--Back

Print

Email

Copyright Infrignement Defenses

Both "Fair Use" by the alleged infringer and "Copyright Misuse" by the copyright owner are two affirmative defenses to a claim of copyright infringement. This article explains these two defenses.

Fair Use Defense

One main defense to a claim of copyright infringement is "Fair Use." Fair use is a valid affirmative defense to copyright infringement (and to trademark infringement). In other words, there are limited situations when using another's copyrighted work is considered "fair use" and therefore allowed. It is fair use to use a copyrighted work for:

1. Criticism and Comment;



2. News Reporting;



3. Teaching;



4. Scholarship or Research; and



5. Parody or comic ridicule, but Not satire.

So assuming the author seeking to borrow from copyrighted work is a scholar, educator, researcher, or news agency what precisely constitutes fair use? Unfortunately there is no strict rule as to when fair use is fair. Under the law, one must carefully balance and consider the following factors:

1. The purpose and character of the use, including whether such use is of a commercial nature or for non-profit purposes. Is the person using the material to make cash (commercial) or to teach others (education)? Commercial use generally will disqualify someone from using the fair use defense, absent the court finding a significant benefit to the public.



2. The nature of the copyrighted work. The more important or pivotal the content is to the original work, the less likely the court will find fair use.



3. The amount of the copyrighted work to be used.The more material taken, the less likely the court will find fair use.



4. The effect such use will have on the commercial value and market for the copyrighted work being used.If the subsequent work is used in a manner that either actually or potentially competes against the copyrighted work, the court will not find fair use.



5. Whether the new material is "transformative"? Are you copying someone else's work or are you transforming someone else's work into a new creation? The more transformative the subsequent work, the more likely the court will find fair use.

Reverse Engineering Is Fair Use

"Reverse engineering" has been ruled "fair use." You can take a copyrighted program apart if that is the only way to extract ideas/code relating to the copyrighted program’s functional aspects (not creative aspects). In this situation the new work will not be deemed to have infringed the original copyrighted work. The fair use defense has also been held to apply to the development of compatible programs. If you design a program to integrate and be compatible with an existing copyrighted program, it is “fair use” to reverse engineer to abstract the necessary functional content form the original program to create new compatible software.

Copyright Misuse

A second main defense to a claim of copyright infringement is that the copyright owner misued his copyright. Copyright Misuse occurs when the copyright owner attempts to use his copyright to secure an exclusive right or limited monopoly not granted by the US Copyright Office. Examples of contract requirements that have been ruled to be equivalent to copyright misuse include:

1. The licensee agrees not to create competing products;



2. The licensee agrees not to use competing products; and



3. The copyright holder tries to enforce license terms setting limits on use of copyrighted software that prevent the development of new non-infringing works;

The copyright misuse defense can be asserted as a complete defense to an infringement claim. If found, copyright misuse will not invalidate the copyright but it will cause the copyright to be unenforceable for the period of misuse. Once the misuse has stopped, the copyright will again become enforceable.