Last Updated on February 23, 2022, 10:30 am ET
For Fair Use Week 2022, the Association of Research Libraries (ARL) teamed up with the Social Science Research Council (SSRC) #MediaWell project and asked experts to weigh in on how fair use supports research, news, and truth. Eric Goldman describes below how bloggers rely on fair use to publish their research. Goldman is associate dean for research, professor of law, and co-director of the High Tech Law Institute, at Santa Clara University School of Law. His research and teaching focuses on internet law, and he blogs on that topic at the Technology & Marketing Law Blog.
Bloggers play an increasingly important role in the research ecosystem, especially as investigative journalism has declined. Bloggers often pay attention to issues that are too niche-y or esoteric for mainstream media coverage, and bloggers can provide expert commentary and repositories of source materials on fast-moving topics.
Publishing these materials can create substantial legal risk for research-focused bloggers, including the risk of copyright infringement. Unfortunately, many bloggers do not have the same financial resources, access to lawyers, or insurance coverage as institutional publishers, so they are less likely to defend their works in the face of allegations of copyright infringement.
Fair use is supposed to protect research bloggers in these circumstances. The statute expressly identifies “criticism, comment, news reporting…scholarship [and] research” as the kinds of activities that should qualify as fair use. But fair use is notoriously tricky to analyze and predict, and defending it in court can be expensive, which discourages research bloggers from confidently relying on it.
Fortunately, in the past decade, defendants have won several favorable fair use rulings on a motion to dismiss—the quickest and cheapest possible way for defendants to defeat a copyright infringement case. For example, in Righthaven v. Realty One Group, 2010 WL 4115413 (D. Nev. 2010), a blogger won a motion to dismiss for republishing 8 sentences of a 30-sentence new article. Defendants have also won fair use-based motions to dismiss over republishing a partial screenshot (Yang v. Mic Network, 405 F. Supp. 3d 537 (S.D.N.Y. 2019)), a cropped photo (Harbus v. Manhattan Institute for Policy Research, 2020 WL 1990866 (S.D.N.Y. 2020)), and a modified photo (Schwartzwald v. Oath, 2020 WL 5441291 (S.D.N.Y. 2020)). In some cases, the court has awarded attorneys’ fees to the defense, defraying the costs of standing firm rather than folding. Due to these rulings, research bloggers can do their socially beneficial work knowing that fair use is there to help them.
However, these rulings aren’t a complete solution for research bloggers. The early defense wins usually occur only when the defendant modifies the source material; verbatim republishing might take more time and money to defend. Plus, even winning a motion to dismiss takes time and money, and that risk still discourages legitimate activity. Also, the Copyright Office will soon launch a new copyright “small claims” court (the Copyright Claims Board) that will encourage trolls to improperly extract nuisance settlements from bloggers without ever going to court at all. Still, the fair use news has gotten better for research bloggers over time, and I hope that will continue.