Clarifying - Sorta - The RJ Web Policy

[Update: Sherm Frederick laid out his explanation today in a blog post that clearly acknowledges that discussing and linking to R-J material is fair use but ripping it off wholesale is not. In the process, I believe, he is protecting the value of the work the company owns. I'm appalled by most of what Frederick and crew have done in new media, but this legal effort seems prudent and appropriate.]

Many of you have written concerned that I could be in legal jeopardy because I frequently quote from and link to stories and other features on the Las Vegas Review-Journal's website. The cause for alarm comes from some recent lawsuits filed by a company called Righthaven LLC defending the R-J's online copyrights.

In those cases, Righthaven, a for-profit entity assigned the R-J's copyrights, is suing MajorWager.Com, Henderson Re/Max realtor Matt Farnham, and Citizens for Responsibility and Ethics in Washington Inc., MoneyReign Inc., and the National Organization for the Reform of Marijuana Laws.

To read this Las Vegas Sun piece on the matter, you'd have the impression these entities are in trouble for merely linking to the R-J website. I found that hard to imagine and, in fact, a little further checking shows that in each case they had republished stories from the site in substantial part or in whole, sometimes providing links and sometimes not.

Still, it seemed something was afoot and it seemed prudent to ask Review-Journal Publisher Sherman Frederick what was going on. Was the R-J, as Stiffs & Georges blogger David McKee put it, wish to secede from the Internet? Did they want to stop bloggers and others from sending readers to their website or to stifle online discussion of what's in the newspaper?

Frederick -- after saying he'd be writing about this very topic soon -- turned my questions over to R-J Legal Counsel Mark Hineuber. And while it was a private exchange, I feel like other bloggers need to know what I learned so as to protect themselves or resume feeling comfortable with what they've been doing.

The appropriate procedure for reusing Review-Journal stories is to post the headline of the story and then the first paragraph with a link to the original story. ... Also, to avoid future confusion, attached is a nonexclusive license for you to link to Review-Journal editorial material using this procedure. If you will respond to this message with "Agreed" we will consider the license to be effective.

At first, this freaked me out. I've got to sign some contract with them? WTF?

Allen Lichtenstein, the chief lawyer for the American Civil Liberties Union of Nevada, was the one who calmed me down. That's interesting because Lichtenstein is defending some of the parties who have been sued. Nonetheless, he said that this procedure -- and even the contract -- was not unusual or onerous. [I'll forward the contract to anyone who wishes to see it, but I don't wish to bog down this post with it.]

I started to realize that Hinueber isn't talking about the sort of thing I -- or most bloggers -- do. VegasHappensHere.Com is not a clipping service; if I draw your attention to a story, I just say what I like or dislike about it and link to it, usually not including any of its content or certainly not much. If I excerpt passages, I do so to comment on them.

To be sure, I followed up with Hinueber with these questions:

1. If I refer to a piece from the Review-Journal and link to it without citing the headline or the first paragraph, will I be sued? For example, in this case where I reference pieces by Arnold Knightly, Mike Weatherford, Scott Wyland and Howard Stutz and provide links.

2. If I excerpt paragraphs of an R-J story that I wish to point out to critique, will I be sued, as in this post where I quoted from a Thomas Mitchell column.

To which he answered:

Thank you for your additional questions. Unfortunately, I can not answer these specific questions since they call for legal conclusions on the issue of "fair use" under the copyright law and I am not your legal counsel, to whom these questions should be directed. However, in general, we do not believe that "cut and pasting" liberally from our website constitutes "fair use" under applicable law.

Hinueber answered the question by not answering it, I think. He's saying he can't say much other than that lifting passages "liberally" aren't "fair use." That means they're fully aware of what "fair use" means, and it means that if I quote a paragraph of a story to not why it's well written or badly reported, that's not the same as just plopping a big wad of text on my site for no particular reason.

That's sensible. I have the same problem here; entire posts of this blog get picked up by other sites, often without credit or a link-back, and there's little I can do about it because I have no legal team to address it. But there's a right and a wrong way to do it, and the right way is to follow a little common sense.

The alternative, of course, would be devastating for the Review-Journal. If they sued people solely for providing links, nobody would ever be able to, say, Tweet a story. I'm not terribly impressed with their website or their online journalistic strategy, as you may have read a few times, but at the moment I can't say the R-J or this mysterious Righthaven outfit have done anything that should scare me about how I do this.

Fact is, I've also quoted from and/or linked to probably thousands of R-J stories on this blog, sometimes attacking the content viciously, and I've never heard from their legal folks. That's probably a good sign that they're not completely loony tunes and that my understanding of their view of the matter is correct.