Fair Use vs. DMCA issue hits Xenophilia blog

By | June 27, 2008

June 24, 2008: I can’t post anything new today. This is the message I am seeing:

Warning: We have a concern about some of the content on your blog. Please contact us as soon as possible to resolve the issue and re-enable posting.

So far my attempts at contact have been unanswered. Some person or persons at WordPress.com will only allow me to “Submit for review” instead of publishing. If one this blog goes down, check xenophilia.com for the link to the new blog. For example, this one at blogspot.

June 25, 2008: WordPress.com has asked that I remove one of my posts (the April fools jokes from the Museum of Hoaxes) due to what they consider a valid DMCA request. I’ve promptly removed that post, although I believe the post was fair use under the law. They have also asked that I remove “copied articles”. Parts of copied articles are allowed under the fair use provision of US copyright law. I’ve let them know this. We will see if WordPress cares about free speech and blogger rights enough to stand with me on this.

Extra Irony Points: This blog is largely me ranting against control freaks.

In other news, I’m up past 72,000 visits to this blog! Thanks for visiting. Stay tuned for more.

June 26, 2008: Blog enabled again by WordPress.com.

Follow up: This blog provides news aggregation, reporting, research and education, as well as entertainment and my personal notes on life. My understanding of the fair use provision is that it allows reproduction of content, even copying of entire articles, with certain limitations.

Actually, the law is far from clear and the issue is really heating up. It’s not just me. See: AP Blog Fair Use Guidelines.

… Quite often, blog posts… build from content created by the AP, NYT, WaPo, and others will wind up ranked higher in Google than the original content. This is due to the inter-linking that blogs do, the nature of permalinks, and a variety of factors that I don’t truly understand. It’s not hard to see why the AP would be irritated by that fact. If someone looking for information on the latest breaking news winds up at a blog that’s excerpting AP content rather than on a site displaying advertising that the AP is getting paid for, we’re costing them money.

At the same time, recirculating and commenting upon their content — so long as we link to the original — undoubtedly drives content to the AP’s affiliated sites and creates an additional audience for their work. What the trade-off is, exactly, I don’t know. – otb

In my research on this, I’ve found additionally that Blogger.com uses the same policy as google.com which seems to protect everyone’s rights the most. The legal question, however, is still murky.

… in a recent case (please see http://www.onlinepolicy.org/action/legpolicy/opg_v_diebold/ for more information), a company that sent an infringement notification seeking removal of online materials that were protected by the fair use doctrine was ordered to pay such costs and attorneys fees. The company agreed to pay over $100,000. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney.

For those researching this topic, one comment by “Counsel” on OTB had a nice summary:

…(See www.copyright.gov) … the US Government states, “Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work” and describes the 4-prong test in Section 107.
Namely, in determining “fair use,” the courts will look at:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. 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.

Here are some related stories:

  • Wire Service Theft
  • Court Overturns FCC’s Broadcast Flag Rule
  • C-SPAN Changes Copyright Policy after Pelosi Flap
  • YouTube, Copyright Law, and Political Speech
  • AP Announces Excerpt Fees
  • What Is A Fair Copyright Term?
  • They are Starting to Get It
  • Preparing For The Digital TV Transition
  • Secret Blog Wars
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