Even if it is copyrightable, you have to pass the de minimis test.

Trying to hold Google search liable because of somehing on a website making money through adsense? Not a chance in hell in the courts, even if it's a sure thing in your mind.

Oh yeah, do you realize that you would have to file the suit where the other party is located?

Should I keep going?

RedWolf




msg:3160353
 10:22 pm on Nov 17, 2006 (gmt 0)

<quote>CNN, for example, deals 99% with copyrighted material in a news format, but they have commercial advertisements. Is that almost the same for websites that are educational, but use adsense? </quote>

Just to cover this question, news companies have license agreements for the articles from other sources such as AP, Creators Syndicate, etc.

rbacal




msg:3160458
 1:02 am on Nov 18, 2006 (gmt 0)

Fair use provisions re: education are for registered educational Institutions. You can't claim fair use for education by slapping material up on a website and claiming it's an "educational" site.

Which is kind of obvious, since anyone can claim a site is educational.

BTW, educational use also has no direct relationship to profit/non-profit. Private educational institutions (ie. universities) fall under ed. fair use.

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