As my twitter feed indicates, Above the Law broke news that the coveted USNWR law school rankings had leaked.  A few hours ago, they had a link in their post to a user’s Flickr account.  That account had about 6-10 scanned pages from what looked to be the official ranking list.  Now it’s nearly 11pm pacific time, and the pictures are nowhere to be found.  This made me wonder if the Flickr user could argue Fair Use. A case (Harper Row) seems to apply. Wikipedia teaches:

Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), was a United States Supreme Court decision that determined that fair use is not a defense to the appropriation of work by a famous political figure simply because of the public interest in learning of that political figure’s account of an historic event.

Fair use is a four factor test.

1. Nature of Use:  The flickr user could argue that the scanning was educational in nature, especially because he is not able to monetize his scans directly off of Flickr.  Moreover, the data helps students figure out where to apply, and which school ranks where.  However, say for instance he has a blog that uses Google AdSense or other independent platform to monetize site views.  In this sense, he is definitely using the posting as a commercial use.

Also, the courts will consider whether the use is transformative.  Clearly the pages here were just simply scanned and posted.  There were no changes, minus maybe a degradation in quality upon upload.  That won’t satisfy transformative use, though.

2. Nature of Work: Since the USNWR is a factual publication, this factor also weighs against the scanner.  The data in the publication is not a forgery or work of fiction.  USNWR could argue that the article was not even out yet (and in fact having the EXCLUSIVE first publication is where all the money is). This factor probably ways against the scanner.

3. Amount/Substantiality of Portion Taken: The scanner took/posted nearly the whole article.  One on hand, there is an argument that there is a lot more in this USNWR issue than simple rankings. However, at the very least, USNWR could rebut that the scanner took “the heart of the work.”  By posting the list of top 100 schools, this factor likely weighs against scanner.  People wait patiently every year for these rankings.  I don’t find the “I took a small portion” argument to be tenable here.

4. Market Effect: This is the key factor.  There are two sub-factors: 1) whether unrestricted and widespread conduct like defendant’s would substantively/adversely impact the market.  I think the answer to this is a resounding yes.  Even one posting probably hurts the publisher.  As my Internet Law professor once quoted, “The bell has already been rung…”. One could get into a fairly lengthy dispute that Internet postings are not adequate market substitutes for tangible publications, but I’ve made it quite clear in previous posts that I think print is dead.

The second sub-factor is the harm to the market for derivative works.  This part of the test is hard to analyze without knowing more, but my gut instinct is that this would actually increase the amount of derivative works, at least with respect to blog posts, and other editorial commentary.

On balance, it doesn’t look too good for the page scanner.  There are other potential issues here as well: For example–secondary or contributory liability, and the relevant defenses under 17 U.S.C. 512.

Take care.