BLOGGING AND FAIR USE
Megan McArdle asks an interesting question:
Can someone please explain to me the odd convinction among bloggers using Movable Type (I’m not naming names . . . you, and they, know who they are) that if they want to put up an entire article on their site so that their readers can view premium content they haven’t paid for, putting it a click away via their “extended entry” function somehow constitutes fair use rather than copyright violation?
I’ve done this a handful of times for articles that I really don’t want to disappear, but put it in extended entry to save space on the main page, not because I think it matters in terms of copyright law.
I’m not sure to what degree we’ve settled the issue of what constitutes “fair use” with online materials. What if it’s a professor’s blog and it’s required reading for the students? Is it fair use then? And one would think a fisking of a whole article would be fair use as well. But I really don’t know.
A quick Google search isn’t very helpful. University of Maryland’s University College notes that,
Deciding whether the use of a work is fair IS NOT a science. There are no set guidelines that are universally accepted.
They offer three guidelines as the the amount:
The more you use, the less likely it will be considered fair use. Does the amount you use exceed a reasonable expectation? If it approaches 50 percent of the entire work, it is likely to be considered an unfair use of the copyrighted work. Is the particular portion used likely to adversely affect the author’s economic gain? If you use the “heart” or “essence” of a work, it is less likely your use will be considered fair.
So it’s quite likely that a lot of what bloggers do is outside the scope fo fair use.