What is freebooting and why should I care?

On behalf of Kaufhold & Dix Patent Law posted in Patent Law on Friday, April 6, 2018.

Facebook is in the crosshairs over subscribers’ personal data privacy. The issue is that the company, Cambridge Analytica, mined data of millions of Facebook users and allegedly used it to target political ads more than two years ago. Facebook Chief Operating Officer Sheryl Sandberg acknowledges Facebook mishandled the matter saying, “We made mistakes and I own them.”

This is not the first scandal for the social media company. Back in 2015, a YouTube video creator accused Facebook of facilitating the thefts of hundreds of ostensibly copyrighted videos to boost its numbers on the volume of views it had provided. The allegation was that the Facebook users uploaded the videos without permission or credit. The concern was that copyright holders were losing out on potential revenue. The matter led to Facebook creating controls, but it took some 18 months.

This so-called freebooting is illegal. But because of the “fair use” doctrine, enforcement can be complicated. Under this rule, a person can use portions of a copyrighted work without permission. The question that raises is what are the limitations?

There are several factors courts measure to determine the answer.

The nature of the use

If the use of the material was for commercial gain, it might be deemed unfair use. However, if it was used for nonprofit educational purposes, or amounted to a new expression of an idea, it might be protected. Also, if infringement involves use of a substantial amount of a copyrighted work and the used material is central to the original, that would be unacceptable. A use for the sake of producing a parody, however, might be protected.

The nature of the original work

Historical and scientific work might have less fair use protection than creative non-fiction, fiction, pictures or artistic works. That’s because of the potential benefit the factual material has to the free exchange of ideas. If a creator does not publish his or her work, then the work would have greater protection against unauthorized use.

The influence of the use on the value of the work to the copyright holder

Courts tend to find unfair use if an unauthorized use negatively affected the copyright holder’s current or potential income.

If you have material you want copyrighted, it needs proper registration to deliver the greatest protection possible. Seek the help of an experienced attorney to understand your options.