Re: E-mailing newspaper articles fair use?

On Tue, 16 Feb 1999, Robert Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> On Sat, Feb 13, 1999, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > On Feb 11, 1999, Robert Cumbow <cumbr[_at_]perkinscoie.com> wrote:
> > >
> > > Republishing and/or distributing a copyrighted news article in its
> > > full unedited form is an activity for which permission of the
> > > copyright owner is required.
> >
> > I disagree, as I think there is a respectable fair use argument here.
> > It is extremely unlikely that sending an e-mail copy of a newspaper
> > article to someone else is subsituting for an authorized sale. Sending
> > a clipping from the original is a fair use because of the first-sale
> > doctrine (even though Mirage might indicate otherwise), so the same
> > privilege out to apply in electronic form, despite the incidental
> > reproduction needed.
> >
> > Posting the article to a web-site, on the other hand, probably is not
> > be a fair use, since the number of people who now have access to the
> > article without having to pay for the original has increased greatly.
> > Posting the article to a listserv (as opposed to a few individuals) is
> > somewhere in between the two.
>
> To clarify:
>
> Sending a clipping from a newspaper I've bought to one person is
> undoubtedly permissible under the First Sale Doctrine.

Viewed from a technical point of view, if you send the actual clipping from a paper newspaper, then yes, it would be covered by first sale. However, this falls apart the minute you introduce anything digital.

> I assumed that the poster was asking about wide distribution of news
> articles to several recipients. This is a redistribution of the work,
> and is not permitted without the permission of the copyright owner. I
> believe newspaper clipping services have to have licenses to engage in
> this kind of activity.

Even sending a single copy of a newspaper article would probably not be covered by first sale since a new copy would be made at the destination (however, if you destroyed your own electronic copy at the time you sent it, then you might have a weak argument).

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The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 1999 Bruce E. Hayden,all rights reserved
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Bruce E. Hayden                      bhayden[_at_]acm.org
Phoenix, Arizona                     bhayden[_at_]ieee.org
                                     bhayden[_at_]copatlaw.com