I Love Fair Use

A few days ago, Rachelle Gardner raised the topic of what writers have to pay for rather than the publisher. One of the things is permissions to use various copyrighted materials. In the comment section, the topic moved from what writers pay for to a discussion of copyright and fair use. Visit the Stanford University website if you want a well written discussion of fair use. What I want to do is to make some general observations as a writer and not as a legal expert.

We may be tempted to think that fair use has to do with things like how much of something we copy, such as a percentage of the whole, or how much money we make from selling the work we copy. I’ve seen several people make this mistake. In actual fact, U.S. copyright law is not very clear on what is and is not fair use. There’s a reason for it not being clear. The principle of fair use is deeply rooted in the principle of freedom of speech.

We need the principle of fair use because when we comment, criticize or parody the work of another person the other person may not like what we’re doing. If we were required to obtain permission to copy a person’s work for every possible case then they would have the ability to silence us by refusing to grant permission and taking us to court if we copied something.

Fair use allows for other things as well, such as allowing us to save a television show to a DVR and then watch it later. That has nothing to do with freedom of speech but it is protected because television viewers are essentially shifting their viewing time and money made by the copyright holders is not impacted. There are also such things as moving data around on a network. If someone sends me a file I have permission to have one copy, but my machine may actually have multiple copies, one in the e-mail message, one in the Recycle Bin, one in folder, plus those on the e-mail server, but because it’s the way things have to be to work smoothly, it would be fair use. That does not mean I have right to forward the file to a friend.

Of all that fair use covers, the thing that I really love about it is the tie-in to freedom of speech and of the press. I love that I can open a book, copy a portion of it to my blog and say, “see what this guy did here? It would have been better if he had...” and he can’t do a thing about it. Of course it goes both ways. If you see something on my blog or in my books that you don’t like, fair use gives you the freedom to quote me and tell people why you think I’m an idiot. But you know what? I like that too.