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.
John Palfrey 
IANAL, but would find it interesting to hear of the legal points coming from the other way around – if someone posts something slanderous or libellous and then deletes it five minutes later, has slander/libel taken place? Would evidence from a tool like Mark Pilgrim’s, or even Google’s cache be admissible in court?
Clearly, if the courts accepted the doctrine that a website (blog or any other website) became fixed (and thus capable of being the subject of copyright) the instant it was published, then this would work both ways. If a blogger published something slanderous, even for one second, and then took it down, then slander would have been committed.
There’s the question of evidence, however. If you’re paranoid, you might buy all of a newspaper’s printed copies and check each copy to see if that one does not contain slander against you. Similarly, you might hit a website 5 times a second to see if the website contained slander against you even for 1/5th of a second.
What Mark Pilgrim’s tool does is two things: #1 it gathers evidence of how Scripting News evolves over time and #2 it republishes the site in its entirety. I consider #1 fair use, as long as the frequency of the hits do not grossly exceed the update frequency this cannot be considered a DoS attack. And if Dave cannot afford the cost of this bandwidth, he always has the option of taking down the site. However, what is being argued about here is #2, and I think John Palfrey is right on the money.
Forgot to say: IANAL
Jacob, Mark’s tool did *not* republish scripting.com in it’s entirety. Only posts that had been edited were being republished. It also is not hitting scripting.com directly for it’s feed, instead relying on several distributed caches of the feed (which had already been hitting the feed once an hour).
Michael
IMHO these distinctions don’t matter one iota. Since Mark’s tool captures all the changes in a site, by definition it’s going to capture the entire site.
And its just being nice to Dave’s server that its not hitting him all the time.
Finally, it seems to me Mark’s sources for the Scripting News site are violating the fair use rules by republishing the material.
“Since Mark’s tool captures all the changes in a site, by definition it’s going to capture the entire site.”
Capture is different from publish. Your web browser captures scripting news everytime you visit the site, so are you admitting you are in violation of DW’s copyright?
Not that is matters really, a moot point all around, since the site is now password protected.
Joe’s question above points to one of the hardest problems posed by the Web and copyright, in my view. Every time you do anything on the Web you’re making a copy. How can we reconcile that with traditional understandings of copyright? It’s why we need a new default, I think, for copyright on the Web that ackowledges this rampant (yikes!) copying.
I completely agree with you about technical people
over-estimating fair-use, and that inability to fight
a lawsuit is critical.
However, too often fair-use is being argued in a situation where the use is full-copying of a commercial product, in a context which is also
legally commerical use.
Here, this specific blog case, seems to me classic
fair-use. Displaying an except, to display editing,
in a noncommerical context, of noncommercial material.
No?
Disclaimer: I am not a lawyer, I jsut try to be informed.
Seth Finkelstein: I thought, you are right