Fair Use

“Fair use” aka Fair Dealing (UK)

Fair use is the single most misunderstood piece of IP related law in this community.  If you’re using this as justification for modding someone else’s work. Make sure you really understand what you are claiming is legal. I don't say this lightly:

Fair use is almost impossible to apply to Arma modding. In my experience 99.99% of non-academic or art related fair use claims are rubbish excuses to justify stealing someone’s content.

Let me explain why. 

Fair Use or ‘Fair dealing’ (in the UK) is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. It is not a legal right. There is no statutory definition of fair dealing under EU, UK or US law - it will always be a matter of fact, degree and impression in each case.  Nor is it judged in isolation. The context of use plays a factor, as does how you come by the material you are claim "fair use" for.

The common questions asked are (but not limited to):

• How would a fair-minded and honest person have dealt with the work?
• What is the intent of the disputed piece of work? 
• Is there any intent to hide, deceive or otherwise deprive the original Author of his/her moral rights?
• How is the work to used, publicly or privately?

And there is another factor that the un-initiated don’t seem to realise. The type or material also affects how and what sort of questions are asked. If it’s a research paper or book then some pieces of the legislation are applicable. If its Artwork (which 2D and 3D work is regarded as) a lot of the same questions and legislation simply do not apply. As I said it’s a very complicated clause to use. And its something that rarely succeeds in Art related cases.

Useful Graphic from Georgetown Law School

Fair use, when applied correctly allows you to take small parts of someone else’s work for the purposes of either:

• Commentary and Criticism – let’s say addon is used in a Video review. Covered in Fair use in my opinion. Although if the video was monetised and the addon had a no commercial clause in the EULA. Its best to seek permission. But this is how News shows/sites may use short clips of video without prior consent.

• Parody – Again in a Video making fun of something – Fair use. In the context of Arma I can’t see justification for adapting an addon here.  

• Teaching – This is a tricky one. It’s a fine line, I have had two case where people have tried to use teaching and education as reason for ripping my models.  First was a private training company was using some of our models to teach people about 3D modelling and game design without a licence. (I actually went on the course and discovered it). They claimed fair-use and it got laughed out of court. Second was a university lecturer who was passing out some of my models to his class.  His students were selling them.

• Non-Commercial Research and Private Study – Now this is a common claim. And it’s the part people most often get completely wrong. The research part is largely inspired by Academic research for published works like history or text books for education and business. But it can apply in the case of addons.  Its considered “Fair” by most creators that people can ‘peek’ inside addons to see how things are done. But if you take anything from that addon and re-package it then your “Fair use” defence collapses. And it becomes ‘theft’.

There really isn't any part of the guidence or legislation that you can easilly apply to an Arma modding use case.

Its easy to get confused by the terms, but it boils down to ethics. Taking someone else's models, textures, scripts or configs to make your own addons does not fit in any of these categories. No matter how much or how little you take.  Before you try and claim fair use just ask yourself a few simple questions:

1. Should I be doing this?
2. Would the Author object?
3. Would I like it if someone did this to my work?

If the answer is "no" to any question then stop.  Even if you think its "Yes", have some basic courtesy and ask the Author anyway.  You might just be given the source and help saving you a load of time.

If you don't ask, you might just end up in Legal trouble.

Links

1. Exceptions to Copyright – UK Law - https://www.gov.uk/guidance/exceptions-to-copyright
2. Fair-Dealing - http://www.legislation.gov.uk/ukpga/1988/48/section/29
3. Measuring Fair Use: The Four Factors- Stanford US law - https://fairuse.stanford.edu/overview/fair-use/four-factors/
4. https://photoclaim.com/en/fair-use/
5. https://fullscreen.com/2014/08/20/what-is-fair-use-what-isnt/
6. https://www.library.georgetown.edu/copyright/fair-use
7. https://kendricklawgroup.com/understanding-fair-use/
8. https://www.copyright.gov/title17/
9. https://www.artbusinessinfo.com/copyright-and-fair-use-for-artists.html
10. https://www.artsy.net/article/artsy-editorial-art-copyright-explained
11. http://www.hanleybradylaw.com/2014/09/fair-use-in-video-games-part-1-fair-use-basics/