shouting loudly

Internet Researchers and Copyright: Part I

In this post and its sequel, I extend a discussion of copyright begun on a internet researchers’ listserv. This entry provides more information about the context. The second post represents my response.

Part I: The Context

I subscribe to the listerv for the Association for Internet Researchers, AIR-L. On it, one member asked what sort of permission she needed to quote from several messages as part of her dissertation.

I said this was both a legal and an ethical issue. Ethically, I think there is no question that quoting is allowable (I publish something in the scholarly record knowing that it may enter the fold of the discussion), but giving people a chance to clarify or tighten up points is admirable and generous.

Legally, this is a copyright question, and I think there is no question that this is a fair use—that it is not a copyright infringement to take quotations from a public, scholarly listserv for use in a dissertation.

Here was my legal analysis:

I’m no attorney, but this is really a copyright issue, and as such, I’d be entirely comfortable arguing that copyright is no obstacle to almost any conceivable academic use of an academic listserv, at least not in the US. I know much less about other jurisdictions, but based on my much thinner knowledge of fair dealing, I’d predict a similar outcome, at least in most Commonwealth nations. (Those of you from outside the US: please excuse my jurisdictional Americentrism. If you think your courts would find differently, how so?)

In any case, if you use listserv material for academic work in the US, you’re almost certainly fine. US Code, Title 17, Section 107, reads, in part:

… the fair use of a copyrighted work, including such use by reproduction … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the 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. …

Each of these factors favors a finding of fair use here. The intended use is for nonprofit scholarship and education. The copyrighted work being quoted is something (a post to a free listserv) with absolutely no commercial value. (Posts have intellectual value, but we’ve already given them away.) The proposed project would reproduce mere fractions of each post. Finally, there is no concern about the effect on the marketability of something with no commercial value.

I would argue that one could even include a full post if that’s important to illustrate a point. (This is especially true for a short post.)

Things are somewhat different when the quoted and quoting works are of a commercial nature–see Harper & Row v. Nation Enters., 471 U.S. 539 (1985). But virtually any academic use of listserv posts is almost certainly OK–at least in the US.

In response to this, Dan L. Burk, University of Minnesota Professor of Law, writes:

Bill’s fair use analysis is pretty much wrong, but no worries, the use is probably fair anyway. DLB

That is not an excerpt; that is the whole of his analysis. I asked him to elaborate on the listserv, and again, here is his entire post:

Well, I dont want to bore the list, but briefly: the question of commericality which you raise in two of the factors is pretty much either irrelevant or tautological. The notion has been that if someone is taking parts of a work, it must have value, and so the question then is whether a functioning market exists for it. And courts tend to define the relevant market as the market for licenses of the excerpt taken.

So the relevant questions on the fourth factor are first, whether there is a ready mechanism to pay for the excerpts, to which I think the answer is probably not; and then whether the taking was transformative, that is, whether it provides something to the public different than the original work(s). I’d say the answer here to the latter question is yes, which is very nearly dispositive of the analysis as fair.

The broader message is that its virtually impossible for the average person to have any sense of whether a given use is fair or not. Obscurity is the real lynch pin in the system. If you get to make use of a work without permission, its probably not because your guess about whether it was fair or not was correct, its probably just because the copyright owner didn’t notice (or didnt care) what you were doing.

DLB

By this point, I’m willing to move the thread to my blog before I continue with my extended response to this post. I will send something briefer to the listserv rebuffing the claim that average people couldn’t possibly hope to have any sense of whether any given use is fair, but the actual legal analysis is here at ShoutingLoudly.

So that’s the context. Read Part II to see my response.