Saturday, June 18, 2016

How Do I Argue That Something Isn't a Fair Use?

Dear Rich: We are attempting to have something removed from Google's search results as it is infringing on a client's copyright. I understand that in many cases this may be "fair use" and that is Google's current argument as well but they are requesting additional information on why we assume it doesn't fall under the "fair use" umbrella. Are there letters to Google that state or show examples of why things aren't "fair use" that I can read to see if it fits our situation? And/or do you have any suggestions on additional reading so we can make a strong argument why it is indeed infringing? There is also defamatory information being posted and for that reason we do not want to go directly after the site owners as they may retaliate.
We couldn't find any sample letters to Google so we suggest you write your own "legally reasoned" letter. Legal reasoning is simple: After stating the issue (Is this fair use?) and explaining the facts and the law (hint: fair use consists of four factors), you make your argument. The key to making a winning argument is finding fair use rulings that are similar to your situation
The Copyright Office to the rescue. Fortunately the Copyright Office has made life simpler for people researching fair use. The Fair Use Index summarizes hundreds of fair use cases.
First, the site allows you to search cases by jurisdiction. In your case (dealing with Google), all jurisdictions are relevant though, of course, Supreme Court cases swing the most weight. Second, select the category or categories that are similar. For example, if your situation involves a filmed news clip that was parodied, you would check Film, News Reporting and Parody and the search page would look like this:
Click on the cases that appear and find examples that support your position. You'll notice that each case summary contains a fair use analysis. Feel free to mimic these analysis in your letter (or attach them to your letter). Your goal is to succinctly explain that courts, facing situations like yours, have ruled against fair use. If your research shows the opposite result -- courts, in situations like yours, ruled for fair use -- then you may have to abandon your argument.