Tuesday, February 15, 2005

Nerf-Coated World: Fair use

Nerf-Coated World: Fair use

Fair use

Ace points out that newspapers are starting to warn bloggers against excerpting material from their work.

Do they have a case? Well:

Section 107 of the Copyright Law outlines the general principles of the fair use provision:

The fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching, … scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered … include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for, or value of, the copyrighted work.

So basically, bloggers, this boils down to a few simple principles:

1. Excerpt. Don’t cut-and-paste. We’re in the business of commenting and criticizing – we’ve got to post part of the original work in order to do what we do. But posting six or seven parpagraphs at a time is pushing it. If you’re “excerpting” half the article, that’s not really excerpting. And it might be copyright infringement.

2. The more of your own original material, the better. The law says that courts have to consider the “amount and substantiality” of the copyrighted work in relation to your work – which basically means that they’re going to look at how much of your work is comprised of other copyrighted material. There’s no set rule-of-thumb for how much is too much, but you don’t want to leave yourself open to the charge that you’re ripping anyone off without contributing anything of your own. Look at your blog – how much is your own work, and how much have you cut-and-paste from articles? Is it 80/20? 50/50? 5/95? The more of your own work, the better.

3. Always link to the original article. When hearing a case, courts will consider the economic damage you’ve presumably done. Well, not only is it good etiquette to link back to the original article, but it also shields you from the charge that you’re depriving a newspaper of its just revenue. If you link to the article (and drive visitors to their site), it weakens their claim of economic damage. It costs you nothing, so you might as well.

Oh, and that “you can’t link to our site without our permission” business? As far as I understand copyright law, that’s utter nonsense and a total stretch. They cannot tell you what you can and cannot link to on your own website. If they really wanted you to stop linking to their site, they could always set up their servers – which are under their control – to deny traffic coming from your site, or any particular site. It is ridiculously easy to do so, from a technical standpoint. But you won’t see them doing that. They know that traffic is good for business. This is just a case of the big media guys trying to strongarm their critics into submission and getting them to do the dirty work. It’s rotten, and it stinks.

To sum up: there is nothing wrong with excerpting articles for commentary or criticism under current copyright law. Just don’t be a parasite.

I want to stress that this is not legal advice, and that if you have any specific legal questions – especially if you’re, say, being sued right now – talk to your IP attorney.

Update: This whole issue seems to have gotten the blogosphere’s attention. Michelle Malkin, radio host Kevin McCollough, and Michael Bates himself have all linked here. Welcome, all!

Great blogpost from Nerf Coated World

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