When fair use is not fair enough

By now, most of the science blogosphere is aware of Wiley’s legal threat to blogger Shelley Batts regarding the use of a figure from one of their journals in her blog.

Thus Spake Zuska, Respectful Insolence, Good Math, Bad Math, and Greedy, Greedy Algorithms have all commented on the issue; all these bloggers have found the action of Wiley unfair; almost all of them also feel that incidents like these are the strong motivation to move towards open access publishing.

Zuska notes the reluctance of Wiley–not wanting publicity for the paper that they have published, while Good Math, Bad Math speculates whether this reluctance is due to the fact that Shelley’s take on the issue is not in accordance with the spin in the newspapers.

Respectful Insolence makes another interesting observation: since the study in question was funded by a government organization, and since some of them maintain manuscript archives of their own which are publicly accessible, they might be the best documents for bloggers to quote from without getting into legal difficulties.

As usual, the take of John Hawks (though he agrees with most of what other bloggers have to say on the issue)–is a bit different (and makes sense too):

Retrospectacle is a ScienceBlogs site, and they run advertising. In other words, somebody is taking money for running the ads. Now, whether the ScienceBlogs should be considered a part of Seed Magazine or merely a loss-leading subcompartment of the Seed Media Group, it is understandable that a scientific publisher might balk at the use of their copyrighted figures in that context without permission or royalty payments. I’m not saying that this particular case was not fair use; just that it isn’t an obvious conclusion.

In other words, though Shelley Batts’ use is fair use in spirit, the legal question might be a bit muddled.

Which leads to an interesting conclusion: if you are a science blogger, you are better off if you run your blog in an obviously non-commercial way–no advertisements, and no hosting on pages/services which run advertisements.

Further, in case you are worried about fair use, this fair use FAQ that John Hawks links to might also be useful.

Finally, I think that other journals should follow the example of Nature, and should have something similar to their RightsLink service, which might make things easier for bloggers while making decisions about what they quote, and what they decide not to quote.

PS:- If, in addition to blogging about the issue, you feel like doing something more, Respectful Insolence has some suggestions:

In the meantime, click on the link to the journal above–a lot. I’m hoping that Wiley & Sons notices that its action against one of my fellow ScienceBloggers has resulted in some negative publicity. Maybe PZ or Boing Boing will get on board. Then Wiley & Sons would really notice. While you’re at it, polite e-mails asking the publisher to justify why it thinks that Shelley’s use of the figure in her blog post did not fall under the auspices of fair use might make Wiley & Sons take notice.

Happy science blogging/reading.

Update 1: Afarensis goes one step further and asks for a boycott of Wiley journals.

Update 2: John Pieret collects the links to posts on the issue so far, and also disabuses us of the notion that scienceblogs generate revenue is relevant to the fair use issue.

Update 3: Janet at Adventures in Ethics and Science , for a moment, sets aside the legal issues, and instead tells how unethical the Wiley threat is; Rob Knop at Galactic Interactions puts the issue in perspective in terms of the threat of IP maximalism to science; Mike the mad biologist joins hands with Afarensis and gives a call to trash the impact factor of the Wiley journals; finally, as usual, probably the most comprehensive collection of links is by Coturnix at A Blog Around the Clock–in addition, he also indicates how Wiley dinosaurs are going to go extinct if they do not adapt to the changing open access publishing realities.