Thursday, May 27, 2010

Understanding Lawyer Blogging and the Fair Use Law for Web Content

There are a lot of blogs in use today - over 40+ million to be exact. As more attorneys continue to start blogs to support their practice, I receive countless questions on what they can write about and how their entries can utilize content and news from other sources.

The question of using content from another source ultimately deals with the "Fair Use" provisions of copyright law. Many of the larger new sources will publish their policies on their content usage but I found the following interview with Pat Aufderheide, the Executive Director for the Center of Social Media at American University to be a good guide when trying to better understand the concepts of this law...

"Fair use is part of copyright law, and it says you have the right to use other people's copyrighted material without licensing it, without paying for it, or even asking them permission under some circumstances," said Aufderheide. "The law itself is rather vague, so the question is , 'how do you interpret that law?'"
"Fair use is rooted in the first amendment," said Donaldson. "So if you're telling a story, and you need or want, and it's reasonable to use little pieces of other people's stuff to tell that story, that's protected as a first amendment right."

"If you keep in mind the first amendment origins of fair use, you'll have a good starting point," he added.

According to Aufderheide, one thing judges will ask is "did you use this for a different purpose than the original or are you merely taking something that somebody's actually selling, and getting it for free?" Basically - are you taking market value from them?

In the case of news and blogging, she says some of the traditional media sites have legitimate issues legally, but not always. She equates a great deal of the pushback from traditional media to hysteria over a dying business model. If you take a whole article from the Washington Post for example, and put it on your site, you're taking what belongs to them and taking market value from them. This is basically plagiarism anyway. On the other hand. However...

"Bloggers have a perfect right to quote in context, and to say 'the Washington Post said this' and 'here's how the Times covered it', and here's a link to the whole article if you want to look at that," says Aufderheide. "And they have a perfect right as well to quote pictures, images, and to link to video on a commercial site that is producing that stuff, once again within context. What is it that they're doing that is different from the original site? And then I think bloggers are doing just fine, and they're employing their fair use rights just like scholars do every day when they quote several previous scholars and write in their articles that these previous scholars didn't know what they were talking about when they said x, y, and z, and I'm right."

Donaldson added that "there’s no first amendment right to steal something and make money off it," and to just keep in mind those 1st amendment origins of fair use law.

In summary, I have commonly found that if you plan to utilize content from another source, make sure you are aware of their policies for this. If no policy is published, simply use or portions or quotations from the work, try to keep them in context, and provide a link back to the source. If they ask you to modify and/or pull down the content, comply immediately and without question. This of course is not legal advise by any means...just a good guideline to follow.


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