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.

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    James Joyner
    About James Joyner
    James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


    1. Bryan says:

      There are a few different camps here. One camp doesn’t believe anything should be free. Another explains away all their copyright violations through “fair use” (and I’m talking sites that all they do is print copyrighted materials). You are probably the final group, who quotes things occasionally thinking they are “fair use,” even though it’s probably a violation.

      As for professors, even we are not immune from copyright violation for “required readings” if we use them in a class pack or something.

    2. O. F. Jay says:

      Hey, who knows? Maybe the NYT, Big Media, and Limbaugh and his ilk can turn the entire blogosophere into an elephant graveyard of farewell addresses by bloggers slapped with multiple copyright-violation lawsuits.

      Would giving out your login to registered sites (of course, only for non-premium content) be construed as aiding the willfull circumvention of digital security? Who knows, maybe you’d be slapped with a DMCA lawsuit. Chill winds, Good Professor. Chill winds.

    3. Bryan says:

      ever notice how it’s only Limbaugh who has an “ilk”? 😀 I think it would be nice to have an “ilk”. Maybe I should get one.

    4. Paul says:

      “Fair Use” is what ever Sandra Day O’Connor say it is on any given Tuesday.

      But having said that, the people that are posting paid material in totality are OBVIOUSLY not protected by fair use. From the way my IP lawyer describes it, I would say 2/3’rds of what I see on blogs is legit.

      But enforcement is a whole new issue.


      Come to think of it, posting things from free sites that make you register is also no good. The lawyers will make the case that your email address amounts to “other considerations.”