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Bloggers: Remixers or Plagiarists?

At what point does the standard blogger practice of excerpting and riffing on a news story someone else wrote jump the tracks and go from a legitimate exercise of the doctrine of fair use to copyright infringement?

Ask 10 different intellectual property experts and you're likely to hear 10 different answers.

Fair use on the Internet remains a supremely unsettled question, as a panel discussion today revisiting a recent dust-up involving The Washington Post and Gawker ably demonstrated.

In July, the Post ran a story by reporter Ian Shapira profiling a "generational guru," a woman who runs seminars purporting to teach boomers how to communicate with members of Generation Y.

Three days later, the famously snarky Gawker blog ran a post titled, "'Generational Consultant' Holds America's Fakest Job," riffing on quotes pulled from Shapira's article.

The next month, Shapira penned a column in the Post's Sunday Outlook section describing how his initial pleasure at having his story picked up by one of the most popular blog sites on the Web gave way to anger after his editor told him, "They stole your story. Where's your outrage, man?"

Gawker responded in typical Gawker fashion, retorting that Shapira's ire should have been directed at his "hidebound newspaper editors," who would be wise to loosen their journalistic strictures to allow reporters to insert their own opinions in stories, particularly ones about patently ridiculous subjects such as generational gurus.

Fast forward to today, when the minor media skirmish of last summer became the focus of a debate on fair use at an event at the Washington D.C. Newseum. The digital rights group Public Knowledge hosted the event, which was co-sponsored by Google (NASDAQ: GOOG), one of the tech sector's more ardent proponents of the copyright law provision that permits unauthorized reproduction of snippets of copyrighted work.

"They had excerpted enough of the story I didn't feel that the reader of the Gawker story needed to click through to the original," Shapira said today. "That is sort of the crux of my beef with the blogosphere."

The Post didn't sue Gawker over Shapira's story (indeed, Gawker claims that the paper's marketing shop regularly sends over links to its stories in the hopes of getting picked up). But if it had gone the litigious route, the Post might have had a case, according to Lincoln Bandlow, a partner at the law firm Lathrop & Gage.

Bandlow said that judges have rejected fair use defenses when they found that the reproduction "usurped the demand" for the original work. In the context of the excerpt-and-link culture of the blogosphere, that demand would be a matter of whether the reader would likely be enticed to click through to the original article.

The Gawker post contained four paragraphs of quotations from the subject of Shapira's profile, Anne Loehr, pulled to demonstrate in her and her clients' own words the absurdity of the service she offers.

Paired with four other graphs riffing on her profession and summarizing details of the article, the post left little incentive for the reader to click back to his story, Shapira argued.

"I like Gawker, it's a really funny Web site," he said. "I just feel they made it pointless to go to the original article."

He added, "Heavy excerpting makes me uncomfortable."

But supporters of a more liberal interpretation of fair use see in Shapira's lament the conflation of a copyright argument with the failing business models of newspapers and other content producers.

"This is a question of not having a clear interpretation of fair use," said Pat Aufderheide, director of the Center for Social Media at American University. "Some of the business model problems exist independently of the copyright issues."

Kenneth Corbin is an associate editor at InternetNews.com, the news service of the internet.com network.