Copyright and Posting Articles

[James S. Rustad]

I decided to pull this one out of the election thread since I think it is turning into an interesting discussion...

James S. Rustad writes (re my posting):
Hmmm...  I thought reprinting a work in its entirety, especially with no commentary, was a violation of copyright.

I comment:
You thought wrong. In this case.

Indeed. It's fair use.

Please explain why.  I am truly interested in understanding why this would be considered fair use.

Sure. Here's an example:

"Judge Rules that Reposting an Entire Article Without Permission Is ‘Fair Use’"

http://www.adweek.com/fishbowlny/reposting-aggregation-fair-use/39177

The original Wired article that the Adweek blog linked gives much more information about the case.  It includes this key point:

"It’s not often that republishing an entire work without permission is deemed fair use."

https://www.wired.com/2011/06/fair-use-defense/

The Wired article goes on to discuss fair use quite well, including that it is decided on the facts in each case.  So one user of one blog successfully defending posting an entire article to that blog doesn't mean that the next post of an entire article will be treated the same way.  Pastor Austin's comment that "You thought wrong. In this case." is exactly correct.

Fair use is every bit as murky as I thought.

[Donald_Kirchner]

So, you started this thread...why?

[James S. Rustad]

A blog entry about "lousy legal writing" where an article was posted in its entirety and later removed after the copyright owner sent a DMCA notice:

http://volokh.com/2011/01/07/lousy-legal-writing/

A second post from the same site wherein it is explained that while it appears to clearly be fair use, it might not be "worth getting hauled into court over".

http://volokh.com/2011/01/07/the-legal-intelligencer-fights-back/

Note: a comment on the site indicates that both the author of the post and the person the site is named for have both taught copyright law for over 10 years.  Maybe some posters to this site should not be as confident about fair use as they seem to be.

[Charles Austin]

I don't "know" copyright law in detail. But I do know the basic principle. And on one occasion years ago, I invoked copyright law because a publisher put one of my articles in a book without my permission, and without offering me payment. I got payment, probably twice what the fee would have been had they asked my permission to reprint.
Among the concerns: does the "re-printer" benefit financially from reprinting the article? Doe the re-printing without permission and without noting copyright, cause the "product" to lose value for the original author? Does it deprive the original author of earnings that otherwise might be due or expected? "Fair use" is intended to allow reasonable-size quotes in reviews, other articles, etc.
Internet technology makes it much easier to re-print an entire article than previously; and there may be more "grey" areas.
And for the one whose copyright may have been infringed; there is the matter of cost-to-benefit ratio. Simple example: If my putting the article from The New York Times here was a copyright infringement (and I do not think it was), could the newspaper recover "benefits" or "damages" from me and at what cost?
Not everything is clear-cut or easy. The case of one of my articles appearing in a book was. If someone has taken one of my newspaper columns and put it in a church newsletter, I'm not sure if an infringement has taken place or whether I could prove "damages."
The specifics of any case are the kinds of things that get lawyers billable hours.

[LCMS87]

I don't know anything about copyright law, but I seem to remember reading somewhere once a notice that asserted concerning a publication that the author/publisher would regard a quote above a certain size to abridge fair use.  Obviously I don't recall the details.

The quote Rev. Austin posted was relatively brief, amounting to a mere 637 words.  Would it make any difference to the determination of fair use if it had been a 6,370 word essay posted in full? 

I understand that gaining a profit from the work of another without compensating him is an important factor in copyright law.  Are there other similarly clear lines?

[Charles Austin]

It cannot be length alone, or a sonnet could not be protected by copyright.
"Ownership" of a written work, I believe, has to do with permission to have it printed, and the commercial value of what is printed, where and how it is printed. As a writer, that has been my concern. I write articles, essays, short stories and books and that is part of how I earn my living. No one else can "have" what I write, especially if they are making money from my writing or if their publication of it interferes with my right to gain from my work, without my permission.
It was different in Luther's time. In "Brand Luther: How an Unheralded Monk Turned His Small Town Into a Center of Publishing, Made Himself the Most Famous Man in Europe and Started the Protestant Reformation," by Andrew Pettigrew, we read how publishers rushed to print Luther's writings. Luther himself was fussy about which publishers he chose, preferring for a time the publisher in Lepizig rather than the one in Wittenberg because they did better printing and had better fonts. But he could not prevent any printer anywhere from printing and selling his work.

[James S. Rustad]

No one else can "have" what I write, especially if they are making money from my writing or if their publication of it interferes with my right to gain from my work, without my permission.

You seem to be saying two things here: that it's a copyright violation to use your work without your permission, and, that it is even worse if the user makes money or interferes with your gain from your work.

Doesn't your statement above contradict your position that you didn't infringe on the NYT's copyright?

(I'm not saying that your use of the NYT's article was not fair use.)

[Charles Austin]

 I am saying that posting the new story here did not affect in anyway with the newspaper's business,  nor did I make any money from the posting. in the case of putting my magazine article in a book, the publisher was going to make money.
 If somebody prints one of my columns in a church newsletter, that does not affect me commercially, nor does it make money for the one who prints it.
 For writers, copyright protects our right to earn an income from our work.

[Harvey_Mozolak]

no one has added three thoughts:
using but not attributing the source and author
taking credit for the quotation when it is not yours
allowing the use to seemingly indicate that it is yours not the proper author

[Charles Austin]

That, Harvey, is called plagiarism, and it is the reason that each semester that I taught creative writing, at least one student (once, two) failed. I explained plagiarism in detail and said if they did it, I would probably catch them. First time - F on the paper, a personal "lecture" and no chance for a re-write. Second-time - F in the course.

[Brian Stoffregen]

It gets muddy. Lyrics to songs are copyrighted - which means one should get permission before copying the lyrics (or even posting them online). It can be argued that when churches made up song-sheets, they were not spending money on the songbooks that contained the songs. Some argued that if a church had enough hymnals for each person, then copying the songs was not depriving the artists from their royalties. (Marty Haugen said that if there were enough accompaniment editions for each musicians, then copies could be made and used on the stands - the avoid page turns, or hunting and finding the music, etc.) A representative from Augsburg Fortress said "No." Having copies of the hymnals doesn't give the congregation the right to make copies of the music. When I accompanied soloists in contests, I had to use an original, published, paid for copy of the music. I couldn't spread out copied sheets to avoid page turns. (I could use an assistant to turn the pages for me.)


"Fair use," gets defined by the legal system. No one knows for sure what constitutes fair use until there has been a court case. A choir director can make copies of an anthem if he has ordered copies but they haven't arrived for a practice, but once they arrive, the copies need to be destroyed. That's an example of fair use.