Great post, Corrine. This is an area where the law has not kept up with the technology, unfortunately. So, in many ways, it's a grey area.
As a lawyer, I can say that your summary of the law is correct. Commercial use generally falls outside of "fair use". In general, commercial use simply means using the copyrighted material to profit. Although I suppose it will take a court case to determine for sure, it seems to me that posting copyrighted material on your blog for purposes of making money via upvotes (curation awards), and without any additional criticism or commentary of the work, would be copyright infringement.
However, just because you infringe someone's copyright doesn't automatically entitle them to anything. To collect, they must show damages, and damages are extremely hard, and extremely costly, to prove in 99.9 percent of cases. For instance, in most cases it will be hard to show how much the copyright holder was harmed directly by the infringement. In some cases the copyright holder may actually benefit from the infringement. Consequently, the vast majority of the time, the copyright holder either won't pursue monetary relief for the infingement and instead will, if they really don't want their work exposed in the infringing manner, pursue takedown remedies under the Digitial Millenium Copyright Act (the DCMA).
The DCMA gives copyright holders the legal right to demand that contents hosts remove the infringing material. The do this by serving the Internal Service Provider with a Takedown Notice. After receiving such notice, the ISP must generally remove the infringing material.
However, being effectively uncensorable, blockchains could essentially deny copyright holders with an effective remedy under the DMCA. Unless a court can obtain jurisdiction over a sufficient number of miners (which seems unlikely) to force a hard fork, the material in the blockchain remains forever. However, a court could easily force blockchain browsers (like Steemit) to not display certain information that exists in the blockchain, and this will presumably be the best that a copyright holder can expect.
Currently Steem only stores text and not photos and videos on the blockchain, so as regards the latter, copyright holders could use the DMCA to force the image hosting cite to remove the content, which would then effectively prevent it from appearing on Steemit.
In short, to affirm @leta-blake's point, I'm not sure that the Steem community needs to be anymore concerned about this copyright issue (as regards photos and videos at least) than cites like Reddit and Tumblr are. Copyright holder will almost never pursue monetary damages. The likely case is that they would simply issue a Takedown Notice, which either the image hosting site or Steeemit would certainly honor.
Nonetheless, I personally try to avoid using images that are not my own unless they are clearly in the public domain, and I would encourage all others to do the same. If we don't recognize each other's property right, then shame on us. As to whether we SHOULD have property rights in intellectual property...well...that's a whole other issue.
Thank you for your legal insight.
Some interesting points here. One should however note that we have just recently had a case where a leading torrenting site was taken down and the owner arrested - despite not actually hosting the infringing works themselves. If national authorities start to see Steemit as a haven for copyright theft they could well take similar action particularly since the creators are publicly known and Steem now has a $400 million dollar valuation.
Excellent point! This has been my concern from the beginning. If we don't, as a community, properly police this in the beginning, it could easily spin out of control into something which could destroy this platform we're currently enjoying.
Good point.
Exactly.
I was surprised no one else took the conversation this direction. :) Maybe we'll leave that for another day. Wouldn't it be great if the bots of Steemit and the community consensus becomes our law with no need for coercion or the failed IP system we have today.
Thanks for brining your professional opinion to the discussion.
I absolutely believe creators should have property rights to their own creations. They are who put the blood, sweat, and tears into their own art. When I punch in and out at work, I don't make my paycheck available to anyone else, why should this be different?
Thank you, Sean! I was hoping you'd reply and help shed some light on this.
With steemit, however, the person's earnings are made public. Wouldn't be hard for the original creator to prove at all.
Maybe Steemit would make it that much easier for authors to go after damages because everything is on the blockchain, without dispute. Very interesting to think about how this may change law in the future and how people use the law to sue each other.
Thank you for your time and many thanks for explaining the legal point