Wednesday, August 13, 2008

Blogging, Copyright, and Fair Use

Blog surfers might have caught the discussion of the Fair Use Doctrine of U.S. copyright law at Right Wing News.

The piece is an interview with attorney Ron Coleman, who blogs at
Likelihood of Confusion. The introductory passage is worth consideration:

Well, it's fair to say that well over 90% of bloggers are not risking any legal trouble. Most people write their original thoughts, they make legitimate links, and even things like hotlinking graphics, even aside from the copyright issue, are probably not actionable ... But, if there is any single problem that seems to consistently be out there, it's copyright infringement regarding the use of photographs from news services.
As a mid-level blogger with moderate traffic, I don't worry too much about copyright lawsuits, although I'm not inattentive to the issue. So, let's look at the legal use of original writing and photographs in blogging one by one.

For newspaper articles, and scholarly essays, how much can be excerpted? A few sentences? A couple of paragraphs, or more?

Common sense tells me the less the better, but I do have a recent example of copyright infringement to share. Dave Marlow, a revolutionary socialist who blogs at The Red Mantis, was contacted by the Council on Foreign Relations for copyright infringement when he posted the entire text of a Foreign Affairs debate essay, "Revolutionary Road? Debating Venezuela's Progress."

Here's the letter CFR sent Marlow:

Dear Mr. Marlow,

We are glad that you enjoyed the Herrera article in the July/August Issue of Foreign Affairs. Unfortunately, the full version of the article that you have posted on your blog constitutes a copyright violation. We ask that you remove the full text from your blog immediately and encourage you to refer to the Foreign Affairs permissions policy for more information. While we are very appreciative that you thought enough of the article to share it on your blog, hopefully you understand our position and the legal ramifications.


The Council on Foreign Relations
I doubt Marlow gets a ton of traffic, so it's a good question as to why a small-fry blogger was cited for copyright infringement by an organization of such prominence (Marlow thinks he was targeted because he's Marxist).

But it's not just republishing a full-length essay that's problematic. Recall in June there was a big controversy across the web over
Associated Press allegations of intellectual property right in the blogosphere. The wire service argues that any use of original AP content constitutes copyright infringement. The blogging backlash was vicious, but the legal issues counsel that bloggers need to respect copyright guidelines, for AP and the commercial press in general.

The second issue surrounds the republishing of photographs on blogs.

Coleman at RightWingNews warns bloggers not to publish copyrighted photos on their blogs, arguing there's little justification for claims of fair use. Gabriel Malor concurs, suggesting that if bloggers are just reposting pictures to provide "newsworthy images to interested viewers," this may constitute copyright infringement.

This is all pretty sobering. As Dave Marlow's experience indicates, even lower-tier bloggers might get some copyright headaches.

As readers here know, I repost photos from the major news media regularly, and I do so cognizant that a fair use challenge might arise. So, be judicious in citing original sources and observe copyright and fair use laws, but don't forget to have a little fun with your publishing.