Blogs and Fair Use Doctrine

By James Joyner

Michael Bates, who runs a blog called BatesLine that specializes in coverage of the Tulsa, Oklahoma scene, has received a letter from the Tulsa World newspaper demanding that he cease and desist from quoting “in whole or in part” or even linking to material from its website and that he immediately remove any material from his archives that contain same.

Bates argues that,

excerpting copyrighted material for the purpose of criticism is covered by the fair use exemption, and linking to content cannot be a copyright violation because nothing is actually copied.

Scott Sala and Bob Owens concur and note, correctly I think, that this action will generate far more negative reaction to the Tulsa World than whatever Bates was possibly generating on his own.

The idea that providing a hyperlink to someone’s site (as opposed to hotlinking an image or other file on their server) infringes on a copyright or is otherwise problematic is absurd. I’m less sure, however, of the extent of the fair use doctrine. Certainly, excerpting a few sentences here and there for the purpose of commentary is protected. But what about whole paragraphs? Or what about posting the entirety of an article and having no commentary at all? What if the commentary goes no further than, “Heh”? And does it matter whether the material is available free to the public or only to paid subscribers? Does it matter whether the blog sells advertising and is thus a commercial enterprise?

17 U.S.C. § 107 , which sets forth the fair use exception, seems to suggest these things matter:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), 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 shall include—

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

I’ve seen discussion of these issues but do not know the extent to which they’ve been litigated. Presumably, though, differences in scale caused by new technologies or new applications of these technologies can change things. We’ve seen that, for example, with electronic file sharing.

Other discussion on the topic:

A Fair User’s Manual (Wired, Nov 2003) This piece examines the case law (not specific to blogging, though) and finds four basic questions that are at the heart of litigation:

1. Is the use transformative?
2. What’s the nature of the copyrighted work?
3. How much did you change?
4. What’s the effect on the market?

Jason Calacanis and J.D. Lasica discuss the use of others’ copyrighted photos on blogs.

Update (1455): Michelle Malkin links “14 Copyright Tips For Bloggers,” compiled from advice by Kimberlee Weatherall and Eugene Volokh.

Update (1605): IR below cites the Free Republic (1999) case. TechLaw Journal and Free Republic comment and supply facts on the case. The full text of the opinion is here. It does seem to establish, as seems reasonable enough, that merely cutting an pasting the entire article from a site without “transforming” it in some way through value-added analysis is a copyright violation. The judge ruled that the fact that readers might post comments later did not change the initial character of the posting.