Ask Author Law

Is it legal to post a newspaper or magazine article of interest to members of a listserv discussion group?

December 23, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Listserv Groups

Q: Is it OK to post a newspaper or magazine article of interest to writers on a listserv? This happened recently on a writers list I subscribe to. Some people said that it was all right to do so because, even though the article was protected by copyright, is permitted under the law as "fair use." Others said that writers should be especially respectful of copyrights. Someone posted the exact text of the fair use section of copyright law itself. Then there were arguments about the interpretation of the law. The debate got quite nasty as people called each other "pirates" and "copyright police." What's the correct interpretation of the fair use law on our listserv?

A: The short answer, in my opinion, is no, it's emphatically not fair use to post an entire article on line. Fair use is a widely misunderstood concept. Like the Bible, the text of a statute seems to allow people to read into it whatever supports their point of view. In our common law tradition, however, the statute is just a starting point. The law is also found in the court decisions interpreting the statute.

The case law about fair use clearly supports, in my opinion, the position that posting of full text material on the internet is almost never fair use. One of the cases where the photocopying of copyrighted material for educational purposes was held not to be fair was a case involving Kinkos, later upheld in the Michigan Documents case. In the listserv discussion, several members criticized the "copyright police" at their local FedEx/Kinkos copy shop. The reason Kinkos became such a vigilant enforcer of copyright law is because the company was a big loser in the case bearing its name -- the case that held academic coursepacks to be infringing. If the photocopying of limited numbers of articles and book chapters, even though for educational purposes, has been held to be infringement, I can't imagine that any distribution via the internet would be found fair, considering the sheer number of copies internet distribution makes possible.

The Kinkos and Michigan Documents cases are distinguished from the 2nd Circuit ruling in the Authors Guild v. Google case because, even though Google has scanned complete books, it only posts "snippets." While the posting of snippets was held to be fair use, the Authors Guild has announced that it intends a further appeal.

The thing that I found especially distressing about the listserv discussion of this issue was the numerous and vociferous complaints about the "copyright police" among a group of professional writers, writers on whose behalf author organizations devote a great deal of effort in promoting understanding and enforcement of copyright laws. If you want to share an article with members of your group, you can always post a link, but please respect the copyrights of fellow writers.

Ask Author Law is a Q&A blog about legal issues for writers. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. Readers are reminded that this information is for general information only and that any specific legal problems should be discussed with an attorney. Questions are presented anonymously, with the askerís privacy protected. Some are composites based on issues I have been asked about in the past. Some were asked at workshops and conferences where I have presented. If you have a question for this blog, send it to authorlaw@yahoo.com. Your question may be edited or combined with others. I cannot answer questions privately and not all questions can be used, but Iíll try to give full coverage to the matters that writers care about most. Ask Author Law is published for information only. Answers are not legal advice. Asking and/or answering a question does not create a lawyer/client relationship. The solutions to legal problems depend entirely on the specifics of the situation, so any writer in need of legal advice should consult privately with a qualified attorney.