One of the first things you learn as an editor is that your concept of “fair use” tends to be very different from the concept held by lawyers representing owners of intellectual property — and that weirdly different rules apply in different realms. (Song lyrics, for instance, are policed far more furiously than, say, lines of dialogue from a movie.)
In the latest instance of something that any news organization would consider “fair use” arousing the ire of corporate attorneys, veteran blogger Jason Kottke, who’d long followed the saga of Jeopardy wiz Ken Jennings, has drawn the wrath of lawyers from Sony. Kottke had posted an audio clip of Jennings’ loss, then took it down after he heard from the lawyers, and replaced it with a transcript. The lawyers were still not happy — although they don’t seem to have gone after the Washington Post for publishing something quite similar. Maybe the thinking is, Kottke isn’t a “journalist,” he’s “just” a blogger. If so, then we’re in for a bumpy ride, because the old line between journalists and non-journalists is now written in invisible ink, the border’s unguarded, and hordes are streaming across.
Bloggers like Jeff Jarvis, Britt Blaser and others are starting to call for a kind of legal aid society for bloggers. Fine — but I’m confused: a decade ago, an organization was founded to help protect individual rights in cyberspace. It even has a project called Chilling Effects specifically dedicated for this sort of problem. Wouldn’t that be a good place to begin? Kottke — call the EFF! Or even better: EFF, call Kottke! I don’t know exactly how this sort of situation fits into the EFF’s current mandates, but at the very least it’s a good starting point. And surely if there is an effort to build an organizational structure to handle this sort of thing in the future it makes sense to try to do so under the EFF umbrella rather than starting from scratch.
Bonus link: Eugene Volokh’s op-ed on balancing journalist’s rights and the public’s right to know in a world where everyone’s a journalist.
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