The annual USNews ranking of law schools (indeed, of graduate programs generally) became broad blogospheric knowledge yesterday, thanks to “leaked” announcements (see here and here). The magazine is supposed to be released tomorrow — Friday.
I put “leaked” in quotation marks because the first link above points to images of the law school report snapped from a purchased copy of the magazine. Curious to see if I could repeat that process, shortly after lunch yesterday I walked across the street from our law school to our local newstand. And I bought one of the several copies of the 2009 rankings issue that were on display.
So, let us stipulate that the rankings themselves, together with the magazine’s modest discussion, receive at least a “thin” copyright under current law. The specific characterization may not matter; whether or not the copyright is “thin,” the material was reproduced verbatim, and that would infringe even a “thin” copyright.
Does pre-official posting of the rankings constitute fair use? The blogospheric discussion doesn’t “transform” the rankings either as to form or as to meaning, I think. The material may be factual, but it’s been copied wholesale, and I suspect that there’s a plausible claim that all of the posting and reposting will substitute for sales of the magazine, even though I bought my copy. Still, my intuition says that the whole may be greater than the sum of the parts. More likely than not, it is fair use. In the past, the folks at USNews have disagreed. Thoughts?