Not all is fair in bo.lt and links

Brian Morissey, Digidaily, Publishing in the Remix Era “The latest exhibit is page-sharing service Bo.lt. The pitch is it’s “YouTube for web pages.” It sounds benign, but the results could be scary for publishers. Bo.lt lets anyone dump a URL into the platform, and then start editing a web page for sharing. The result: the New York Times story on President Obama’s Medicare panel? Change the headline. Better yet, take out the comments. Also, let’s strip out the related. Now it’s ready for sharing to the world — on a user’s own Bo.lt URL. Oh, and there’s no easy way for The New York Times to block its content from Bo.lt.”
Or better yet, take a look at the same article, shared on Bo.lt by David Berkowitz, More BS from Digiday: Publishing in the Remix Era.
Now go back to the original. And the bo.lt link.
Who expects this to last long in its present form?
Bo.lt appears to be copying the entire web page, reproducing the entire work, presenting it in its original form and letting users modify the content, creating a derivative work. Can anyone make a non-frivolous argument that this specific behavior is protected by fair use?
The purpose and character of the use is commercial. Even though users may have an academic or creative purpose for using the service to transform works, on a large scale basis, the service is backed by venture capital, so it would seem to be meant to make money without any specific pedagogical or analytical goals.
The nature of the works copied will be articles by major newspapers, magazines and literary sites. (Who else would we expect to bring any eventual litigation?)
The amount of the work copied is generally the entire work, which isn’t always a barrier to a finding of fair use, but not particularly favorable for Bo.lt.
Is the work transformative? There is an interesting application for linking and commenting that might draw the ire of web publishers that should be protected by fair use, but Bo.lt is probably insufficiently transformative. Yes, it allows its users to change the text of pages they share, but it doesn’t recontextualize the copyrighted material in any significant way. The pages capture the entire page source site, rather than just article text to put into a new context. The annotations are integrated with the text to change the text into a derivative work, rather than to stand alone in any way as annotations.
And even if this kind of reproduction was judged to be fair use, Bo.lt is likely to run head-on into trademark infringement. Since the page reproduces logos and branding completely with only subtle hints to the user-generated changes, readers are likely to be confused about Since many Internet users are now used to link shorteners, particularly for Twitter users, there can be some confusion as far as what is a canonical link and what is reframing.
SharedCopy is a more interesting service, because it allows its users to annotate web pages with more transparency. Even though SharedCopy is copying entire web pages, it is distinguishing the annotations from the original author’s text. However, it is copying entire pages and republishing articles outside of login/paywalls for users to share. Is it necessary for SharedCopy to copy the entire web page to allow users to link, annotate and comment on pages?
Flipboard and Readability are also doing interesting things with contextualizing and reformatting full text of web pages, but generally more for private personal use, so there is little republishing. And Readability and Flipboard are both attempting to work with publishers to license uses to provide the best experience for their users.