"...does the [supposed common-law] privilege [for a reporter withholding testimony as to his knowledge of criminal matters] also protect the proprietor of a web log: the stereotypical "blogger" sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court's vision of a broadly granted personal right?" -- Judge Sentelle, in a concurring opinion, blogged by Orin Kerr at Volokh Conspiracy

(Kerr's post also cites a New York Times oped by Eugene Volokh that argues that bloggers should be considered journalists under the law.)

Anyhow, journalists aren't licensed (thank God), and no degree is required. Nor is it a status which can be conferred by a court. A journalist is someone who performs the act of doing journalism. One need not be paid, need not work for someone else, and need not be any good.

This has no bearing on fair use. The right to free speech means I have as much right as the New York Times to excerpt and critique any copyrighted work.

Similarly, an individual doesn't need to be connected to an educational institution in order for their use to be of an educational nature. A company might photocopy a newspaper article and post it in the breakroom, or a non-profit may photocopy part of an article and slip it under your door. Or, a blogger might use a snippet of copyrighted to draw attention to a person, issue or event.

"The Tonight Show" is a commercial venture, yes? Yet, Jay Leno regularly reads entire columns (usually short ones) on his show. And considering that sometimes he's reading badly written head-lines, one can hardly argue that it is not showing off the item in a poor light.

Does this mean that "The Tonight Show" is violating "fair use"?

I think you're misreading the FR case. There, they were simply cutting and pasting articles in their entirety with no transformation other than reader comments.

The fact that putting a MSM article in a bad light might discourage people from reading them isn't a problem from a Fair Use standpoint. The issue there is whether having it available at FR would thereby diminish the likelihood of people visiting the originating site and thus their ad revenue and so forth.

Fair Use is an affirmative defense. That is, the one doing the using has to demonstrate that they are in compliance with the copyright law.

Anyone putting information out in the public arena is "press" and covered by the 1st Amendment. That includes gossip mags like the National Enquirer. No journalist, regardless of affiliation, has a right to shield his sources if there is a criminal investigation. That's true of WaPo and Joe's Blog.

You have another post today that implies that bloggers are journalists. Personally, I don't think that's true. Neither does the DOJ or the Texas Federal Court…Vanessa Legget found out the hard way that just writing about something doesn't transfer the title of journalist to the author. I think she spent something like 200 days in prison in an attempt to use the 1st Amendment to protect her sources and work. And, I think Free Republic is very similar to the blog format. Articles are posted, viewers have the opportunity to comment. Arguing that that comments change the original piece into a transformative product has yet to be accepted. Using a excerpt by a bona fide journalist to enhance a piece of their own is defined as transformative as long as proper credit is applied.

With the only factor remaining of the four (amount and substantiality of the portion used) still undefined, I think the user is hard pressed to win a Fair Use defense when only meeting 25% of the burden. So, yeah, commercial v. non-commercial can be an all or nothing issue on Fair Use.

There's a political aspect to this C&D, but it's much more about money, I reckon. The Daily Oklahoman is losing its "Joklahoman" status and finally emerging from Eddie Gaylord's idiotic form of journalism. The Dallas Morning News has been making inroads into Oklahoma for years. The World's answer has been to throw up as many walls as it can and hoard its money. It's to the point that I don't even know what's going on in Tulsa anymore because The World has bottled up almost all the news coming out of there.

So, yes, it's political, but not as much as you think. Tulsa is, with the exception of the black Northside and a few neighborhoods in Midtown, a very GOP town. The World used to be the "liberal" paper compared to the Tribune (a bit like calling Mr. Joyner a liberal compared to Ms. Malkin), but its been hard to the right since the mid-90s. The World is part of a cabal of conservative business men who are being opposed by a conservative cabal of businessmen and bloggers. But this is entirely about money.

Surely, Fair Use isn't entirely vitiated in the case of a commerical enterprise. Indeed, journalists and other social critics use excerpts of otherwise copyrighted material all the time in pursuit of their trade. Nothing I've read indicates that "failing" prong one of the test nullifies the fair use exemption--it's merely a factor.

I haven't been at Free Republic in some time but seem to recall that they are mostly a clipping service with a comment/discussion board? That's different than journalistic commentary.

The presence of "advertising space" on his blog confirms this. Additionally, any solicitation of donations would be defined as "commercial" as well. This issue has been decided on partial Summary Judgement (and stipulated to) in California Federal District Court (Washington Post/ LA Times v. Free Republic). Granted, Free Republic is a forum, and not a "blog," but the decision holds true in both arenas. Judge Morrow made the ruling, which Free Republic stipulated to…based on quarterly donation requests. Interestingly, the Free Republic case was used to bury Napster.

Fair Use is, immediately, thrown out the window the minute the copyright abuser is confirmed to be a commercial entity that uses copyrighted material to further that financial status.

Also, Judge Morrow ruled that reproducing a full copyrighted piece v. an excerpt was not protected by Fair Use because there would have been alternatives such as excerpting, summarizing, or linking to the original piece. While the Tulsa World Newspaper is demanding a cease and desist on all excerpts and links in addition to full reproductions, they couldn't enforce it on a non-commercial entity. However, Batesline has already failed the "non-commercial" litmus test…So, yes, they can require Bateline to comply and Fair Use would not save the blog.

Judge Morrow, also, found that the First Amendment is not a saving grace either. The Court stated that there were plenty of alternative to reproducing the entire copyrighted piece, and Free Republic did a piss poor job of showing the necessity of archiving such pieces (that happen to disappear from time to time on the original source's server for whatever reason).

Personally, I think the Tulsa Paper is perfectly within their right to make these requests…simply because Batesline is a commercial entity. However, if Batesline pulls their ads, and doesn't request donations…the game changes significantly.
Cheers
IR

--|PW|--