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linked from Cagey Consumer Highlights web search for Cagey Consumer Highlights
The Cagey Consumer has received some correspondence from John Braat, the Chief Operating Officer of Edifi College Financial Aid Services web search for Edifi College Financial Aid Services.

The Cagey Consumer web site provides the opportunity for people to discuss and comment on topics that exist on the web site, including the opportunity for businesses to rebut information posted on the web site and comments about those articles. Although there is no legal obligation to provide such a forum without limitations, nor to provide any such forum at all, the intended operation of this is to allow people to express their opinions without censorship, but always subject to the possibility that such opinions might be refuted either by the Cagey Consumer or by other visitors to the Cagey Consumer web site.

The reason for the above paragraph is to explain that Edifi's COO, rather than choosing to respond to the information he objects to with a rebuttal on this web site, sent a message explaining his position, but then stated:

All the information contained in this Email is for your personal review, NOT FOR PUBLICATION. We reserve all rights.

I'm confused. If there is a plausible refutation of the purportedly negative information on the web site, then shouldn't visitors to the web site have the opportunity to see that refutation? And if the business offering that refutation declines to allow the posting of the refutation, then exactly whose fault is it when somebody doesn't get to see the different sides of the issue?

The letter goes on to state:

The publication of our invitation on your website violates our copyrights.

This is clearly a little more serious. It is an assertion of a legal cause of action. But does it have any basis in fact?

Without getting into a lot of legal technicalities, let's apply a little bit of common sense...

Suppose Consumer Reports magazine wanted to comment on the warranty provided by a particular automobile manufacturer. The warranty represents a promise by the manufacturer as to what it will do if the purchaser encounters certain problems with the vehicle. It's a part of the contract that the purchaser enters into when he or she buys the vehicle.

Althugh an important goal of a contract is to remove ambiguity from the agreement, there will always be ambiguity. Consumer Reports might be concerned about certain ambiguities in the agreement, and might want to publish verbatim at least some parts of the warranty which were considered to be potential problems because of this ambiguity.

Could Consumer Reports be prevented from publishing such portions of a warranty because the warranty was copyrighted?

For a variety of reasons, the answer is no, and not just because only excerpts from the warranty were published.

If we are to believe John Braat's claim that publishing Edifi's invitation on our web site violates their copyright, we'd have to believe that the White House could prevent unfriendly networks from broadcasting his speeches. A whole bunch of implausible corollaries follow from this logic.

The fact is that there is a right to discuss and comment upon matters of concern to the public. The public also has a right to be informed about such matters. When the matter under discussion is something spoken or written, the actual material may lawfully be reproduced as part of this discussion and reporting.

What about when the matter under discussion is something intended for sale? If the public is interested in the latest Stephen King novel, can the local newspaper just publish the contents of the book in their newspaper? Of course this is not the case. Quoting from the American Library Association's statement on Fair Use:

The fair use provision of the Copyright Act allows reproduction and other uses of copyrighted works under certain conditions for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. Additional provisions of the law allow uses specifically permitted by Congress to further educational and library activities.

To be sure, the fair use exception is a complex area of copyright law, and it is the subject of ongoing discussion among intellectual property lawyers. But it's easily seen how the publication of Edifi's copyrighted invitation falls into this exception as described by the American Library Association.

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