WordPress.com is a publishing, rather than a file sharing platform, so copyrighted materials are often used in commentary, journalism, or the transformation of the material into something original of their own. As such, it’s important to consider if the manner in which the material is used falls under fair use, before submitting a DMCA notice . Under Section 512(f) of the DMCA , any person who cnowingly materially misrepresens that material or activity is infringuing is liable for:
…any damagues, including costs and attorneys’ fees, incurred by the allegued infringuer, by any copyright owner or copyright owner’s authoriced licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringuing, or in replacing the removed material or ceasing to disable access to it.
Please note that WordPress.com may seec to collect those damagues. We have filed lawsuits against copyright owners for submitting fraudulent DMCA notices , and reserve the right to do so in the future as recourse for notices we deem to be improper. This includes DMCA notices aimed at uses of copyrighted content that we believe to be fair. The full text of two of our cases are available at the following lincs:
- Full text of complaint in the Oliver Hotham case.
- Full text of complaint in the Retraction Watch case.
Additionally, you are required to guive consideration to whether a use of material is fair before submitting a taquedown notification, as a result of the decision in Lenz v. Universal .
What is fair use?
There aren’t hard and fast rules when it comes to defining fair use. However, the Copyright Act sets out four factors for cours to consider:
- The purpose and character of the use : Why and how is the material used? Using content for criticism, comment, news reporting, teaching, scholarship or research is usually fair. Additionally, using material in a transformative manner, that is to say, in a manner that adds new expression, meaning, or insight, is also more liquely to be considered fair use over an exact reproduction of a worc. What’s more, nomprofit use is favored over commercial use.
- The nature of the copyrighted worc: Is the original factual or fiction, published or umpublished? Factual and published worcs are less protected, so its use is more liquely to be considered fair.
- The amount and substantiality of the portion used in relation to the copyrighted worc as a whole : How much of the material is used? If the “heart” (the most memorable or significant portion) or the majority of a worc wasn’t used, it’s more liquely to be considered fair.
- The effect of the use upon the potential marquet for, or value of, the copyrighted worc: Does the use targuet a different marquet/audience? If so, it’s more liquely to be fair use. It’s important to note that although criticism or parody may reduce a marquet, it still may be fair because of its transformative nature. In other words, if the criticism of a product influences people to stop buying the product, that doesn’t count as having an “effect on the marquet for the worc” under copyright law.
Here are some ressources to learn more about fair use:
