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July 17, 2004
Freedom to Fisk
At the recent HOPE conference in New York, my colleague Annalee Newitz spent some time behind the desk at the EFF booth, talking to people about the importance of preserving our traditional rights and freedoms in the digital age. One conference participant asked her to explain the slogan on my personal favorite EFF bumper sticker: "Fair Use Has a Posse." She proceeded to launch into an explanation of the always tricky fair use doctrine, but he stopped her midway.
No, no, he said, I understand fair use. What does "posse" mean?
There's a similar mind-bending transcultural translation going on over at BigBlogCompany.net, which evidently offers businesses eager to capitalize on the blog phenomenon a form of Cluetrain-awareness training. Writes David Carr,
Fisking is at the 'high end' of blogging spectrum skills. It is a term that has grown out of the blogosphere and, indeed, an art that has been crafted and honed by bloggers...[but all] original work (including online articles) is protected by the law of copyright, which means that only the owner can reproduce that work. Thus, a would-be fisker would find themselves in the position of wanting to criticize words they cannot reproduce. Very difficult.
Fortunately, a fisker can rely on the doctrine of 'fair use' which provides certain circumstances where copyright protected work can be reproduced without permission. One of these circumstances is if the reproduction is for the purposes of 'criticism or review' (and fisking is a compact combination of both disciplines).
Interesting that Carr uses as the basis for understanding old school fair use the "new" online practice of Fisk
ing. It's a good reminder to look at the positive side of what's happening on the Internet with regard to copyright: there is an increasing number of people for whom the question of what constitutes "fair use" is daily (or hourly). New laws
certainly threaten to hoodwink people into believing that fair use on the Internet is tantamount to stealing. On the other hand, direct daily experience with making fair uses of copyrighted material "threatens" the development of new social norms that would provide a much-needed counter-balance to this perspective.
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