Fair Use, Fair Game

Checking out NRO articles this morning I found an interesting disclaimer at the top of the article Planned Parenthood Matters:

EDITOR’S NOTE: This column is available exclusively through United Media. For permission to reprint or excerpt this copyrighted material, please contact Carmen Puello at cpuello@unitedmedia.com.

134406718_b31d61b62d_mThe article is an interesting read but I kept coming back to this disclaimer and the inherent threat of who knows what should I decide to quote any part of this article without first reaching out to United Media.  Admittedly it’s not hard to ask for permission, just e-mail and see what happens.  And for all I know Ms. Puello will say sure and just remind me of what I’m about to remind everyone else of.  But that step isn’t needed, the permission to excerpt because of the glorious rules of Fair Use. How does that apply here?  Comment and criticism:

If you are commenting upon or critiquing a copyrighted work–for instance, writing a book review — fair use principles allow you to reproduce some of the work to achieve your purposes. Some examples of commentary and criticism include:

  • quoting a few lines from a Bob Dylan song in a music review
  • summarizing and quoting from a medical article on prostate cancer in a news report
  • copying a few paragraphs from a news article for use by a teacher or student in a lesson, or
  • copying a portion of a Sports Illustrated magazine article for use in a related court case.

The underlying rationale of this rule is that the public benefits from your review, which is enhanced by including some of the copyrighted material. Additional examples of commentary or criticism are provided in the examples of fair use cases.

You don’t need permission to excerpt if you’re trying to provide context for your argument.  Just don’t cut and paste the entire article and give credit where it’s due.  Not only is this fair use but it’s Citation 101 – selectively quote your sources, cite your sources, don’t steal anything that’s not yours.

There are plenty of questions as to what constitutes fair use – whether there are limits to the number of characters or words one can reproduce before they are outright thieving.  This is especially relevant on a large scale given AP’s threat last week to take “all actions necessary” against content piracy.

On a local scale, though, there is a micro-battle brewing about fair use working the other way around.  Last week, Media General’s Richmond.com rebranded, tore down it’s old looks, threw up it’s new Richmond MySpace-esque site*, and said that part of its content would be aggregated from local blogs. So Richmond.com, as part of this new, hip, social media thing was going to be providing content not only generated by users and a paid staff but by bloggers who aren’t necessarily opting into RDC.  And making money off of it.  Which leads to the question:

@richmonddotcom Any plans on revenue sharing with content providers on #richmonddotcom?


The response is a little glib, but that they responded at all is to be commended.

A Twitter debate followed among some bloggers where fair use was brought up as well as folks either saying they really didn’t mind or they particularly minded because it infringed on their content rights.

One of the biggest arguments with the Richmond.com model is that there isn’t enough done to show where the meat is coming from.  It’s a matter of attribution and affiliation and that also had a flare up on a larger scale last week when AllThingsD, a site owned by Dow Jones, posted a link to Joshua Schachter’sarticle about URL shorteners.  Josh’s response was short and to the point:

what the hell is this?

He wasn’t impressed.

Andy Baio at Waxy.org has a good write up of the whole thing, as well as reactions and explanations.  One that stands out and hits my point home is from43Folders‘ Merlin Mann:

Republishing online work without consent and wrapping it in ads is often called "feed scraping." At AllThingsD, it's called "a compliment."

Andy Baio gets to the real heart of the matter when he says “the presentation makes it very hard to distinguish between original contributions“. And that’s the key – properly attributing the work not just in name but in looks as to distinguish what is being borrowed from what is truly original content.  If you start mixing the two together, you start confusing the audience, whether purposefully and maliciously or merely out of laziness.

The other problem with Richmond.com is they’re unapologetic about it.  “For aggregated content, we share by directing traffic to your site and ads.“  That is assuming that the site RDC is redirecting to has advertising or a structure to take advantage of any traffic.

That leads to the argument of the difference between professional media and independent media.

It is one thing for blogs to use mainstream media for meat and to feed readers to an outlet that is built and structured around a for-profit model that is designed to take advantage of any traffic that comes their way.  They are ready to make the sale, push an advertisement, any number of avenues for revenue.

When mainstream media outlets do the reverse, using the content of blogs for meat, if they properly link and attribute (which is rare, even on media websites), they are feeding readers to a site that is not set up to take advantage of the traffic and thereby help the original author.  There is no structure in place to take advantage of such a referral for personal or financial gain.

Both ways the mainstream media wins.

RDC tries to win many times over.  When linking to community blogs they don’t make it easy to actually GET to the community blogs. You know, actually direct traffic to their sites and ads.

Visit RDC’s News & Views.  Just this once.  Scroll down past the advertisements and get to the actual list of News & Views.  Pick any one of those articles.  Click on it.  Guess what?  You’re not done yet!  No, you now have another page of RDC ads to scroll through, the title, the first few words, THEN there’s a link you get to click on to finally get to the community blog that provided this meat.

Whatever they can do to keep you on their site is good for them.  The appearance of meat, of community news and involvement furthers this business model.

This issue is only going to grow as more and more newspapers switch to online models to save their failing business plans.  They’re going to seek “community content” which usually equals “free content” and laugh all the way to the bank while the content providers are left working for someone and seeing no reward for their efforts.

Attribution is key.  Affiliation is key.  There has got to be something to thoroughly distinguish original content from aggregated content and not only that but reward accordingly.  If Richmond.com has three restaurant reviews written in house by paid staff but then links to ten written on EatingRichmond.com, well, who does that serve?  RDC, who can charge higher ad rates, show greater traffic and utilize other people’s content to inflate their own size?  Or EatingRichmond.com, which is run part time by a handful of people, is a blog that has no marketing team or structure to sell advertising and can at best rely upon Google Ads that pays pennies on the click?

This is not to say that most folks blog for money.  I certainly don’t.  There are very few that truly profit off of blogging.

The point is, not only do I not blog to make myself money, I certainly don’t blog to make anyone else money.

Other posts worth reading on the subject are Anil Dash’s “Fair Use For Fair People” and Jason Kottke’s “Extreme Borrowing In The Blogosphere”

*There is a whole blog post waiting to be written about the marketing thoughts behind destroying one already established brand in the effort to create a hip, “new” brand that merely provides yet another social network to an audience that has had plenty of social networks to choose from for five years now but one that also directly competes with community created and driven website likeRVANews, community blogs like CHPN and others, but that’s for another day.

The Washington Post Is Afraid Of Change

The last week has seen a bombardment of articles from newspapers crying about how necessary they are for the sake of society and community.  Two recent examples out of The Washington Post point out that newspapers coverthe police and the legislature better than anyone else can ever hope to.  In the latter, Marc Fisher writes:

Across the nation, it’s not just that fewer reporters are covering state government; newspapers and TV stations are also devoting far less space and time to that news.

Does that mean citizens are less well-informed? Do blogs and other new media fill in where old media are cutting back? Is it really a loss if reporters cover fewer legislative debates?

“We used to sit here and it was a typing contest,” Lewis says. “A lot of those process stories had a very small audience.”

“When we had four people here for AP, we covered every floor debate, every vote,” Stuckey says. “I’m not sure much quality was lost when we cut back to two people. We focused more on what it all means than on the daily politics.”

In one hour in the Virginia House the other day, I watched debates on raising the cost of vanity license plates (the No’s won), letting employers pay workers with debit cards rather than paychecks (Yeses won), and making it a felony to hang a noose on someone’s property (approved). Hardly earth-shattering issues, but each has an impact on people’s lives. Yet none got any press; a couple of years ago, they would have.

“The smaller the press corps gets, the more you see personality stories rather than pieces about what is at stake for people,” says Virginia Gov. Tim Kaine. “Smoking in restaurants is always going to get covered, but now, when we make big changes in mental health or foster care, nobody covers it. That has a real impact: It would be hard for campaigns to get even more superficial, but they might.”

A combination of media revolution and economic collapse is dismantling our news infrastructure, especially at the state and local levels. “Someday, people will wake up to the depletion of the press corps,” Gibson says. “I don’t know if the result will be corruption or demagoguery, but the interests of the people are not being represented anymore.”

Which begs the question: Which came first, the declining subscription rates and income for the papers or the declining quality of product in the name of cost cutting and profit maximizing?

The title given Fisher’s piece, Bloggers Can’t Fill the Gap Left by Shrinking Press Corps, seems to want to take a shot at anyone who believes blogging will do the job.  But no one worth their salt is advocating blogs as being the new force to be reckoned with when it comes to covering the news, nor should anyone believe this is the case.

Bloggasm recently surveyed the front pages of Technorati’s top 10 blogs and found that original reporting only accounted for 13% of posts.  Bloggers rely upon newspapers and professional media for content.  Bloggers provide supplementary information to what the professionals quickly generate an overview of that is then presented as the “whole story”.

Not only that, the ability of bloggers to gain access to press pools or have the time, money or other resources to find the news in ways that journalists have been expected to in the past is severely limited.  Bloggers aren’t granted the same privileges by associations and organization that don’t view websites as legitimate news sources.  Certainly this may change over time, but bloggers are still severely limited by their lack of resources, support structure, and, yes, training to be actual journalists.

Not that journalists are getting the best training these days.  Many are coming fresh out of school being taught to trust what they see on the web. Email is a proper tool for interviewing sources now and, hey, if you need to describe an organization you can just check out the about page on their website. Nevermind that emails can’t replace actual face to face interactions (you know, the kind that verify the person behind the email address) or that about pages don’t tell the full story in an objective manner.

Many reporters and journalists are now expected to be a jack of all trades, writing and copy editing their stories, providing audio/video supplementary coverage, and needing to be able to edit and put it all on a website in a timely manner.  This lack of specialization in an effort to cut costs leads to a product of lower quality, something that any reader could get for free from going to, well, a blog.

Newspapers and their websites have a higher expectation of quality associated with their product.  As that quality diminishes, so does the ability to charge for it, whether you’re charging subscribers or advertisers.

Newspapers are afraid of the internet. As they should be. But that shouldn’t make them get defensive or ball up in the fetal position and cry until they die. It should force them to confront it and evolve.

Newspapers need to take a good hard look at what their purpose is. Are they public service tool or are they a profit minded business that puts income over content and quality? Can they continue to attempt to be a jack of all trades in terms of content or are they going to have to realize that there are some things they can do very well and do those, specialize accordingly, and let others cover what they can’t?

Radio didn’t kill newspapers. Television didn’t kill newspapers either. Both forced newspapers to reevaluate the way they did things and adapt accordingly. Newspapers should have been adapting for years, but now faced with tough economic times that are further drying up their advertising income, it’s do or die time.

Unfortunately for many, they may not be able to “do”.

UPDATE: How’s that for timing. As soon as I hit “publish” I see John Sarvay’s thoughts on the same articles:

The point here isn’t whether newspapers deserve to die, becuse they sort of do, having pissed away so much of their credibility over the past two decades of corporate stewardship. The point is that their death is going to fundamentally change our ability as citizens to stay connected, stay informed, and to hold our elected and appointed officials accountable.

A great example of just how topsy-turvy the inbalance is between government and an industry dedicated to covering it: There are more paid people working in City Hall pitching stories and spinning day-to-day policies than there are reporters covering City Hall for print, television, radio and Internet outlets combined.

And, so, if I were publisher of the Richmond Times-Dispatch and I were interested in reinventing my brand, I’d probably start asking myself (and everyone I met), “How can my paper position itself to be the catalyst for every important community conversation in the region?”

Are Virginia Bloggers Journalists?

While that’s not the full question in play in Waldo Jaquith’s recent legal troublesit certainly is a large one as Thomas Garrett and his lawyers try to get information from Waldo about his commenters and their private information.  From the Motion To Compel:

[W]hile Virginia recognizes a qualified repotter’s privilege, see Brown v. Com., 214 Ya. 755,757 (1974), Mr. Jaquith has not introduced any evidence to prove that he is in fact a journalist. Since Mr. Jaquith asserts the privilege, he bears the burden of proving that the privilege applies to his communications. ,See Anderson v. Anderson,2g Ya. App. 673, 681-682 (1999) (“The party seeking to establish the existence of a privileged communication carries the burden of proof.”) Howevet, he has merely asserted “upon information and belief’ that the privilege applies (Mot. to Quash !f 4.), and has not offered any evidence in support of this assertion.

In any event, it seems unlikely that Mr. Jaquith would be able to carry his burden. Although it appears that no Virginia court has yet articulated a test for determining precisely who is a’Journalist” entitled to assert the qualified reporter’s privilege, cases from other jurisdictions have held that the law “does not grant status to any person with a manuscript, a web page or a frlm.” In re Madden, 751 F.3d 125, 129 (3d Cir. 1998). Nor does a person become a journalist merely by proclaiming that he or she is a journalist. Id. at 130. As one scholarly commentator has stated:

Any such self-proclaimed joumalist could unilaterally decide to place certain information offlimits simply by agreeing to promise confidentiality to a source. This would potentially exclude a huge amount of information from the legal system, and would result in substantial litigation costs as parties battled over the applicability of the virtually boundless privilege.

Randall D. Eliason, The Problems with the Reporter’s Privilege, 57 Am. U. L. Rev. 1341,1367 (2003). Nor is a person considered a journalist if he merely relies upon another party as his sole source of information, uncovers no story on his own, and does not independently investigate any of the information provided to him by that other party. Madden,151 F.3d at 130. lvfu. Jaquith therefore cannot benefit from the qualified reporter’s privilege inasmuch as the Article contains no information arising from his own investigative reporting but instead simply recites information provided or uncovered by others, including information provided by The Hook.

So even journalists can’t call themselves journalists if they cite sources that are not their own. Good to know.

So the question becomes how does one qualify as a “journalist”?  Must they be card carrying?  Is there a decoder ring? Do websites not qualify as a news medium and therefore anyone working specifically on a blog does not qualify as a journalist?

And, if Waldo was unoriginal in his posting of this information, then why chase after him or his commenters?  How is posting this story any different than a man telling the story in a bar, to which the crowd reacts in one fashion or another?  Are you going to subpoena drinking buddies next?

Beyond that, it’s a question of free speech and association, another point argued against when Waldo refuses to release IP information of commenters.  What Garrett’s lawyers argue is that some speech and association is more free than others:

In opposition to this request, Mr. Jaquith argues frst that these documents should not be disclosed because to do so would “threaten the exercise of fundamental rights” of the commenters, namely, their First Amendment right to anonymous speech on the internet, and that therefore the Subpoena “is subject to the closest scrutiny.” (Mot. to Quash fl 5.) However, the precedents cited by Mr. Jaquith in support of this position dealt with far more weighty constitutional matters than those at issue here. In bothNAACP v. Alabama,357 U.S.449 (1958) and Bates v. City of Little Rock,361 U.S. 516 (1960), governments in the former Confederacy had sought to compel units of the NAACP to disclose their membership lists, thus threatening members’ exercise of their First Amendment rights of free association, and perhaps even threatening their lives. The standard of “closest scrutiny” (sometimes referred to as “exacting scrutiny”) applied in those cases applies to speech only when it touches on prime matters of public political life, such as debate over the qualifications of candidates, discussion of governmental or political affairs, discussion of political campaigns, and advocacy of controversial points of view, in which case such speech is described as the “core” or “essence” of the First Amendment. See generally Mclntyre v. Ohio Elections Comm’n,514 U.S. 334, 346-347 (1995) (“When a law burdens core political speech, we apply ‘exacting scrutiny”‘).  By contrast, the comments posted on Mr. Jaquith’s article are almost uniformly tawdry, sophomoric, and spiteful, and touch upon no issues of public or political interest that constitute the “core” of the First Amendment, such as those at issue in NAACP and Bates. (See generally Exhibit 2.)

But clearly these comments are “controversial points of view” toward Garrett. So, protected.  And, as Waldo points out:

The enormous irony is here is that the comments that fit that description were posted by Garrett himself (or, at least, somebody who says that he’s Garrett and demonstrates an extraordinary amount of knowledge about the man), all of which were pretty nasty attacks on me, libelously accusing me of committing criminal acts. And in an effort to claim that I have contempt for the legal process (as a reader of my blog, you understand that precisely the opposite is true), Garrett’s attorney cites a comment left by James Young, in which he recites a joke about judges told to him by a judge. (James, as you may know, is an attorney who recently argued a case before the Supreme Court.)

Clearly what we’re seeing here is an attempt by an individual to squash any negative remarks about him and his character.  The argument seems less to be about the merrits of the comments and more about the rights of individuals to express them, at least where Waldo is involved.

The precident that Garrett and his attorneys are seeking to set here is a dangerous one and could very well harm the ability for bloggers who take what they do seriously continue to do so.  This could be a huge setback given the gains bloggers have made in being accepted and respected as members of the “press” throughout the state.  To segregate that playing field, to create a situation where some have more rights than others merely because you think you can bully an individual who has no corporate sponsor or means to pay for a high end legal defense, well, that says a lot more about you as an individual than any article on The Hook or repeated by any blogger.