When Fair Use Seems Unfair

"At what point does excerpting from an article become illegal copying?" asks Brian Stelter in The New York Times today, citing instances, such as Boston.com's "scraping" of GateHouse Media articles and Huffington Post Chicago's republishing of other sites' concert reviews, where the line seems to have been crossed.

As a producer and aggregator of news, it's a question I've often considered, from both sides. And the only answer I've come up with is one that's unsatisfyingly close to Justice Potter Stewart's remark about identifying hard-core pornography. ("I know it when I see it," he said.)

It all seems to hinge on that slippery thing, intent. When a blogger copies and pastes a few paragraphs from an article, is he being careful to quote just enough to make his point and no more? Or is he trying to give the reader the sense that there's no need to click through? Whose interest is being served: the reader's (saving the time it would take to read the source article) or the blogger's (keeping a set of eyeballs on his page rather than referring them somewhere else)?

We've all come across traffic-hoarding blogs that habitually run longer-than-necessary excerpts, bury links after the jump and find other ways to discourage readers from leaving. Are these sites guilty of acting in an obnoxious and un-neighborly fashion? Absolutely. Is there anything that can be done about it, legally? Probably not. Are the stingy links they offer still better than nothing as far as content providers are concerned? For the most part, yes.