What are the Grounds for Requesting a Review?
A Subscriber may challenge the validity of a Copyright Alert on any one or more of the following grounds:
- Misidentification of Account – that the Subscriber’s ISP account has been incorrectly identified as a source of copyright infringement.
- Unauthorized Use of Account – the alleged activity was the result of the unauthorized use of the Subscriber’s account—of which the Subscriber was unaware and that the Subscriber could not have prevented.
- Authorization – the use of the copyrighted work (the song or video identified in the Copyright Alert) was authorized by its copyright owner.
- Fair Use – the Subscriber’s reproduction of the copyrighted work and distribution of it over a peer-to-peer network constituted “Fair Use” of the work (according to the legal definition).
- You used the file at issue but your use would be deemed “fair use” under the law. U.S. Copyright law specifies four factors to consider in determining whether an otherwise infringing use of a work is “fair use” and asks courts to look at the specific facts presented to determine whether “fair use” applies in a particular case. The four factors are: (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 scope of “fair use” for digital works has been crafted over several years by federal courts and, in general, to prevail on this defense, you will need to show that both your downloading and distribution of the copyrighted work was for non-commercial purposes; that you used only a small portion of the original; that your use was for commentary, criticism, news reporting, teaching, or research; or that you changed the work and your new version does not harm the market for the original. The courts that have considered fair use arguments in the context of peer-to-peer downloading and distribution of entire copyrighted works without modification have consistently held that this activity does not qualify as fair use. If you claim fair use, you will need to explain how you actually used the file, and why you believe that such use qualifies as fair use under U.S. Law and may be asked to submit supporting materials. You may also wish to consult a lawyer familiar with copyright law.
- Misidentification of File – the file in question did not consist primarily of the alleged copyrighted work at issue but rather contained other non-infringing material.
- Work Published Before 1923 – the alleged copyrighted work was published prior to 1923 and therefore is not protected under U.S. Copyright law.