What Would Fair Use Look Like in an Online Era?

Summary: this would be a new four-part test to add to the already existing four-part “fair use” test.

1. The presence and quality of the link.
2. Does the new format provide the opportunity for democratic engagement that is unavailable at the original provider?
3. Courts should consider this balance: between the added value of information (provided by the so-called appropriator) and amount of appropriation of the “original” work.
4. What is the overall purpose  and character of the appropriating organization?

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I’m not a lawyer, though I have spent a lot of time thinking about copyright law, fair-use, the so-called “hot news doctrine,” and other related matters over the last few months. Much of this reflection has been occasioned by a growing argument in some (but only some) segments of the news industry that was best summed up by the AP’s Tom Curley in today’s New York Times: “If someone can build multibillion-dollar businesses out of keywords, we can build multihundred-million businesses out of headlines, and we’re going to do that.”

The argument over this has gotten so ridiculously stupid, its difficult to recap all the recent back and forth without this turning into a very long blog post. But the nadir of the argument was summed up in the New York Times article mentioned above:

Tom Curley, The A.P.’s president and chief executive, said the company’s position was that even minimal use of a news article online required a licensing agreement with the news organization that produced it. In an interview, he specifically cited references that include a headline and a link to an article.

The difficulty of Curley’s own position is put into sharp relief by what he doesn’t want to discuss with the Times; “Mr. Curley declined to address the fair use question.”

The legal concept of fair use is ably summed up, not surprisingly, in a really great Wikipedia article. The concept of fair use is not hard and fast law per se, but rather consists of a four part “balancing test” in which the various circumstances that lie behind an alleged infringement are weighed from case to case. The four part criteria for claiming fair use is:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

I think its generally agreed that arguments  fair use and the so-called “hot news doctrine” work better in the analog world than they do in the digital. So, here’s the question: what would fair use look like in the digital era?

I think something a lot of lawyers and media executives often forget is that the digital information world has its own ethical standards and best practices, practices that may not be written down but have emerged out of the internet’s own practices and history. And even people who are very friendly to the basic web-way of doing things will get angry when these practices are deliberately flaunted; take concepts like “hot linking,” as well as others. I think that the internet’s own culture and best practices should form the bedrock starting for thinking about how fair use should opperate in the digital era. And the fact that the AP’s own FAQ about its proposed micro-tagging system doesn’t include a single link tells me they still haven’t got a clue about what these practices are.

So below, I list a few ideas, drawn from the culture of the web, that could go into a revised understanding of fair use. I see them as primarily additive, not substitutional, though their incorporation into fair-use doctrine might change the overall tenor of the concept. I want to emphasize  that I’m not a lawyer, that this is a very off the top of my head kind of list, and I’m largely putting it up for discussion and push back, especially by people who have devoted their lives to thinking about these sorts of issues. So I’m hoping this can be the a jumping off point for an intelligent and continued discussion.

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If we wanted to think about what fair use would look like in an online era, what should we consider? In the list below, I refer to two kind of articles or blog posts: the “originating” entity, and the appropriating entity. In this blog post, for instance, the New York Times would be the originating entity, and Wordyard would be the appropriating entity. (For the record, even originating entities are appropriating entities– the entire notion of journalism is grounded on a form of appropriation– though I am going to bracket that argument for now and pretend we can make a meaningful distinction here.)

1. The quality of link. It should, by 2009, go without saying that any article making use of information read, cited, discussed, or originated elsewhere should clearly link back to that information. This is kindergarten-level internet protocol. If an article appropriated content from elsewhere, either directly, as a source, or in the form of a rewrite, and didn’t link back to the original source, this would be a big strike against the appropriating entity. (I should note, at this point, that this would probably do more to show traditional, non-linking news orgs are violation of fair use than bloggers, but, hey, you get what you ask for if you open this can of worms.)

If we set linking as a baseline, we can go one step further: of what quality is the link? There’s a big difference between an article that links to its source five paragraphs in, for example, and those that do so in the first paragraph. And online entities, I can tell you for a fact, make these kind of decisions all the time.

2. Does the new format provide the opportunity for democratic engagement that is unavailable at the original provider? If you want to know why I think the HuffPo is eating the AP’s lunch, it has less to do with the fact that they are supposedly “stealing” AP content than the fact that all their articles include spaces for passionate conversing, remixing, tagging, and other web 2.0 activities, options that still aren’t available at many news orgs. Deliberation, of course, is just as democratic an activity as news-gathering is.

Now, simply tossing up the content of an entire article and adding a space for comments wouldn’t give you a “get out of jail free” card. Obviously, this is just one of a larger series of factors. But, it should be a factor.

3. Courts should consider this balance: between the added value of information (provided by the appropriator) and level of appropriation of the original work. Or in other words: sites that add value to the original content, either in the form of other links, extended commentary, new information or facts, etc, should be allowed a greater amount of freedom in order to draw upon the work of originating content. Sites that do nothing with the original content, other than rewrite it or collect it in a running series of links, should get less leeway to excerpt (though this doesn’t mean they should get no leeway at all).

4. What is the overall purpose  and character of the appropriating organization? This would take us out the realm of individual peces of online content, and force courts to consider the overarching character and mission of the appropriating entity (something I don’t think they do already, though maybe I’m wrong). To do this, you’d look at the history and content of the organization. Is it something like Talking Points Memo, which serves a noble public mission? Or is it a spam website? Obviously, this matters a lot. Google, for instance, could make a (very) strong argument that its linking and excerpting serves the purpose of organizing the content of the entire world-wide web.I’d defer to that if I was a judge.  A website than consisted of nothing more than a series of headlines and links to a few newspapers, on the other hand, would have a harder argument to make.

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I want to be clear that I don’t think this list is exclusive. I also don’t think, though, that we can continue pretending that these issues dont exist and we can remain at the level of just screaming “fair use” and “copyright” back and forth at each other. If this issue is litigated, it has huge implications for our communicative futures; lets no be digital ignoramouses and screw it up.