The blogosphere loves itself a good controversy, and it looks like we have yet another one generated by the folks at Truth About Guns, courtesy of Weer’d Beard, who also links to a thread over at Reddit. Once again, this involves accusations of appropriations of intellectual property, refuted with a claim of fair use.
There have been accusations of a similar type made against Truth About Guns that I do indeed think fall quite probably into fair use. Their use if Weerd’s banner, for instance, is arguably fair. I use the word arguably, because there’s a lot of room for that when it comes to the legal implications of this topic. It’s not nearly as cut as dry as TTAG’s responses would have you believe. Fair use is kind of like Justice Potter’s infamous statement about pornography, in that he knows it when he sees it. While their are some pretty sound guidelines as to fair use, what is and isn’t fair use is not so cut and dry that one can just declare it, and that is the end of it.
You will get no argument from me that the Internet implicates necessary adjustments to how our society thinks about intellectual property, and copyright laws in particular. But the law is what it is. We’ve all used bits of material derived from other works, at one time or another, in the course of blogging. This is not what I think is imprudent behavior on the part of TTAG. What is imprudent, among other things, is blowing off a copyright holder when he claims your use is infringing, with claims that it’s clearly fair. It’s not clearly fair, because the law doesn’t work that way.
The prudent reaction is “What can I do to make this better?” All the author may want is clear attribution, or some other minor concession, and you both get to walk away happy. Even if the demand is to cease using the work, it’s a one post loss. What’s it to you? A blogger should be willing to work with a copyright holder who claims his use of their material isn’t fair. The copyright holder has the upper hand in this matter legally. So why make an issue of it?
