Congress has provided for "fair use" of copyright and copyright registered material in accordance with 17 USC §107 for education, research, libraries, and other finite non-commercial uses.

As .edu websites have evolved, they have traditionally hosted student websites which usually display the student's prowess at web creation, pictures of their best buds, beer drinking parties and some of their more "interesting" reports. In most cases, these reports have not been submitted to the search engines and so their use of copyright registered material remained largely hidden within .edu servers. As AllTheSites.com and Google.com index the full reach of the Internet, these websites are being mainstreamed into the search results provided. With this new reach, so-called "fair use" of images and text is being discovered by copyright owners, used without copyright management information to add protection to their work.

Fair use, prior to the popularity of the Internet, for student usage usually consisted of a copy of text or image incorporated into a typed report that was submitted to the teacher. The most widespread distribution that the material usually received was to be thumb tacked to the bulletin board at the front of the classroom for all who passed by to see; or, at best case, incorporated into a county fair project and set up for all to see as friends and family file past the display in the school gym. This worked for "fair use" pre-Internet. The Digital Millennium Copyright Act at 17 USC §512(e) proscribes areas of potential liability for professors and graduate students and §511 holds States, entities and employees of states, liable for copyright infringement. However, most schools prefer to simply hide behind the Eleventh Amendment of the U.S. Constitution which, based on a 2000 decision by the US Supreme Court in Chavez v Arte Publico Press 204 F.3d 601 (5th Circuit 2000), may allow the State, the College and its officers and employees acting in their official capacities to avoid payment of damages for copyright infringement.

After a recent exchange with the Assistant General Counsel for Oakland University, Rochester, Michigan, Ms. Pamela Heatlie, I was inspired under the protection of "free speech" to develop this issue for NetCopyrightLaw.com. When I requested payment of $2,500 for five hours of effort to resolve the posting of images on a student's website that was indexed by Lycos.com RichMedia, Ms. Pamela Heatlie responded: "As you know, Oakland University is under no legal obligation to pay the amount requested. Please understand that any demand for payment that you submit to the university will either be returned to you or destroyed. (Emphasis supplied by NetCopyrightLaw.com) Sincerely, Pamela Heatlie". It was this attitude that Oakland University couldn't care less about my time to resolve an issue with one of its students that made me think about other "fair use abuse" issues over the past year or so. I have dealt with a number of these issues that really don't seem to be protected under "fair use" in the traditional sense (the report thumb tacked to the bulletin board). The Internet allows a student to download the exact image into their report and post the report on a medium that allows subsequent widespread access to users around the world and opportunity for further misuse since copyright management information, while required by 17 USC §107, is routinely not included by the student.

The question then begs, does this new access by AllTheSites.com and Google.com that mainstreams what used to be a traditional "fair use" change the picture, so to speak, and change the way "fair use" should be viewed. Should .edu websites be required to take measures to prohibit indexing by the search engines? Of the so-called Internet "fair use abuse" that I've dealt with, not one provides attribution to the source of the material or anything that might direct a user to the original source. Thus the images and/or text are seen out of context, without copyright management information and without the express permission of the copyright owner.

In order to enhance the thought process on these issues, I have selected a few of the many take down notices that I've used to enforce my copyright registration in order to demonstrate the shameful "fair use abuse" being perpetrated upon owners of copyrighted material.

Professor Laura Gasaway, University of North Carolina Every now and then, one bumps into someone who is just a bit too presumptuous. My instant case example involves the most distinguished and erudite Professor Laura Gasaway, Professor or Law and Director of the Law Library the University of North Carolina-Chapel Hill. She chose to cite Kelly v Arriba Soft, Inc., for a class discussion on Internet Copyright Infringement, with a direct link to a pdf on my NetCopyrightLaw.com rather than a link to my website's front page. I sent her a polite note requesting that she direct her fledgling law students to my front page for a dose of legal reality of copyright ownership. She took issue with my suggestion of "fair use abuse" for her "deep linking" and here, as I promised Ms. Gasaway, is the "fodder" for our respective discussions and positions, our exchange on the subject of "fair use abuse". Despite her words of contempt for my request and her vow to "avoid" NetCopyrightLaw.com, I have noted at least one recent extensive (and documented) review of NetCopyrightLaw.com by Ms. Gasaway and frequent visits by UNC students. So much for "avoiding" NetCopyrightLaw.com as "threatened" by Ms. Gasaway. Maybe the case is too compelling to avoid?

Connecticut Community Colleges Dr. Khalid Chaudhary -- based on a Nastygram response from Connecticut Assistant Attorney General Bernard F. McGovern, Jr., apparently at the behest of Connecticut's Attorney General, Richard Blumenthal -- instructed a number of teachers, ostensibly a summer training program, on the fine art of stealing images and text or HTML code for his "Amish Origins's The Amish Lifstyle" training material. Dr. Chaudhary seemingly "forgot" to remove the training program from his Internet website. It was then indexed by Google.com where his "Amish Origins" subsequently was ranked higher than my own Amish.Net website from which the material was taken. Shamelessly, on his website, Dr. Chaudhary noted that text and html source code, could be copied from the Internet so that a teacher didn't have to "reinvent the wheel." Dr. Chaudhary didn't even follow his own instructions not to use copyright registered images and text. McGovern, Jr., advised me that there was no legal obligation by the Connecticut Community Colleges for use fees or damages and cited Chavez v Arte Publico. That, of course, remains to be seen!

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Oakland University, Rochester, Michigan Ms. Pamelia Heatlie, an Assistant General Counsel, suggested that should I have the audacity to send a bill for $2,500 to the Oakland University, "Please understand that any demand for payment that you submit to the university will either be returned to you or destroyed." My proposal to send a bill was to compensate for time spent researching and following procedures for removal of six images which are copyright registered to either myself or my associate, Doyle Yoder, and were published in America's Amish Country (1992) and licensed for use as part of the Amish Lifestyle@Amish.Net. A student at Oakland Universal used the six images, without copyright reference of any sort, in a lesson plan about The Amish Lifestyle, despite the fact that each of the images have a full mouseover copyright statement, there was no attribution whatsoever. Much to my chagrin, despite access to the website and the images being removed, I discovered a month later that access to the images was restored. I subsequently submitted another letter not to Ms. Heatlie but to the President of Oakland University, Gary D. Russi.

Diggit.com Exactly like Arriba Soft's Arriba Vista Image Searcher, the founders of Diggit! Image Search Engine, Bill Armitage, Benj Lipchak and Tom Frisinger claimed "fair use" of thumbnails when challenged over the specific use of their twelve million image database. Oddly enough, just after being challenged on the point that they used "full sized" images in their display outside the context of the original setting, they put up a For Sale sign on the website and took the database off the Net. The decision in Kelly v Arriba Soft, by the Ninth Circuit Court, clearly makes this website's operatiom infringing on the copyrights of seventeen million images. According to information on their website, it was a technology demonstration site", or, what they meant, Diggit's Founders held out the use of twelve million images that didn't belong to them to help themselves sell their software so that they could make big profits, as they stated in their Corporate Mission, "the company seeks to provide significant financial returns for its investors and all employees." The fact that the organization's sole purpose was "The Diggit! Image Search Engine is brought to you by Bulldozer Software, Inc., as a demonstration of the technology we've developed" makes its claims of "fair use" very suspect!

Click on Diggit! Image Search Engine today, you will find that it redirects to Disney's UK Diggit website at http://www.diggit.co.uk. Interesting.

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For information about Copyright Law, please see the Copyright Office's website.