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I have had some further thoughts on this (after going back to the definitions in the statute) which I’ve posted to Jam Today. I’ve not convinced myself either way on Blogger #1’s copyright at the point when Blogger #2 allegedly infringes. The reproduction on Blogger #2’s page shouldn’t be relied on to establish Blogger #1’s copyright because it’s unauthorized.

To Bill Brown’s question: How is the (c) assertion being made by someone who doesn’t hold the (c)? Isn’t Blogger #1 clearly the (c) holder, at least in my hypo?

Jam’s comment is a cool one, but I’m not sure where that would end: is there no (c) on the Net just because it’s so easy to change content quickly and frequently? Just because it might be edited doesn’t make it unfinished, does it? And then once, at the end of the day or whenever it is forever done, reproduction persists, possibly every time someone accesses Blogger #2’s page. The “fixed in a final form” problem seems implausible as a means of undermining the original (c) interest here, as intriguing as the idea is.

Does “fixed in final form” apply here? Is something that’s in process of editing, even if the editing is done in public, as it were, fixed in final form? If not, does copyright inhere? Does the existence of copyright notices affect whether copyright inheres?

I don’t know the answer to these questions (although I believe the answer to the last is “No.”) .

Also, the quotations are cited as such by Blogger #2, the work is quite transformative, doesn’t diminish the market value of Blogger #1’s work, and serves as criticism of the copyrighted work.

Finally, the copyright assertion is being made by someone other than the copyright holder.

It seems like a pretty clear-cut instance of fair use.

IANAL.

In this case, Blogger #2 is excerpting and reproducing the edited postings only in full, with highlghting to show their differences, for purposes of non-commercial commentary.

The ‘unit of work’ question is a tough call in this instance. It would be easier to decide that each posting was an individual work if they appeared on their own page, and were all longer than a single paragraph. As it is, it can be argued that the individual postings are only part of a larger work, both on the page and in the syndication feed (though they are part of different larger works. The feed will not map exactly to a single page at any time). To my mind, in this case, selecting some postings and not others qualifies as excerpting.