Winer Watcher

Dave Winer, who runs an extremely well-known blog site apparently has habit of editing and changing his posts (especially nasty ones). This has spawned a Winer Watcher page, where one of his disputants, Mark Pilgrim, shows the changes. Posts are excerpted, original versions contrasted to changed versions, with changes highlighted. Now Dave Winer has remarked

The next step is to look at the copyright issues [Mark Pilgrim's] service raises. They are quite interesting. Scripting News, both in HTML and RSS, has a clear copyright on it. Should I have a say in publications created from my content? I generally don't mind, but shouldn't I have to give permission? Suppose a magazine started publishing all my writing. Would I have recourse? I am not a lawyer, but it seems clear that I would. Is Pilgrim somehow immune to copyright law? I'd love to hear the legal theory that allows him to do what he's doing with my work.

Now, I'm not a lawyer, but it seems to me that the Winer Watcher page is very likely to be fair use. Let's run down the four-factor fair use test.

(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

The watch page is clearly non-commercial, and a reporting effort (not necessarily a nice or disinterested effort, but that doesn't seem relevant here)

(2) the nature of the copyrighted work;

The copyrighted work is creative, so this counts against fair use.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

This is very debatable, as to what in a blog post is "the work as a whole", but excerpting is certainly being done overall.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

There's no argument that the original blog postings are somehow less valuable because their changes have been tracked, or that the watching page is improperly drawing hits.

So looking at this in total, while not every factor is a slam-dunk win, I'd offer that the non-commercial, reporting nature, and lack of effect on value, are highly favorable. Again, I am not a lawyer, this is not legal advice, it is only my opinion (though I'd hope it's an informed one).

The most contentious items are likely to be the postings which were deleted. But the use of copyright to suppress reposting them seems clearly aimed at avoiding embarrassment, not preserving the potential market.

Of course, one has to win against the lawsuit, which is a whole different matter entirely.

John Palfrey has a posting about this issue, but his analysis assumes everything is mirrored. Perhaps he was discussing an earlier version, or misunderstood the watcher page. There's also a remark:

More reasonably, we should keep at the task of embedding (cc) licenses, or alternately a statement to clarify that we mean to contribute the work to the public domain, in RSS feeds and on the pages of weblogs to make clear our intentions in sharing and syndicating our work. Or, I suppose, the blogging community should understand what's meant when someone indeed decides that they mean to retain the copyright to something.

Sadly, a claim of retaining the copyright wouldn't change this situation. It's a classical case where fair use is intended to be a defense against a hostile party charging copyright violation. That would just move the issue to how to do the watching page in compliance with whatever copyright demands. So this isn't really an ad for cc (creative commons) licenses. It's much more an illustration of copyright as a weapon.

There's a discussion of the morality of this whole issue at the Burningbird blog. And I nearly deleted this article (before posting!) due to being an ant among thundering elephants, but let's see if I survive.

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)