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Mr. A writes a book about corruption in Seattle, Washington. He discusses a landmark article about said corruption that was published by a local newspaper. However, years later the article is deleted from the internet.

In his book, Mr. A writes, "This is an amazing article anyone who's interested in political science or activism must read. Unfortunately, it has been erased from the Internet. However, if you contact me, I can send you a copy via e-mail."

Would this qualify as fair use as long as the author doesn't charge anything?

This question is a followup to Legality of sending people copies of copyrighted articles

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  • Can you first explain how that "the article was (already) deleted from the internet" makes any difference? May 24 at 20:29
  • Sorry to say, this seems to suggest complete misunderstanding of every part of the Question. May 24 at 20:38
  • Can you see how in or of itself, no part of either Question or exposition could ever matter? Corruption is interesting but where are the details? Seattle and Washington might be interesting; where are any details? May 24 at 20:53
  • To put it another way, what might be the difference between sending copies of articles that have been deleted, and which can still be seen on the Internet? What but your intended use could make you think any of this might not constitute "fair use"? May 24 at 21:00
  • An article on corruption might be removed if it had been deemed defamatory. Further distribution may have legal implications other than copyright.
    – Gary Myers
    May 25 at 1:22

3 Answers 3

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I must agree with the answer by Michael Seifert that fair use cases can be complex, and are usually highly fact dependent. They are indeed decided on a case-by-case basis. That said, I would not describe them as "a morass of grey areas". I also differ in my view of a likely fair use analysis in the case in the question, although the statutory factors are listed correctly, if not in my view always explained correctly.

  • Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.

    That Mr A is not acting from commercial motives probably tilts this factor toward fair use. Moreover an effectively "documentary" work is probably broadly "educational". This factor is usually where analyses of the "transformative" (or not) nature of the use is placed. Note that for a fair use analysis a work is "transformative" not because it is modified in some significant way, but because it is used for a significantly different purpose. For example, when a popular song or poem is published, the intent is to entertain, and to induce specific emotions in the audience. But if these exact same words are quoted in a text on the art of verse, they would be used to show techniques of rhyme meter, and the like, a highly transformative use, in spite of the words being identical. (The official US Copyright office page "More Information on Fair Use" reads: "Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.") In the case suggested in the question, the purpose would be to support the conclusions in A's book, which is at least somewhat transformative. I conclude that this factor overall would most likely lean toward a finding of fair use.

  • The Nature of the copyrighted work.

    In general a work that is largely factual gets less protection than a work of fiction or verse. A work with much creative narrative recounting facts is somewhere between a dry textbook and a novel. A "landmark article" might well be in that same middle ground. But in any case this is not as often the factor that is decisive in fair use decisions.

  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

    This factor probably leans somewhat against fair use, because the whole article is probably being copied. But this factor has been more likely to weigh strongly against a finding of fair use when the amount used is significantly more than is needed for the legitimate purpose for which it is used. There are many cases where the use of an entire work (particularly a relatively short work such as an article or a poem) has been held to be a fair use.

  • The effect of the use upon the potential market for or value of the copyrighted work.

    Significant documented effect on the actual current market for the source work tends to weigh most strongly here in case law, although the statute does not say so. Effect on a currently unexploited market that might be exploited in future is sometime quite significant. But when the copyright holder has intentionally ceased exploitation, in particular because there seemed to be no further market, this is less likely to be a significant factor. The same is true when it appears to the court that there is no viable commercial market to exploit. If the newspaper or magazine has no history of republishing articles after it has dropped them from circulation, that would weigh towards fair use. Also when copies are supplied only on an individual basis, after a personal request, that would be less likely to harm any potential market for the article. If A indicates that copies will no longer be provided to others when and if the article is republished and made available by the copyright holder, that would probably significantly reduce the weight of this factor. (The official US Copyright office page "More Information on Fair Use" reads: "Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.") This factor might well be close to neutral, depending on specific facts brought out during an infringement case.

17 USC 107 also says:

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Note that for purposes of copyright law "unpublished" normally means "never published" not "out-of-print". This is because it is considered that an author has a significant interest in deciding when and if (and how) to first publish a work. It thus takes a stronger than usual case to justify use of a never published work as a fair use (although this has been justified in many cases). But this consideration does not apply to a work that has been published and then allowed to go out of print. For such a work, the bar for fair use is lower because public access is considered a public good and part of the values that the copyright law is intended to foster.

See also the case of Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001) in which the US Court of Appeals for the Eleventh Circuit held that The Wind Done Gone was a fair use of Gone With the Wind. In that case, th Court wrote:

In assessing whether a use of a copyright is a fair use under the statute, we bear in mind that the examples of possible fair uses given are illustrative rather than exclusive, and that " [a]ll [of the four factors] are to be explored, and the results weighed together in light of the purposes of copyright." Campbell, 510 U.S. at 577-78, 114 S. Ct. at 1170-71.22 ... one of the most important purposes to consider is the free flow of ideas - particularly criticism and commentary.

...

Despite whatever educational function TWDG may be able to lay claim to, it is undoubtedly a commercial product.24 As the Supreme Court has stated, " [t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Harper & Row, 471 U.S. at 562, 105 S. Ct. at 2231. The fact that TWDG was published for profit is the first factor weighing against a finding of fair use. Id., 105 S. Ct. at 2231. However, TWDG's for-profit status is strongly overshadowed and outweighed in view of its highly transformative use of GWTC's copyrighted elements. " [T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Campbell, 510 U.S. at 579, 114 S. Ct. at 1171. " [T]he goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works." Id.. A work's transformative value is of special import in the realm of parody, since a parody's aim is, by nature, to transform an earlier work.

While the assessment of a parody of a novel is significantly different from that of redistributing a newspaper or magazine article, the comments on commercial purpose and transformativeness are, in my view, relevant.

In short, I think the kind of use described in the question is significantly more likely than not to be held to be a fair use under US law, although much would depend on the details not included in this hypothetical.

I should also mention that Mr A has several other options which are less legally questionable.

First, A could ask the author or copyright holder (possibly the publication where the article appeared) for permission to send out copies. If permission is granted, A is fine and the issue of fair use does not arise.

Second, A could simply try to find out if an archive site, such as the Internet Archie, has captured the original online version (there are several such sites). If it has, A can provide a link to the archived version without any need to make his own copies.

Third, the publication may have its own archive -- many do. If so, A can link to that.

Fourth A can simply cite the original with enough detail that it can be found in a good library, and advise readers to do so.

Fifth, A can summarize the original article without copying it directly, providing only enough detail to support his own book, and combining this with one or more of the methods 1-4 above. If done properly (including proper attribution), there should be no copyright issues with such a summary.

None of these require depending on a judgement as to whether distributing a copy is fair use or not.

If A does plan to distribute copies of the original article, A might want to consult a lawyer with copyright experience. The cost for a single consultation might not be too high.

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  • @David Blomstrom I have significantly extended my answer since it was first posted. This might be of interest to you. May 24 at 16:26
  • I'm still confused about how having a different purpose can be considered "transformative" if the article is distributed without changes and not as an integral part of a new work. Taken to an extreme, it sounds like you're saying that if I wrote a book commenting on trends in YA literature in the 2000s, I could reprint Harry Potter and the Philosopher's Stone in its entirety and mail it out free of charge to interested parties to support my arguments, and it would count as "transformative". I suspect that's not what you're saying, though, so I feel like I've missed the point. May 24 at 18:46
  • (I am, of course, ignoring the other three prongs of the test in this example, all three of which would argue fairly strongly against fair use in my scenario.) May 24 at 19:00
  • 1
    @Mich It is precisely the other prongs that avoid such an unreasonable outcome. "transformativeness" is only one element (albeit an important element) of one factor of a fair use analysis (I won't call it a test, it is not formulaic enough IMO). No matter how transformative a use is, that will not make it fair use if the other factors are strongly against FU. Note the case of the HP encyclopedia which was held not fair use. But a change of purpose has been judged transformative enough to reproduce the whole of a song lyric or verse, or 10-20 pages of a book when there is no major market harm. May 24 at 19:09
  • Most fair-use cases are open-and-shut. It's only the interesting ones that are a morass of grey areas.
    – Mark
    May 24 at 23:32
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Fair use cases are notorious for being a morass of grey areas that are decided on a case-by-case basis, and the only really definitive analysis is the one done by a judge or jury after you get sued for copyright infringement. That said, fair use exceptions are based on a balance of four factors, and it seems to me that the factors are weighed against fair use in this scenario. (Edit: though not as strongly as I implied in the original version of my answer.)

The factors are:

  • "Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes". The outcome here is mixed. While this would not be for a commercial purpose, it is not clearly "educational". Courts also look at whether the use is "transformative". While this proposed use would not "transform" the work on a surface level, it is possible that an argument could be made that the purpose of the distribution is sufficiently different from the original that it is transformative, since the book presumably has a different purpose from the original article. That said, it is unclear to me whether the new purpose of the book would permit fair-use distribution of the article separately from the book; Mr. A would be much better off quoting selected sections of the article as integral portions of his book for the purposes of commentary, which is much more clearly allowed as fair use.
  • "Nature of the copyrighted work." This relates to how much creative expression is inherent in the work; technical reports or "bare facts" news items are more likely to allow a successful fair use claim. If, on the other hand, this was a major piece of investigative journalism, a fair use case would be less likely to be successful. If an article is "unpublished", this also weighs against a fair use claim; however, the analog here is closer to an out-of-print book rather than a never-published manuscript. All in all, the prospects here are mixed.
  • "Amount and substantiality of the portion used in relation to the copyrighted work as a whole". This weighs pretty solidly against Mr. A in the scenario, since he would be distributing the work in its entirety.
  • "Effect of the use upon the potential market for or value of the copyrighted work." This again weighs against the case. If the website were to re-publish the article, having all these extra copies floating around would reduce the number of people who would go to their website to look at it. Note that the "potential market" is what matters; it's not particularly material that the original publisher is choosing not to "sell" the article at the present time if they're reserving the right to re-publish it in the future. If Mr. A could argue that the original publisher was unlikely to ever re-publish the article, then this would mitigate against this point somewhat.
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If he’s making a charge, even for packing on top of postage, he needs permission from the copyright holder, but who would care?

If he’s merely re-distributing a previously published article at no charge other than postage he might still technically be breaching copyright but won't the lawyers weigh that against who benefits from the breach?

Which publisher would sue for being given free publicity… unless the beggars were so cynical as to hope a court case might provide better publicity?

Can you say how the article ever having been on the internet could make a difference? If you dropped any and all references to the internet, what difference could that make to the legals points involved? Surely some confusion, there…

Mr A writes a book (about anything you like, for clarity), citing a “landmark article” in a newspaper, already deleted from the internet. (What’s a “landmark article”, please? Does that mean ground-breaking, outstanding, merely important or what? Is it in fact a red herring, because the fact of the least significant article ever having existed would be enough?)

Mr A writes, “(blah lah lah) it has been erased from the Internet… I can send you a copy…"

Again, how is the internet relevant? Are you suggesting that deletion from the internet over-rides, or eve changes existence in print?

The Question seems to snap too easily into quite separate parts:

What is fair use?

How are paper and internet publishing related?

Is it not clear, they have little relevant overlap?

Questions with several parts are not encouraged anywhere on SE.

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  • Whether Mr A makes a charge or not is of very little importance, it is surely not the determining factor on fair use or not. That the work has been previously published matters (It lowers the bar for fair use) but net vs newspaper does not. However it having been on the net explains that Mr A expected his readers to be able to see the original, and did not plan to make copies when he wrote he book. That the article is a "landmark" explains why Mr A thinks it important for readers to see it, but could tip either way for fair use. Jun 1 at 21:19
  • you wrote "*If he’s making a charge, even for packing on top of postage, he needs permission"" That is not correct. I can cite case law on the previous publication factor. Intentions do matter, but only to a limited degree. Jun 1 at 21:49
  • @DavidSiegel You seem confused about legality and practicality. However you combine them if there's a question, then Mr A making a charge will prolly be crucial; quite likely the determining factor. Who doubts that, ask a few publishers. Previous publication doesn't "lower the bar"; it validates the point. Who doubts that, please explain how "fair use" could apply to anything not published? It having been on the net explains nothing of what Mr A expected of his readers nor what he planned, when he wrote his book, nor how having planned to make copies could matter. More… Jun 1 at 22:06
  • @DavidSiegel Further, that the article is a "landmark" in Mr A's view could never explain anything, unless what "a landmark" meant was first explained. Jun 1 at 22:08
  • @ robbie I am not at all confused, and am speaking largely to legality. 17 USC 107 says (last paragraph): "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." I can find case-law, however, that unpublished work is less likely to be subject to fair use. This was covered in Harper v Nation IIRC. The article having been on hr net explains that Mr .A expected thst his readers could easily find the article, because things on the net can be accessed, but thar has only slight legal effect. Jun 1 at 22:26

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