It seems that Comedy Central, a company that has made a tremendous amount of money by building two shows around the concept of “fair use”, isn’t going to be quite as forgiving when bloggers turn the tables on them.

Hulu recently announced that both The Daily Show and The Colbert Report, both products of the Viacom-owned Comedy Central, would no longer be available on the service.  Apparently due to the rising popularity of both shows on Hulu, Comedy Central was no longer happy with just splitting advertising revenue with Hulu, and was now asking for an additional upfront payment for both shows to continue being streamed.  When no compromise could be reached, both shows were suspended from the site.

dailyshowThe side effect of this is that many bloggers have taken to posting clips from both shows on their sites using Hulu’s embeddable player, and now they will have to rely on Comedy Central for their clips.  The difference is that Hulu’s player allowed you to choose a starting point in a show to embed at the portion you wanted to show, while Comedy Central only posts selected clips, so bloggers had far more control with Hulu’s way of doing things.

The Hollywood Reporter decided to reach out to Comedy Central to see how it would feel about bloggers making their own clips to post, and would they go after sites that posted unauthorized clips.  PR rep Tony Fox told the trade publication, “Yes, we intend to do so.”  Mr. Fox went on to add,  “My feeling is if (websites) are making money on our copyrighted content, then that is a problem.”

The issue here is that any blogger doing such a thing would actually be exercising a portion of copyright law known as “fair use.” Wikipedia defines it as:

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test.

A recent story from National Public Radio singled out The Daily Show as one of the best examples of fair use law due to its propensity to use clips from other programs to create its show each night.  As the report said, “It’s the same principle that the producers of The Daily Show on Comedy Central employ every night.”

Fair use has unfortunately always proven to be a difficult defense to prove due to it being some subjective.  There are questions over the percentage of the original work used compared to the amount of new content created around it and so on.  For your average blogger, no matter how much in the right they may be, the court costs of mounting such a defense would probably break them.

It is not unusual for large corporations to try to scare bloggers into line.  The Associated Press has said numerous times over the past few years that it wants to charge bloggers $2.50 per word for each word they use in a post that quotes it.  While it scared many bloggers into not quoting the AP, I have yet to hear of anyone actually receiving a bill.

The problem is that no one wants to be the test case.  While the first case would probably show Comedy Central/Viacom to be in the wrong, it would cost that person so much money that they no one wants to be the guinea pig for the rest of us.  Can you really blame them?  Is it worth putting yourself into tens of thousands of dollars of debt to post Jon Stewart making fun of yet another politician?  As much as I think the network is in the wrong here, I certainly don’t want to put myself out there to test it.

What say you?  Is Comedy Central just trying to scare bloggers, or are they correct in saying bloggers would be in the wrong?