I completely agree with you about technical people
over-estimating fair-use, and that inability to fight
a lawsuit is critical.

However, too often fair-use is being argued in a situation where the use is full-copying of a commercial product, in a context which is also
legally commerical use.

Here, this specific blog case, seems to me classic
fair-use. Displaying an except, to display editing,
in a noncommerical context, of noncommercial material.

No?

Disclaimer: I am not a lawyer, I jsut try to be informed.

Joe’s question above points to one of the hardest problems posed by the Web and copyright, in my view. Every time you do anything on the Web you’re making a copy. How can we reconcile that with traditional understandings of copyright? It’s why we need a new default, I think, for copyright on the Web that ackowledges this rampant (yikes!) copying.

“Since Mark’s tool captures all the changes in a site, by definition it’s going to capture the entire site.”
Capture is different from publish. Your web browser captures scripting news everytime you visit the site, so are you admitting you are in violation of DW’s copyright?

Not that is matters really, a moot point all around, since the site is now password protected.

Michael

IMHO these distinctions don’t matter one iota. Since Mark’s tool captures all the changes in a site, by definition it’s going to capture the entire site.

And its just being nice to Dave’s server that its not hitting him all the time.

Finally, it seems to me Mark’s sources for the Scripting News site are violating the fair use rules by republishing the material.

Jacob, Mark’s tool did *not* republish scripting.com in it’s entirety. Only posts that had been edited were being republished. It also is not hitting scripting.com directly for it’s feed, instead relying on several distributed caches of the feed (which had already been hitting the feed once an hour).

Forgot to say: IANAL

Clearly, if the courts accepted the doctrine that a website (blog or any other website) became fixed (and thus capable of being the subject of copyright) the instant it was published, then this would work both ways. If a blogger published something slanderous, even for one second, and then took it down, then slander would have been committed.

There’s the question of evidence, however. If you’re paranoid, you might buy all of a newspaper’s printed copies and check each copy to see if that one does not contain slander against you. Similarly, you might hit a website 5 times a second to see if the website contained slander against you even for 1/5th of a second.

What Mark Pilgrim’s tool does is two things: #1 it gathers evidence of how Scripting News evolves over time and #2 it republishes the site in its entirety. I consider #1 fair use, as long as the frequency of the hits do not grossly exceed the update frequency this cannot be considered a DoS attack. And if Dave cannot afford the cost of this bandwidth, he always has the option of taking down the site. However, what is being argued about here is #2, and I think John Palfrey is right on the money.

IANAL, but would find it interesting to hear of the legal points coming from the other way around – if someone posts something slanderous or libellous and then deletes it five minutes later, has slander/libel taken place? Would evidence from a tool like Mark Pilgrim’s, or even Google’s cache be admissible in court?