The RSS Copyright Question, Cont'd

Jam Today of yesterday has a nice follow-up piece regarding the question of when, precisely, a blog entry becomes “fixed” — one of the prerequisites in order for copyright to attach.  I could imagine a judge (or her law clerk) struggling with just the question raised.  The outcome, I’d think, would be that a finder of fact would determine that a blog entry would become fixed at the time of the publication to the Web (as a Web page or as an RSS feed) of the first iteration of the entry, even if it might be edited within the next 5 minutes or in the next 23 1/2 hours.  I would think that this outcome would be a matter of practicality.  It’s clear that writing to a blog would at some point be considered fixed, and one would have to choose a point at which to call it so as a matter of law.  The question is certainly a good one.

Also, there’s been a lot of buzz about whether “fair use” would apply in the hypo below (or in the real-world setting that prompted the hypo).  I have some bad news: fair use is unreliable as a defense in this day and age, on the Web in particular.  I very often hear technical people rely on fair use as a reason for doing something, and those people are almost always overstating its reach.  

Fair use is a critical part of making copyright law work.  It’s critical to making the Web work, frankly.  We all should be working hard to reinstate a strong sense of fair use, on and offline.  But the bad news is that fair use not a strong doctrine at the moment.  (What can you do about this problem?  Lots. Ask your friends at the EFF and other good activists, like Fred von Lohmann and Wendy Seltzer; donate money to them; get involved in the political side of the copyright debate, by following Prof. Lessig‘s lead and others like him; etc.)

The outcome of most battles over copyright on the Net end like this hypo does: with Blogger #2 taking down what s/he’s published to the Web.  Those who hold full US copyrights (as in Blogger #1, here) win, hands down, nearly all the time.  It usually doesn’t even get to litigation.  Why?  In most instances, it’s because, though one can make strong arguments about fair use, the defense is not a reliable one.  When you get right down to it, it’s not someone’s rosy reading of how the four-factor test would come out, but rather what the courts have said, and will say, in interpreting the law, that matters.  Courts have not been friendly to the fair use defense.  And it’s about whether people will run the quite real risk of owing damages (in addition to spending the money to defend themselves) or not.  People without big bucks and big law firms behind them — and even ones that do have big bucks and big law firms — can’t run the risk of copyright violation.  For Blogger #2, it’s a very big risk.  Almost invariably, as here, too big a risk to keep the site up.  

Addendum: Denise Howell, A Real Lawyer, concurs.  Always good to have people in practice backing you up when you’ve turned into an ivory tower type.