Fair use and copyright issues return to the spotlight

Media companies’ involvement – as both victim and perp – in a handful of recent fair use and copyright infringement incidents has caused a stir in the publishing industry. The drama has played out in court (Dow Jones vs. Briefing.com) and on Facebook (angry mob vs. Cooks Source) – talk about your polar opposites. It sure feels like there’s a groundswell building for a new wave of lawsuits and/or public floggings regarding the unauthorized use of digital content.

No one should be surprised. It’s simply too easy for overworked/uninformed/lazy writers and editors to crib stuff off of the web and pass it off as their own. And now, through the magic of search, analysis tools and a cottage industry of copyright monitoring services, it’s easy to find unauthorized duplication of copyrighted content.

The problem is not specific to the magazine and newspaper industry, of course. Book publishing is fraught with plagiarism claims, the most recent regarding George Bush’s memoir, "Decision Points". The music industry also has been plagued by issues of piracy – some more enforceable than others. 

The recent incidents involving news and magazine publishers underscore three trends worth noting.  

The wisdom – and vitriol – of crowds

Poor Cooks Source. Produced in relative obscurity in western Massachusetts, this magazine was caught in a maelstrom of social media madness after it was discovered the publisher, Judith Griggs, reprinted an article without the author’s permission. Facebook proved to be Griggs' undoing, both for the discovery of her act (she had scanned the offending article pages to the Cooks Source Facebook page) and the public stoning that followed (the page was flooded with angry, often inane comments, and additional spoof pages were set up to maximize the humiliation). What began as a case of the crowd artfully and rightfully outing a plagiarist quickly devolved into a study of mob mentality. On Tuesday, Griggs said she was shutting down the magazine. 

The monetization of infringement

The desire to police digital content has created an opportunity for vendors to offer services for tracking pirated content. Some, like Attributor, offer legitimate ways to identify unauthorized usage and request compensation from the offending parties. Others, such as Righthaven, seem much shadier with their services. Considering the work of the crowd in sniffing out and snuffing obscure infringements such as Cooks Source and the even more obscure Dairy Goat Journal (you can’t make this stuff up), publishers may want to save some money and recruit their readers to ferret out pirated content.

The "hot news" doctrine

Dow Jones’ legal victory against Briefing.com was notable not for Briefing.com’s blatant stealing of Dow Jones content, but for DJ’s inclusion of the circa-1918 “hot news” law that prohibits news organizations from re-reporting time-sensitive events. As paidContent’s Joe Mullin wrote, “no news-gathering organization has fully tested the power of the almost century-old ‘hot news’ doctrine in court in the internet era. It’s questionable whether the law is enforceable at all in modern times.” DJ’s inclusion of the hot news claim, Mullin noted, “suggests that the news service may be trying to put itself in a strong position to file more hot news lawsuits in the future.” This could be an issue for reporters on deadline or any content site that heavily curates news from other sources.

Resources

Need to bone up on your knowledge of fair use and copyright law? Check out the Copyright and Fair Use Overview published by the Stanford University Libraries. It includes sections on Copyright, Fair Use, Public Domain, and Website Permissions.