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The Truth About Fair Use

The blogosphere loves itself a good controversy, and it looks like we have yet another one generated by the folks at Truth About Guns, courtesy of Weer’d Beard, who also links to a thread over at Reddit. Once again, this involves accusations of appropriations of intellectual property, refuted with a claim of fair use.

There have been accusations of a similar type made against Truth About Guns that I do indeed think fall quite probably into fair use. Their use if Weerd’s banner, for instance, is arguably fair. I use the word arguably, because there’s a lot of room for that when it comes to the legal implications of this topic. It’s not nearly as cut as dry as TTAG’s responses would have you believe. Fair use is kind of like Justice Potter’s infamous statement about pornography, in that he knows it when he sees it. While their are some pretty sound guidelines as to fair use, what is and isn’t fair use is not so cut and dry that one can just declare it, and that is the end of it.

You will get no argument from me that the Internet implicates necessary adjustments to how our society thinks about intellectual property, and copyright laws in particular. But the law is what it is. We’ve all used bits of material derived from other works, at one time or another, in the course of blogging. This is not what I think is imprudent behavior on the part of TTAG. What is imprudent, among other things, is blowing off a copyright holder when he claims your use is infringing, with claims that it’s clearly fair. It’s not clearly fair, because the law doesn’t work that way.

The prudent reaction is “What can I do to make this better?” All the author may want is clear attribution, or some other minor concession, and you both get to walk away happy. Even if the demand is to cease using the work, it’s a one post loss. What’s it to you? A blogger should be willing to work with a copyright holder who claims his use of their material isn’t fair. The copyright holder has the upper hand in this matter legally. So why make an issue of it?

13 Responses to “The Truth About Fair Use”

  1. Roberta X says:

    Amen!

    The fact is that TTAG is a lousy netizen and unwilling to see other bloggers as anything but resources to be exploited. This behavior seems sociopathic.

    IP law is very hazy stuff in re the ‘net and we are, perhaps, better off that way; but it does mean the occasional rudeboy has to be dealt with. It’s why I have him on my personal blacklist: no links, no visits. I recommend this to others. If a screenshot is fair use, why, what better way to document TTAG’s offenses against common courtesy and possibly copyright?

    It’s just a pity no one ever managed to get them tangled up with Righthaven. Prolly would have made for bad law but oh, the schadenfreude.

  2. David says:

    Blogger fights?

  3. RuffRidr says:

    Fair use or not, it just makes sense to remove the pictures right away when the artist requests it. Robert has to ask himself if the negative press generated on Reddit and other places was worth it.

  4. Countertop says:

    Years ago – when I actually blogged more than once a year – u thought an Oleg Volk picture would be perfect for my a post. So I emailed him and asked if he would mind if I used it. He was thrilled – both because someone wanted to publicize his work (this was way before he was “as famous on the ibternet as he is now) but more that someone asked permission first.

    It’s not hard to do.

    And even after the fact a quick – “hey, I’m using your graphic. Hope it’s ok” usually goes far in building up goodwill.

    • Weer'd Beard says:

      Not to mention if the Author actually goes to you directly and makes a request.

      The issues Farago has gotten himself into aren’t issues any of us are strangers to.

      His response, and how quickly he returns to his old ways is what makes him so different than a person just trying to make an interesting blog post.

  5. ExurbanKevin says:

    “What can I do to make this better?”

    First step would be not to link to the site that starts such pissing matches, as inbound links are a big driver of search engine results.

  6. Weer'd Beard says:

    As far as my own personal involvement of this certainly Roberta and RuffRidr cover my feelings.

    Did he steal from me, or was it fair use? In the end the point is moot, I don’t even run ad banners on my blog, and that particular banner was a generous gift from a reader. So I have really no damages.

    Still I found my banner placed at the top of what was a non-nonsensical and rude post, I requested he take it down.

    Instead I get his boilerplate rude response.

    So obviously Farago is a guy with contempt for all other blogs in the community (not to mention the industry and the law)…and this community is were he derives a majority of his content from.

    So at this point I’d just like everybody to be aware of what kind of man runs The Truth About Guns, and I’d call that good.

    He’s a jerk, and a sub-par blogger, and he’s overall rude, and has a taste for biting the hand that feeds him. We have too vast a community to deal with such crap.

    The sitemeter data I have from him is showing the message is being heard.

  7. SPQR says:

    Resolved: that we actually create the boycott that TTAG fantasized.

  8. dustydog says:

    I always assumed Truth about Guns paid Instapundit for the links and traffic, and therefore needed to steal content in order to have enough content to fulfill the terms of the contract. Glenn would look like a complete tool if he linked every post they made.

    • Sebastian says:

      I’ve never heard that Glenn Reynolds can be paid for links. I always kind of figured Glenn was a TTAC fan, and just paid attention to him when he went over to guns. Either that or the TTAG folks just have a really stellar formula for getting his attention.

  9. dustydog says:

    Readers noted that Reynolds had frequent posts that seemed like product placement ads for Amazon. After criticism, he admitted that yes they were product placement ads and used the ‘readers knew that all along so I wasn’t misleading anyone by endorsing Amazon’ reasoning.

    Instapundit links to the Truth About Guns seem equally awkward and periodic. I’m lazy, but if I weren’t I’d make a spreadsheet of how often he links them, to see if there was a pattern indicative of an Outlook reminder to link them every so often.

    Maybe I’m overly cynical, and it is just a way to provide regular content.

    • Sebastian says:

      I’ve done several of those myself. I’m guessing Glenn does them for the same reason I do… because every time you click through, even if you don’t buy anything, you get cookied with my affiliate information, and anything you buy for the next day or so gets credited to me. With the right timing, I can make a hundred or so dollars every couple of months. I’m guessing Glenn might swing that with one link.

      So it’s probably not so much Amazon is paying him for it, so much that he’s learned that the affiliate program can be lucrative if used correctly.

    • Sebastian says:

      Ooops… tried to e-mail you dusty, but the e-mail you gave was bogus. Not that I have a problem with that, it’s just so I can identify people individually, but it bounced.

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