Fair Use Controversy: The Gift That Keeps On Giving

Is Fair Use in Jeopardy?

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So the whole "what is fair use?" debate is back, as Fortune describes the business practices of Righthaven and the Las Vegas Review Journal of going after publications for violating copyright. 

Tell us what fair use means to you.

 As the piece by John Patrick Pullen explains, the operation involves "transferring the copyright of content that has been reproduced on the Internet — either entirely or in part — from the Review-Journal to Righthaven, which then files lawsuits against the alleged infringers."

The EFF has reportedly stepped up to represent some clients the firm has gone after, while most are just settling with Righthaven, which has been seeking a maximum penalty of $150,000 plus seizure of the domain name in every case, according to the report. 

The piece does appear to be a little sensational, asking questions like "Could clicking a Like button lead to a lawsuit?" and "Are the days of posting stories to Facebook, emailing articles to friends, or printing out pieces numbered?"

Based on a Q&A with Steve Gibson, Righthaven’s CEO (and a lawyer), the firm is more interested in going after publications that are reposting a hundred percent of the original material without permission, though the piece does say (as mentioned a few paragraphs back), "entirely or in part". 

Either way, I’m guessing the "liking" of content isn’t in immediate jeopardy. Hitting a like button (which is likely made available by the content provider itself) to share a link is significantly different than copying an entire article and posting it on your own blog. Emailing or printing an entire article might be a different story, but these are less likely to even come up as an issue, if for private use. Email or print newsletters or books, etc. would likely fall more into line with the blogs. 

But as long as "part" is part of the equation (in addition to "entirety"), there is going to be some gray area, unless rules are truly defined, which is essentially what Gibson claims they are trying to do. The problem with this is that the rules themselves aren’t so easy to define, which is probably why they aren’t clearer today. This isn’t a new issue. 

We’ve visited this topic on more than one occasion. Back in July, the Las Vegas Review Journal was in the news for filing a slew of lawsuits against blogs, claiming they were using its content without permission. The question was, and still is, what exactly is fair use? It’s been a blurry subject for years, because not everyone has the same viewpoint. 

Allow me to borrow a couple viewpoints from my own previous article on the subject (if that’s fair):

Rich Ord, CEO of the iEntry Network and Publisher of WebProNews says, "Fair use is taking small amounts of content in order to add perspective or additional information to your own content. A publisher should also link to the content source and credit them accordingly." 

Marshall Kirkpatrick, Co-Editor, VP of Content Development and Lead Blogger at popular tech blog ReadWriteWeb told WebProNews, "Aggregation and filtering is a beautiful thing.  Give me a day with a HuffPo appearance and it’s a good day for us at ReadWriteWeb. Excerpts with as much as three paragraphs, with attribution and a link, are a great way to add value and share traffic. Fair use paves the way for rapid content creation and curation – I have no fear of it at all."

Here’s how one of our Facebook fans described fair use: "I see fair use as similar to writing papers. Name the source and link, if necessary and do your homework. Some companies do not allow use of their materials at all without their permission. There aren’t documented rules as there are for writing papers such as the writing formats MLA or APA but they do include rules to follow when using online content in writing."

As far as rules are concerned, Attorney John Burton, who practices Trademark/Copyright and Internet/Technology law, told WebProNews: "Fair use is a legal doctrine under U.S Federal.Copyright law that provides for limited use of copyrighted material without requiring permission from the copyright owners, such as for news, research, teaching and commentary.  It provides for the legal use of third-party copyrighted material under a four-factor test:

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."

"Kelly v. Arriba Soft Corporation (2003) set a strong benchmark for fair use and the Internet," Burton told us. "Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly’s website in Arriba’s image search mechanisms.  The decision was appealed."

"On appeal, the 9th Circuit Court of Appeals found in favor of the defendant," he added. "In reaching its decision, the court utilized the above-mentioned four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Second, the fact that the photographs had already been published diminished the significance of their nature as creative works. Third, although normally making a ‘full’ replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase exposure of the originals."

Fortune’s Q&A with Gibson is worth a read. In it, Gibson says things like: "We are absolutely continuing to develop the law of copyright in the area in respect to fair use." and "There are generally more takers than creators." 

"Taking" may be a little too broad a term, however, for what’s at stake. As Kurt Opsahl, the EFF’s senior staff attorney,  is quoted as saying in the report, "It’s beneficial to society to have news be part of an ongoing conversation."

That could not be truer. This is why the Internet is such an important medium for news, and why people are flocking to the web more and more to get their news. They want different perspectives, and to get the full picture. It’s hard to get the full picture if fair use is restricted, because at best, you lose context. At worst, readers may miss the story entirely, because they never knew it existed, because maybe it was originally reported on some obscure site they’d never heard of.

And the question still remains, what is fair use? Comment here.


Fair Use Controversy: The Gift That Keeps On Giving
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  • http://www.inforats.com Darron Burow

    I have no problems with a website reposting a tidbit of my content as long as it includes a ‘Follow’ backlink to the original content. It provides an SEO benefit, which many publishers pay for. I think it would be easy for the US copyright office and other international organizations to put in-place well defined rules for textual content such as ‘you can use x% of content as long as a credit and a ‘follow’ backlink to the original work is published as well. Now as for imagery and even designs found on the web: It is much harder to define number of duplicate pixels, colors, size, and formats, but I think at least some of the rules can be pulled out of the gray zone and added to the black and white columns

  • http://www.jacksononthemoon.com Jackson on the Moon

    I agree with both the previous commenters. I believe fair use should be guided by common sense. Copying a whole article is just stupid. But copying parts of it with links to the original and giving the author credit is something that has been done for decades before the internet. This will have repercussions in the printed world, too.

    I think what also needs to be taken into account (harder to put into law) is the intent or the spirit of the article that uses copyrighted material.

    Is it wholesale copying without permission from author #1? Or is it being used to illustrate a point being made by author #2?

  • http://str82u.co Str82u

    Here’s one I say IS abuse and not “”Fair Use”:

    Website “A” uses nearly an entire website’s original content, website “B”, but broken into what looks like search result listings on 3000 pages, linked back to “B” in every instance. From another angle, if a third webmaster combined the 3000 different listings on website “A” without the headings or site URLs and actually “builds” website “C”, it would be a close enough copy of website “B” to cause a “duplicate content” issue with Google.

    Is that fair use?: Even though all the other search result style listings are probably made up from nothing but other websites in the same manner? NO, and especially not when, in context, the entire site is made from other people’s content also, nothing else is original. What about the webmaster of website “C”? Well, you see what he did and to me it’s the same.

    In either case, I don’t want to hear “You’re getting free promotion”, NO, it’s not. OH, and this is real and the “promotion has been 7 hits since they opened in AUG ’10 and the site is taking a hit over 3000 links on spam central.

  • Adsense Publisher

    The problem with copyright laws is that it usually takes the owner of that content to be the one to request the content be taken off the website. What good is a copyright if there is no real way to stop content theft? You get one website to remove your content, and several more show up with your content.

    Listen, even Google is trying to stop being a part of the mess by not accepting sites into their Adsense program that are nothing but snippets of news or articles of other sites. Even if they link back to the original article. Just because you repeat the news on your site does not make you a news reporting site. More like a news parrot. Imagine if WebProNews never broke a story, never showed up at a convention, and never did an interview of anybody at any tech company? They would be no more a news source than somebody living in India publishing the news of what’s going on in California, or even somebody in California publishing about news in India. Another problem with parroting the news is that you don’t know if the source is credible or not as you’re just publishing and not verifying the story, so if you have enough people parroting what some other site published, rumors can turn into truth very quickly.

  • http://yourstori.es/wordpress Michael

    Hi Chris,

    I have come across this before and after researching about fair use there is another area that may need to be explored.
    This is using the creative commons seal which enables people to share content providing that they are not using or modifying the content for sale of their own products.
    Youtube have another way of dealing with this, as most while music while collaborated, contains a copyright with the original author. They have a flag within their algorithm that recognizes the music and determines if there is any breach. I have also seen that sometimes the content owner will allow the music to be used, as it allows the original publisher to become more widely known throughout the world. Also there are limitations to the age of copyrighted material(I believe it is 50 years), that is why many advertisers use the classics for music.
    In Australia to use music, the person reproducing this can just register their intent to do so and pay a fee/royalty to the governing body.

    I am sure there are many other aspects that are worth exploring in the near future that relate to sharing of ideas and content.


  • Righthaven Shakedown Victim

    I usually cut off a quote at 500 characters (or the next lower white space) and provide a full link back to the originating site, e.g., this article would be

    Crum, Chris. “Fair Use Controversy: The Gift That Keeps On Giving.” WebPro News. January 8, 2011.

    where the article title is a link. That rule-of-thumb has served me well since the 1990s.

    The downside is that I am currently being sued by Righthaven, so your mileage may vary. :-(

    • Chris Crum

      Email me at ccrum@ientry.com if you want to share more of your story.

  • http://www.wordsforwebsites.com.au Nikki Cripps

    As a an online content writer I am finding that content thieves are becoming more brazen and arrogant in their theft of content, to the point I’ve had to install software on my site to stop it being cut and pasted. The remedies for people like me, and my clients, are time consuming and complicated by distance (I’m in Australia) and differing jurisdictions. I have been very impressed with Twitter’s swiftness in removing links to stolen copy and their willingness to do so.

    My content regularly appears on other sites, with due credit and links back, but I doubt that an unethical and unscrupulous content raider will ever care about doing the right thing. They just pop up somewhere else, impervious to the law and with no regard to morals.

  • http://insulate-now.blogspot.com/ Kenny

    What is fair to one could be totally unfair to another. Their is no set fairness.

  • Guest

    Basically being able to refer to and characterize the work of another but not so much as to profit from their work itself or taking the value of the copyrighted work so much that it is to the detriment of the copyright holder. This balances keeping ideas and freedom of speech free (copyright does not protect ideas) with an author’s property rights to own his or her work. For that matter satire is always acceptable whatever the amount of use, freedom of speech trumps property rights.

    So for example a snippet of a song is okay, but not if you are using it as a theme song for your own show; reporting on an event or discussing the ideas of a book or movie plot is fair use, but not if you reproduce the borrowed material so much so that you are pretty much profiting from selling it. And you can mock another’s work all you want, a Star Wars play making fun of Star Wars for instance, that is freedom of speech.

  • http://www.pcdriverhelper.com/Video+Card_ATI+Technologies+Inc..html Daby

    What is the rational use of
    This is a good topic
    We all should think about
    This is indeed a problem

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