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June 4, 2004

Blogging Copyright Infringement

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Posted by Ernest Miller

Apparently, weblog publishing magnate Jason Calacanis has received his first copyright infringement cease and desist request, according to an entry on his Nanopublishing Weblog (Fair Use for photos on the web and in blogs: a modest proposal to avoid a major battle):

Today, for the first time, someone got upset at us for using one of their images in a 70 word blog post that is sending dozens of people a day to their website. I’m trying to explain to the person that we’ll take it down if they want, even though we could use a thumbnail/cropped photo by the fair use provisions as reports, but that we would rather work with them to come to a partnership.

Calacanis is right that blogs have not been hit too hard on the copyright issue so far but that is likely to change - especially for money-making blogs such as Calacanis'. Unfortunately, his solution for the image problem isn't too hot:
As a group we need to set a standard when using other people’s photos. Perhaps we should all agree that we won’t use more then 50% of the original photo, cropping out the rest. Nick does this on Fleshbot all the time. Now, granted it is because of the design and to keep the site more “work friendly,” but I think he is on to a model of fair use for bloggers. Also, we could agree that no photo will be over 300x300 pixels and that any time you use an image you should link back to the source (we do this already, as almost everyone does).

Read on...

This solution is problematic for several reasons. First, these guidelines aren't going to protect anyone against an infringement lawsuit. There is nothing magic about these numbers and they certainly can't bind the world. Copyright infringement has been found for much smaller uses of copyrighted works than what has been proposed here. Second, and related to the first issue, is that these guidelines would tend to misinform people about what fair use actually is. Third, if anything, such guidelines will have a tendency to create a presumption that uses greater than what is proposed are infringement. This would not be good.

Ultimately, if Calacanis is concerned for his business liability for copyright infringement (which he should be), he will need to vet the images through agreements with their copyright holders. For now, informality might work, but as his blogs become bigger business, they also become bigger lawsuit targets.

As for personal, non-commercial blogging, someone will likely be burned eventually. Other than providing education about what copyright law actually is, I'm not sure that much more can be done.

Comments (6) + TrackBacks (0) | Category: IP Abuse


1. Jason McCabe Calacanis on June 4, 2004 4:18 PM writes...

I think we are going to take the "good enough for Google" thumbnail approach.. basically a tiny thumbnail that is used for navigation purposes that doesn't take away the authors ability to make money, and that doesn't give the user enough information to keep them from seeing the bigger photo.

This is what Nick Denton is doing on Fleshbot, Gawker, etc.

What do you think about thumbnails and fair use?

What do you think of this story?

Thanks for covering this issue... I think we all want to work it out and get along.

Permalink to Comment

2. Pariah Burke on June 4, 2004 4:40 PM writes...

You're absolutely correct in that "as blogs become bigger business, they also become bigger lawsuit targets." This is inevitable, but the keyword is not "blogs"; it's "business".

As ANY business grows, it increases in potential for lawsuit. That is the nature of American business.

Law suits--intellectual property infringement, discrimination, personal injury, or ANY type of suit--don't have to make sense or even really have legal merit for the suit. All that is required is someone to feel like suing. Anyone can file suit in civil court for virtually anything, with or without proof. Filing is easy and accessible to the masses. What matters is meeting burden of proof and statute during trial. Frivolous cases and cases without merit fail at THAT point because, up until that point, the system provides for no one to review the material facts of an allegation and suit.

The potential for lawsuit against a business remains constant. The methods are the only things that vary. It is extremely unlikely that someone would actually sue a blog for personal injury or for misrepresentation of constituent ingredients. Thus the field of potential causes for action get narrowed.

What logical causes are left (not that logic always has a place in filing a law suit)? Intellectual property infringement and libel are the two that come immediately to my mind. If Calacanis wanted to, he could sue you for libel. I don't think any attorney or judge in the land would find sufficient evidence in the above post for a judgement of libel, but that doesn't inhibit Jason's right to file the paperwork and slap down his $250 filing fee. The Clerk of the Court will be more than happy to take his paperwork along with the check. The same could be said of his right to sue you for infringing on his copyright by quoting the Nanopublishing blog post.

In the latter example, however, you are WELL within your rights under Fair Use to quote that article. Were Jason to sue you for infringement (for the above), he would undoubtedly lose. Again, whether he would be proven right or wrong is unrelated to his right to file suit in civil court. Evidence isn't evaluated until trial time.

As long blogs follow the time-proven methodologies of print and broadcast journalism for giving credit and adhering to the provisions of Fair Use (see my trackbacked post above for the actual text of the law), blogs will enjoy the same protection as newspapers and television news from losing an infringement suit. In this matter blogs DO squarely qualify as journalism since the law makes no distinction between corporate news agencies and home office, or between those who earn their living solely from reporting news and those who write a single review or commentary during the entirety of their lifetimes.

Permalink to Comment

3. Brad Hutchings on June 4, 2004 6:09 PM writes...

Why no discussion of the traffic issue? Perhaps it's pretty negligible in most blogging circumstances, but consider the principle for a moment. Say that organization X does something that irritates blogger Y. Blogger Y includes an <img> tag referencing, and claims fair use as he criticizes X. Well, perhaps it's fair use of the image in that context, but is it reasonable to expect organization X to pay for the traffic as well?

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4. Jason McCabe Calacanis on June 4, 2004 9:37 PM writes...

I just posted some more thoughts on this issue:

Blogs, Photo and Copyright: Winning the battle, but let’s not lose the war. (or the “Good enough for Google” rule).

Permalink to Comment

5. brian on June 4, 2004 9:46 PM writes...

Pariah, as Larry Lessig says in his book "Free Culture," fair use is now only a protection if you have the legal resources to defend yourself. Sure you might win a case, but do most bloggers have the money or time to hire a lawyer represent their "rights," especially if you are up against a powerful corporation?

Permalink to Comment

6. Cory Doctorow on June 5, 2004 6:04 AM writes...

I believe that the appropriate best practice for quoting (including "quotations" of images) should be to quote *exactly* as much as you need to tell the best story possible -- that is, to make your point as well as you possibly can, given the material and your commentary on it -- and to not use *one pixel or word more*. My reading of Fair Use is that this is a defensible practice: the thing here isn't to to use only 50% of a post, or 50% of an image, but rather, to use just enough to make your point.

Remember, copyright seeks to maximize discourse, not restrict it, and that's fundamental to Fair Use. If the discourse demands that you use 70% of an image, or 100% of an image, or all of a post, you should do so -- but only if you're prepared to explain to a judge why you believe that you need that much of a work to make your point.

Imagine that you wwere writing about the tendency of photobloggers to waste bandwidth by using too little JPEG compression. You post an original image from a photoblog and the same image at 50% compression, side by side, to illustrate that the k-size is double what it needs to be. You would need to post the whole image, and not a piece of it, or a reduction of it, to explain this. I believe that this is what Fair Use demands of its proponents: to use 100% when called upon to use 100%.

Fair Use is meant to evolve through the creation of new uses. Lots of people quite reasonably
disbelieved that the VCR -- which made a consumptive use of 100 percent of creative works and eroded the studios' licensing deals with Discovision, a VCR competitor -- would be found to be a fair use. Nevertheless, Sony did not ship a VCR that only recorded half of the programs you taped, at half the resolution they were transmitted at.

Should we hold ourselves to a lower standard than Sony? Why? Sony *won*.

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