December 15th, 2005  |  Published in old and busted

Found on del.icio.us (where it concerns me that this is getting enough traction to count as “popular”):

What If Copyright Law Were Strongly Enforced in the Blogosphere?:

> I think that the development of looser copyright norms in the blogosphere is a wonderful thing. Blogging is already quite time-consuming; imagine having to seek permissions for lengthy excerpts or images. And copyright holders might charge fees for the use of their materials, making use cost-prohibitive. Of course, one could play it safe, with very cautious excerpts and no images except copyright-free ones. But this can make posts less complete, less interesting, less snazzy. Having to paraphrase rather than quote directly will take more time, and perhaps make bloggers more reluctant to dash off a post on a particular issue.

> I fear that one day copyright enforcement rain on the blogosphere’s parade if mainstream media entities and other mainstream websites see the blogosphere getting too profitable or powerful.

> Will this inevitably happen? Will bloggers have to start studying the complexities of the fair use doctrine?

One: Fair use isn’t that hard to figure out, and if you’re going to presume to publish any material in any medium for anything other than personal use, you should have an idea what fair use is about and how to avoid infringing behavior anyhow.

Two: The whole idea of somehow needing to risk infringement coming from someone who’s publishing to a globe-spanning web of interlinked documents is just silly. The only kind of blogger who’s in any danger of running afoul of the law is the sort of infantile jackass who thinks fisking is the next step in the evolution of rhetoric, since that benighted form of “discussion” doesn’t exist without the entire source document.

It’s why we have HTML and not plain old text, dude. You can quote the very most pertinent sentences both to relate the idea you’re discussing and provide a guide to someone following a hyperlink to the source document you’re referring to and probably avoid any complaint. It’s not called “having to do too much work,” it’s called “not being lazy.” People who know how to write and who engage the ideas of others can usually find a way to get just the pertinent parts without grabbing an entire article or document.

I ran a site that ran right up to the line on fair use violations for a little while, and it’s been in operation following the same MO for about seven years now, along with several other sites that do the same thing: Grab a maximum of three paragraphs from a story, except where three paragraphs would constitute more than about 10-20 percent of the story, then link to it so readers can get the rest.

That approach was developed during a period when “blog” wasn’t a very common word and when the site wasn’t owned by a corporate entity, but when a company did buy the site its legal counsel signed off on the approach and the site editors continue to follow it to this day.

During the time I ran the site, I never heard from anyone … not once … about items we ran that probably could have been found to infringe the creator’s copyright in some courts. Other editors before and after me racked up a few complaints (one a year, at the most), but even when lawyers were cease-and-desisting and making threatening noises, the remedy was simple: Take down the potentially infringing content, which the angry lawyers had thoughtfully cataloged for you.

Most of the time, people objecting to both gathering excerpts and deep linking were doing so because they published an article that got our readers riled up enough to start writing letters and posting feedback on their boards. They’d get upset and scared that all this negative attention was coming their way so they’d just threaten us to turn off the influx of unwanted readers.

Comparing a potential blitzkrieg of lawsuits to what’s gone on with the RIAA is sort of fallacious, too. Cutting and pasting a bit of an article that appears on the Web is much different from ripping an entire CD that wasn’t available in a form that abetted easy infringing until someone took the time to make it that way then went further out of their way to make it available.

I’m not a lawyer, it’s true. I am, however, an editor who’s dealt with this issue on a site that drew upwards of 450-500k views a day and that was very clearly doing its excerpting for the purposes of turning a buck. I’m pretty sure we’re safe on this one.

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