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USNews Rankings and Fair Use

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?

6 thoughts on “USNews Rankings and Fair Use”

  1. Just playing devil’s advocate for a moment, couldn’t Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), be taken as a bright-line rejection of fair use where the use precedes (and arguably supersedes) the first authorized publication? I agree that there’s only a thin copyright here, but as you point out, the duplication is total, and the blogosphere isn’t really doing anything “transformative” simply by repeatedly reproducing the same verbatim copy, is it?

  2. That raises the question that I left implicit in the post:

    What if the “unauthorized” publication results not from a “purloined” copy, as in Harper & Row, but from what is a plainly authorized and lawfully obtained copy?

  3. I teach my students that the shady origins of the manuscript in Harper & Row is probably crucial to understanding the decision, and that the newsworthiness of Ford’s manuscript would probably have led the Court to uphold the fair use claim if The Nation had come by it innocently rather than somehow clandestinely. But that’s really just a gloss on the decision, isn’t it? The Court itself didn’t actually say that the sketchy provenance of the manuscript was dispositive on the fair use inquiry (possibly because it would be hard to situate that issue within the framework of the four statutory factors). I tend to think that we have to understand the Court’s decision as resting in part on the fact that the manuscript was purloined, but that’s partly because I’m personally hospitable to fair use. Someone who wasn’t (and that includes an awful lot of judges) might look at Harper & Row and conclude that the origin of the manuscript really didn’t matter to the Court’s reasoning, and that anyone who “scoops” the copyright holder’s planned initial publication ipso facto isn’t a fair user.

  4. Gosh, I’m with Tim. Even a very thin copyright is worth something. (Easterbrook’s opinion on dental treatment codes, right?) I agreed with your list of the factors, but came out saying likely *no* fair use, at least for blogs that just reproduce the pages. A complete image of the entire contents is just about the greatest quantity of taking you can imagine, plus little to no transformativeness, I suspect a good argument for market substitution, and Harper & Row.

    OTOH, of course, taking a smaller amount (maybe like reporting the top 10 or 20) and also commenting on it is a different story.

  5. Let me vary the implicit question:

    Suppose (as might be the case in the present USNews situation) there is a “leak” — I’ll call it an unauthorized release — and a prepublication copy is posted. There’s the “scoop,” in Harper & Row terms.

    Separately, across town, authorized copies of the work are made avaiable lawfully for sale. Purchasers of that copy do not post copies, i.e., they are not responsible for the “scoop,” but as to them, and as to anyone who had the opportunity or ability to purchase and/or read that copy, there is no “scoop.”

    Are the “scoopers” liable for infringement, or do they have a plausible fair use claim? The analogy to a problem in trade secret law is intended. Does that analogy help? Does it make a difference here?

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