No. As long as Jim is using acceptable excerpts and the intended purpose is discussion and analysis, it makes it a transformative work.
In other words, Jim is not making money off the original excerpt, but primarily the discussions that follow. This is actually an important ruling for FR because it establishes a precedent for the “transformative” argument, which was used by Jim's counsel “Clarity” in the trial long ago.
But it never got that far because at the time Jim/FR wanted to use full text articles, a no-no.
The Fair Use clause relies on three major “tests”. The amount of original material being used, it's intended use and how much it impact the authors ability to derive income from that work..
In this case the court ruled the suit had no merit because 1. the plaintiffs only used 4 minutes of the show (which I think is questionable. As far as a newspaper is concerned the court sees each individual article as a separate “work”. I don't see why this same standard wasn't applied to Savages segments), 2. it was for discussion and analysis, and 3, it ultimately had little impact on the income of the author (which I also disagree with. The judge goes through some legal esoteric contortions to claim that the readers at the CAIR site would not benefit Savage anyway, but if they had posted a shorter excerpt and a link, Savage WOULD have benefited from that traffic.
IMO Savage has grounds for an appeal on 2 of the three “tests” that the judge may have ruled on incorrectly.
Thanks, I’m not a lawyer but I know that as soon as even the slightest mention of money is involved it can cause quite a stir with copyrighted works verses Fair Use.
Personally I do think the decision as it stands is a plus for us here to use as a precedence for the likes of AP and Gannett.
I would be standing on the sidelines and watching the debate from the balcony section of course, my wife gets mad if I stay at the Holiday Inn too often anymore...