Copyright, Fair Use, Blogging & Other Items

July 13, 2007, 6:00 a.m., 12:15 p.m.

Other Items & Updates, below

Copyright, Fair Use, and Blogging
We are about to lose a very creative and productive blogger from the blogosphere. It appears that his decision to close down the blog may have been prompted by what he may have viewed as an intimidating threat of legal action from an Iowa newspaper.

I don't know what the facts are beyond what the blogger has reported. I don't know the paper's side of the story, and I've never communicated with or even known who the anonymous blogger is anyway. So, as we used to say in Texas, "I don't have a dog in that fight," and I'm deliberately not identifying the parties.

The blogger reprints the email from the newspaper. Here are some excerpts:

"You may link to our site, but you cannot post more than 3-4 sentences of the story on your site.

As the copyright owner of that article, [the paper] has the exclusive right to its reproduction and distribution. We therefore ask that you immediately remove the posted article from your website and cease any and all further use of the material. Any continued posting or use will be considered willful copyright infringement.

Within 24 hours of your receipt of this email, you should . . . [confirm] that: . . . 2) you will not engage in any further unauthorized copying of [this newspaper's] materials.

If you do not take the steps outlined above, this matter will be turned over to our attorneys for further action."

I don't want to get into a lengthy legal analysis about this for a variety of reasons. (a) Even -- or perhaps especially -- from the perspective of the newspaper I think it's in no one's best interest to make a federal case out of this. The issues I find most interesting, and significant, are other than "legal" in the usual sense. (b) If it were to become a legal case the outcome would turn on an interpretation of the "Fair Use" doctrine -- which is notoriously ambiguous and difficult to predict and apply (though my instinct is that the blogger in question is well within its protections). (c) It doesn't make a lot of sense, as the old saying has it, "to get in a fight with someone who buys printer's ink by the barrel."

But a little legal background is necessary to understand the non-legal issues.

Copyright law, with its foundation in the Constitution, is expressed in terms of both an "end" and a "means."

The end, purpose, or goal is "to promote the progress of science and useful arts." Art. I, Sec. 8. One of the ways in which that progress is promoted is through the ability to use the prior work of others -- a work of history drawing upon prior historical accounts as well as research in original documents; using the story lines and themes from earlier novels or plays; improving upon a prior invention; parodies of songs; scientific research that begins with a survey of pre-existing literature -- and lots of commentary and reviews. So one of the purposes of copyright law, ironically, is to encourage what might appear to some to be a "copyright violation" -- namely, using all or portions of another's work without permission or payment. (To use the work of others without attribution would be plagiarism, but would not necessarily be a copyright violation.)

The "means" the Constitution's drafters chose was "by securing for limited times to authors . . . the exclusive right to their respective writings . . .." The "limited times" was a way to get creative works into "the public domain" where they could be freely used by anyone without obligation to the creator. "Exclusive right" meant that, for a time, the creator could charge for the use of his or her creative and copyrighted work.

The problem potentially arises when the "exclusive right" conflicts with the overall purpose to "promote progress," that is, when the copyright owner refuses to let others make any use at all of her work -- or sets the price for doing so at such high levels as to foreclose use.

Enter "Fair Use." Copyright Act Sec. 107 (embodying an earlier doctrine from the common law). The law mentions four factors to be considered. (It is this multiple-variable analysis that contributes to making predictions of outcome difficult.) The amount used, and whether it is a fictional or non-fictional work are mentioned. But the most important factors go to the economic impact of the use. Is it for "commercial" gain, or for noncommercial "criticism, comment" or "nonprofit educational purposes"? Finally, what is the effect of the use on the "potential market" for the work?

If someone were to sell memberships to a Web site on which they made available every article from every issue of a given newspaper, it would be very difficult for them to claim they were engaged in "Fair Use." The fact that it was news rather than creative fiction would cut in their favor under factor two. But aside from that, the other three factors would cut against them: they are copying the entire paper, they are profiting from selling access to it, and the hits on their Web site could well be from individuals who might otherwise have gone to the newspaper's site (in exchange for a membership fee, or being exposed to advertising providing revenue for the paper). Especially would this be the case if they were doing nothing but reproducing the newspaper -- without commentary or criticism.

Now consider the blogger in question.

I've already said virtually nothing is a "slam dunk" when it comes to Fair Use. But I really think he has the better of the argument here.

He is clearly involved in commentary, which is expressly mentioned by the law.

He is not in the business of selling newspapers -- or even individual stories from newspapers. In fact, he's not in any business -- and certainly not a "commercial" one that profits from the sale of the newspaper's copyrighted stories.

So far as I know, no one -- at least not I -- go to his site to find out what was in the paper that morning. Readers (and his blog notes there are 25,000 unique visitors every month) are primarily interested in what he calls his "insightfully vulgar" commentary -- commentary which most find entertaining and often very funny (sufficiently so that, if they are not thin skinned, they will even continue reading when he appears to be slaughtering their sacred cows).

The material he quotes (and he not only attributes his sources, but often includes a link to the papers' Web site), is a statistically insignificant portion of the morning paper. Seldom (if ever) does he reproduce an entire story.

The paper's threatening email to the blogger refers to a permitted "3-4 sentence" standard. I know of no such rule. (Sometimes a single phrase would not be protected by "Fair Use;" under other circumstances an entire work would be.)

Finally, the only conceivable economic impact of his blog's use of excerpts from the paper's stories, it seems to me, would be to increase the blog reader's (a) inclination to subscribe to the paper, (b) to go to, and see the advertising on, the paper's Web site, and (c) to advertise in the paper. In short, while I can see ways in which "the effect of the use on the potential market for . . . the copyrighted work" would be to enhance that market and increase the paper's profits, it is difficult to see how the paper's "potential market" cold be adversely affected by the blog's limited use of material from its stories. Now I don't think they ought to have to pay him for advertising their paper for them, and increasing their readership, but I certainly don't think they are in a position to argue they should have the legal right to close him down because he has harmed them economically.

I can only hope that the paper was not prompted to play its copyright card because of its being upset, not with the use of its stories, but with the legally appropriate (if "insightfully vulgar") commentary about those stories.

Because -- putting aside the fact that it seems to me a real stretch to try to make a case that the blogger is not well within "Fair Use" -- it strikes me as a little unseemly for a newspaper to be curtailing speech by using threats, perhaps intended to but in any event having the effect of, closing down one of America's most popular blogs. Whatever happened to, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." (Justice Louis Brandeis, concurring in Whitney v. California, 274 U.S. 357, 377 (1927).)

Newspapers can be proud of their defense of First Amendment rights in this country. But bloggers are now the modern day equivalent of what mainstream newspapers' ancestors looked like 200 or more years ago. The exchange between the mainstream media and the blogosphere has been good for both -- and for America. While that relationship is still budding and both are trying to find their way is not the time for us to start threatening, suing and trying to silence each other.

Just some thoughts from the sidelines; my obituary for a blog that now leaves a hole in the blogosphere that does the kind of damage to our intellectual lives that holes in the ozone do to our physical lives. Too bad. And especially sorrowful that the murder was committed by a newspaper.

Other Items and Updates
. . . all subjects of prior blog entries

How Not to Buy a College: Wellmark Updates

Editorial, "Gift Offer Protocol Comes Unwound," The Gazette, July 13, 2007, p. A4

"No Other Resignations Over Wellmark Flap: UI," The Gazette, July 13, 2007, p. B3

Brian Morelli, "UI Donor: Rejected Funds Will be Hard to Replace," Iowa City Press-Citizen, July 13, 2007, p. A1

Jim Robb, "Wellmark Should be Honest About 'Gift,'" Iowa City Press-Citizen, July 13, 2007, p. A9

But in spite of it all . . .

Hieu Pham, "UIHC at Top of the List Again," Iowa City Press-Citizen, July 13, 2007, p. A1

Michael Moore's "Sicko" film's themes resonate with Iowans

Niles Ross, "What's the Cost to Us for Our Health Care?" The Gazette, July 13, 2007, p. A4

"A billion dollars from beer in the till/A billion dollars from beer"

Iowans consumed 4,864,000,000 ounces of beer during the last fiscal year. Had it been served in 12-ounce glasses for $3.00 a glass the retail value would have been $1,216,000,000. And you were wondering why the Iowa City City Council -- and the University of Iowa administration -- seem to consistently support the wishes of the local bar owners to continue taking the money of under-age college students.

"Beer Still No. 1 for Iowans; Liquor Gaining," The Gazette, July 13, 2007, p. B5

"Ask not whether our prisons are 'overcrowded,' ask what you can do to help move the mentally ill into cheaper, more humane and effective institutions."

Peggy Loveless, "Our Overcrowded Prisons," Iowa City Press-Citizen, July 13, 2007, p. A9

The Pay Gap Gets Wider for Universities' Coaches, Presidents -- and School Supeintendents

Gregg Hennigan, "Pay Gap Widens Between Teachers, Administrators; Disparity Mostly Marketi-Driven, Officials Say," The Gazette, July 13, 2007, p. A1

Media Barons Continue to Misrepresent the FCC's Old "Fairness Doctrine"

John Seigenthaler, "Revived 'Fairness Doctrine' Would be Anything But Fair," Iowa City Press-Citizen, July 13, 2007, p. A9

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