Fair Use and Copyright

• Return to the Video/Audio collection (and the "Ecstasy Rising" video itself.)

What is Fair Use?

    'Fair use' is a legal doctrine that allows the use and reproduction of copyrighted materials without permission under some circumstances, such as for the purposes of news reporting, commentary, review, and for educational purposes.  There is no iron rule of what constitutes fair use; if the use of a copyrighted work is challenged by the copyright holder, the dispute can only be settled by a judge's consideration of all arguments for and against fair use. No single factor decides if a use is fair.  (For more information, visit Wikipedia: Fair Use.)

Is this use of "Ecstasy Rising" fair use?

US Copyright law sets out four basic considerations for determining fair use:

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.

The first test probably favors a finding of fair use, since this use is clearly both non-profit and for the purpose of increasing public knowledge (as opposed to simply being entertainment).

The second test centers on whether a work is dramatic (music, movies, etc.) or news/of historical value. As this video is the latter, the second test probably favors a finding of fair use.

The third test focuses on whether the work being used is a vital part of the entire work or an isolated portion.   This test probably weighs against a finding of fair use, since the entire episode was used.  However, in Wright v. Warner Books, Inc., it was held that copying several letters from a collections of an author's letters was not a substantial infringement because the portion used was not significant compared to the scope of the entire series of letters.  In that light, it could be argued that the use of a single episode from a very long-running news show does not represent a substantial infringement on "PrimeTime/PrimeTime Live" as a whole.

The final standard test focuses on whether the use of a copyrighted work will financially harm the copyright holder.  As a current news show, episodes of "Prime Time" very quickly lose value after broadcast; the public has little interest in 'old' news. Several years have passed since the original (and apparently, only) broadcast of this specific episode. Since the original airing also provoked controversy and condemnation by the US government, as a commercial broadcast property, it has rather minimal residual value.  There is, however, a wrinkle in that analysis:  Primetime sells DVDs of past episodes, including "Ecstasy Rising".  Does the inclusion of the show on this site threaten or harm ABC News' financial interests in this property by undermining residual DVD sales?  I believe it does not, for two reasons.  First, such residual sales only occur to the extent that people remember and are interested in the episode. Since having a copy of the video here increases and maintains public interest in the episode, it's very debatable whether or not this use of the episode constitutes a net harm.  Secondly, the copy hosted on this web site is substantially degraded compared to the DVD version; about 80% of the visual data (3/4ths of the resolution) was discarded in preparing the video for the web.  In Kelly vs. ArribaSoft Corporation, the court ruled that a substantial reduction in the visual quality of a reproduction supported a finding of fair use.  The web-quality version of the episode posted here is considerably below broadcast quality (much less DVD quality.)

Proper attribution of copyright (there is no doubt to visitors that this work is copyrighted by ABC News) further bolsters the argument of fair use.

An additional possible defense of fair use was created by Time Inc. v. Bernard Geis Associates, in which the court ruled that a compelling public interest in the information contained in a work also supported a finding of fair use. I believe there is a compelling public interest in the information contained in "Ecstasy Rising".  The scientific frauds it exposes have lead to the imprisonment of tens of thousands of Americans and driven the passage of draconian legislation such as the RAVE Act, which attempts to hold party organizers responsible (with fines of $250,000 or more) if people use drugs at a party.  Thus, the inclusion of "Ecstasy Rising" is not merely an attempt to idly entertain; for the public and political good, the public needs to see it.

 

Sadly, the law is deliberately vague on what's fair use.  The decision to use this episode was not made lightly; the protection of intellectual property is essential to ensure innovation and productivity within the arts and sciences. However, upon careful and protracted consideration of the law and case law, it is my belief that this specific use of this specific episode is justified and falls within fair use.

If you are the copyright holder and disagree, please e-mail me.