Duncan Riley> There has been a fair bit of talk lately in relation to the take down notice received by Jason Kottke which I chose not to cover at the time as I believed it to be a storm in a tea cup. For those who missed the tale, Jason allegedly illegally provided on his blog an audio clip of Ken Jennings loss on US show Jeopardy 2 days before the show aired. Suffice to say Sony wasn’t impressed and ordered the clip be taken down. Whether Sony is suing Jason for the breach of copyright is not at this stage clear, but Jason has sited fair use in his defence.
Now I know using the word “illegally” will upset a number of people, and I will state immediately that I am not a lawyer. Jeopardy is a wholly owned show of the Sony Corporation provided for entertainment and despite Mr Jennings remarkable run, is not open to the same scrutiny as, say a court trial or political event. Fair use, for it’s failings to often define itself clearly under US Legal doctrine, should still be “fair use”. Is it fair to publish audio of a privately owned show not due to air for 2 days? News worthiness or not, I believe the answer is no. Reporting that the event has taken place (i.e. that Jennings lost) is reporting of fact, playing an audio clip from an unpublished work is breach of copyright and nothing different to the appearance of mp3s from artists prior to the release of new albums or singles. Jason Kottke broke fair use by publishing an audio clip prior to publication.
I am not arguing that should Jason Kottke published the clip after broadcasting it would not have been fair use, although lawyers at Sony may argue against this. The issue of Fair Use, or for the rest of the English speaking world Fair Dealing is an evolving legal issue in relation to blogs that will only mature over time with rational debate and restrictions on abuse. It is only within recent memory that bloggers where ordered to take down sections of text and photos used under Fair Use from online newspapers and other sources, however most papers now hope and sometimes even wish for mention in blogs to help drive traffic and increase online advertising revenue in what can best be described as a win-win situation: bloggers use extracts under fair use and the online papers get extra traffic.
Fair use of text has settled down but fair use of multimedia is a new frontier that has yet to be fully tackled in an environment of fear and dread from the Entertainment industry over all things Internet due to their inability to deal with online piracy.
My advice for bloggers at this stage is when using multimedia (audio or video), when in doubt as to the legal status of the item, ask permission or don’t use it at all.
On a positive note, Jeff Jarvis has called for the creation of a Blog Legal Defence Fund. The idea has merit as the blogosphere continues to grow and mature in defending those that have strayed unintentionally into breaches of copyright or even defamation, however the issue that cannot be ignored by concerned bloggers is the need to lobby for better protection under law through the strengthening of the fair use doctrine through legislation that will better clarify fair use of fair use and change the burden of proof from the current disturbing position of the defendant having to prove they did not breach copyright, to one where the plaintiff must prove that the alleged use of copyright material was not fair use.