Fair Use Controversy: The Gift That Keeps On Giving

    January 10, 2011
    Chris Crum

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.