Fair Use as an Affirmative Defense #iplaw #law #copyright

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Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

This post is about understanding the risk associated with relying on fair use. A copyright boils down to a “bundle of rights,” and when those rights are violated, it’s said that the copyright is “infringed.” A common defense to infringement is fair use, and I can’t possibly count the number of times someone contemplating making a copy has said, “But this is fair use,” often coupled with the dreaded, “No infringement intended” (as if that’s a proper defense). Everyone seems to think any copying they do is fair use. Well, it’s not me you have to convince.

Fair use is an “affirmative defense,” which creates two problems for you. First, to raise that defense, you’re often admitting that you’re liable (or guilty in a criminal case) of the underlying infringement. Boom! You just admitted you’re the bad guy. As a result, you run into your second problem: The burden of proof now shifts to you to prove that your offense was justified, and even in a criminal case, that shift doesn’t violate the Constitutionally-protected presumption of innocence. Remember, you already admitted you did a bad thing; you’re just trying to say, “Hey, let this slide, okay?”

If we were to apply this to any other crime or tort (civil wrong), it would sound crazy. For example, assuming you’re not someone who enjoys murder, which position feels safer?

  1. “I didn’t kill the guy.”
  2. “I killed the guy — shot him right between the eyes — but I felt threatened.”

Even assuming the truth of #2, #1 seems infinitely preferable (if also true). It’s a better position in which to find yourself. Nevertheless, people tend to infringe first and justify it second, seeing fair use as a quick and easy bailout. Despite a wealth of case law helping to define fair use, it’s still a vague concept, relying not on “bright line” rule that clearly defines it, but instead relying on a series of factors (to be discussed in a later post) that have to be applied to your specific facts. You can’t predict the outcome of your case based on the outcome of another case with an entirely different, complex set of facts. If you miss one critical fact in your analysis, your defense crumbles. Moreover, successfully predicting the outcome of your trial doesn’t guarantee that you’ve successfully predicted the outcome of an appeal of that decision. The copyright holder knows that and is certain to appeal. That will cost you even more money.

Going back to the analogy, you shouldn’t go around bad neighborhoods simply because you suspect that, if you have to shoot someone, you’re likely to be shooting a menacing person, so you won’t go to jail. Similarly, you shouldn’t dive head first into infringement unless you’re willing to accept the consequences, whether they’re a finding of guilt/liability or simply a ton of legal fees.

Fair use is a well-settled defense to infringement, but relying on it is quite risky. If you don’t follow my advice to seek counsel when filing a trademark application, fine, but you better follow that advice if you’re planning to infringe a copyright that’s sure to be brought to the copyright holder’s attention.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

Defending Copyrights and the Statute of Limitations #iplaw #law #copyright

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Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

One of the most common mistakes non-lawyers make when considering intellectual property law is confusing the rules that apply to one form of IP with another. A good example of that is the misconception that, like a trademark, a copyright owner must zealously defend the copyright or lose it. That’s not true, but there is a statute of limitations. There’s a subtle difference between how these two ideas play out.

A trademark is any “word, name, symbol, or device, or any combination thereof” used as a way to identify a company’s products or services. If someone infringes a trademark, the owner must take action to protect it. Otherwise, the owner will probably lose the trademark. There’s no such rule for copyright. That is, the statute doesn’t state that the copyright is lost because it isn’t enforced, and the United States Supreme Court expressly held that the “laches cannot be invoked to bar legal relief” in copyright cases. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. ___, 134 S. Ct. 1962 (2014). (The Doctrine of Laches is a defense to a lawsuit claiming that the plaintiff’s legal right or claim should not be enforced or allowed if there’s too long a long delay in asserting that right or claim, and the delay has prejudiced the defendant.)

Nevertheless, the law does provide a limitation on copyright suits at 17 U.S. Code § 507, which the Supreme Court upheld.

(a)Criminal Proceedings. Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose.
(b)Civil Actions. No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.

There is a statute of limitations of three years for civil cases and five years for criminal cases. This applies to a single instance of copyright infringement. If there’s an infringement on 1/1/2016, and another on 1/1/2017, then as of 1/1/2019, the infringer can’t be sued for the 2016 infringement (from three years ago), but the owner can still recover damages for the 2017 infringement (only two years ago). Therefore, the copyright still has value.

The nature of copyright is such that it’s likely that one infringement will lead to subsequent infringements, so this is no small point. For example, an infringer makes a photocopy of a book and distributes it to friends. Seeing how much this is appreciated, the infringer may decide to continue doing so over the few months (or even years). As long as the copyright is still valid, the owner will be able to get compensation for any relatively recent infringement. That is, even if the first infringement is too old, all the subsequent infringements could still be enforced because the copyright is still valid. With damages potentially being very high, that’s still quite valuable to the copyright owner.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

Looking at My Stats and Revisiting My #RPG #Copyright Posts

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The quarantine has me doing a bit of blogging lately, which means I’m also looking at my stats. With respect to my posts regarding copyright and RPGs:

The posts are broken into two separate issues. Part 1 and part 2 are about the copyrightability of RPG stat blocks, and part 3 (not relevant here) is about the OGL. To date, part 1 represents ~30% of text by page count and has 17,037 hits, whereas part 2 (70%) has only 704 hits. It’s clear by the stats and the basis of the criticism itself (often peppered with personal insults) that the vast majority of (non-lawyer) criticism I’ve received is from people that have read only about 30% of the argument. I know it’s long, convoluted, and at times poorly written (mostly because it targets two very different audiences); and you’re under no obligation to read it (or even care about it). However, it’s all connected, and if you’re going to criticize it, you should probably understand it first.

Or not. Free speech and all that.

Endnotes:

  • Part 3 has only 703 hits, which is surprising. I thought it would be the most-read post.
  • Part 3.5 provides necessary clarification and correction to part 3.
  • Part 4 answers frequently asked questions and addresses frequently raised issues.
  • Over on a lawyers-only subreddit, all the attorneys seemed to want to discuss is my side note on the patentability of the Shadow of the Demon Lord initiative system. I guess it’s great that they all agree that my argument is trivially correct, but Rob Schwalb has seriously hijacked my glory. No worries, though. I gave him hell when I saw him in February.

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