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Ernie does a fair use analysis of the copying of headlines (below) -- an issue of more than passing interest to bloggers and blog search tools that routinely copy headlines or extract them from RSS feeds (as the Trademark Blog picks up). Defenses of implied license for some uses aside, I think the headline republishers have a stronger case than Ernie credits, because copyright does not protect titles, short words, and phrases (see Copyright Office Circular 34). Thanks to that exclusion, librarians don't have to rely on fair use to list books in card catalogues or their online equivalents, and others than copyright holders can prepare indexes directing readers where to find more information. If the subject matter is unprotectable or only slightly protected in the first place, or if the use is "transformative" -- indexing rather than publishing articles, the "effect on the market" is less important.
I discuss this issue in the comments to my original article below:
...and I still disagree. The reason titles are given less protection isn't (just) that they're considered short or uncreative, but also because a market for copyrighted works can't exist without free ways to describe the works. I may share Ernie's cynicism about courts and copyright, but I don't think bloggers need be chilled by this line of reasoning.Permalink to Comment
Bloggers are differently situated. Generally, they aren't stripping headlines for a portal site. They aren't using headlines for commercial use. If they are using the headlines for commerical use, they are stripping the headlines from various sites and creating mini-indexes on particular subjects. They are probably also mixing the headlines with some short commentary, even if only a sentence or two. If are simply using headlines from a single publication, they are probably using RSS (which would raise an implied license defense).Permalink to Comment
Tracked on March 29, 2004 12:54 PM
Tracked on March 30, 2004 11:51 AM