Fair Use Online and in Discussion Forums

Patrick O’Keefe who writes a fantastic blog at ManagingCommunities.com posted about fair use in forum postings.  This is an interesting topic given the shifting nature of consumer behavior on the web.  We are part of a gimme culture these days, expecting lots for free that folks used to make bundles of money on (news, music, analysis – today we call them “blogs,” etc.).  In Patrick’s article he attempts to provide clear guidelines on fair use, correctly telling members that “fair use is a defense” to claims of infringement by the copyright holder.

I would argue that as much as fair use is a “defense” it has become a culture and guideline.  As I say in my comment to his blog post (reprinted entirely below – it’s my work so fair use doesn’t apply!), even the courts have been fuzzy on fair use.  How much is too much?  We’ve heard standards like don’t take “the heart of the work,” 150 words or less, and no more than 10% of the work.  What my comment speaks to is how we are becoming used to more use as a digital culture and that this might not be fair to traditional copyright ownership.

Okay – comment number 2 for your blog today Patrick and then I have to get back to work (my cousin, Howard Greenstein, recommended your work to me yesterday). You have correctly identified it as a defense to copyright infringement allowing the excerpting of small portions of a work.  Courts have been in the gray area with fair use because the more granular you go the harder it is to carve out.  When you start getting into word counting or fractions of a work it can be a nightmare.

Blogs and social sharing are doing some interesting things to fair use. As tools like “share this,” embedding, and quote posts have become so common place on the web we are seeing a greater flexibility in what may be considered fair use.  For example, on my blog Mintz’s Wordz I do a lot of embedding of YouTube videos (most recently a bunch of Steve Jobs Keynotes).  Now the displaying of these videos on my blog theoretically violates some of the rights of the copyright holder (a copyright or any property right can be compared to “bundle of sticks” – each stick can represent a different right in what we understand to be the bundle called “the copyright”).  But given the embedding features on YouTube, the prevalence with which others embed such videos, and the unlikelihood of anyone following up on such postings – copyright culture is changing.

This is not to say that you shouldn’t enforce fair use policies or that copyright holders should allow everyone to freely take their work (unless that is your thing).  What it means is we need to rethink what it means to permit “fair use” in a viral media landscape.  How much is fair?  Personally, I use a very sophisticated system for determining things like fair use, ethics, etc.  It’s called “the icky factor.”  If it feels icky, you might want to rethink doing it, because in a connected world ickiness gets sniffed out pretty quickly and can frustrate any benefits you may have thought to reap by being icky.

How do you think copyright ownership should change in light of the viral web?  Do we need a more clear standard of fair use or a more flexible one?  How much do you think is fair?

Disclaimer: nothing in here should be construed as legal advice.  Answering my questions in the comments does not create a lawyer/client relationship (hell, I’m not even practicing at the moment!).  Blah, blah, blah ….

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12 Comments

Filed under Legal, social media

12 responses to “Fair Use Online and in Discussion Forums

  1. Thanks for the mention. I appreciate you extending the conversation and adding to it.

    I think fair use can definitely be a little confusing. When possible, I like to err on the side of caution, as opposed to erring on the side of an aggressive interpretation of it. It can be a confusing thing to deal with, there is no doubt.

    Thanks again,

    Patrick

  2. Yep, there is a lot of copyring going on on the web these days and all our social media sites encourage it. I think the doctrine of fair use will change to some degree in the future. The most important factor is “what is what is the effect of the copying on the commerical interest of the copyright owner.” In most social media copying the impact is nil, and, in fact, the owner probably will encourage copying stuff to get the word out about the book, the CD, whatever. IF, however, you copy the entire work that the owner of the copyright otherwise would have a right to sell – then you will not be able to assert the fair use defense.

    • fragmintz

      Thanks for the comments Patrick and Nils. I think the major shift we will see revolves around the both the guidelines of how much you can copy and the owners rights themselves. Fair use has always been a fuzzy subject bc courts have never quite come out and said how much is too much. Instead we’ve gotten standards like the heart of the
      work or looking at the totality of content. My take I that in an embedding culture the lines will get even fuzzier. Patrick is right to err on the side of caution, but what about situations where erring compromises the point you are getting across. The example I gave about using Steve Jobs videos in my discussion of the Carmine Gallo book The Presentation Secrets of Srlteve Jobs. Sure icoul have just linked to the videos, but it was more powerful to embed – plus I like having the videos on my
      blog in one convenient place to watch in context of presentation techniques.

      Will the embedding culture turn fair
      use questions into trnasformative
      work questions? Does my
      arranging of Steve Jobs videos, which are freely available to embed, like the arrangement of phone numbers in a phone book? I think the more embedding we become used to, the more creative works become more like freely usable information. Thoughts?

      • Hey Mike,

        My pleasure. 🙂

        I’m not sure if you saw my response to you on my blog, but I’ll copy the relevant portion here:

        “I would say that the YouTube example is not a good one because it is a feature on YouTube that is enabled by the uploader and is cleared in their TOS, I’m sure. The main way it would be a violation is if the uploader did not have the rights to upload the work in the first place, in which case the uploader should be reported by the copyright holder and would likely bare any responsibility; with anyone who embedded it likely being fine.

        Whereas, for example, ESPN does not say “embed this article, here’s some code!” So, if you copy and paste the whole article, you’re violating something – it’s not reasonable to cite YouTube as a defense for that, I don’t think.”

        So, that’s pretty much how I feel. YouTube – and other video sites – have enabled a feature that content creators agree to take part in and can freely disable. They do this because they want to; I don’t see it as a means to punish all authors. It can’t mean the erasure of author rights. It has to be opt-in.

        Thanks,

        Patrick

  3. Dorothy

    What a pleasant surprise to find your site and these subjects at this point in time. You see, I have become a lurker. I have had an abundance of time on my hands these last several months, and one of my brilliant (but misguided) nephews suggested that I should start blogging. He thinks I’m funny, and I have decided it’s probably best for my ego not to ask whether he means “strange” or “ha-ha” . My husband and I have had several discussions about copyrights and how to avoid both infringing and being infringed upon, since I don’t want to be involved in either one. I hope to publish some of my work and would hate to post one of my stories only to have it used by someone else…..ergo my status as a lurker. Do you have any suggestions for reading material on this subject–aside from this blog, of course–that a lay-person might find helpful? I would really like to run some of my stuff past strangers and cannot help but think that blogging would be a good venue for me to flex my writing muscles.
    Thanks so much,
    Dorothy

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