[Sigia-l] Site Critique Permissions

[Tal Herman]

Molly asks a good question here.  Why would this be different than any other
kind of review?  The answer is that the difference could depend upon the
type of use to which the critique is put.

At the outset, it's important to acknowledge that there is an ongoing and
rancorous debate in and between people in many industries and professions
about the meaning of 'fair use' for people who wish to do exactly what
Maribeth wants to do.

Now, my personal opinion about these issues is fairly close to Ziya's --who
says "I'm appalled by the timidity with which folks approach copyright/fair
use issues" -- but that is a personal stand that I'm willing to take, having
a fairly good knowledge of the issues involved and being prepared to deal
with the fallout.  Intellectual property issues are something I find
particularly interesting, know something about, and have experience dealing
with from the legal perspective.

In order to answer Molly's question, it's necessary to delve a little more
deeply into the 'fair use doctrine' and what that means.  What I say here
doesn't even really scratch the surface of the issues involved and shouldn't
be construed as legal advice in any way.

There are serious and potentially expensive issues involved in the
determination of whether or not to seek permission for use of portions of a
copyrighted item in a critique.  It is important to remember that 'fair use'
is an affirmative defense to a claim of copyright infringement, not a bar to
the claim itself.  As the person using the copyrighted item, the burden is
on Maribeth to prove that the use she made of it falls within the realm of
fair use.  You don't get to prevent a lawsuit by claiming 'fair use,' you
only get to win if the court agrees with your argument.

17 U.S.C. sec. 107 provides:

"Sec. 107. - Limitations on exclusive rights: Fair use

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, 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.

"The fact that a work is unpublished shall not itself bar a finding of fair
use if such finding is made upon consideration of all the above factors."

Now, under subsection (1), one of the issues involved in a fair use
determination is whether the infringing was done for a commercial purpose,
which argues against the claim of 'fair use'.  If Maribeth used some of my
copyrighted material in a critique and I didn't like that, I could file
suit.  In my suit, I might argue that Maribeth didn't have an educational or
non-profit purpose for using my work without permission; rather she was
doing it merely to sell her own services as an IA and show that she was
better than me, her competitor.

This may or may not be true, but it's something that would need to be
refuted because the burden is on her to prove 'fair use', not me to prove
infringement (see, e.g., Model Civ. Jury Instr. 9th Cir. s 17.4.1
<http://www.ipmall.fplc.edu/hosted_resources/jury/c-ad-fu.htm>).  And this
is only one of the arguments that I could make.

With apologies to Ziya, the "crux" of the matter is not whether the
infringer is "adversely impacting "the potential market for or value of the
copyrighted work".  That's only one of four statutorily described factors in
the 'fair use' determination.  You can lose if any one of the specified
factors falls too far out of your favor.

That's why people often advise that you get permission for _everything_ you
use.  I don't agree with that advice, but I know why I don't and I
understand to some extent what the factors involved are and how they might
play out if I was ever forced to defend myself from a copyright infringement
lawsuit.

There is simply no easy answer to the question posed by Maribeth.  And
that's why Molly's question is an important one.  Not all review are equal
in the eyes of the 'fair use doctrine', and you can't count on every court
you might be sued in interpreting the law in the same way.

Tal

tal herman||||||||||||||||||||||||||||||||||||
therman-at-seralat.com||http://www.seralat.com
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-----Original Message-----
From: sigia-l-admin at asis.org [mailto:sigia-l-admin at asis.org]On Behalf Of
molly wright steenson
Sent: Friday, May 17, 2002 10:17 AM
To: SIGIA
Subject: RE: [Sigia-l] Site Critique Permissions


Why would this be much different than reviewing a record album, movie or
book? Even if they get bad reviews, to my knowledge, it is not necessary to
ask permission first. If quotes are used from a book or song lyrics, that
doesn't fall under infringement.

At 08:49 AM 5/17/2002 -0700, Tal Herman wrote:
>This question has definitely come up before and has at least two correct
but
>very different answers, with many shades between the two.  I present both
>answers in very simplified format.  There are very complex issues involved
>here and great debate amongst those who make this area of the law their
>business as to the bounds of copyright law both as a matter of law and
>public policy.
>
>Answer #1: You should always get permission.
>
[snip]
>
>Answer #2
>
[snip]
>
>I fall somewhere closer to the Answer #2 side of the equation personally,
>but this is something that you will have to decide on your own or with the
>help of a knowledgable copyright lawyer.
>
>Tal
>
[snip]
>
>-----Original Message-----
>From: sigia-l-admin at asis.org [mailto:sigia-l-admin at asis.org]On Behalf Of
>Maribeth Sullivan
>Sent: Thursday, May 16, 2002 7:26 AM
>To: SIGIA
>Subject: [Sigia-l] Site Critique Permissions
>
>
>I'm sure this topic was touched on at some point, but can't seem to find it
>in the archives (it may have been tangential to other discussions): When
>publicly deconstructing websites or publishing critiques with screenshots
of
>company websites to illustrate good or bad web design elements, what sort
of
>permissions should be obtained?
>
>What are the ethical considerations? What are the legal considerations?
Does
>it make a difference if your publication is a book, white paper (free or
for
>sale), website article or blog?
[snip]