Linkrot, Quoting, Archival, and Copyright Problems in Online Commentary (I)

The Four Fair Use Factors

The Copyright Act of 1976 included a section that adopted the factor test that the courts had already used to test for fair use. It reads in full:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

17 U.S.C. sect. 107.

Congress aimed to restate, but not change, the court-developed law of fair use. [2] Over time, each of these factors has gained its own history and interpretive background, so applying the fair use test can be a complex endeavor. Now, as I said, I don't have a whole stack of fair use cases with me, so I can't get into a detailed analysis of the law. Let's try to glance at those factors a bit, though, and at least get an idea of what they mean.

1. Purpose and Character of the Use

This first factor looks to the social benefit that derives from the existence of the otherwise infringing copies. Certain kinds of uses, illustrated by the list in the first paragraph of Section 107, obtain greater fair use protection than others. One key to the purpose and character of the use is whether the infringing work has different goals and a different appeal than the original, whether the infringing work "transforms" the copy.

The practice of including excerpts in news reporting and criticism has long been recognized as a socially beneficial use that pushes the first factor in favor of copying. This does not necessarily mean that it will be appropriate to copy the entire work, nor does it imply that one may freely redisseminate an interesting article. In fact, simply copying an article as if to say, "Look what I found; I think this is interesting," probably does not push the first factor in favor of the copying, because the person doing the copying doesn't add anything new that requires copying that material.

2. Nature of the Copyrighted Work

The question of the nature of the copyrighted work “calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Campbell v. Acuff-Rose Music, 510 U.S. 569, 586 (1994). Copyright law protects original expression -- not ideas or facts. So, fictional works arguably fall closer to the core of copyright than a professional journal article, though the article will still have plenty of copyrightable material in it; a simple list of facts falls outside of copyright entirely unless it's compiled and arranged in some original way (the case for that proposition is Feist, though I'm too lazy to dig up the citation right now). Think of it this way: Some works have a higher concentration of copyright-protected originality. As the concentration of protected originality increases, the likelihood that copying a certain amount of text counts as fair use decreases. Conversely, a certain volume of material from a factual work incorporates a relatively lower amount of protected content.

3. Amount and Substantiality of the Portion Used

This factor seems to boil down to the following axiom: Take what you need, and no more. But how much does one need to accomplish the use (which we considered in the first factor)? We want to say, "Well, one really needs to read the entire article that I'm talking about to understand what's going on." Even if this is true in some sense, though, it probably won't grant us permission to distribute entire copies of works by people we disagree (or agree) with.

I have a question for lawyers who know more than I about this area of law. What principles, if any, govern third-factor analysis when the courts apply the fair use test to quotation in academic, social, and political debate? What about the copying of an entire article? Sure, we copy hard-to-get articles for personal study, but what about redistribution on the internet?

4. The Effect of the Use on the Potential Market for the Copyrighted Work

The fourth factor tries to consider whether and to what extent the original author suffers economic harm contrary to copyright policy -- economic harm from the making of copies. We don't care if the author suffers harm from criticism; we only care if the copier's duplication cuts into the author's market by eliminating the need for readers to seek out the original.

Most webloggers write for free. When one copies the work of someone who has no commercial interest in that work, there is at least no immediate fiscal harm. If I wrote something and later failed to reregister my domain or simply dropped the enterprise entirely, I might be happy if I found that someone was hosting my work elsewhere.

If I were the publisher of the New York Times, however, I would probably be upset to find that the market for, say, Paul Krugman's columns or any of my other articles was being cut into by people who had dragged the HTML from the New York Times Online webpage into their blogs -- drop cap and all. [3] If I'm the publisher of the NYT, I want that column available in exactly three places: (1) In the print editions of the NYT and the microfilms NYT makes of them; (2a) first, on the NYT Online free-with-registration advertisement-sponsored website, and then (2b) later, in the for-charge online archives; (3) on LEXIS-NEXIS, Westlaw, and other electronic databases who, as it happens, pay royalties to NYT to archive and display those articles. Any other distribution of those articles cuts into my profits. When I take that column off the free website and put it in the for-charge archive, I've intentionally rotted that link; the Times would argue that there's no linkrot-based justification for anybody to keep disseminating that work without its permission.

The fourth factor of the fair-use test considers these sorts of facts. Krugman-lovers (or -haters) -- this factor will probably weigh against you for that wholesale copying. On the other hand, if in some flash of insanity you decide to copy this entire blog entry, the factor will weigh in your favor; there's no commercial market for this webpage, and I have no intent to try to create one.

Weighing and Balancing

The analytical process of making a fair use determination gets rather blurry. The factors bleed into one another. The third factor inquires about the amount and substantiality taken, but that inquiry partly depends on the context of the purpose for which the copier took the material, a first-factor concern. I've gotten the impression that courts tend to avoid getting so bogged down in the four-factor analysis that they miss the 'big picture.'

Likely Outcomes

Not today. Maybe later I'll conjecture.

Permission Beats All

Here's one important thing to consider: You can make a copy for any purpose if you have permission (a license) from the right person. Find out who holds the right to make copies of the original work. You can copy as much as that person will allow. If you want to archive a column from the mainstream press, the author has probably sold the copyright to the publisher. Large-scale media express a lot of reticence about archive licensing [4]. Webloggers and academic authors, however, tend to take a more lenient view, because they prefer people to see their work -- they derive greater reputational rewards than financial rewards from distribution.

Linkrot, Online Commentary, Quoting, and Archiving

Now I want to ask you all for some help. First, I know that I'm no Copyright and Fair Use expert. I've done a little research in the area, but it applied to a kind of question very different from what we've got on our hands here. So, I want to hear from lawyers who know more about these laws and the policies underlying them.

Second, I want to ask how potential ways of coping with linkrot and disappearing material on the internet interrelate with the goals of copyright policy and fair use. Doesn't Google cache a lot of the material that it comes across? Does that have serious copyright implications, or does anyone really care as long as they keep their bot-fingers off of commercial media?

Last but not least, let's keep our perspective. Most people don't care if you copy something they wrote on the internet as long as you properly attribute it. People tend to care about infringement only if you cut into their profit base, you're mirroring practically everything they do without their permission, or you're a jerk about it or manage to find some way to make a personal matter out of it. I knew a copyright professor who, when presented with a fair use question involving some relatively small-scale copying on webpages for scholarly purposes, said, "Well, try it and see if you get sued." He knew the likelihood was very small that the copyright holders would care.

Enough for Now

Thanks in advance for any comments.

Notes

[1] In the United States, an author need not attach a copyright notice or undertake any other formalities in order to obtain copyright protection. Copyright protection attaches as soon as the work is "fixed in a tangible medium of expression," 17 U.S.C. sect. 102(a). Even a computer's random access memory has been held to be a "tangible medium of expression." 17 U.S.C. sect. 401 (2001) makes copyright notice permissive. An author also need not register the work with the Library of Congress in order to obtain copyright protection. 17 U.S.C. sect. 407(a) ("Neither the deposit requirements of this subsection nor the acquisition provisions of subsection (e) are conditions of copyright protection.") Registration is a prerequisite to an infringement suit, though. See 17 U.S.C. sects. 411, 412.

[2] See H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 66 (1976).

[3] I saw this happen in more than one blog in my aggregator today.

[4] Many periodical publishers got in copyright trouble over archiving a few years ago when they sold database services the right to archive their materials; they hadn't obtained the right to do that from many of the articles' authors. Now they all explicitly obtain that right from their authors, but they tend to want to sell archival privileges to commercial database services instead of handing them out for free. A commercial database can pay royalties. I sure can't offer that.