Fair Use for Fair People
April 8, 2009
Worth noting: Both independent bloggers on the web and the Associated Press are in the news this week for asking for appropriate credit for their work when it's excerpted for fair use by online news aggregators. But the web natives frame their argument in terms of respect for the reader and defending the credibility of the information being published, assuming correctly that their businesses will grow if they honor these principles. In contrast, the AP leads with its business argument first, establishing an atmosphere of legal threats and aggrieved arguments about licensing fees with no mention of what readers want, or what respect they have for the very stories they're ostensibly fighting to present. Hijinks ensue.
A Basic Disconnect
Andy Baio collected some reactions from Matt Haughey, Merlin Mann and Joshua Schachter on having their recent works excerpted at length, republished on the Wall Street Journal-owned AllThingsD, and arguably being misrepresented as contributors to a site they don't actually participate in.
For indies like John Gruber, Matt Haughey, or Merlin Mann, they're more concerned about the appearance of being affiliated with a publication without their consent. Merlin wrote, "It reflects a basic disconnect about what we're really 'selling' when we self-publish. Obviously, I'm not selling paper or plastic discs or even words. I'm selling me."
None of the writers Andy interviewed (and, by way of disclaimer/boasting about how proud I am of their success, I count all of these guys as friends) balked about being linked to, or was even quoted mentioning compensation for the ads that were run next to the excerpts of their work. Indeed, the refrain from each of these web experts was that they wanted clarity about the presentation of their work, and a completely unambiguous disclaimer about how their words ended up on those pages.
In short, each of these guys was concerned about two things:
- Protecting their credibility and reputation
- Making sure the information being communicated to a reader was absolutely transparent in terms of sourcing and accountability
"Share"
These requests for clarity from the bloggers were made even when they might negatively impact revenues for their individual websites. Contrast this, then with the Associated Press reaction to a directly analogous situation of being excerpted and linked to by aggregator sites like Google News and, presumably, AllThingsD.
“We can no longer stand by and watch others walk off with our work under misguided legal theories,“ Singleton said at the AP annual meeting, in San Diego.
As part of the initiative, AP will develop a system to track content distributed online to determine if it is being legally used. AP President Tom Curley said the initiative would also include the development of new search pages that point users to the latest and most authoritative sources of breaking news.
The Associated Press announcement addresses pricing, licensing, and legal threats. There is no statement made about the credibility of the information being published through these online channels, nor whether the act of aggregating and disseminating news this way has an impact on its accuracy or accountability.
Ken Doctor, an analyst specializing in selling online information products is one of the industry experts who has been working mightily to reframe the conversation, and his quote in this BBC article articulates this view well:
The real question is, "Is it fair for news companies to produce all this content for Google and for Google to keep the lion's share of revenue?" What we should be focusing on is "fair share".
I have no quibbles with Doctor's business focus here, and Google's responded well to that part of the conversation. But by letting people who are focused on selling the news as information products lead the conversation, newspapers are missing the most persuasive moral grounding for the case they are trying to make.
Persuasion
If the Associated Press made its argument on the basis of credibility and reputation, transparency and accountability, as the web-native publishers have, it would be far easier to defend their desire to share in the business model developed by the aggregators. The good news is, I'm sure there are many passionate, articulate and credible members of the Associated Press who'd be willing to present a thoughtful argument to that effect, if given the platform. And the web natives who've built those successful aggregators might be a lot more likely to want to work out a relationship.
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I'm sure that there are, as you say, many passionate, articulate, and credible members of the Associated Press who would be willing to present thoughtful arguments based on credibility and reputation, rather than legal strong-arming and monetary compensation.
I doubt, however, that they will be allowed by the AP to make such a case in any official capacity.
To me this just confirms that people with an attitude of these bloggers are the future of journalism and AP and similar "old" media will be further marginalised (and as they loose more and more ground, their shouting will get more shrill and their methods more desperate).
As Clay Shirky put it "Society doesn�t need newspapers. What we need is journalism." http://www.shirky.com/weblog/2009/03/newspapers-and-thinking-the-unthinkable/
I'm curious, Anil. If and when your pen is dry and you haven't written in a while, where do you find inspiration? Or has it just bubbled up naturally from birth? Surely you have creative dry spells? How do you tap the writerly reserve?
This may not seem like the proper place for such a question, but I believe other readers will want to know.
~ Jawja
Thank you for this interesting article. I work at the Center for Social Media where we address issues in public media 2.0 and fair use. This is article does a great job of explaining those two issues in relation to each other. We have hopes of someday soon creating a Code of Best Practices in Fair Use for Journalism. I'll let you know when that happens.
Sounds to me like a good technical solution for partnering with indepedent publishers and republishing their content could be an API of sorts for republishers to use, with certain credentials, to confirm the publisher has authorized republishing. A private/public key system may work.
"If the Associated Press made its argument on the basis of credibility and reputation, transparency and accountability, as the web-native publishers have, it would be far easier to defend their desire to share in the business model developed by the aggregators."
I think this is only true if a monetarily-motivated desire to share in aggregators' business model is not "easy to defend." And why should that be the case? If I were these bloggers, I would certainly be angry not just at questions about credibility and transparency but also about excerpts that far exceed the bounds of fair use and tend to hog traffic for the aggregator at the expense of traffic to the actual content creator, the blogger.
It's pretty much impossible to stop other websites from grabbing your feed and using it. When you enter the "online world" you have to expect that someone somewhere will use your content without giving the creator credit.
I personally would rather spend time moving forward than worrying about stolen/non credited content.
Luckily, most of the search engines use smart filters that take out all the duplicate content .. They are pretty smart about realizing where the orginal content came from, so if someone does take your content then you will appear first over the person that stole it in the search engines.
I also thing the Associated Press is insane for trying to force bloggers to pay them for using quotes. It's called Fair use. Copyright 101. Most bloggers aren't even looking to profit from their online activities, it's so absurd.
The quote system is ridiculous especially when the AP can charge you for using your own words.