:Information Law and Policy Spring 10

I’m a regular reader of Nicholas Carr’s blog (who, by the way, is not as stupid as he claims Google has made him). One of his blog posts last year is marginally devoted to the steady decline of Second Life. Nick Carr argues somewhat strangely that Second Life has failed because the internet as a whole has apparently become a virtual reality; one that we replaced our actual reality for.

You might ask yourself what that has got to do with Information Law and Policy. The interesting part with that blog post is that only about 150 words of the 1,500 word text are written by Nick Carr himself. The rest is an excerpt from “Tlön, Uqbar, Orbis Tertius”, a story by Jorge Luis Borges, our good friend from the very first 202 lecture.

While Borge’s story is entertaining (and as usual a little weird), the use of such a large excerpt raises questions how far bloggers can reuse content under “Fair Use”, as one commenter points out:

[Nick, …] Perhaps, charitably, you left out the “Reproduced with Permission” tag?
Or do you believe your reader base would consider this “quotation of excerpts in a review or criticism for purposes of illustration or comment” or “quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations” under Fair Use?

Nick Carrs answer:

I am hoping this would qualify as fair use, as my intent is not just to quote part of Borges’s story but to encourage readers to see its relevance to our own time. […] To me, that’s the essence of the fair use protection. […] I tried to shorten it at one point, but it lost the imaginative richness of the original.

That answer, as much as I like Nick Carr’s Blog, rather describes Fair Use as a general idea than as it is defined in the legal context. This is, as we’ve learned, a common misconception.

Let’s try to recall the factors that determine whether the reuse of a copyrighted work falls under Fair Use or not, as listed in 17 USC, §107

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.

Nick Carr’s blog is free to the public. However, let’s face it, he also tries to sell his books, the newest of which will be released in June this year. That pretty much renders the nonprofit argument useless. Furthermore, Carr used a substantial share of Borge’s story for his blog post, approximately 20% according to one commenter.

Although I’m not implying that Carr deliberately infringed on Borge’s copyright, it’s not clear whether Fair Use applies to that type of reuse of another person’s work. Nick Carr, as most people, have no clear definition of what Fair Use actually is, yet many people claim that their work falls under Fair use.

Jorge Luis Borge’s story has been published in 1940, and copyright for this work might have already expired. In which case Nick Carr might be off the hook.

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