WordPress.com is a publishing, rather than a file sharing platform, so copyrighted materials are often used in commentary, journalism, or the transformation of the material into something original of their own. As such, it’s important to consider if the manner in which the material is used falls under fair use, before submitting a DMCA notice. Under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing is liable for:
…any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Please note that WordPress.com may seek to collect those damages. We have filed lawsuits against copyright owners for submitting fraudulent DMCA notices, and reserve the right to do so in the future as recourse for notices we deem to be improper. This includes DMCA notices aimed at uses of copyrighted content that we believe to be fair. The full text of two of our cases are available here and here. Additionally, you are required to give consideration to whether a use of material is fair before submitting a takedown notification, as a result of the decision in Lenz v. Universal.
What is fair use?
There aren’t hard and fast rules when it comes to defining fair use. However, the Copyright Act sets out four factors for courts to consider:
- The purpose and character of the use: Why and how is the material used? Using content for criticism, comment, news reporting, teaching, scholarship or research is usually fair. Additionally, using material in a transformative manner, that is to say, in a manner that adds new expression, meaning, or insight, is also more likely to be considered fair use over an exact reproduction of a work. What’s more, nonprofit use is favored over commercial use.
- The nature of the copyrighted work: Is the original factual or fiction, published or unpublished? Factual and published works are less protected, so its use is more likely to be considered fair.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole: How much of the material is used? If the “heart” (the most memorable or significant portion) or the majority of a work wasn’t used, it’s more likely to be considered fair.
- The effect of the use upon the potential market for, or value of, the copyrighted work: Does the use target a different market/audience? If so, it’s more likely to be fair use. It’s important to note that although criticism or parody may reduce a market, it still may be fair because of its transformative nature. In other words, if the criticism of a product influences people to stop buying the product, that doesn’t count as having an “effect on the market for the work” under copyright law.
Here are some resources to learn more about fair use: