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montysimmons
montysimmons, Patent Prosecutor
Category: Intellectual Property Law
Satisfied Customers: 230
Experience:  Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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Software copyright on my Videos

Resolved Question:

Software copyright . 


 


Hi i make Videos about How to Download Software's , Like Windows 8 or Ccleaner or YouTube Video Downloader and many more .   in the Videos i record my laptop screen  to show how to Download the Software but i always get a copyright Strike  on my video in the end.


 


and i Monetize the videos that i make about how to download a Software .  so what i wonder how can i make a video to show people how to download a Software With out getting a copyright Strike on my Video? 


 


would i get a copyright Strike  if i just record my self in the video talking in the video and saying if you wanna download this video click on the link Below ?


 


Please help me understand about how can i make videos about how to download a Software with out getting a copyright strike


 

Submitted: 10 months ago.
Category: Intellectual Property Law
Expert:  montysimmons replied 10 months ago.

I do not fully understand the term "copyright strike" but I can tell you that what you describe is likely NOT a copyright violation.

 

BACKGROUND

 

In a copyright infringement case, the plaintiff must show:

 

(i) ownership of a valid copyright; and

 

(ii) unauthorized copying of the copyrighted work."

 

Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003).

 

You are not contesting (i) "ownership" but you could contest (ii) unauthorized copying of the copyrighted work.

 

Your defense is "Fair Use"

 

 

FAIR USE

 

The Copyright Act of 1976, 17 U.S.C. § 107, sets forth four, non-exclusive factors that a court must consider in determining whether a particular use of a copyrighted work is a fair use.

 

[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

 

 

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

 

(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.

 

Every case must be decided on its own facts: no bright line rule.

 

 

YOUR FACTS

 

 

(1) Purpose and Character of use

 

 

This is the "heart of the fair use inquiry". Supreme Court has made it clear that commercial uses are not presumptively unfair.

 

Here, you are not trying to profit unfairly off the software, you are trying to add to the value of the software by making access to same easier.

 

This factor leans toward fair use.

 

 

(2) the nature of the copyrighted work

 

Two major issues

(1) whether the work is more creative or factual in nature, and

(2) whether it is unpublished, in which case the right of first publication is implicated.

 

Núñez v. Caribbean Intern. News Corp., 235 F.3d 18, 23 (1 Cir. 2000) (citing Harper & Row, 471 U.S. at 563-64).

 

 

Here the work is (1) creative and (2) published.

 

Basically what the courts wish to protect is the author's right to be the first to publish his/her work. Here the work is already published but it is a creative work.

 

 

At worst, this factor is neutral and could lean in your favor (toward fair use).

 

 

 

(3) Amount and Substantiality of Work Used

 

 

The third factor requires a court to examine the amount and substantiality of what was used in relation to the copyrighted work as a whole. Harper & Row, 471 U.S. at 564. It is both a qualitative and quantitative analysis.

 

If one copies the "heart of the work" one is going to have a problem no matter how much was copied.

 

What you describe appears to "De minimis" coping/use: the amount copied/taken/used is so small that it makes no difference.

 

 

This factor leans heavily in your favor (fair use).

 

 

(4) Effect of Defendants’ Use on the Market

 

The Supreme Court has stated that this factor is “the single most important element of fair use.” Harper & Row, 471 U.S. at 566. “Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied.”

 

 

Here, not only does your product not compete with the original product, your product should actually improves the market for the original.

 

 

This factor leans heavily in your direction (Fair use).

 

 

CONCLUSION

 

Any coping of video images of the original software used in your video tutorials on how to Download Software is almost surely fair use, and thus, there is not copyright infringement and you do not need permission to make such videos.

 

 

Copyright "Strikes"

 

 

I am not sure what copyright strikes are but I assume some website is saying your videos are a copyright violation per some website rule.

 

Just respond by saying that:

 

"My videos do not infringe anyone's copyrights per the "fair use exemption" defined under section 107 of Title 17 of the United States Code. (The US Copyright Act)."

 

 

Others may or may not honor your opinion on the issue but you will be correct.

 

 

 

Customer: replied 10 months ago.

Hi thank you very much for your Info you are very smart {#emotions_dlg.smile}


 


i got the Copyrights Strikes on YouTube


 


and from now i make videos about Downloading Softwares while iam front of the Camera


 


Please watch the video that i made and tell me if there a chance i can get a copyright Strike for that


 


heres a link


 


http://www.youtube.com/watch?v=KNQ4xUhG3h0

Expert:  replied 10 months ago.

 

Well, CNET.com might complain about you copying and pasting their Editor's Review article in the video's "Show More" section, but otherwise the video is OK.

 

 

 

 

 

montysimmons, Patent Prosecutor
Satisfied Customers: 230
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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