Copyrights on a deleted blog post

March 22, 2007 11:48 AM

What's the copyright and reprint status of the original content of a blog post that has since been deleted? I'm considering both the legal implications and the ethical concerns, plus don't know how much "fair use" applies in a commercial case.

Bob Q. Techauthority updates a weekly blog for an American tech publication. He specializes in writing about widgets and various widget producers.

Last week he posts about ModeratelyBigPlayerCompany's exploration of a new execution of widget, and whether it will ever take off in a very monopolized widget market.

In the post, there are a few paragraphs of generic industry commentary, in the vein of "open markets are good," and then some specific content regarding MBPC's new product strategies.

My company is an affiliate of the widget industry; the more open the market, the better for us. Bob's anti-monopoly statements are positive for us, and I'd like to quote a couple of them for commercial use in some marketing material.

(By "a couple of comments," I mean just one or two sentences, not the whole post. By "marketing material" I mean, possibly on a website or white paper to help support a sales point, but definitely not printed on or in anything that would ultimately be a product for sale -- just your average snake oil shill collateral.)

Fast forward to today... when the post is gone. Bob reports on his blog that ModeratelyBigPlayerCompany contacted him, and said that the bits about their corporate strategies were proprietary and confidential, so he willingly removed them.

Bob did not say anything today wrt deleting the generic industry comments -- but they were merely part of the bigger story and would have been apropos of nothing without the context of MBPC's product.

Here are my specific questions:

1. If Bob had not removed the post, and all other things being equal, would I have been clear to use the two sentences without asking for reprint permission, under "fair use doctrine"? Public criticism on a general industry topic seems to make the answer a "yes" but I acknowledge that I might not understand fair use fully, especially vis-a-vis the "commercial" part.

2. Now that Bob has removed the post, am I ethically bound to not quote any of the material? I don't want to get anywhere near the bits about MBPC; I just want the "monopolies are bad, mmkay?" stuff.

Thanks in advance, and yes, I'll assume that YANAL. I just want to know what reasonable people think would be the Right Thing to Do, or if anyone has similar experience.

posted by pineapple to law & government (10 comments total)

Legally, and IANAL, I think that once it's been published, on a web site or in a book or magazine or whatever, you could quote it as long as you attributed it. I don't see a difference between quoting a since-deleted weblog post and quoting an out-of-print book. I believe it's under copyright regardless of whether or not it's currently on the site. (Even if he's pulled it from his site, it's probably in a Google cache or the Wayback Machine or something.)

Ethically, if it were me I might consider contacting Bob and asking him if it's OK to use his comments on my site.
posted by kirkaracha at 12:02 PM on March 22, 2007

If the info was proprietary, it may fall under trade secrets law, rather than copyright law. You could be liable if you revealed a trade secret, even third-hand. If you publicly cite the nuked post, I can't imagine that you would not get a C&D from MBPC.

As for copyright, whether the post is available or not doesn't matter. The writer holds the copyright, and you can quote elements of it under some circumstances. To do so as part of a business venture may not be fair use.

Citing the original source (something you can still do, as the two bibliographic standards for web citations mandate that you include the date of access but do not speak to current accessibility) is also a good idea. But you might get the source in trouble for the reasons you've outlined if you do so.

IMHO, you shouldn't quote him. There are too many "maybes" against you. And IANAL.
posted by solid-one-love at 12:05 PM on March 22, 2007

I think the context/circumstances matter significantly here. If it is the notoriety/respect of the speaker that is important, and the sentiments are rather bland (something like "John C Dvorak says 'an even playing field in the widget market is important'.") I think you should get their permission explicitly. If it is more like a well-turned phrase or novel insight, I think it is OK to quote the sentences with a proper citation somewhere (foot/endnote).

Also, I assume you copy/pasted while the post was still live and are not just going from memory with your quotes, right?
posted by Rock Steady at 12:54 PM on March 22, 2007

Correct: I have a full copy of the post, pulled when I just thought it was an interesting quote that I might want to return and pursue at some point for business use.
posted by pineapple at 12:58 PM on March 22, 2007

And, yes, it's more the context of the material I care about, than the notoriety of the author. It helps that Bob Q. is a published author and is arguably an expert (as opposed to say, me)... but he's no household name and the goal wouldn't be an endorsement via end-run.
posted by pineapple at 1:03 PM on March 22, 2007

Could you contact Bob and ask him whether it would be okay with him (and with his understanding of the company's concerns) if you quoted him?
posted by decathecting at 1:14 PM on March 22, 2007

I think your understanding of "fair use" doctrine is incorrect. IANAL (yet), but the Copyright Act of 1976 (which codified fair use from a common law defense against copyright actions into a part of explicit law) states that copying is fair use when done "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." (According to Wikipedia). Your case, in that it would be an explicitly commercial use of the phrase that does not fall under any of these exemptions, would MOST LIKELY not benefit from a fair use defense against a copyright infringement suit.

This is the other thing to understand about fair use: it is only a defense against a suit once you go to trial. It is not an absolute pre-trial defense against a suit bring brought in the first place. You still have to hire a lawyer, put on your suit and truck down to the courthouse (and not to mention pay the lawyer his big bucks) to get off the hook.

The correct thing to do here, both legally and ethically (and I'm not sure why you wouldn't do it in the first place), is to write to the journalist and lay out your wishes to use his two sentences and seek his permission.
posted by Inkoate at 1:35 PM on March 22, 2007

There are very, very few clear "yes" and "no" answers where fair use is concerned. There's a whole lot of maybes. 17 U.S.C. 107 sets out four factors which judges are supposed to take into account when determining whether a given use falls under fair use or not, but there's no magic formula where you can say, "OK, I used X sentences, and I stand to make $Y off of a commercial use," and plug in X and Y and get a yes-or-no answer as to whether something falls under fair use or not. Really, the only hard and fast answer to whether something is fair use or not is whether the judge says it's fair use or not when the lawsuit goes to trial.
posted by DevilsAdvocate at 1:46 PM on March 22, 2007

Piña, I write a lot of marketing copy, and I have always asked permission in situations like this. People get mightily pissed off if they think you are selling something on the backs of their work. Whereas if I ask first, they're usually flattered.
posted by astruc at 1:53 PM on March 22, 2007

and I'm not sure why you wouldn't do it in the first place

A variety of reasons, really, the main one being that the potential usage is not all THAT big a deal. At the end of the day, I'm not asking for the quote for the back of my book jacket -- he's just a blogger who got off a good line or two, which would look good in a white paper. If I can legally and ethically quote the post with little effort, it's a no-brainer to do so.

But, if the amount of effort is going to exceed the possible benefit, I'll scrap his quote for something else. I don't have loads of time in this case to track down that one guy who said that one thing that one time, and then dicker over usage and written permissions and all that folderol.

There's a chance that Bob would be easy to deal with... but there's an equal chance that he'll be a pain in the ass and I'll regret ever having contacted him (she says, still ruing recent similar situations where she reached out for permission to reprint and then ended up with permanently stalled projects, and eventually having to generate the content anyway).

I don't mind paying for rights or securing permissions -- IF the item overrides the accompanying high time-suck quotient. But this isn't that case, so it sounds like I'll be passing.

Thanks, all, for your feedback! (also happy to hear more if anyone wanders in...)
posted by pineapple at 7:36 PM on March 22, 2007