Megan McArdle on Fair Use

A few weeks ago, students in my Law, Economics, and Organization seminar learned about the fair use doctrine of copyright law. From my slides on the topic:

“Limiting a copyright owner’s rights can increase the value of the copyright.

For example, the fair use doctrine allows reviewers to quote passages from books without permission, which reduces the cost of reviewing books and increases the number of reviews, and ultimately constitutes free advertising. In the “Betamax case,” the Supreme Court held that fair use allowed the sale of VCRs to record television programs, even though royalties weren’t being paid to copyright owners.”

The Altantic‘s Megan McArdle has recently had an interesting experience with fair use:

“Last week, I wrote a post (…) in which I linked an Xconomy interview with VC founder Kevin Kinsella.  Yesterday, I received a note from them, complaining that my article didn’t name them, but only linked them on the phrase “easting their seed corn”, and that I used 740 words out of an interview of about 2100 words.

I won’t disclose the contents of our correspondence, since the editor who emailed me has requested that they remain confidential.  I think I may disclose that they are very upset about what they see as an egregious fair use violation.  I attempted to rectify the situation by trimming down the excerpts, and naming the site from which they were drawn, but this seems to have somehow only made them madder–perhaps because this is so rare in my ten years of experience blogging that I was mystified rather than sufficiently apologetic. But of course I support their right to control lengthy dissemination of their work, so I have taken down the offending post.”

In my view, social norms in the blogosphere indeed represent a departure from the fair use doctrine, although I am not aware of actual court cases where a blogger has been accused of breaching copyright law. If someone knows of such a case, I’d be interested to hear about it in the comments.

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