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by non_sequitur
3282 days ago
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You (and most people in this thread, and discussing this on the Internet) are confusing 2 completely separate concepts. Fair use is a COPYRIGHT doctrine. It is part of the US copyright law that says, creators of a copyright can enforce their rights against people who misuse their creations, except in certain cases, fair use being one of them. So if Zillow brings a claim under the US Copyright act, McMansion can assert a fair use defense. (https://www.copyright.gov/fair-use/more-info.html) Zillow's terms of service is a CONTRACT. It is separate from whether Zillow can bring a copyright claim. They could sue for both breach of contract and copyright infringement. Fair use is a legitimate defense for the copyright infringement claim (and I agree would likely be successful). It is NOT a defense for the breach of contract claim. There is no such thing as "TOS overriding fair use" because they are on separate and distinct tracks. ("However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.[21]" - https://en.wikipedia.org/wiki/Fair_use) As for whether the arbitration cases show that restrictions on use of proprietary images on browsewrap TOS are enforceable, we'll agree to disagree - jury trials are a far more important right (as someone below pointed out) than whether you can use someone's proprietary images for your own purpose. I find it difficult to believe a judge or jury could (fairly) find that there is no 'meeting of the minds' on whether you can take and use any images, website content, code, etc. you feel like from someone's website or online product under a browsewrap license. It's a significantly different issue than whether an arbitration clause can be enforced. I would argue that most people know that 'taking things from other people is bad and not allowed' without requiring prominent notice on a website about it. But this case will be litigated, so we'll never know. |
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I don't know it to be certainly true, if you can cite something solid on the point I'd be happy: however in general there is such a principle, that certain rights can't be disclaimed.
Taking a logical approach - and law is not always logical - Fair Use could be disclaimed, eg in a ToS, then all Media corps would say words to the effect "this work can't be used under USC's Fair Use legislation" and the democratic law would then be subverted entirely.
Per your final para, most people do know infringement (no one 'took' anything, it's a copy) is not allowed [tortuous]. But, Fair Use very rightly allows copying for parody, reporting, education and similar purposes. They also know that no matter what you try to claim about not using images of your product, news and review, parody and education _are still allowed_ (not in all jurisdictions, however).
The established precedent is n that a browsewrap license needs affirmative action - checkbox, click-thru/interstitial, etc. - this precedent means nothing written in the license is pertinent, the viewer isn't party to the contract.