Now, let's talk about how the fair use doctrine works in ordinary practice. The first thing to remember about the application of the fair use doctrine in practice is that courts or anyone applying the fair use doctrine take those four factors and run him, or run these factors through the nature and type of copying that the defendant is engaged in to determine whether it's fair use. So, very importantly, all four factors have to be applied to the actions of the defendant or to the act of copying to determine whether it is fair use. So, those factors are applied to the context of the copying. The first thing to note is that there are no clear rules. In other words, it's impossible to determine in a one size for all fashion whether something amounts to a fair use or not. Each time the four factors need to be applied. There is no particular category of views that automatically qualifies for fair use, and this is what is very, very important to remember, just because it's news reporting, just because it's educational, just because it's something for teaching, does not mean that it becomes a fair use automatically. In each instance, all four factors have to be applied to the copying, and then once the factors are applied and weighed, one can determine whether it's fair use or not. How did the four factors come to be applied in practice? Now, it's true that not all four factors are equally important in their application. The first and the fourth factor. So, the first one which is the nature and purpose of the use, and the fourth one, which is the market effect, are by far the most important factors in practice. Where courts will look at, what kind of a use was this? Was it commercial, was it non-commercial? Was it done for a particularly public interest purpose or was it not? Similarly on the market effect, is it actually causing a depletion in the market for the original? Was there a vibrant market for licensing of the originals that this is circumventing? Those are the kinds of things that a court will look at to determine whether those factors weigh in favor of the plaintiff or the defendant. So, what a court will do is take these four factors and run each of them along the context of the defendants copying, and then decide whether this factor weighs in favor of the plaintiff or the defendant. Then cumulatively assess whether as a whole the four factors come out in favor of the plaintiff or the defendant. On the first one, on the first factor, remember I said the nature and purpose of the use including whether it's commercial or not, courts have also determined that simply because it is commercial does not mean that it's taken out of fair use. Conversely, it also means that just because it is non-commercial, it doesn't mean that it automatically becomes fair use. Commerciality is something that courts consider, but it is not dispositive or does not put it in a presumptive category. The second factor, which has to do with the nature of the copyrighted work, is probably the least important, it's mildly important because all that the court really looks at there is whether the work is exceptionally creative or not, and the court tries to classify the amount of fair use that the work should be entitled to based on that. So, that's a factor that doesn't get too much weight. The third factor, the amount and substantiality is important, but it is often treated in practice as what is called a contingent factor. Namely, that it's tied to factor one. Depending on the nature and purpose of the use to which the work is put, the amount and substantiality gets calibrated. So, some kinds of uses need a lot of copying. So, for example, a parody may require a lot of copying, and so the amount and substantiality is calibrated accordingly. Some kinds of natures and purpose of use news worthiness require perhaps less copying and that is calibrated accordingly. So, factor three is a contingent factor. Factor four, which is about the market effect, is often a factor where the court will look for external evidence, expert testimony or some other kind of empirical evidence to assess whether there was a creative market for the work. What is the effect on that creative market? What is the likely effect on the potential market that may exist for the work? That's how the four factors are generally applied. So, for instance, in the context of an excerpt from a book, let's say it's a 100-page book and you excerpt a couple of paragraphs. You might think, it's really a small amount, it's clearly fair use. No. You have to apply all four factors to determine whether at the end of the day it is fair use. Guess what, most of the time if it's for a educational purpose or a teaching purpose, it would indeed qualify for fair use, but that's based on an application of all four factors. So, let's apply the first factor to an excerpt that you might do for a college report in a class, or an excerpt of a couple of paragraphs from 100-page book, the nature and purpose. Well, it's for an educational purpose, not really for public circulation, but for a report. Well, that weighs in favor of fair use. What about the nature of the actual work? Well, that depends. Remember I said that the second factor is not very important. So, let's put that aside and call it a neutral factor. What about the third factor of mountain substantiality? Well, since it's an educational purpose, the amount and substantiality are allowed to actually take a little bit more. Guess what, here you took very, very little. So, this would weigh in favor of a fair use. Fourth, what about the market effect? Well, there isn't really a market for licensing of little paragraphs from a book. There might be for broader excerpts but not for few paragraphs here and there, and that's unlikely to cause a diminution in the sales of the original book. So, the market effect is also likely to weigh in favor of fair use. Putting all of these together, we might conclude that it is likely to be fair use. But remember, we applied the four factors to come to this conclusion. We didn't just say up friend, I did it for class or it's educational, and therefore, it is by definition fair use, and that's the trick that one has to apply in using the fair use doctrine to recognize that the four factors need to be applied each time. Another couple of very important quick things to note about the fair use doctrine, which are often missed in practice and it's important to bear these in mind. First, just because something is done for personal or private purposes does not make it fair use. I can't tell you the number of times I've heard people say to me, I just made a copy for myself at home. So, clearly, that's exempted from infringement and its fair use. No, that's not true. There is nowhere in the statute or the law that says just because it's done for your private purpose and that you hit it in your drawer and no one found it, it is not copyright infringement and it isn't fair use. That's not true. You made a copy and if it doesn't comply with the four factors, it is not fair use regardless of whether it is personal or private. This goes back to what I said about the commercial factor, just because it's commercial doesn't make it out of fair use, similarly, just because it's non-commercial, doesn't make it fair use. There is no private or personal copying exception. It still needs to be run through the four factors to determine whether it's fair use. This brings me to the second general point. Just because a copyright owner does not sue you, it does not mean it's fair use. So, we go back to our hypothetical, you make a copy of something, and stick it in your drawer at home. First, you say, I made a personal copy and therefore, it's fair use, and I said you know it's not fair use just because it's a personal copy. Then you look at me and you say, well, but the copyright owner didn't sue me or didn't object, and that must mean it's fair use. No. That's not true either. Just because the copyright owner doesn't complain, doesn't make it lawful, just because they tolerate it, doesn't mean that it is lawful. There's an important distinction between a permitted use and a lawful use. A permitted use is based on the whims of the copyright owner. The reason that copyright owner didn't object was for a variety of different reasons starting with, they had no way of detecting it. Two, they really didn't want to sue you because they don't know how much money they can get from you, and three, they really don't have the time and energy to take you into court, but that doesn't mean that it automatically becomes fair use. It's in a different category something that is referred to as a tolerated use. Tolerated use is not fair use, and there is no private copying exception. Again remember, fair use always works in the United States by applying the four different factors regardless of the type of copying through the context of what the defendant's copying entails, that's the ordinary application of the fair use doctrine. Complicated but hopefully, very robust in practice.
