Let me talk for just a minute about some of the myths and misconceptions. I'm sure you've heard a lot of these, too. >> Oh, yeah. [LAUGH]. >> So, for example, all educational uses are fair use. It must be fair because I'm doing it for educational purposes. That's not true. Educational purposes are always going to help. Remember there are four factors and one of them is the purpose of the use. Educational purposes are almost always going to get a good score, if you will, on that factor. But it doesn't finish the analysis, so it's a mistake to assume that just because it's for education it's going to automatically be-. >> You have to keep going. Huh, yeah? >> You have to keep going, exactly, you have to keep going. If it's out, if the book is out of print, it's fair use. Again, it's sort of focusing on one factor, on the factor of market harm. But, that's not enough, you have to do the whole analysis. And just because a book is out of print, of course, we know it's still protected by copyright for 70 years after the death of the author there may still be other markets, and then you also have to do the full fair-use analysis. >> Mm-hm. >> So you can't make these kinds of shortcuts. It's educational, it's out of print, therefore, it's fair use. Sometimes people think as long as I'm being good, as long as what I want to do is a good thing, a noble purpose, it's fair use. Once again, you have to do the whole analysis. >> Yeah. Sometimes people will say to me, especially healthcare professionals, you know, what I am doing is going to save lives. So, I think it, it needs to be fair use, how could it not be? Unfortunately, the copyright law gives some weight to that but not complete, you know? >> Yeah, and fair use functions as an affirmative defense so one answer to that person is well you, you might be called upon to make that argument, you know? [LAUGH] You might have to make that argument. It's not a bad thing that fair use is an affirmative defense. Sometimes we hear that and we think it's very scary but lots of things are affirmative defenses. >> Yeah. >> You know, self defense is an affirmative defense to a charge of murder. That doesn't mean it's not an important right, it is an important right to protect yourself. Likewise fair use functions as an affirmative defense. That is, you bring it up in court if you get that far as a defense to the facts that have been laid out by the plaintiff. But it's still a positive right. And the raw, the law acknowledges that it's a positive right that we have. It just functions that way. So we shouldn't let the fact that it's an affirmative defense in most cases bother us, and we should also remember that a lot of times a really strong fair use argument will make the lawsuit go away. In other words, the person won't sue you because you're you're able to convince them that you have such a strong affirmative defense. So it doesn't, you know, every fair use doesn't have to be tested in court. The vast majority of them are not. >> Not tested, yeah. >> That's right, we use fair use all the time. It's not true that rights holders get to decide what's fair use, that's exactly the opposite. Rights holders, fair use, the law says the things that are fair use are not infringement. >> Mm-hm. >> It's a positive right. Users get to decide whether or not to rely on fair use. It carries some risk, often not very much risk at all, but it is the user's decision, and not the rights holder. >> Yeah. Sometimes people say I need to, to get permission to whether I can make a fair use of this. >> Right. >> Oh, no, no, no, no, no. You know. [LAUGH] >> That's [LAUGH] yeah, a complete misunderstanding of how fair use works. Another thing we hear sometimes is that commercial uses can't be fair use. >> Mm-hm. >> And we know that's not true because most of the court cases. >> Right. >> That have decided fair use have been about commercial uses, they've been situations where people are selling books or selling CDs, and are challenged, of course, cases go to court, because somebody's making money. The, the uses that would not make any money at all aren't worth challenging. >> Yeah. >> In a lot of cases so commercial uses have been found to be fair use in lots and lots of cases. They won't always be, that's a factor to consider, but it's not the final answer. None of these sort of shortcuts give us the final answer. The last thing I want to mention, that's a very common misconception, is that fair use is something we should only use very rarely. It's a special case, and you know, it's the, it's the, the last resort. In fact, we use fair use all the time. In academic contexts where you and I both do our work every time somebody inserts a quotation into the scholarly article that they're writing >> Yeah. >> They're relaying on fair use. >> Everyday. Yeah. >> It happens >> Yeah. >> Everyday. Fair use is there to be used, it's something that we actually rely on a lot more than we think and what it calls for is a thoughtful analysis. But when it's appropriate it should be used whether that's rarely, or depending on what your activity is, every single day. We're going to talk a lot more about fair use but for now we've begun to take another step on our journey to becoming copyright mavens.
