Questions of Online Journalism Aren’t Just About Copyright: why the law is an imperfect solution to
Questions of Online Journalism Aren’t Just About Copyright: why the law is an imperfect solution to
Questions of Online Journalism Aren’t Just About Copyright: why the law is an imperfect solution to

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    Chris Ahearn of Thomson Reuters has a well-thought-out piece at the MediaFile blog reacting to some of the histrionics surrounding linking, the news, and the Internet. Instead of using blogs, search engines, and the increasing influence of the Internet as scapegoats, he notes the benefits that a news organization receives from aggregators and commentators—especially when those aggregators and commentators adhere to a sensible linking and usage policy.

    Blaming the new leaders or aggregators for disrupting the business of the old leaders, or saber-rattling and threatening to sue are not business strategies – they are personal therapy sessions. Go ask a music executive how well it works.

    A better approach is to have a general agreement among community members to treat others’ content, business and ideas with the same respect you would want them to treat yours.

    I don’t believe you could or should charge others for simply linking to your content. Appropriate excerpting and referencing are not only acceptable, but encouraged. If someone wants to create a business on the back of others’ original content, the parties should have a business relationship that benefits both.

    Let’s stop whining and start having real conversations across party lines. Let’s get online publishers, search engines, aggregators, ad networks, and self-publishers (bloggers) in a virtual room and determine how we can all get along. I don’t believe any one of us should be the self-appointed Internet police; agreeing on a code of conduct and ethics is in everyone’s best interests.

    Ahearn's emphasis on common policies, as opposed to legal action, is fitting. Note, for instance, that his post doesn't really deal with the legal questions of what is and isn't infringement, fair use, or copyrightable. And there's a good reason, in this situation, for approaching things that way.

    It's natural for those of us who take a particular interest in copyright to turn immediately to that area of law for answers when we see an issue involving authorship and the possible appropriation of it. But copyright law is explicitly and intentionally limited in the range of things it looks at. Someone can take another's original idea, but unless the new work copied the old one's expression, there's nothing that copyright law has to say about it. If a literary work is in the public domain, and I slap my name on the author page—”Moby Dick, by Sherwin Siy”—there's nothing that copyright law says about that, either, even though these examples might constitute behavior that is reprehensible, unethical, or maybe just mildly annoying.

    And yet concepts of attribution, plagiarism, and inventiveness are a crucial part of the debate on the shape of journalism online. Yet those concepts are incompletely accounted for by copyright, which exists to promote original expression, not necessarily to police journalistic (or academic) integrity.

    Not only is copyright an imperfect fit for certain ideas, like attribution (a short quote, for news reporting purposes, is likely a fair use, but without attribution, it's still an ethical problem), but litigation can be a most imperfect venue. A court will want to decide the case on a point of law, stripping out all of the facts not relevant to the legal question at issue. If, however, the parties are debating something other than a narrow legal issue, the outcome of the lawsuit can still be unsatisfying to both parties, if the legally irrelevant, but ethically or emotionally significant disputes are left unaddressed. And besides some of the structural problems, there's also the time and expense of litigation, which few ordinary people have the money or patience to maintain.

    All of these concerns are what motivate groups to create best practices guidelines in fuzzy areas like fair use. Witness the Center for Social Media at American University—they've produced a number of useful and helpful guidelines for fair use in online video, media literacy education, and documentary filmmaking. The idea behind these principles is not to carve out black-letter law, or even to state the contours of that law. Instead, it's a set of guidelines to make sure that material is used fairly. In many places, such guidelines may be more stringent than what the law allows—the point is to avoid litigation and get on with the business of making videos, or teaching, or making movies.

    If that's a good idea for the concept of fair use, then it should be an even better fit for the evolution of online journalism. For one thing, fair use has a notoriously broad set of criteria that can change widely from situation to situation. The hard work that CSM has put into its guidelines only highlights how much more work there is to be done in that area—the practices and policies that apply to documentary filmmakers would be different from those applying to directors of non-documentary films; the guidelines for film studies professors would differ from guidelines for museum curators.

    Even accounting for the wide variability in the tone and content of news blogs and aggregators, the sort of practices involved are going to be far more similar than different. This would allow for policies to be even more precise and helpful than they can be in a more amorphous field like fair use. The fact that established news organizations like Reuters have linking policies (and that news organizations like newspapers have had attribution policies for years upon years) indicates that a good industry-wide consensus on what sorts of quotation, linking, and attribution are good manners isn't too far away.

    And the fact that so much of these practices, with both their good and bad attributes, lie outside of the law makes a consensus set of solutions an even better fit. If one writer can contact another's editors and point out that second writer's breach of a quotation or linking policy, those editors might well take action more promptly than if, upon hearing the cry of “infringement,” they immediately call Legal.

    These factors, combined with the fact that media old and new alike perceive themselves as on the defensive (papers are “beleaguered,” bloggers are “upstart”), make the situation ripe for the sort of collaborate solution that Ahearn pushes for. It's less likely here, than in other debates, that either side will have the ability to steamroll the other into an unfair system.

    There is certainly some concern that bloggers and online sources, not having the storied pedigrees of their paper-based brethren, would simply ignore calls to adhere to such a policy. I'm not so cynical. We see everywhere the hallmarks of an online culture concerned with and mindful of attribution. For instance, look at all of the posts with a little “HT” (signifying “hat tip”) at the bottom—noting not only the original content that is being linked to, but the route by which the blogger first heard of the information. Users of Twitter, which is fairly young as mainstream methods of communication go, have their own system of attribution for passing along secondhand information, tagging “retweets” “RT.”

    The makings of a common understanding, if not a standard, are already there, in print and on the Web. Recognizing that sooner rather than later should allow the parties to avoid turning an ethical question into a morass of copyright law, simply because it seemed like the most convenient system at hand.