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 ….