By Kevin O'Keefe

Fair Use Week Celebrates a Doctrine Essential to Blogging and the Open Legal Blog Archive


Fair Use/Fair Dealing Week wraps today.

The week celebrates each year the important doctrines of fair use in the United States and fair dealing in Canada and other jurisdictions.

Without fair use, blogging would never have been possible.

Using long citations and block quotes is essential to blogging. Blogging, unlike standard article writing is a conversation building upon other’s thoughts.

As such, bloggers quote, at length, other sources and offer their insight and commentary as it relates to the material being cited.

Nineteen years ago, when thinking of starting a company offering a legal blogging solution to lawyers, I wondered if lawyers would blog.

Wouldn’t lawyers and their firms fear that copyright law would present this style of writing – blogging? Lawyers would, after all, need to go to edge of copyright law with all this liberal quoting and citing.

I then found the doctrine of fair use?

What is fair use?

A U.S. doctrine that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. 

Fair use originated in the 18th and 19th centuries as a way of preventing copyright law from being too rigidly applied and stifling the very creativity which copyright law is designed to foster.

Fair use is not codified, nor even black and white law.

In determining whether the use of a work was fair use, four factors are applied.

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
  4. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Thanks Justice Jospeh Story, who in 1841 set forth the fair use doctrine in a case denying fair use to a defendant who copied 353 pages from the plaintiff’s 12-volume biography of George Washington in order to produce a separate two-volume work of his own.

Fair use is, in large part what enables the Open Legal Blog Archive to archive all credible legal blogs.

As with other libraries fair use permits the archival of copyrighted material – legal blogs – without permission from the copyright holder.

Without fair use and the Open Legal Blog Archive the public and legal professionals would lose access to the biggest body of legal insight and commentary today.

As we wrap up Fair Use and Fair Dealing Week, onward on fair use and thank you, Justice Story.

Kevin O'Keefe
About the Author

Trial lawyer turned legal tech entrepreneur, I am the founder and CEO of LexBlog, a legal blog community of over 30,000 blog publishers, worldwide. LexBlog’s publishing platform is used on a subscription basis by over 18,000 legal professionals, including the largest law firm in each India, China and the United States.

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