Harley Sorensen and the Fair Use Man

As of February, Harley Sorensen's columns have been discontinued in the San Francisco Chronicle and its online version, SFGate:

Harley Sorensen is a freelance writer and longtime journalist. This is his last regular column for SF Gate.

Brent Andrews at Chronic Discontent reports that Sorensen was dropped, along with another columnist, for economic reasons.

I had a serious back-and-forth in January (chronicled here and here) with Sorensen's editors about blatant falsehoods in his column. I enjoyed his column, though, and certainly didn't want to see it cancelled.

The Chronic Discontent article, though, raises a really interesting issue about "fair use," arising from a complaint by an SFGate editor:

"As an aside -- but one that obviously makes me angry -- Harley's columns were regularly being ripped off by a site called commondreams.org , a progressive site, which instead of linking to our versions actually republished the columns so it would get the page views instead of us. These people actually have the effrontery to say that ripping off columns is protected under the fair use provision of copyright law. As long as this sort of thing is going on, I doubt you'll see too many more opinion columns on websites like ours. The economic model for producing web-only content is a difficult one as it is. I suspect in the future we'll see a shift to websites like ours linking to blogs and somehow sharing revenue with the authors. Since you're a friend of Harley's, I hope you encourage him to keep writing for Common Dreams or some other source."

I'm shocked that Common Dreams can still get away with reprinting columns in their entirety. That's not "fair use" as I understand copyright law. What gives? Is the Chronicle just too cheap to pay lawyers to enforce its copyrights?

There is some serious legal discussion of the issue at RichardSilverstein.com. I'm still having trouble believing Common Dreams is in the right, though. The US Code as reported by Cornell says four factors must be considered:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Most blogs woud seem to fall under the "nonprofit educational purposes" category. Still, points (3) and (4) should weigh heavily against Common Dreams' being able to use the columns. They must have better lawyers than the Hearst Corporation.