A Tiny Crack Appears in the Fair Use Law

Wired.com reports that a federal judge has ruled that in one particular case the posting of an entire newspaper article – including headline – by a poster hoping to start a discussion on the nation’s financial crisis falls under the umbrella of the Fair Use doctrine.

Cautions abound, however. Fair use is still determined on a case-by-case basis; what defense works in one case may not work in another. This demonstrates the capriciousness of the fair use law, and also the caution bloggers and other Internet denizens must exercise when citing fair use as a reason for using another’s creative media without prior authorization.

US District Judge Philip Pro said Righthaven, a Las Vegas-based “copyright litigation factory,” per Wired, and the Las Vegas Review-Journal newspaper didn’t provide ample evidence to show that Wayne Hoehn’s posting of a Review-Journal editorial on a medjacksports.com discussion post drew enough eyeballs away from the original article to damage the plaintiffs financially. Pro also ruled Hoehn used the posting for a noncommercial purpose.

This is a significant case in that the fair use law has never defined how much of an article may be quoted even for noncommercial, educational or commentary purposes. And though that will still be decided on a case-by-case basis, that an entire article was allowed to be used under the fair use law in this instance is significant and could set a precedent for other jurists who are weary of the law’s vagaries.

Still, caution is the better part of valor here. One ruling won’t make the law’s capriciousness disappear.