A Subscriber may challenge the validity of a Copyright Alert on any one or more of the following grounds:
- Misidentification of Account
- Unauthorized Use of Account
- Fair Use
- Misidentification of File
- Pre-1923 Defense
Misidentification of Account – that the Subscriber’s ISP account has been incorrectly identified as a source of copyright infringement.
To prevail on a “Misidentification of Account” defense, the Subscriber must show why s/he believes that the account is not his/hers and then the neutral must do the work to confirm that the Subscriber is/is not correct. The Independent Reviewer assigned to the case will have to find that a factual error was made in identifying the Internet address (IP) used to engage in piracy and/or that the IP address was incorrectly matched with the Subscriber who received the Copyright Alerts under the CAS.
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.
To prevail on an “Unauthorized Use of Account” defense, a Subscriber must show that the alleged copyright infringement activity occurred because someone who is not a member or invitee of that person’s household (for example, someone using an unsecured wireless router or a hacked Internet connection) used his/her account to engage in copyright infringement without permission or the Subscriber’s knowledge and in a way that could not have been reasonably prevented. The Independent Reviewer will ask for evidence from the Subscriber that shows these criteria have been met. Importantly, this defense may only be used once by a Subscriber in a CAS review case. The only exception to this rule is where a subscriber can show that despite reasonable attempts to secure his or her account, the account was used in an unauthorized manner again.
Authorization – the use of the copyrighted work (the song or video identified in the Copyright Alert) was authorized by its copyright owner.
To prevail on an “Authorization” defense, a Subscriber must credibly demonstrate, with written (or other documented) evidence, that the alleged copyright infringement activity was specifically authorized by the owner (or an authorized representative) of the movie, TV show or musical recording(s) in issue. This evidence typically would include a real and unaltered copy of the agreement or other written communication that the Subscriber claims grants authorization to use the copyrighted work.
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.
Fair use is a defense used in response to a claim of copyright infringement. If your use of someone else’s copyrighted work is a fair use, that means you can use it without their permission. Fair use is generally limited to particular sorts of uses, including commentary, criticism, scholarship, research and news reporting. It does not mean any use that you might consider “fair”; rather, it must satisfy a particular test that is in the copyright law and that courts have explained in many cases. The test has four factors. First, what is the “purpose and character” of the use? This factor looks at whether the user transformed (changed) the original in some significant way, and whether the use was done for commercial or noncommercial purposes. The more transformation, the likelier it is that the use is a fair use. Also, noncommercial uses are more likely to be fair than commercial ones where the user is offering the work for a fee. Second, what is the “nature of the copyrighted work”? This factor takes into consideration whether the original copyrighted work was factual like a biography or creative like a novel, or most popular movies and songs. It also considers whether the copyrighted work was published (distributed publicly) or unpublished (the owner attempted to keep it private). If the work you used is fictional, or not previously published, your use is less likely to be a fair use. Third, what is the “amount and substantiality” of the copyrighted work that was used? Generally speaking, the more of someone’s work that you use, the less likely that use is to be a fair use. Using most or all of someone else’s work is generally not a fair use. Fourth, what is the “effect of the use upon the potential market for or value of the copyrighted work”? Where a new use is substantially different from the original, it may have a limited effect on the value of the original. Where the new use can act as a substitute for the original and divert sales away from the copyright owner, courts will find market harm. Where the use harms the market for the original copyrighted work, courts generally don’t find fair use.
A number of courts have considered whether downloading and distributing (“sharing”) digital files that are identical to the original through P2P systems is fair use. To date, all of these courts have held that this behavior is not fair use. See A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001) (even where the works are not offered for sale, exchanging them for others as a barter is commercial and not fair use); Sony BMG Music Entm’t v. Tenenbaum, 672 F. Supp. 2d 217, 232–37 (D. Mass. 2009) (downloading and “sharing” files has an effect on the market for the original work even if the user would not have purchased every one of the files traded). The technology used by the content owners has been designed to capture only instances where entire songs, movies or TV shows were distributed without any commentary or alteration. Unless the technology has failed in some way, a fair use defense would typically not be available to you. Nonetheless, technology can occasionally malfunction and if you believe your use of a particular file constitutes “fair use” under the law, you should raise this defense. If you claim fair use, you will be asked to submit supporting materials, including a copy of the file that you believe to be a fair use, and an explanation of why you believe your use was a fair use. 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.
To prevail on a “misidentification of file” defense, the Subscriber must show that the digital file shared through a peer-to-peer network does not primarily contain copyrighted material but contains other non-copyrighted material as well. This is intended to apply, for example, in the unlikely event a file with the name of a popular movie or musical recording actually did not contain that movie or musical recording but other non-copyrighted material and was still identified in a Copyright Alert. The methodology used to identify files, however, is specifically designed to avoid such cases.
Pre-1923 Defense – Work Published Before 1923 – the alleged copyrighted work was published prior to 1923 and therefore is not protected under U.S. Copyright law.