Fair Use of Copyrighted Materials on Blogs

There was a comment made during the Disney/Spocko’s Brain fuss a few weeks ago that really bothered me. Neil Simpkins, the lawyer for Spocko’s hosting provider 1&1, justified 1&1’s decision to pull the plug on Spocko’s blog based on the lack of case precedent concerning fair use of copyrighted material on blogs.

“The [fair use] battle for bloggers hasn’t been waged yet,” Simpkins says. “Right now, technology is outracing the legal system.” 

Um. Even if (and that’s a HUGE if) there isn’t precedent, that doesn’t mean that fair use doesn’t apply. It just means the hosting provider in this case didn’t feel that Spocko’s business was worth wrestling the 900 lb Mouse. 

To make sure I wasn’t completely out of line for being offended at the suggestion that somehow fair use can’t be applied to this particular means of publishing simply because it’s new, I consulted John Hogg who, while not an attorney, majored in journalism at Purdue and knows a lot about fair use, defamation, etc.

Transcript of Conversation…

C: So this irks me. This guy HAD to use the whole clip to support his argument… his intent clearly wasn’t to redistribute the copyrighted material. Why isn’t anyone outraged about this? If Disney is embarassed about this chick on their network (and they should be), they should do something about it, and not shut down this guy who is rightfully criticizing them. Additionally, why isn’t the hosting provider acting like they have a pair? That’s BS about the “no fair use protection” for copyrights material used on blogs, isn’t it?

JH: Well first, yes it’s BS because if copyright protection applies to the work being sampled, then fair use exceptions to that copyright also exist. A blog is just web-published content. Take a look at wikipedia — every sound clip and image that appears in a wikipedia article cites fair use.

Second, it can irk you all you want, but the guy cost Disney money by alerting their sponsors and the sponsors leaving. They HAD to act. He should be happy they only came after him for copyright violation. It implies they [Disney] can’t get damages from a defamation case.

Third, his host doesn’t give a crap about him. Why should they? They’re not in the business of publishing. They’re in the business of providing servers and bandwidth to people to do “stuff”. They don’t want to lose their business. If they don’t shut him down, Disney will just go to *their* service provider and shut *them* off, and now they’ve got 100 pissed off customers instead of just the one.

C: If the New York Times or the Booneyville Gazette ran it on their website and Disney came after them, I bet they’d be like “YAY! BRING IT!”

JH: Well yeah, that’s their bread and butter. They’re in the publishing business and they understand that’s their ground to defend. The ISP doesn’t care.

C: It still blows mightily that no matter how good your case is, someone with deep pockets can just talk to your host and shut you down.

JH: It is what it is.

C: So let’s go back to copyright violation… is there anything that can be done to avoid getting nailed for redistributing copyrighted material? If you’re making accusations that could be defamatory, you HAVE to have that evidence to prove your statements are true, right?

JH: You do. If the statements you make are provably true, no matter how damaging they are, it’s not defamation. You have to have that evidence. However, you don’t have to put the whole segment on your blog for people to listen to… that is where they’re going to get you on redistributing.

It’s like watching a football game on TV. At some point you get the little, canned voice-over talking about how the broadcast can’t be rebroadcast or retransmitted witout the written consent of the NFL. Disney is applying the same protection to their objectionable radio show segment.

C: Kinda loses its excitement if you don’t have the “caught them red-handed” proof though.

JH: Yeah, but you can still do excerpts. Chop it up into sound bites, or better yet, provide a written transcript of the audio file instead of linking to the whole file. Anything that breaks up what you’re publishing into small pieces helps show that you’re only using the bare minimum of someone else’s content for your discussion.

C: What can you do with the whole file?

JH: Put it in a safe place, because if you get hauled into court, that’s your protection. 

C: Is there anything you can do to prevent your host from shutting you down?

JH: Unless you own your own servers and the telco that provides your bandwidth, not really. If you’re pissing off a big enough player, they’re going to try to make you go away quicklyand quietly, and that generally means looking at your delivery chain and going after the weak links.

The weak links are the ones you NEED to get your product to market, but you can’t control or protect.

I doubt Disney cares about this guy one way or another, but they’ve got to make a play on getting him gagged so they can shore up their advertising.

In three months, this is old news; the DJ has been quietly reassigned to midday traffic updates in Barstow, and this all goes away.

I guess if you know you have something big, get your story and the files into the hands of the more traditional media. In this case, any newspaper or news show that competes with Disney is going to be tickled to get the goods on them. Besides, if you’re breaking a hot story like that, you might get some airtime.

So to recap…

1. There is probably not a whole lot you can do to keep your site up if you arouse the wrath of a large corporation or someone with deep pockets and a love of litigation because the lawyers will politely ask your hosting provider (or your bandwidth provider, or whomever else they need to ask) to shut you down, and it’s easier and less painful for the hosting company to acquiesce rather than stick up for you.
2. If you’re criticizing a business or a person, or otherwise making statements that might cause them to lose business or damage their reputation causing them any loss of income or revenue, you’re opening yourself up to a defamation suit. Your only defense is to have evidence that the statements you’re making are provably true. The burden of proof is on YOU.
3. If you want to use pieces of your prized evidence on your blog or website, use a transcript (e.g. change the format of the piece) or chop it up into small sound/video bites to help reduce the chances of successful copyright violation/infringement litigation.
4. Ultimately, there IS fair use protection for blogs, but because of how the published material is made available, you are at the mercy of those on whom you are dependent for keeping your site online, and they aren’t going to risk their business for your blog.