Whether You Know it or Not You Gave a Warranty

Copyright(C)2003 Stephen Bucaro

You may not know it, but when you sell a product you automatically provide buyer with a very extensive warranty. Article Two of Uniform Commercial Code provides buyers with implied warranties of merchantability, fitness, and noninfringement. Few sellers are even aware of existence of these warranties, yet they expose seller to liability far in excess of products price.

* Implied Warranty of Merchantability

The Implied Warranty of Merchantability means your product must be "fit for ordinary purposes for which such goods are used". Because standard for"merchantability" has never been defined, this warranty is very ambiguous. Over years, merchantability has been defined on a case-by-case basis.

When you sell a product, a warranty that product is "merchantable" is implied, unless you specifically exclude that warranty. The Warranty of Merchantability can be excluded only with "conspicuous" text. The exclusion text must use a different size or color of text than rest of contract. The exclusion language must explicitly mention "merchantability".

* Implied Warranty of Fitness

The Implied Warranty of Fitness means your product must be "fit for a particular purpose". Will The court interpret Warranty to mean fit only for purpose for which product was designed? Do you know every purpose and situation for which your product may be used?

When you sell a product, ambiguous "warranty of fitness for a particular purpose" is implied. Specifically exclude implied warranty of fitness for a particular purpose, or clearly document that product is sold "as-is".

* Implied Warranty of Noninfringement

The Implied Warranty of Noninfringement means that your product does not infringe on a third parties intellectual property rights. Can you guarantee that every aspect of your product does not infringe on some patent, trademark, or copyright?

Go Ahead And Use That Copyrighted Material, It's Fair Use!

Copyright(c)2003 Stephen Bucaro

Most people would like to use a picture or some textual information they found on Web, but they assume that copyright law prevents them from doing so. The copyright law provides a "fair use" exception that permits you to legally use copyrighted material for many purposes.

You can legally use copyrighted music, pictures, and textual information that you find on Web for purposes such as critical review, news reporting, teaching or training materials, or a research report. This type of use is not a copyright infringement.

Copyright law does not precisely define fair use. Determination of whether a use is fair use is made on a case-by-case basis, determined by following factors:

* The purpose and character of use.

Examples of fair use are quoting passages for a critical review, a news report, a parody or satire, to illustrate a lesson, or a research report.

Fair use is very liberal for non-profit educational purposes. But using copyrighted material in for-profit training materials is much more restricted. In this case, you need to get permission to use material from copyright owner.

The use of a copyrighted character in a parody of performance that character appears in is fair use. Don't use a copyrighted character to parody a different topic.

* The nature of copyrighted material.

Fair use is very liberal when quoting factual material in editorials, news reports, and research reports. Using quotes from non-fictional or creative material is much more restricted. In that case, stick to short quotes for critical review, or get permission to use material from copyright owner.

* The portion used in relation to material as a whole.

Use of only a small portion of a copyrighted work for purposes mentioned above is usually fair use. The part of material you use should also be only a small portion of new work you are creating.

Make sure that small portion that you are using is not most significant part of copyrighted material. Even though part you use may be only a small portion of material, if it is heart of work, that would be infringement. There is no clearly defined definition as to what portion of a work use of is infringement.

* The effect on value of copyrighted work.

Make sure that part of work you use does not make your new work substitutable for copyrighted work. If so, that is an infringement because it has reduced marketability of copyrighted work.

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