Editing Fair use (section)

=== Internet publication ===
A U.S. court case from 2003, ''[[Kelly v. Arriba Soft Corp.]],'' provides and develops the relationship between [[thumbnails]], [[inline linking]], and fair use. In the lower District Court case on a motion for [[summary judgment]], Arriba Soft's use of thumbnail pictures and inline linking from Kelly's website in Arriba Soft's image [[Web search engine|search engine]] was found not to be fair use. That decision was appealed and contested by Internet rights activists such as the [[Electronic Frontier Foundation]], who argued that it was fair use.

On appeal, the [[United States Court of Appeals for the Ninth Circuit|Ninth Circuit Court of Appeals]] found in favor of the defendant, Arriba Soft. In reaching its decision, the court utilized the statutory four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution as the original artwork was. Second, the photographs had already been published, diminishing the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase the exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a [[default judgment]] after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.

In August 2008, Judge [[Jeremy Fogel]] of the [[United States District Court for the Northern District of California|Northern District of California]] ruled in ''[[Lenz v. Universal Music Corp.]]'' that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material. The case involved Stephanie Lenz, a writer and editor from [[Gallitzin, Pennsylvania]], who made a home video of her thirteen-month-old son dancing to Prince's song "[[Let's Go Crazy]]" and posted the video on [[YouTube]]. Four months later, [[Universal Music]], the owner of the copyright to the song, ordered YouTube to remove the video under the [[Digital Millennium Copyright Act]]. Lenz notified YouTube immediately that her video was within the scope of fair use, and she demanded that it be restored. YouTube complied after six weeks, rather than the two weeks required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair use of the song.<ref>{{cite news|first=Bob|last=Egelko|title=Woman can sue over YouTube clip de-posting|url=http://www.sfgate.com/news/article/Woman-can-sue-over-YouTube-clip-de-posting-3199389.php|work=San Francisco Chronicle|date=August 21, 2008|access-date=November 16, 2015|archive-date=November 17, 2015|archive-url=https://web.archive.org/web/20151117031050/http://www.sfgate.com/news/article/Woman-can-sue-over-YouTube-clip-de-posting-3199389.php|url-status=live}}</ref> On appeal, the Court of Appeals for the Ninth Circuit ruled that a copyright owner must affirmatively consider whether the complained of conduct constituted fair use before sending a takedown notice under the Digital Millennium Copyright Act, rather than waiting for the alleged infringer to assert fair use. 801 F.3d 1126 (9th Cir. 2015). "Even if, as Universal urges, fair use is classified as an 'affirmative defense,' we hold—for the purposes of the DMCA—fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that because 17 U.S.C. §&nbsp;107 created a type of non-infringing use, fair use is "authorized by the law" and a copyright holder must consider the existence of fair use before sending a takedown notification under §&nbsp;512(c)."

In June 2011, Judge [[Philip Pro]] of the [[United States District Court for the District of Nevada|District of Nevada]] ruled in ''[[Righthaven v. Hoehn]]'' that the posting of an entire editorial article from the ''[[Las Vegas Review-Journal]]'' in a comment as part of an online discussion was unarguably fair use. Judge Pro noted that "Noncommercial, nonprofit use is presumptively fair. ... Hoehn posted the Work as part of an online discussion. ... This purpose is consistent with comment, for which 17 U.S.C. §&nbsp;107 provides fair use protection. ... It is undisputed that Hoehn posted the entire work in his comment on the Website. ... wholesale copying does not preclude a finding of fair use. ... there is no genuine issue of material fact that Hoehn's use of the Work was fair and summary judgment is appropriate."<ref>{{cite news|url=http://www.dmlp.org/sites/citmedialaw.org/files/2011-06-20-Order%20Granting%20Mot%20to%20Dismiss%20in%20Righthave%20v%20Hoehn%20Order.pdf|title=Righthaven v. Hoehn (District Court of Nevada)|date=June 20, 2011|access-date=April 2, 2016|archive-date=January 4, 2017|archive-url=https://web.archive.org/web/20170104183847/http://www.dmlp.org/sites/citmedialaw.org/files/2011-06-20-Order%20Granting%20Mot%20to%20Dismiss%20in%20Righthave%20v%20Hoehn%20Order.pdf|url-status=live}}</ref> On appeal, the Court of Appeals for the Ninth Circuit ruled that [[Righthaven]] did not even have the standing needed to sue Hoehn for copyright infringement in the first place.<ref>{{cite news|url=http://fairuse.stanford.edu/case/righthaven-llc-v-hoehn/|title=Righthaven v. Hoehn (9th Circuit)|date=May 9, 2013|access-date=April 2, 2016|archive-date=March 11, 2016|archive-url=https://web.archive.org/web/20160311053415/http://fairuse.stanford.edu/case/righthaven-llc-v-hoehn/|url-status=live}}</ref>