copyright intellectual-property licensing fair-use youtube
Fair use: is legality of use determined separately from legality of source?
<p>Youtube and other content sites have extensive resources (<a href="https://www.youtube.com/yt/copyright/fair-use.html" rel="nofollow noreferrer">Youtube Fair Use Guidelines</a>) that describe the conditions for fair-use. However, these do not contain adequate treatments of legal content acquisition. </p>

<p>Providing that an individual:</p>

<ol>
<li>Seeks to use copyrighted content that is not available from publicly-licensed sources (e.g. MovieClips.com, public domain)</li>
<li>Uses content in an objectively "fair-use" manner</li>
<li><p>Takes illegal measures to acquire content (e.g. <a href="http://lifehacker.com/5978326/is-it-legal-to-rip-a-dvd-that-i-own" rel="nofollow noreferrer">ripping DVDs</a>, torrent, breach of contract)</p>

<ul>
<li>Will fair-use and source legality be determined separately in a court of law? </li>
<li>Further, will a judicial determination that the content source (or method of acquisition) was illegal necessarily determine that usage was "unfair"?</li>
<li>Conversely, does fair-use ever justify the method of sourcing content (especially dvd-ripping)? This has been implied in responses elsewhere on stackexchange.</li>
</ul></li>
</ol>

<p>Context: United States</p>

<p>There are two senses in which "content" acquisition could be legal / illegal. One regards the act of copying from a source, and the other regards the legality of accessing that source. Copyright law does not distinguish between making an unauthorized copy from a DVD that you own, as opposed to one that you stole.</p>

<p>There is a practical difference between stealing a DVD and copying it, or hacking into a computer and stealing material, in that these acts involve a crime plus an actionable civil tort (copyright infringement): they involve "illegal acquisition" in the second sense, but not necessarily the first. Conversely, acquisition of a borrowed or owned DVD is not illegal, but acquiring material (copying) from the source may be illegal.</p>

<p>Copyright law does not distinguish whether your access was legal or illegal. If you steal a DVD and copy an amount that is consistent with fair use, you may be prosecuted for theft, but that would not create liability for copyright infringement that would not exist if access to the material were lawful. "Ripping" and "torrent" are just popular ways of data acquisition typically associated with infringement. Copying from a DVD is not illegal, and streaming, no matter how fast, is not illegal. Copying without permission or in excess of fair use is what is illegal.</p>

<p>However, outside the bounds of the law, the rights holder might find it okay if you make a copy if you own the DVD (the main record industry special interest organization at some point said "we don't mind", but that doesn't change the law). </p>

<p>The Creative Commons copyright-renunciation license CC-0, and expired-copyright works (so-called "public domain") are effectively immune to the limitations of fair use, in the former case because permission has been unconditionally granted, and in the latter case because the law no longer protects the work (copyright is not perpetual). Most publicly-licensed material is conditionally licensed, and thus it is possible to infringe copyright of publicly-licensed material (by not satisfying the license conditions). Even so, <em>all</em> licensed (and non-licensed) works are subject to a fair use analysis. Whether or not you break into a computer or have permission to access the computer, and in either event if you copy material subject to the Creative Commons Non-Commercial license NC, your liability for copyright infringement is strictly a function of whether you have complied with the license terms, or else your use is "fair use".</p>

<p>If a person puts an illegal copy of a book "out there" and protects it with a password that only he knows, the courts are likely to treat such an offense more generously, as compared to a person who wholesale steals hundreds of books and makes them flagrantly available to one and all. This isn't part of the official treatment of copyright violation, rather, it is an allowed and permissible element of discretion that juries and courts have, in rendering judgment.</p>

<p>I have spent some time reviewing content related to this topic, and will make an attempt at answering my own question in a rigorous manner such that it may benefit other users.</p>

<p><em>Note: Some relevant links were omitted from this post due to stackexchange restrictions on new-users.</em></p>

<h2>Short-answer:</h2>

<p>Fair-use and the various forms of illegally obtaining/modifying content both fall under the exclusive subject-matter jurisdiction of federal courts. But, these two issues would likely be treated separately, as they represent civil and criminal cases, respectively.</p>

<h2>Long-answer:</h2>

<p>Fair-use law is presented in <strong><em>Title 17 Chapter 1 Section 107 of the US Code</em></strong>. Fair-use provisions protect the use of copyright-protected works from claims of civil damages (<strong><em>Copyright Acts § 502 and 504</em></strong>) in specific circumstances. Whether a given instance of use should be considered fair can be decided only by a federal judge. However, the result of this determination has no bearing on a criminal case regarding the method of acquisition of a file. Some instances of copyright-infringement may also be treated criminally, but such cases (e.g. sale of illegally copied content) would be quite clearly in the realm of unfair use, and thus are not considered relevant to this question, except possibly as pertains to torrent piracy, especially in cases of sale.</p>

<p>Criminal consequences were set forth under the <strong>Digital Millennium Copyright Act (DMCA)</strong>. Among other actions, this law criminalized the act of circumventing digital rights management (DRM) access controls. This includes ‘ripping’ DVDs. However, the DMCA explicitly provides some exemptions to its own rules, and a mechanism by which further exemptions may be created. Part of this mechanism requires that the Librarian of Congress issue exemptions from the prohibition against circumvention of access-control technology when it is shown that the technology had a substantial adverse effect on the non-infringing use of copyrighted works (i.e. fair use and other cases). These exemptions expire after three years from their effective date (<em>most recently <strong>September 18, 2015</em></strong>) unless a case is made to the librarian, through the registrar of copyrights, to renew the exemptions. </p>

<p>However, there are some permanent exemptions, and suggestions for new permanent exemptions documented in 
<a href="https://www.copyright.gov/policy/1201/section-1201-full-report.pdf" rel="nofollow noreferrer">Title 17 Section 1201</a>
III. C. <strong>Especially notable among these was “f. All Lawful or Fair Uses”</strong>, though this is currently just a noted suggestion.
Additionally, the U.S. Copyright Office and the Library of Congress <strong>renewed some of the previous temporary exemptions</strong> (see pages 17 and 22-25 of their final rule, <a href="https://copyright.gov/1201/2015/fedreg-publicinspectionFR.pdf" rel="nofollow noreferrer">37 CFR Part 201 [Docket No. 2014-07]</a>). </p>

<p>Thus, there is some variance in the legality of acquiring digital copies, even as applies to DVD ripping in particular. The aforementioned exemptions reveal that there are some cases in which considerations of fair-use have led to exemptions to the DMCA.</p>

<p>It is clear that fair use is intrinsically connected to the issues treated under the DMCA, but as illustrated above, they would likely be treated separately in a legal context.</p>

<hr>

<p><strong><em>SUMMARY</em></strong></p>

<ol>
<li>Will fair-use and source legality be determined separately in a court of law? 
<strong>ANSWER: Probably.</strong></li>
<li>Further, will a judicial determination that the content source (or method of acquisition) was illegal necessarily determine that usage was "unfair"? 
<strong>ANSWER: No, this criminal determination would not lead to a civil determination of fairness. However, this other civil liabilities may still apply.</strong></li>
<li>Conversely, does fair-use ever justify the method of sourcing content (especially dvd-ripping)? This has been implied in responses elsewhere on stackexchange. 
<strong>ANSWER: Sort-of. In some special cases, considerations of fair-use have lead to exemptions to DMCA restrictions.</strong></li>
</ol>

<hr>

<p>Perhaps a relevant follow-up question would be: in the course of legal action pursuing the question of fair-use, can a court exercise a warrant over sources for content used, to determine if criminal liability under the DMCA applies?</p>
