Law enforcement

Guest View: “Fair use” means limited use of copyrighted material without requesting permission of owner

“Fair use” means limited use of limited amounts of copyrighted material without requesting permission of the owner.

According to https://en.wikipedia.org/wiki/Fair_use

“Examples of fair use in United States copyright law include commentary, search engines, criticism, parody, news reporting, research, and scholarship. Fair use provides for the legal, unlicensed citation or incorporation of copyrighted material in another author’s work under a four-factor test….
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.”

“A key consideration in recent fair use cases [on criterion 1] is the extent to which the use is transformative. ”
According to https://en.wikipedia.org/wiki/Transformation_(law)

“Quoting portions of a work to criticize it, as in a book review, is transformative. Likewise, parody is transformative — repurposing a work to mock the work itself or the principles the work represents serves a very different purpose from that of the original work.”

In other words, criticism and parody are presumptively ‘fair use.’

Regarding criterion 2, according to https://www.copyright.gov/fair-use/more-info.html
“Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair. ”

So re-publishing songs or dances from the NXIVM talent shows, not as illustrations for criticism or parody, would  preemptively not be ‘fair use.’ But re-publishing them with annotations for criticism or parody would be.

Regarding criterion 3, clearly less is more. Re-publishing individual frames from the NXIVM talent show videos is clearly ‘fair use.’ Short video clips, especially with annotations for criticism or parody, is likely to be ruled as a ‘fair use.’

Regarding criterion 4, the fact that NXIVM has removed the videos from sale on VIMEO is evidence that the copyright owners no longer consider them to have any potential market value.

While I am not a lawyer, it would seem, therefore, to be perfectly legal for the purchaser of the NXIVM talent show videos to send copies of them to Frank Report, so they could be made available for research, criticism, or parody.

Links to the copies of the videos on the Frank Report servers could then be published. They could be made available to users after they click to agree that they have read and understood an explanation of ‘fair use,’ and agree to abide by it. Frank Report readers could then do research on them, and publish criticism or parodies.

It is conceivable that NXIVM would sue Frank Report were this to be done. However, it appears that our host is eager to be sued, because his lawyers are prepared to use the discovery process of such a lawsuit to unravel the Raniere-verse.





About the author

Reporter

1 Comment

Click here to post a comment

Leave a Reply

  • The funniest part of this story is that it shows just how little Raniere has changed over the years. Approximately 15 years ago, Raniere sued Rick Ross – claiming that Ross’ publication of some of Raniere’s patent-rejected modules on the internet violated Raniere’s copyright protections. Now, after losing just about every motion he ever filed in the Ross case, Raniere’s multi-million lawsuit has come down to him still suing the former NXIVM student who gave Ross the modules – and using a one-eyed “I-can’t-fly-any-more” attorney to do that.

    You are a sad little man, Keith…

%d bloggers like this: