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June 4, 2004
Blogging Copyright Infringement
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. Im trying to explain to the person that well 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 peoples photos. Perhaps we should all agree that we wont 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).
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.
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