Does this Super User answer on Stack Exchange constitute copyright infringement?

Question

I read this answer on Stack Exchange's Super User site with interest.

All of the text of the answer is directly copied from CNET. It has not been improved in any way. It is not used as part of a larger answer. It is not used as an example.

On the other hand, the answer is clearly and unambiguously attributed to CNET with a link to the original article.

Ignoring fair use, is this prima facie copyright infringement?

If it's possibly copyright infringement, which parties may be culpable?

I've included the United-States tag because, to the best of my knowledge, both Stack Exchange Inc. and Red Ventures (the parent company of CNET) are incorporated in the United States of America. I don't know if laws of other jurisdictions could be involved, as the answer will likely be transmitted and read around the world.

Answer 1

It's probably infringement, but there is an argument to be made that it simply recites facts and facts aren't protected by copyright. In general, copying-pasting someone's words is prima facie infringement if you ignore the defense of fair use. The question then lists the factors involved in fair use - quoting the entirety, it's not criticism of the original work, nor transformative, etc.

HOWEVER,17 U.S.C. §§ 101 "Subject matter of copyright" states:

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Feist Publications, Inc. v. Rural Telephone Service Co., Inc. further clarifies this.

To understand the potential debate:

Consider a love song. The fact that Taylor Swift loves Travis Kelce isn't copyright-protected. The wording she uses to express that in a song is what's protected, the lyrics she uses. The same applies here. The facts of how it's done aren't eligible for copyright. The technical writer's work in skillfully and clearly explaining it produces wording which may be protected by copyright. This particular example is a bit of a gray area - the facts aren't copyright protected and there would be a question of "how many different ways are there to say it?"

In Feist, SCOTUS ruled that even a recitation of facts can be protected if there is an element of creativity, stating compilations of facts may be protected if the expression "entail[s] a minimal degree of creativity, are sufficiently original"

See also Harper & Row.

I would say it's (barely) copyright infringement; other knowledgeable people may go the other way. It would likely hinge on the question of what level of creativity and skill went into choosing that wording.

Note - the question points out attribution. In the United States, the attribution mostly doesn't matter. It can be one factor in fair use, but you said "ignoring fair use".

Answer 2

Ignoring fair use, it seems to be clearly copyrright infringement. They copied a portion of the site verbatim. And the site's Terms of Use, in the section titled Intellectual Property; License, explicitly prohibits copying any of the material on the site:

Except as provided in this Agreement or otherwise expressly authorized by us in writing, you may not ... upload, sell, rent, lease, lend, broadcast, transmit or otherwise disseminate, distribute, display or perform any part of the Services or Content; ...

IANAL, but I think there would be a reasonable fair use defense. These are the factors it seems to meet:

• Purpose and character of the use: Posting on Stack Exchange is not a commercial use, and it serves a teaching purpose.
• Amount and substantiality of the portion used: They copied four lines out of an article with over 1100 words.
• Effect of the use on the potential market for the original work: I doubt that excerpting this bullet list will have any significant impact on the market of the original article. In fact, including the link back to the article may increase its market.