The publishing pitfalls of republishing content on websites and blogs

A frequent request from our clients is to post articles to their website originally published by others in print, or on websites. When we respond with “do you have permission from the copyright holder,” the answer is usually “huh?”

Unless a website provides permission in its terms of service, or you otherwise gain permission, it is not legal to republish a complete work that is protected by copyright. Just because the content was accessible without cost, does not mean you are free to use it.

In the software community, there are two types of freedom covering application, often thought of as “free as in beer” as opposed to “free as in speech.” While they may both apply to a particular software project, the author of “free as in beer” software may retain rights to modify and or distribution, while “free as in speech” authors allow for modifications to their code, but may charge you for the right to do so.

While pulling entire articles, even if attributed, referred to as “scrapping,” is easily recognized, what if you only use part of an article? This falls under the concept of “fair use,” which can be a rather gray area. While everyone likes the back links that are appropriate whenever quoting another website, if you quote too much, a reader may not feel a need to click through to the original publication. With most freely accessible content publishers dependence on ad impressions to cover costs, any reader that chooses to click though is money lost.

The New York Times published an article online covering the Copyright Challenge for Sites That Excerpt [registration required], including examples from Silicon Alley Insider, The Huffington Post, The Boston Globe, and GateHouse Media.

If you want to play it safe, check to see if the original publisher has posted any guidelines for using content from the website. The New York Times provides detailed instructions on what to do to gain permission to use the news organization’s content. I’ll take a chance at going over the limit and posting 68 words from the nytimes.com Frequently Asked Questions About Rights and Permissions page, since I don’t feel this is the type of article they are concerned about (though I may be wrong):

“It is permissible to feature an excerpt of up to 25 words of directly quoted text from any one article in a blog or newsgroup environment for discussion purposes, linking back to the full article text at nytimes.com. It is never acceptable to selectively quote from articles in a manner that changes their meaning, to use text out of context, or to combine quotes to create a sentence.”

While the New York Times’ guidelines are fair use are very clear, whether of not they would hold up in court is another matter. While the existence of fair use is outlined in Title 17 of the United States Code, there is no formula provided, leaving the amount of content that may be quoted under fair use subjective.

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

In the end, it would be up to a court to decide if you violated copyright law if you ignored the posted guidelines of the copyright holder. While chances are slim you will be sued, according to the New York Times article “Copyright infringement lawsuits directed at bloggers and other online publishers seem to be on the rise.”

When it comes to fair use, looking to the Ethic of reciprocity may be the best practice: “quote of others as you would have them quote onto you.” Just remember to post guidelines on your Terms of Services page.