The idea of a numerical guideline makes me very nervous because I am acutely aware of what happened when academic publishers arbitrarily set a number of words that teachers could copy for classroom use. They filed a suit, and one by one the schools caved, until now most schools adhere to the restrictive guidelines as a matter of institutional policy.

I wish Berkman or Stanford CIS or someone could goad AP into suing!

Chris, Tim, I’m exactly with you. This is why having fair use as a *defense* is problematic – it’s costly to employ, and the burden of proof falls on the defendant. (Admittedly, this isn’t quite true at the summary judgment stage, but let’s put that aside.) Tim rightly emphasizes the subject matter requirement: in a suit by an organization like AP, with content that’s mainly factual, we should want judges to be stringent in pressing a plaintiff to show that what’s copied is protected material. I’m skeptical this would actually happen, but it would be one way of reducing the cost of asserting lawful use of material.

The Media Bloggers Association has been beaten up a bit for negotiating with AP to try to get some workable baseline rules about fair use. I can immediately see the problems with this approach – floors rapidly become ceilings – but I don’t see an alternative to having fair use as this weird ex ante standard that’s nigh impossible to predict. Any thoughts?

Having said all that, Chris’s comment is dead on. If this turns into a fight over “is this fair use?” rather than “is what AP wants to protect actually protected?”, then the really important battle has already been lost. Fair use is unknowable ex ante and the impact of sheer judicial perversity on doctrine is alarmingly high. (Who would have ever been able to predict beforehand that 2 Live Crew would win or that The Nation would lose on fair use?)

Lessig famously wrote that “fair use in America simply means the right to hire a lawyer to defend your right to create.” I can’t fault the reasoning of those bloggers who have concluded that the least costly course is just to stay away from AP material rather than incurring the potential expenses of litigation, even though you and I agree that they ought to win in a walk.

What’s the Stanford Fair Use Project doing with the AP situation, I wonder?

Luckily, in such a high profile case, there are organizations with lawyers who would love to take the AP on. However, I have to wonder about the run of the mill, every day cases…

After I get through with this annoyance that is studying for the bar exam, and all that goes with it, I’d love the opportunity to work on cases like this. Now that would be fun.

NowPublic defines itself as a “social networking” site, as does the Drudge Retort.

“Contributors” to NowPublic copy material directly from copyrighted publications and post the material to the NowPublic site with a link to original source. I’ve reviewed a number of these contributions. The pasted items are quite lengthy.

Take a look at this paste-job, copied from the New York Times.

This is a practice that’s more-than-identical to what the Drudge Retort was challenged for, because the NowPublic paste jobs are much, much, much longer.