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:So basically, bloggers, this boils down to a few simple principles:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the 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.
- 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.
- 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.
- 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!
Posted by Matt at February 15, 2005 03:41 AM
Comments & Trackbacks
There are no comments or trackbacks posted for this entry yet.
for more info tangential fair use/copyright questions:
a fair use issue with non-commercial blogs
http://alessandrab.blogspot.com/2005/01/my-first-blog-fair-use-issue.html
more answers on copyright -
http://alessandrab.blogspot.com/2005/01/more-answers-on-copyright-kim.html
this site: http://www.chillingeffects.org/copyright/, which has some good summaries of copyright law - from a very US perspective.
Posted by: Alessandra at February 15, 2005 08:29 AM
Ace,
Thanks for this. I found a some fair use principles discussion on Stanford Law's website, but your excerpt is far more concise and to the point.
Posted by: Bill Hennessy at February 15, 2005 11:21 AM
On the issue of not linking without permission, doesn't that defeat the entire purpose of the internet as the information superhighway? Isn't the whole POINT that any person, worldwide, can access any site at any time?
Agreed on the media strongarming.
Congrats on the linkage.
Posted by: ChezLiz at February 15, 2005 11:42 AM
Bill -- thanks! Assuming you actually meant me -- and not Ace (although I hear he is quite sexy, and could easily be confused with me) -- you're the first person, and I really mean the first, who has ever called my writing concise. That's probably the best compliment I've gotten on this blog in a while, considering yesterday, I was lamenting my need for an ambitious editor.
Liz -- Totally. The media-types are trying to go with the strong-form theory of copyright, that any and all usage of the material falls under their umbrella of authority, including linking to the documents. How they claim authority to control link on someone else's site is beyond me. It's like going after someone for posting the address to a business on a bulletin board at a coffeeshop. They can't claim the rights to any and all mention of their work; I can't even begin to imagine the damage our economy would take if copyright was this broad.
I think it's ridiculous, especially on the web, where the medium itself is intrinsically built on the concept of linking. (That's what the HT in HTML stands for: HyperText.)
Posted by: Matt at February 15, 2005 11:56 AM
Tulsa World is among the increasing number of news sites that require a login ID to read their material. That alone is enough to prevent me from reading ANY articles on their site. With bloggers exerpting from the Tulsa World's website and linking to articles, it causes me to evaluate whether it's worth creating a user ID and reading the article (and possibly others in the future).
Tulsa World should thank bloggers who take the time to register, read the news and provde enough information to the blogosphere to drive other readers to their site.
Steve
Posted by: Steve Richardson at February 15, 2005 01:15 PM
Technically, "linking to" another site can't be copyright infringement unless the actual URL itself is copyrighted.
I suspect such a case would fail the acid test, just as any attempt to copyright a street address would almost certainly fail.
More importantly, though, is that a server cannot deny access to it's web content based on where the link originates, unless the link itself contains identifying information, because the server does not know where the client got the URL from.
It is the client's IP address, web browser, Operating system and etc. that the web server sees, not the IP address etc. of the refering server (again, unless refering information has been attached, or if the link is not a pure link, but instead some kind of proxy or caching system).
Any attempt to deny a web page the right to provide a link to another server is the equivalent of trying to deny an author the right to put title, author, ISBN number and publication date of a source in the bibliography of a refering work . . . it is clearly fair use to put a reference into your work.
Note, however, that a link is not the same as an image URL . . . putting the URL of a separable piece of some one else's intellectual property into one's own content, may very well be a violation, especially if that content cannot very easily be distinguished as being a referal to another's site.
In short: . . . show the client's of your site where to get the information you are refering to, don't go get it and give it to them yourself.
Posted by: John Stevens at February 15, 2005 01:27 PM
Given the number of attorneys, and especially intellectual property attorneys, who are bloggers, I would expect that if any of these "cases" ever reach court there will be a terrific rallying-'round the legal right of bloggers to excerpt and link to MSM websites. There must be thousands of litigating attorney-bloggers who would relish the opportunity to take on this kind of bullying tactic. For an immediate step, are there any attorney volunteers who will volunteer to help draft a standard reply to such threatening letters, with citations to legal authority, legal argument and other benchmarks that will let the MSM know that the blogger they are threatening isn't some poor dope in pajamas huddled in a basement, but rather an individual who has obtained legal advice and, if needed, legal representation if the matter goes to court?
Posted by: Paul at February 15, 2005 02:30 PM
Thanks, John -- your analogy comparing URLs to bibliographical information is spot-on.
I would like to add, though, that most web browsers (Internet Explorer and Firefox included, which account for 95% or more of web browsing) do send referrer information when they request a page, and that it is possible to deny access to your site based on that information.
For example, I can easily tell where the links to Nerf-Coated World are coming from today, just by checking my SiteMeter. Your browser sends that information -- your IP address, your operating system, which browser you were using -- and unless you've actively disabled your browser from saying so -- where you came from to get here.
Referrers don't always come through with every hit, but they do for most of them. And in exactly the same way that you can ban IP addresses, you can also deny access to anyone who comes through a particular domain to reach your site. It's very simple to set up in Apache (the most popular web server software), and I'm sure it's not that difficult in IIS (Microsoft's web server software) or any other.
I think the point, though, is that the Tulsa World isn't really concerned with linking. They're just flexing their muscle and trying to cow Michael Bates into submission, by claiming copyright on something that -- as you point out -- clearly falls under fair use.
Posted by: Matt at February 15, 2005 02:47 PM
I have to agree with the commenter above, wonderfully "concise and to the point advice." The best rule of thumb is indeed: "the more of your own original material, the better."
I think that we can be respectful to the pubishers yet still stand up for our right to criticize the media and expose their work in the public square.
Thank you for the good info!
Posted by: Steven J. Kelso Sr. at February 15, 2005 06:47 PM
More importantly, though, is that a server cannot deny access to it’s web content based on where the link originates, unless the link itself contains identifying information, because the server does not know where the client got the URL from.
The server logs show the referring link, and that can certainly be blocked in .htaccess.
Posted by: Buster at February 15, 2005 07:56 PM
Thanks for the well-reasoned advice to bloggers. I plan to send this link to the next blogger who copies (steals) entire articles from my MSM site and then tries to claim reprinting an entire article is "fair use." It makes us big bad MSM people look ridiculous when we send nasty letters. But we wouldn't have to if everyone followed your advice. And, by the way, which knuckleheads in the MSM are trying to say that linking and modest excerpting are not OK?
Posted by: Ken at February 16, 2005 12:24 AM
Odd thing ... when I click on the links on this page (i.e. click on Ken's link or Buster's link, I get redirected to pr0n spam sites that immediately try to download crap on my computer. It's not the sites since when I copy the links and paste them into a new window they work fine. Is anyone else having this problem here or is the trouble on my end?
Posted by: Jheka at February 16, 2005 04:00 AM
The trouble is on your end Jheka. Try Adaware and Spybot. (Google either and find the links.) If those don't work, try 'Hijack this', which concentrates more on browser hijackers (but is far more techie oriented).
Posted by: Kathy K at February 16, 2005 05:27 AM
Ken,
"And, by the way, which knuckleheads in the MSM are trying to say that linking and modest excerpting are not OK?"
MaY I respectfully suggest that you follow the link Matt provided?
http://www.batesline.com/archives/001274.html
It tells of one specific instance where the Tulsa World's VP states "...linking your website to Tulsa World content is without the permission of the Tulsa World and constitutes an intentional infringement of the Tulsa World's copyright and other rights to the exclusive use and distribution of the copyrighted materials."
It's not the first time I've heard this claim that linking is a copyright violation, but it's the first time in at least three years. I thought that idea had quietly died away. I guess I was wrong.
Posted by: UML Guy at February 16, 2005 08:16 AM
What about blogs like mine that focus on satire and parody, by which I mean fart jokes. How does fair use affect us?
Posted by: V the K at February 16, 2005 08:17 AM
Kathy K:
Thanks for the help. It's odd. I ran adaware and webroot spysweeper and spyware doctor and spybot and spyhunter and it STILL happens but, oddly, only from this site. Like I said, odd.
Posted by: Jheka at February 16, 2005 09:53 AM
I find it humorous that while blogs are covered under the fair use standards as they use copyrighted work "for purposes such as criticism, comment, news reporting", and since the typical use is nonprofit, yet blogs might not qualify under fair use considering "the effect of the use upon the ... value of ... the copyrighted work." In most cases, after criticism and comment by the blogs, the value of the copyrighted work is diminished, though in many cases, the value of the copyrighted work may be questionable to begin with.
NED
Posted by: NewEnglandDevil at February 16, 2005 01:01 PM
Jheka -- The only way it's possible for your system to be pulling up pr0n is if you're still running adware somewhere on your system. Gotta admit though: NCW is probably triggering it because it was once a major target for comment spammers... and sadly, it got associated with a lot of nasty keywords.
V the K -- Parody's actually a separate provision of copyright law. It's a different subject all its own, but I can point you in the right direction -- do a google search for parody copyright law, and read up on the definition of what parody really means. It all depends on what you're parodizing and the nature of the material you're using.
NED -- I'd say that blogging can increase the value of a copyrighted work, if it directs traffic to a website where the work is hosted. When they talk about diminishing the value of a work, they usually mean one of two things -- that by copying it, you're depriving the author of revenue (or other value), or you're otherwise damaging the work in a way that makes it less valuable.
Calvin and Hobbes was a case that could illustrate both principles. Bill Watterson (the author) refused to license his characters to be printed on anything. But people did it anyway. They printed up t-shirts, coffee mugs, posters, and lately car window stickers of Calvin peeing on various things. Every t-shirt that's sold is money that Watterson didn't make -- and that someone else profited from.
The window stickers actually go so far as to damage the copyright, because they hurt Calvin's wholesome image. Yes, Calvin was mischievious, but it alters and harms Calvin's potential market if he becomes associated with the image of him on that window sticker. Mothers won't want their kids reading stuff from a character who pees on stuff all the time. People could quibble with that argument, but ultimately, the point is that these decisions of how the image should be used are ultimately in the hands of the creator, and crossing that line is destructive.
Posted by: Matt at February 16, 2005 04:08 PM
Let me add my voice to the people thanking you for posting such clear, concise rules on fair use. It's not rocket science. I repeatedly see huge chunks of copyrighted works -- sometimes including full stories -- posted in blogs. We all have. The amusing thing, however, is the self-righteous breastbeating from the blugosphere that accompanies any copyright-holder's complaint: "We're bloggers! Don't you know we're cool? How dare you point out that rules we don't like apply to us." It all highlights the biggest problem with blogs (one bloggers themselves neeeeever discuss): rampant intellectual dishonesty.
Now, while we're at it, maybe we should tackle the other multo-annoying tendency of bloggers: to embed pictures called from other sites directly into their pages. This forces the other site to pay the cost of an image appearing on your site. This is not only theft of intellectual property, it's theft of service.
Posted by: Neil at February 17, 2005 10:19 AM
Thanks for the blog and the great comments. I'm a blogger who has a daytime job of "permissions dude" (both requesting and granting rights). Fair use isn't altogether easy, but not because the rules themselves are difficult to anyone who takes a few moments looking at them. It's difficult because of all the bad advice out there by people who don't believe that the rules apply to them.
Tulsa World (as with many rightsholders) insist that the "exclusive rights" portion of the Copyright Act applies to them but that the fair use provisions of the same Act do not. Can't have one without the other--one cannot pick and choose which portion of the Copyright Act applies to them and which do not.
Keep up the good work!
Posted by: Fred at February 22, 2005 11:39 PM
Post a comment