Fair use: how much is too much?
Page view "journalism" and content aggregation are the cornerstones of the explosive growth of Gawker, Huffington Post and slews of other blogs, but does that growth come at the expense of the publications who conducted the original reporting? Every editor and publisher should be well-versed in fair use standards in order to take advantage of aggregation opportunities themselves while also protecting their copyrighted materials from story harvesters.
Fair use basics
Fair use criteria
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The problem with fair use is that the criteria for determining fair use (listed on the right) are vague. Stanford University has a great resource for measuring whether or not the use of copyrighted material fits with fair use guidelines, and I'll refer you to that story rather than rehash those details here. The Digital Millennium Copyright Act allows for copyright owners to ask an Internet Service Provider to take down content that violates their copyright, but U.S. District Judge Jeremy Fogel of San Jose, California ruled in 2008 that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material. I've provided some examples of aggregation at the bottom of this post. You might be surprised by who's violating copyright and by how much.
Enforcing your copyright: a revenue opportunity?
How can publishers better protect their copyrighted works and maximize their revenue impact? There are several services that are available that will help you identify copyright infringements, contact the website owner and offer them the opportunity to buy a license to the content. We've previously profiled Attributor, an anti-piracy service and toolset, whose services help identify copyright infringements and monetize them. Their model is not about content removal but content monetization, and they claim an 85% response rate on their initial emails to copyright offenders. iCopyright offers publishers the ability to do a one-time search for copyright violations on the Web or subscribe to the service monthly. They also offer the tools to manage your licenses and enable self-service for licensing customers. Be mindful that when you engage one of these companies, they'll find infringements from advertisers. Have a game plan for how to handle those situations.
Examples of aggregation efforts
Many publishers are launching content aggregation efforts in order to gain traffic.
Smart Brief has built a substantial business creating email newsletters 100% driven by curated aggregation of vertical news. These newsletters contain small snippets from a news story, a headline, and a link. They are for commercial purpose, but they use very little of the original work and enhance the market for that work. Fair use.
On the opposite end of the spectrum, Editor & Publisher (E&P) fired their editorial team and have resorted to using aggregation instead of reporting on news themselves. While this is not necessarily a bad strategy, the execution of this strategy seems to push the boundaries of what's legal. E&P is taking large chunks of content verbatim and posting them to their own site under byline of "Editor & Publisher Staff." There is no value added to the content, it replicates the most pertinent parts of the story and damages the original source by robbing them of page views. In fact, I don't think I'm the only one that feels that way. E&P replicated a large chunk of a New York Times article yesterday morning, and it was removed later in the afternoon. I took a screen shot of the page (click to enlarge), and here's the link. It's unfortunately ironic that a publication that had been a watchdog for journalism is now engaging in practices that undermine it. (They are also posting press releases under a byline as well. Ugh.) Questionable use; probably too much.
MediaGazer is one of my favorite aggregators in the media space. MediaGazer scans media publications, newspapers and blogs for stories pertinent to the media. It attempts to credit the original source with a large headline and teaser and aggregators with links beneath the teaser. Part automated service and part Megan McCarthy's feel for what will drive usage, this service is a great example of how sites can add value while aggregating. Fair use.
A reader pointed out The Daily Caller, and I was shocked by the flagrant use of copyrighted material. In this particular post, they have not only lifted 646 words directly from the New York Times, they took the photo and attributed it to the NYT instead of Getty Images. While thumbnails are considered fair use, I don't believe a reasonable person would consider this example fair. There is no value added, and this is clearly an attempt to take a piece of an article and have it stand on its own so that users won't click. Lawsuit waiting to happen... too much.
If you are planning on launching an aggregation effort, have your editors spend some time with your corporate counsel to train them more deeply in this area. When I was at Penton Media, we spent time each year re-training our editors on issues relating to copyright, libel and slander. If you plan to do the same, aggregation and fair use should clearly be part of that training today.