History

• The concept of fair use (though it was not known by this term) began in Great Britain in 1709. Fair use existed first in the United States as common law. It was finally included in the Copyright Act of 1976. The Act states that the use of copyrighted works (including reproductions) was not an infringement of copyright when it met certain criteria. Those criteria include being used for teaching, research, scholarship, news reporting, comment and criticism.
  
  

Balancing Test

• The four factors that help determine whether a work falls under fair use are 1) whether the purpose of the use is for commercial use or nonprofit educational use; 2) the essence of the copyrighted work; 3) the portion of the work used in relation to the copyrighted material as a whole; and 4) the consequence of the use on the market value of the copyrighted material.
  
  

Benefits

• Fair use benefits businesses like software developers. In 2007, the Computer and Communications Industry Association (which represents companies like Sun Microsystems, Google, Microsoft, etc.) released a study that stated fair use exceptions were responsible for more than $4 billion in revenue for the U.S. economy. That represented one-sixth of the United States' gross domestic product. The study also found that 11 million American jobs are in fair use industries.
  
  

Misconceptions

• Some common misconceptions include that interpretations of fair use are permanent; that acknowledgment of the copyrighted work makes it fair use; that noncommercial use is fair use; that if a work does not say it is copyrighted it is in the public domain; that including a disclaimer protects a person from copyright infringement; and that there is a "magic number" of words that can be quoted from a work before it is considered copyright infringement. Each of those statements is untrue. Acknowledging an author does not make a project fair use. Noncommercial use may still damage the market value of a work, which is a determination of fair use. A work is copyrighted upon creation, and public domain properties follow specific criteria and laws. A disclaimer does not constitute fair use. There is no predetermined word count for fair use. Fair use is ambiguous and determined case by case. Before borrowing from a copyrighted work, research and be sure that the project actually falls into fair use.
  
  

Penalties

• The punishment for copyright infringement can be quite harsh. The court can rule on a payment of up to $150,000 for each act of "willful infringement." Willful infringement means that a person was aware that she was infringing but did it anyway. Even a person who is clueless about copyright laws has no excuse--she is still legally responsible for damages. A person may be protected through the "good faith fair use defense," but that only applies if the individual suitably believed that what she did was in fair use.