Copyright and Fair Use: Is it okay to post song lyrics in message board forums?

As a moderator of a "private" message board, I've been drawn into copyright discussions lately in response to a member posting lyrics to various popular songs. Like most internet service providers, the hosting company for this particular forum hasn't been much help in advising the moderators how to deal with the problem. Most providers will immediately remove copied content if the copyright owner complains, and will ban repeat violators. However, the artists or recording companies who own copyrights of the lyrics posted on our message board are unlikely to complain, or to ever even be aware of this reproduction in a "private" forum.

Does this mean the reproduction is okay under "fair use"? I'm not a lawyer, and I realize this is a gray area under the copyright laws, but as a writer, I feel strongly it is not "okay".

A variety of factors determine whether reproduction of copyrighted work is "fair use". Section 107 of the Copyright Act lists various purposes that may be considered fair, such as for criticism, news reporting, teaching and research. According to the U.S. Copyright Office, Section 107, four factors are to be considered:

• the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.
  

Some in my group have argued that because ours is a private forum and the original poster is not seeking financial gain from copying the work, that posting the song lyrics falls under "fair use." I disagree, based in part on the fact that the entire work is being copied rather than small quotes relevant to a particular discussion. And our "private" group has over 500 members - not exactly a small audience in the privacy of your own home.

Some believe posting the lyrics benefits the copyright owner by publicizing their work and perhaps encouraging potential consumers to purchase their own copies. They justify the copyright violation by telling themselves and others that the artist 'won't mind.'

It is true that many copyright owners do not mind and in fact appreciate unregulated distribution of their work. Leo Babauta writes in the "Uncopyright" section of his Zen Habits blog, "If someone feels like sharing my content on their blog, or in any other form for that matter, that seems like a good thing for me. If someone wanted to share my ebook with 100 friends, I don’t see how that hurts me. My work is being spread to many more people than I could do myself. That’s a plus, as I see it."

I support Leo's right to release his work into the public domain, but I do not agree that copyright laws should be violated just because the offenders don't see how it's hurting anyone. This attitude that it's “no big deal” contributes to the devaluation of copyright protection that is definitely occurring as reproduction of creative and intellectual property becomes easier and more common.

Studying the case law and accurately determining what is “fair use” is complicated and tedious, even for someone passionate about protecting copyright. But I agree with the U.S. Copyright Office, “When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation.”

In other words, if in doubt, don’t do it. To err on the side of caution in this instance supports the general nature of copyright protection in an era when it is definitely threatened. Not to do so devalues the creative spirit, and unless you are certain that the copyright owner “doesn’t mind”, you risk infringing on their livelihood.