Is it legal to share digital copies of copyrighted material by allowing access to my cloud drive?

Question

I was watching a YouTube video on an academic subject, and at the end, the creator said that they left a link to their Google Drive with all the sources listed in the video. In that drive, which was accessible to all who clicked the link, they had several papers from Taylor & Francis that were not free. So, it made me wonder about the digital copyright laws. Now, I know from watching Legal Eagle that when you buy a copyrighted material, you are free to do what you want with it, such as sell it, give it away, or rent it to others. I can't find the court case, but I know it was involved Blockbuster. Now, I THINK the one exception he mentioned was that you can't just copy it and start selling it.

For something to be considered "Fair Use", there is a four factor test to be considered:

• 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• 2. the nature of the copyrighted work;
• 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• 4. the effect of the use upon the potential market for or value of the copyrighted work.

For the first factor, while the work (the video) does appear to be for the purposes of non-profit education, the citations are not transformative and do not advance knowledge or progress the arts, as they are exact copies.

As for the second factor, because the YouTuber was reproducing exact replicas, they were definitely republishing the expression of ideas and not a reworded stating of the ideas.

Again, because these are exact reproductions of entire works, I believe the content fails the the third factor as well.

Lastly, regarding the fourth factor, because these are digital copies of whole pieces of work, being offered for free, I believe the content fails the fourth factor of the test as well.

Given this, I am reasonably sure that what this YouTuber was doing was illegal. But, I don't know. So, I have some questions:

1. Is what the YouTuber did illegal?

2. What is the legal way to share digital copies of copyrighted work? Is it ever legal to make a copy and give it to someone?

3. If I legally purchase a paper from one of these academic publishing companies, then write a blog or create a YouTube video using it as a source, could I create a link to that document in my Google Drive that is only allowed to be looked at by one person at a time, sort of mimicking sharing a physical copy (I don't know if that's possible on Google Drive, or any of the cloud devices, but let's imagine that it is)?

Lastly, please cite laws and court cases that support your argument. Thanks.

Answer 1

The principle that you can do what you want with what you buy is the "first sale doctrine." In the United States, this is codified at 17 U.S.C. § 109(a):

the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

This doctrine applies to a "particular copy" not the work in a general sense. Copyright law says nothing about what you can do with a particular book that you have bought. Instead, copyright law only places restrictions on what you can further create: you can't make copies (and if one is made, you can't distribute it), you can't make derivative works, you can't create a transmission, you can't perform the work publicly, etc.

Creating a copy of a work and publishing it online is not within the scope of the first sale doctrine and within the exclusive right of the copyright owner. Without an assignment of copyright or a licence, that would be prima facie infringement, defensible only via fair use.

Regarding fair use, you have the law roughly correct, and there is a good existing Q&A too. Note that there is an update to the fair use analysis from Andy Warhol Foundation for Visual Arts Inc., v. Goldsmith, (Slip Opinion, 2023) which affects the first factor. Know that the fair use analysis is heavily dependent on case-specific facts, so one can almost never know in advance whether a particular use will be fair use or not. And to the extent that this is "knowable" you are in as good a position of any of us to apply the factors. One correction to your analysis is that a fair use case does not "pass" or "fail" each factor. Each factor weighs in favour of or against fair use to a varying degree. The conclusion on fair use will be an assessment of all the factors in their totality.

I would compare with examples that you can find at the Copyright Office's Fair Use Case Index and Stanford's smaller collection of fair use cases.

Answer 2

In your question, (3) asserts that you "legally purchase a paper", which might lead to a first sale doctrine that you have the right to sell, display or otherwise dispose of that particular copy. The problem is that you it is extremely unlikely that you purchased the paper or purchase a copy of the paper, you purchased a license, which allows you to access the paper in some specific way. Therefore, you have to read the terms of the license to determine whether such redistribution is allowed. Taylor and Francis does sell physical objects which you can therefore resell, but no academic publisher that I know of which requires money to access a work purposes to "sell the work", they always sell a license. There is some chance that the specific work is actually open access, you would have to look at the particular publication.

It is only legal to make a copy if you have permission. Nothing is changed my adding "sell to a stranger", "give to a friend", "post on a personal web page". If the copyright owner says "you may copy", you may legally copy. If it is a US government work, there is no copyright owner so no permission is required. If the work is old enough, it is no longer protected so permission is irrelevant. Although a funding agency may require that a work be released "open access", it is still the duty of the copyright holder to grant such a license, and does not make infringement legal.