Note: I am not a lawyer, and
this is not legal advice. If you want legal advice, see an
attorney, not a web page.
I make my living creating and buying intellectual property, and I
thank God that Americans are protected by the DMCA. Some
common questions arise when dealing with people who copy-paste your
- Is it a copyright violation when somebody only copies
two sentences from your work?
- Is it a copyright violation when a business competitor
quotes your work in order to defame you?
- What can you do when somebody refuses to acknowledge
that they have copy-pasted material belonging to another person?
- What if a business competitor is quoting my
copyrighted material to defame me? Are dirty tricks
covered under the fair use exception?
The US Codes for the DMCA lists the
exceptions to fair use, and it is deliberately vague about the
amount of stolen text that constitutes fair use.
While the text of the copyright law lists only vague details
about what constitutes fair use, the law deliberately does not
address details, such as the amount of content that constitutes a
copyright violation, leaving the judges to evaluate each case on its
own unique merits.
In some cases, quoting a single sentence cannot be justified
under the fair use exception, and a single sentence constitutes a
- Heart of the work: A single sentence
may be a copyright violation if it sums-up the conclusion of the
entire copyrighted work.
- Dirty Tricks: When it's being used for a
"commercial purpose", like a business competitor using a single
sentence out-of-context to defame the copyright holder.
- Unfair Interference: News reporting
services have been issuing DMCA takedown notices for even the
smallest quotes when it interferes with their right to have the
reader see their original work
Let's see what I found on the Interweb about the limits of fair
Is it fair use when somebody copies one
The answer appears to be “it depends”. The fair use
exclusion to copyright law makes specific exception to allow for
legitimate academic criticism (by a nonprofit for educational
purposes), but it specifically notes that “fair use” is not allowed
for those you copy the content of others for use of a “commercial
A not-for-profit publisher has far more latitude than a business
competitor who is copying the content. When a publication of a
commercial nature quotes copyright material in order to defame their
competition, this would rightfully not be covered under “fair use”
Further, copying of a commercial nature is even more onerous when
they take the quote out-of-context with the intent of defaming the
The commercial nature exclusion to fair use?
For example, in 2010, the
Associated Press and the New York Times determined that any news
reporting body who copied their content, even just a single sentence
was infringing upon their copyrights.
In sum, it
appears that if a business competitor copies your material in order
to interfere with your right to do business, then it is not covered
under “fair use”:
- A news reporting bureau has the right to demand total
compliance from other news bureaus, even if they only copy a
- A business competitor cannot quote copyrighted
material (even a small quote) in order to defame the copyright
owner or to induce readers not to do business with them.
Can I file a DMCA takedown notice without consulting an attorney?
In general, lawyers say that if you truly believe then the stolen
content exceeds the fair use limits, you are OK. The Good
Faith doctrine applies for DMCA takedown notices, and so long as you
are not doing it falsely or for malicious purposes, you do not need
to hire an attorney to determine whether it might be OK under fair
Case law suggests that while a copyright owner must
consider “fair use” before submitting a DMCA takedown notice, but
some lawyers say that so long as you believe in good faith that the
copies infringe on your copyrights, then you cannot be convicted for
perjury in the sworn statement required for a DMCA takedown notice.
Attorney Ray Nimmer notes that if you can prove that the
material is copyrighted and copied, you cannot be faulted for asking
the host to remove it:
“DMCA Section 512 gives copyright owners an
efficient means of responding to online infringements and provides a
safe harbor protection for online providers.
courts suggest that “good faith” in sending a take-down notice may
require the copyright owner to evaluate whether the online copying
is fair use, these decisions undermine the notice and take down
Ordinarily, however, it means being “honest”
and not necessarily “careful.”
“A copyright owner
cannot be liable simply because an unknowing mistake is made, even
if the copyright owner acted unreasonably in making the mistake.
Rather, there must be a demonstration of some actual knowledge
of misrepresentation on the part of the copyright owner….”
The evolving landscape of DMCA fair use
In sum, beware that the DMCA is not specific, and that the
current state of the DMCA evolves as the case law evolves.
Note: I am not a lawyer, and this is
not legal advice. If you want legal advice, see an attorney,
not a web page.
The DMCA is deliberately vague about how many words
exceed fair use. This depends on the nature of the quote
and whether it is being used for commercial purposes.
- Fair Use allows latitude for non-profit educational purposes
and parody, but it specifically limits fair use for commercial