Blogging, Copyright and Fair Use

If you author a blog, have you ever quoted from a newspaper or book, displayed an image, uploaded a song or video? If so, chances are you may’ve broken the law. If you use any sort of copyrighted material without permission, you may be breaking copyright law. This may be an antiquated and unfair law since it places bloggers in the same category as those who exploit copyrighted material for commercial gain (and the vast majority of bloggers including myself are not doing that–see my discussion of Esther Dyson’s Intellectual Value below) but it is still the law. And one thing that some may learn is that while the law may be out of touch with current internet technology and blog behavior, if a copyright holder comes after you few will come to your defense and the owner who possesses the will and resources may do so with all the force the law allows.

Some may argue that this issue is quite academic because most copyright holders will not pursue bloggers for infringement. This may be true. But for that single blogger who may be confronted with a cease and desist letter or demand for payment, this discussion is no longer academic, but very real.

Fair Use and Blogs
I’ve argued (perhaps wrongly unfortunately) in earlier posts that Fair Use, which allows free access to limited amounts of copyrighted material for uses related to scholarship, research or education, applies to bloggers and protects their use of any of the above content. The truth is that it may apply or may not. The only one who can determine this is a judge. And that means the blogger would have to bring a case to court to test the concept—a notion that I’m sure all bloggers would relish!

And even if Fair Use does apply to blogs, after reviewing the Stanford University Libraries’ Copyright and Fair Use website, it appears that Fair Use only applies to “minimal” use of copyrighted material. In other words, if you copy an entire newspaper article or even substantial portions of it and post it to your blog, you still may be violating copyright law.

Only non-profit institutions universities, libraries, schools, museums, etc.) and their employees have fallen under the legal framework of Fair Use so far. Though a judge hearing a specific case might rule that blogs are covered under Fair Use, it’s not a slam dunk.

If Fair Use does not apply to blogs, then quoting anything from a copyrighted article could constitute copyright infringement. I find this level of legal uncertainty concerning the standing of a blog in the face of the law to be unconscionable. Now, the chances of this happening may be slim, but who wants to take a chance?

Some others who’ve written about this problem are:

Blogging and Fair Use
Fair Use, Free Use and Normal Use
The Tyranny of Copyright

Online Media, Copyright and Access
I was very heartened to discover recently that the New York Times does provide an easy way for bloggers to gain permission to use its online material. At the Permissions portion of its site, its FAQs state:

May I use portions of New York Times articles, such as quotes or excerpts; may I edit or adapt New York Times articles?

Under certain circumstances, it is permissible to make direct quotes from New York Times articles. The context, number, and length of the quotes will determine whether permission is or is not required. It is never acceptable to selectively quote from articles in a manner that changes their meaning, to take quotes out of context or to combine quotes to create a sentence. It may also be considered infringement if a large percentage of the publication is comprised of quotes from New York Times articles. It is always best to submit your request for clearance.

Editing and adaptation of New York Times content is generally not permitted, and must be approved by The New York Times.

How do I obtain permission to use a screen grab from The New York Times on the Web for use in a book or other type of publication?

Simply request permission as you would any other use, but be sure to include a copy of the exact screen grab you intend to use.

In certain unspecified instances, it appears that bloggers may use Times material without even requesting permission. And in situations in which a blogger wishes to quote more than an unspecified minimum amount, then the blogger should seek permission (if I’m interpreting the above somewhat vague verbiage correctly). I’ve written to the Permissions Department to try to discover what the parameters would be for bloggers. I will update this response when I receive an answer.

One of my pet peeves about nytimes.com is that it disables access to online articles after seven days. That renders any links within my posts to such articles relatively useless (unless my readers are willing to pay $2.95 to read it). I have seen blogs and websites which routinely display entire copyrighted articles from major online news sources on their sites (especially if those articles are not accessible). While they may be opening themselves to legal liability, I can understand their frustration at the closing off of information that is inimical to the spirit and practice of the blog world.

I’ve heard bloggers say that if an article is not accessible, one should not make it accessible by copying it and uploading it to your server. While I might accept that a strict reading of copyright law, just as Nature abhors a physical vacuum, so the internet abhors an information vacuum. If the copyright owner locks up an article, bloggers will be tempted to make such material widely available. It’s just the nature of valuable information to flow openly on the internet. A copyright holder who protests against this, to my mind, is like the Dutch boy in the myth, attempting to plug holes in a dyke to keep the ocean out.

I am not arguing that the value of copyrighted assets has disappeared (see my discussion of Dyson’s article below). Rather ownership should be exploited in different ways than it is by most traditional news outlets.

Online news sites like Nytimes.com do not provide a cheap, easy way to access these archived articles. You have to pay for each individual article or else buy a package of such downloadable articles. You cannot, as you may with the hard copy of the newspaper, buy a subscription. This model probably works fine for online users who have the money to buy access to the articles they need. But it is a cold, cruel (and expensive) blow to bloggers who want their readers to have the original news source for their post.

Some copyright owners (and there are bloggers who own copyright assets who strongly disagree with my views) would suggest that bloggers who post copyrighted material are thieves. But I maintain such activity should not be viewed through a moral prism. As Esther Dyson explains in the article I quote below: this is a purely economic issue. She even goes so far as to say that the free copying and distribution of online material has a certain “moral grounding.” Those on the other side of this argument would no doubt howl with disapproval at this statement.

Technology has provided bloggers with fast, free and easy means of copying content. If such reproduction technology exists, people will use it (whether legal or not). It would be much more productive for content owners to devise new ways of adding value to their product than for them to get into high moral dudgeon about copyright violators. In the old days, a copyright holder could sue a single violator. But how can you sue the millions of people who download music, images, articles, etc. The RIAA is trying to do just that, though in a more limited way with music fire sharers. But in the long run it just can’t be done.

Bloggers and Securing Copyright Permissions

The copyright permission procedures that a blogger would have to follow are tremendously burdensome, time consuming and prohibitive. You’d have to research who holds the copyright and how to find them (not an easy matter in many cases). You’d have to seek permission, wait for a response and then come to agreeable terms. Those terms might require you to pay a substantial sum for each work you wish to use. And all of this will take lots of time.

Copyright owners (perhaps unintentionally) make it difficult to know what constitutes a legal use of their content and what constitutes an illegal use.

If I was a record or film company, I would have a staff to research copyright issues and obtain clearances. But bloggers are not large companies. They’re just normal people like you and me trying to create, through their blog, a means of communicating with the larger world. So a blog which is essentially a medium based on a fast response to everyday events would become bogged down in seeking permissions. There goes the timely nature of the blog and with that a big hunk of its appeal.

Search Engine Photo Galleries (i.e. Google Images)

Google Images and the other search engine photo galleries provide bloggers with a tremendous resource, one which it’s only too tempting to use and possibly misuse. These services bring millions of online images to bloggers’ fingertips. The means of copying them is simple and easy as is bloggers’ ability to upload them to their sites.

While I understand that the mere display of a copyrighted image at Google Images does not suggest the copyright holder has given up his or her rights, wouldn’t you think that a newspaper, magazine or online photography website that does not want bloggers to copy their cartoons or images, would prevent Google’s searchbot from capturing their images? It only makes common sense that if you want to prevent infringement you’d make them off limits? Though this may be a shaky assumption on purely legal grounds, it’s oh so easy to assume that sites whose images are harvested by Google Images may not object to their images being displayed on blogger’s sites.

Every media website has a different set of copyright rules and permissions. How can a blogger with no background or knowledge of copyright law reasonably be expected to know and honor the copyright terms of all of the sites he or she might use? If bloggers did as much research in finding, reading and interpreting the permissions process for every piece of copyrighted material on their blog, they’d probably never have enough time to actually write a post.

Esther Dyson’s Intellectual Value
I’d invite my opponents in this argument (and all of us) to review Intellectual Value, Esther Dyson’s prescient 1995 Wired Magazine article which predicts many of the most significant commercial applications of the web. She deals with the nature and value of intellectual property in the age of the internet. While published at the very beginning of the internet boom, it is as relevant (or perhaps more so) today as it was when first created:

Chief among the [internet’s] new rules is that “content is free.” While not all content will be free, the new economic dynamic will operate as if it were. Intellectual property that can be copied easily likely will be copied.

What should content makers do in such an inverted world? The likely best course for content providers is to exploit that situation, to distribute intellectual property free in order to sell services and relationships. The provider’s vital task is to figure out what to charge for and what to give away–all in the context of what customers (will grow to) expect.

No one expects that content owners (record companies, network TV, film companies, newspapers, book and software publishers, professional photographers) will be happy with the brave new world Dyson is describing. In fact, they will probably hate it since it upends all previously accepted practice. But those who embrace the new norms and scramble to adapt to their exigencies will survive quite nicely. Those who stand pat and insist that the old norms were just fine thank you–they will fall by the wayside or perish:

To many people, such a world is frightening, since it does not require any laws to change or be broken. It’s simply the unfolding expression of economic laws – of demand and scarcity – applied in the future world of electronic content and commerce. It’s not the world most creators and intellectual property owners have been planning for, contracting for, securing rights for.

To some [content owners], this state of affairs may seem unfair. It certainly is if you grew up by the old rules and don’t want to play in a new game. But if you look at the new rules by themselves, they have a certain moral grounding: people will be rewarded for personal effort – process and services – rather than for mere ownership of assets.

Dyson’s economic model is best exemplified (and this analogy could only come from a denizen of the freewheeling Bay Area) by the Grateful Dead, who encourage:

people to tape their performances (and a performance is not just the Grateful Dead on the stage; it’s all the people there with you). Enough of the people who copy and listen to Grateful Dead tapes end up paying for hats, T-shirts, and performance tickets.

The important point that Dyson makes here is that the Dead encouraged the creation of a community of spirit around their musical enterprise. The community’s members received tremendous psychic and emotional benefit from their social interactions with other members (and the Dead’s music). In turn, community members would consume the paraphenalia and accessories the Dead wished to sell, thus allowing the them to create more content (i.e. music) and the cycle would continue.

Dyson holds the New York Times up as a content owner whose assets will always hold special value:

[there will be great] value will in certification of authenticity and reliability, not in the content. Customers will pay for a stream of information and content from a trusted source. For example, the umbrella of The New York Times sanctifies the words of its reporters. The content churned out by Times reporters is valuable because the reporters undergo quality-control, and because others believe them – context, again. The Times can almost make the truth – for better or worse.

While the Times’ content is clearly of great value in the internet world of commerce described by Dyson, I’m not sure she’d agree with the actual business model of nytimes.com. In Dyson’s economic model, the Times should be building a relationship with its online readers:

The trick is to control not the copies of your work but instead a relationship with the customers – subscriptions or membership. And that’s often what the customers want, because they see it as an assurance of a continuing supply of reliable, timely content.

In other words, the Times should provide ancillary services (besides the articles) that these readers want and need in order to make them keep coming back for more. It should be building a community rather than viewing Times’ content as the heart of its transactions with its readers. While the newspaper company is trying to do some of this (for example, there is a series of online reader forums revolving around issues covered in the news–though these forums are technically difficult to use in any rational way), it still sees the relationship with its customers as transactional and piecemeal. You want to read an article, you pay $2.95 for it. You want a small price break, you buy a 25 article pack for $25.

If the Times and other media content providers set less expensive, non-commercial rates for access to bloggers usage would dramatically increase. I won’t pay $3 or even $1 for every Times article I want to use in my blog, but I would pay for a yearly subscription of say $100 or $150 that would provide me access to these articles and other services (like research) that could be provided to members or subscribers.

I think that media organizations like the Times are missing the boat when it comes to creating strong relationships with consumers that would, if developed and maintained properly, turn into a solid revenue stream for the company.

Record companies are another example of content owners who’ve completely mishandled their assets and their relationship with those who consume them. Instead of embracing the new world order outlined by Dyson, they have persisted in maintaining the old, rigid distribution system. When music filesharing and downloading first started becoming popular, these companies should have devoted all their resources to figuring out ways to make money by building stronger relationships with consumers. They refused to recognize that value, for the record industry, no longer lies solely in a song or even an album. They should have joined with their comnpetitors and created a single huge music site that for a modest fee would provide access not only to music, but also other social and cultural interactions that fans would value: musical research, fan forums, fan clubs, concert ticket sales and discounts, fan interaction with musicians, e-newsletters with tour information and other important timely data, etc.). They didn’t do much of this and now look at the economic debacle which has befallen them. And what has the record industry become? A bunch of corporate lawyers suing grandmothers and 11 year olds. That’s certainly a public image any major corporation would be proud of!