Fair-Use and My Website

The following is my reading of the fair use exception -- I've had no legal training

This essay is based on definitions of the U.S. " Fair-Use Statute" provided by CETUS (Consortium for Educational Technology in University Systems). I've taken statements from their material (shown in bold, italics and quotes) to show why I believe I fall well within the intent of the fair-use exception.

The best known and most important exception to a copyright owners' rights is fair-use.

The Statute Gives Four Factors

The law says four factors must be considered in determining whether the use made of a work in any particular case is a fair-use. These are --

1. Purpose of the use.
2. Nature of the copyrighted work
3. Amount used in relation to the copyrighted work as a whole.
4. Effect of the use upon the potential value of the copyrighted work.

Weighing and Balancing the Factors

". . fair-use must depend upon a reasoned analysis of the four factors of fair-use. The four factors need not all lean in one direction. If most factors lean in favor of fair-use, the activity is allowed . ."

It's not obvious to me any factors weigh against my use but, it seem clear the preponderance of my use weighs heavily in favor of fair-use.

The Meaning of the Four Factors

A primary intent of the fair-use exception is to facilitate learning and education of the public.

In summary, the fair-use exception is intended to facilitate nonprofit, educational uses of information and, it favors allowing the use of factual/nonfiction information. It gives more protection to literature, i.e, creative/artistic writings/compositions.

Though learning/educational purposes are paramount, all four factors must be taken into account before reaching a conclusion as to whether a give situation is fair-use.

1. Purpose:

"Congress favored nonprofit educational uses over commercial uses. Copies used in education, but made or sold at monetary profit, may not be favored."

First and foremost, the entire purpose of my website is education. And, my website is entirely nonprofit. I make no money from it, whatsoever. Note the word 'copies' in the above statement. Even copies are allowed for educational purposes yet, I make no copies of Consumer Reports material. Note the word 'may' -- it indicates some use for profit actual copying thus, extending the exception substantially beyond my use.

"Courts also favor uses that are "transformative" or that are not mere reproductions. Fair-use is more likely when the copyrighted work is "transformed" into something new or of new utility, such as quotations incorporated into a paper, and perhaps pieces of a work mixed into a multimedia product. . ."

This describes my use. I make no reproductions of Consumer Reports material. I don't even use verbatim quotes. Rather, in general, I integrate paraphrased pieces of their information into a mixed multi-content presentation.

2. Nature -- Characteristics of the work being used.

"Courts more readily favor the fair-use of nonfiction rather than fiction."

Consumer Reports magazine is obviously intended to be nonfiction.

"Commercial audiovisual works generally receive less fair-use than do printed works."

Said the other way round -- printed works must expect more fair-use liberties/permission to be taken with their material than audiovisual works.

Consumer Reports is a printed work.

3. Amount -- How much of the material total is used?

"Quantity must be evaluated relative to the length of the entire original and the amount needed to serve a proper objective. ... Copying of an entire work usually weighs heavily against fair-use."

I use only very small amounts of single articles. There are many facts in a single article and, many articles in an issue. I typically use about 5-6 facts from any entire issue. The number of facts in all 72 issues over the 6 years I span is massive -- I probably spread about 30, or so, of these facts over the many topics on my website.

One may also reproduce only a small portion of any work but still take "the heart of the work." The "substantiality" concept is a qualitative measure that may weigh against fair-use.

This is the only provision that may apply to their claim and, it's a very subjective standard. I argue that reporting only a "best" product rating doesn't take the essence of an entire article. Their complete articles provide a wide array of facts, factors and considerations that go into the choice of a product. They repeatedly explain that the top rated item may not be the best choice, depending on your circumstances.

Consumer Reports' own literature justifying their prohibition against commercial use says, "[B]ecause Consumers Union's Ratings are highly detailed and qualified, references to them in advertising most often present a deceptive and skewed picture of the actual results."

Either brief/limited references "take the heart of their work"or, they don't. They can't have it both ways.

4. Effect -- Is it reasonable to assume a use harms the owner?

". . if you make a use for which a purchase of an original theoretically should have occurred . . then this factor may weigh against fair-use."

In other words, if I didn't mention a vanishingly small number of isolated facts from their publication more people would be subscribing to their magazine or online services. Very unlikely!

"Effect" is closely linked to "purpose." .. If your purpose is commercial, then effect is presumed."

My purpose is educational, has no commercial purpose of any kind and produces no income whatsoever. It doesn't draw business away from Consumer Reports.

NOTE: The copyright law doesn't address this issue but, Consumer Reports is not supposed to be in business for profit anyway. They get special tax privileges and exemptions (i.e., taxpayer subsidy) under the claim they are a nonprofit educational organization.

The above essay is based on definitions of the U.S. " Fair-Use Statute" provided by
CETUS (Consortium for Educational Technology in University Systems) a consortium of major universities.