US Chamber Of Commerce Guest Post On Fair Use Fails Copyright Law 101

from the because-of-course-it-does dept

In another instance of the U.S. Chamber of Commerce’s Global IP Center (GIPC) posting factually incorrect information, on June 11, the GIPC cross-posted a blog post from Plagiarism Today purporting to clarify the meanings of “5 Copyright Terms We Need to Stop Using Incorrectly.”

I ran across this post because of the following GIPC tweet (screenshot posted here in case it mysteriously disappears):

Unfortunately, the linked post gets basic facts about copyright law wrong. On fair use, it reads:

What it Means: A fair use of a work is an infringement of a work where the court has determined that the infringer is not liable due to the nature of the infringement being within the bounds of the law.

I’m honestly not sure how much more wrong one can get. 17 U.S.C. § 107 plainly states:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

To say a fair use is an infringement is to fundamentally misunderstand the nature of U.S. copyright law. It’s also nonsensical. By definition, an “infringement” means going beyond what is permitted by law. An “infringement being within the bounds of the law” is no infringement at all.

The author’s confusion probably stems from the fact that in lawsuits, fair use is raised as an “affirmative defense.” Many people wrongly interpret this to mean that fair use is a kind of acceptable copyright infringement. This is incorrect. Wikipedia explains it nicely:

“Affirmative defense” is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between “rights” and “defenses”, and so it does not characterize the substance of the defendant’s actions as “not a right but a defense”.

In other words, an affirmative defense is an admission that you committed the alleged acts, but that other circumstances make these acts lawful.

GIPC blog contributors might want to take an introductory copyright law class before trying to educate others on the meaning of fair use.

Reposted from To Promote the Progress? under its CC BY-SA 4.0 license.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    jakerome (profile), Jun 13th, 2014 @ 4:20pm


    Here's the actual Tweet, which for now at least has not been deleted. All the better for replying to, retweeting and otherwise remixing. A fine example of fair use, as it were.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Jun 13th, 2014 @ 4:37pm

    Damn COCksuckers can't even get the definitions right

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Jun 13th, 2014 @ 4:49pm

    Chamber is like a bank: always make mistake on their own behalf.

    reply to this | link to this | view in thread ]

  4. icon
    That One Guy (profile), Jun 13th, 2014 @ 4:53pm

    How is this surprising?

    We're talking about the 'Chamber of Commerce', and blatantly bought out lobbying group that constantly pushes for copyright maximalism both in the US and every other country, it's hardly surprising they'd make a 'mistake'(one I don't believe for a second was an actual 'mistake') like this to undercut the idea of Fair Use.

    reply to this | link to this | view in thread ]

  5. icon
    Chronno S. Trigger (profile), Jun 13th, 2014 @ 4:54pm

    "Sometimes before you can solve a problem, you first have to redefine a problem".

    Well, that sounds familiar. How did that work out in that story?

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Jun 13th, 2014 @ 6:07pm

    It's the Chamber Of Commerce ... lol, lmfao hahahahahaha

    reply to this | link to this | view in thread ]

  7. identicon
    Exploding Diarrhea, Jun 13th, 2014 @ 6:54pm

    Sue the bitches!

    reply to this | link to this | view in thread ]

  8. icon
    Karl (profile), Jun 13th, 2014 @ 7:09pm

    "content theft"

    The fact that Plagiarism Today got the term wrong is not surprising. This is, after all, a website that has the term "content theft" right in the header of their website.

    Of course, there is no such thing as "content theft" under the law. It is explicitly not theft; it is infringement. Pity they can't make that one of the terms that everyone should stop using incorrectly.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, Jun 13th, 2014 @ 7:21pm


    Why do you think they want to get the definitions right?

    reply to this | link to this | view in thread ]

  10. icon
    M. Alan Thomas II (profile), Jun 13th, 2014 @ 9:12pm

    The quoted statement also alleges that fair use only exists pursuant to a court finding, whereas fair use exists even if the use has not been adjudicated in a court of law.

    reply to this | link to this | view in thread ]

  11. identicon
    andypandy, Jun 13th, 2014 @ 11:24pm


    they believe that if they repeat the same lies over and over again they will eventually make it so.

    Copyright law really needs to be changed and i believe if the EFF had to put a new copyright bill forward with restrictions on who can sue who and making sure everyone understands that copyright is a civil matter and not a criminal one.

    Maybe if the EFF had t produce a full copyright bill , changing everything so that people will not misunderstand what is allowed and not and making sure copyright is restricted ton a very short period. 6 months for tv shows 6 months for movies and 3 months for music is more than enough copyright. maybe they could even allow for citizens to vote on specific parts of any new copyright law and make sure there is support like no other for a new bill.

    lets take this out of the hands of the middlemen and greedy content owners and politicians and lobbyists, and create a law they have to follow, I am sure in the US the EFF would get million's people getting involved and discussing every part of a new Bill.

    And if there are enough supporters the politicians would be very careful before ignoring it.
    No bribing of Politicians or others, just a straight forward bill that removes many of the fundamental flaws in the existing copyright laws.

    If the politicians or lobbyists use their power to dismiss any new law put forward by the EFF on behalf of the public maybe they could then sue to get it going forward, I am sure the government would not like it if a bill that is so important was ignored or putt off until the bribery could commence.

    At the worst a new bill could be put forward every month or week until something was done to resolve the mess copyright law is at the moment., And one line i would like to see in a bill is that all laws that exist right now be removed and dismissed. Only the new Bill could give any law over copyright.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, Jun 14th, 2014 @ 12:59am

    So, when are people going to sue these chuckleheads for uncommon stupidity?

    reply to this | link to this | view in thread ]

  13. icon
    gorehound (profile), Jun 14th, 2014 @ 10:09am

    Kochsuckers !Simply put !

    reply to this | link to this | view in thread ]

  14. identicon
    askeptic, Jun 14th, 2014 @ 11:53am

    Copyright Law

    I suppose 'their' Congressmen will just have to change the law so that it comports with the Chamber's understanding of what they want the law to be.
    You got a problem with that, Pilgrim?

    reply to this | link to this | view in thread ]

  15. icon
    vonAlbrecht (profile), Jun 15th, 2014 @ 2:31am

    Extralegal, not illegal ...mfw

    Witness our intrepid IP litigators enjoy that wonderful extralegal practice of rewording law to fit agenda.

    reply to this | link to this | view in thread ]

  16. identicon
    rapnel, Jun 15th, 2014 @ 6:13pm

    Re: "content theft"

    ^^ This insightful bot is a good one.

    reply to this | link to this | view in thread ]

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