4 thoughts on “Calling All Bloggers: Fair Use as a Protection from Copyright Infringement – Tikun Olam תיקון עולם إصلاح العالم
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  1. Richard –

    Wow. I’m very impressed. Some questions:

    You say, “4. I am not in any way hindering the copyright owner’s efforts to benefit financially from his or her asset.”

    It seems you’re right in most cases. In other words, if I own a newspaper, and post an article on my site for free, and you repost a chunk of that article, then you’re not hindering my effort to benefit financially from the asset. But what if I’m charging for access to said article, and you’re giving it away for free? (I’m not sure the NY Times fits into this category.) Aren’t you then hindering my efforts to benefit financially from my material, and therefore infringing on my copyright?

    “6. My blog’s purpose is to educate my readers about important artistic, cultural, political and scientific issues of the day. Toward that purpose I engage in scholarly research while preparing my posts.”

    I think you’d have a hard time defending the claim that you engage in “scholarly research.” We could quibble over definitions, but I think, in this case, the term is used in reference to people who are associated to academic institutions. Anyone who goes to a library or does a search on the internet is doing research, but only someone who is doing said research under the auspices of a school or in adherance to a set of academic guidelines is doing scholarly research.

    [I’m a word buff: “Scholar” comes from the Medieval or Late Latin word “scholaris” which means “of or belonging to a school.” That word comes from the early Latin word “scola” (or “schola” in Late Latin), which means “school.”]

    I believe that you do in fact do work that is educational and informative in nature. But, as I’ve pointed out before, there’s a difference between the work you do and the work done by a doctoral candidate or professor at a University or someone submitting work to a research journal. In those cases, the writer’s work is subject to peer review, and their methodology adheres to specific standards. In your case (or in mine), you set your own standards. Those standards are — at least of late — pretty high, and you have a notably high level of academic integrity when it comes to your work. But clearly there’s a difference (aside from the subject matter) between your blog and a doctoral thesis or an article in the Journal of the American Medical Association or Sociology Review Quarterly.

    Just my $.02. Waddaya think?

  2. josh, thanks for yr. usual thoughtful reply. Look, this is really tough legal territory & clear answers are hard to come by. As you know I once thought I had all the answers to this issue, but events humbled me on that score. But I continue to believe that fair use carves out some legal ground on which bloggers can safely stand as long as they are careful & try to adhere to as many of the fair use considerations as possible. the proof unfortunately is in the pudding which would be an infringement suit that hopefully a careful blogger would win.

    As for yr. first paragraph: I fear that globalpolicyforum.org & commondreams.org MAY be on shaky grounds through their publishing entire articles on their site. But who knows, maybe they have great lawyers giving them excellent advice & maybe they’re on safe ground. I wouldn’t quote an entire article because doing so violates one of the fair use provisions (i.e. quote only as much as you need to in order to make yr. point, but no more). By quoting only a portion of the article, I don’t feel I’m hindering NYT’s ability to profit fr. distributing the article to their customers.

    You may be right about “scholarship” as defined by Fair Use needing to be based in a recognized institution of higher learning. But it would be a terrible shame if a judge so ruled (& I’m not sure that judges would define scholarship as narrowly as you do). When I say I engage in research and scholarship I”m not saying that glibly. I do serious research on many of my subjects. With the richness of material available online now, it is possible to do tremendous amts. of research which previously you needed academic libraries to do (I can still remember at the Columbia Univ. library (circa 1970) where you had to give a counter clerk a book request slip, wait for a book searcher to find & deliver to book upstairs, then watch for your slip number to light up on the electric bulletin board–my how access to knowledge has changed for the better).

    I think I’ve probably told you that I’m ABD (All-But Dissertation) in my academic field (Comp Lit). I’ve done yrs. worth of academic research while in school. In my blog, I’m not doing research on the same literary subjects as I did while in grad school (with a few exceptions), but once you’ve learned these research tools you use them in whatever other forms or forums you get involved in.

    As for the difference bet. my blog & an academic dissertation…there are huge numbers of academic blogs out there. Professors blog about their research, they blog about their students’ homework assignments. Some of these academic blogs are authored by grad students doing dissertataion work. Some blogs prob. publish these students’ work. I’ve even read academic blogs about fair use and copyright in which professors express their fear of violating copyright despite fair use protections. I think that the blog world is great because its helping to integrate all sorts of types of research and knowledge. So while I’m not publishing academic research in my blog, I think the diff. bet. my blog & a grad student’s is not as great as it might seem to you.

    Regarding the issue of peer review–I am subject to peer review (though not in a formal sense). You (& everyone else who comments here) are my peers. YOu force me to confront contradictions in my arguments. You force me to rethink ideas which I may’ve expressed in a muddy or wrong way. Neither of us are professors, but I think this is a form of peer review nonetheless.

  3. Richard and Josh,

    I’d very much like to see the intellectual activity that goes on in thoughtful blogs like your own (and, I hope, mine) to be recognized on the scale of academic achievements. When done systematically and as part of a conscious community using the connective power of the medium, I feel it ought to be ranked as more important than simply posting your lecture notes online… I’ve seen individual blog entries that I felt are far more valuable than some presentations I’ve seen at national academic conferences… and some weblogs that offer a steady stream of links and commentary are like attending a free, non-stop conference.

    I am an academic hired to develop a program in “new media journalism,” and weblogging is a big chunk of my pedagogy, and my division chair keeps a blog (Richard, given your interest in the Middle East, you might want to check it out… see his comments on “Right to Exist” http://blogs.setonhill.edu/JohnSpurlock/000557.html ).

    When considering my scholarly accomplishments, I’d *like* to think of my blog, not as the icing on the cake, but as a little cake off to the side of my traditional accomplishments. But in some sense it will be a challenge getting my colleagues to think of my blogging even as icing.

    Still, just as a conference paper can lead to a print publication, it’s possible for me to use my blog as a way to develop thoughts that will eventually wind up in more traditional formats — including classroom material, community outreach, or at the very least trivia that can be useful during faculty luncheons.

  4. I have enjoyed reading these comments and have learned a lot; yet I still have grave concerns over the subjective nature of what constitutes fair use. Furthermore, as a retired professor, I have lost the “academic cover” of scholarly publication, even though my process of quoting, paraphrasing and referencing may be identical to that used over the past 40 years.

    The worry over law suits takes away the enjoyment and hinders the creative process. If black and white guidelines are not confirmed by Congress or the Courts, I feel this new medium is heading down the tubes in much the same way that mp3 sharing has. A real lost of free expression. While the illegal sharing of copyrighted music is not the same as thoughtful comments on a blog, in practice, I see many of the same problems.

    I wonder how many of these problems the writers of the Federalist Papers considered? Perhaps we should all write under a pen name!

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