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EFF Provides Lesson on Fair Use

October 21, 2009

Electronic Frontier Foundation's Fred Von Lohmann, a leading authority on intellectual property law, presented on online copyright infringement and the doctrine of fair use to a USF audience on Oct. 6.

Lohmann has been recognized as one of the 100 most influential lawyers in California by the Daily Journal and appeared on CNN, Good Morning America, and The O'Reilly Factor.

Online service providers have protections from copyright liability that are not available to offline intermediaries, Lohmann said. The Digital Millennium Copyright Act (DMCA) provides safe harbor to online service providers if they promptly remove website material after receiving a takedown notice from a copyright owner that states the material is infringing.

Whether offline or online, those who utilize copyrighted works may also be protected by the doctrine of fair use. Lohmann explained that four factors are considered to determine whether the use of copyright protected material is fair: the nature of use and whether it is transformative, commercial, or commentary; the nature of the work and whether it is creative or factual; how much of the original copyrighted material was used; and whether or not use harms the market for the original work.

However, online entities may feel threatened by takedown notices and remove copyright protected material even if the posting of material falls under fair use, he said.

Despite DMCA's shortcomings, Lohmann said that he feels better having safe harbor provisions than nothing at all. He also noted that the protections that exist for online service providers in the United States have allowed for innovation not seen in other countries.

"I always point out to people, I don't think it's an accident that every one of these user-generated content companies you can name, whether it's Flickr or Blogger or YouTube or Facebook...they're all American companies. And a big part of that reason is because United States has the clearest legal regime," he said. "Believe me, it's not clear enough—if you are Google and being sued for a billion dollars you feel like it could be a little clearer—but they will admit readily that it's a lot clearer than it is in France or Germany or the U.K. or Japan."