March 30, 2004

Fair use, or not fair?

Author: Lee Schlesinger

Last week we posted a story written by my colleague David Graham titled Proven: Windows is more secure than Linux. It was one of the better-read pieces on the site this week. Four days after the article was posted, David did a Google search and found more than half a dozen sites had linked to the piece -- flattering. But at least three sites posted all or a substantial portion of the piece on their own sites -- and that's a problem.

In one sense, we do what we do because we like free and open source software. But in another, we do it because it makes money for the company we work for. This is a business, not a hobby, and the company devotes substantial resources to it, in the form of hardware, hosting fees, and the not inconsiderable salaries of my colleagues and me.

The way we pay those bills is by selling ads on the site. Each advertiser pays us a certain amount of money (I have no idea how much -- the ad side and the editorial side are completely separate, to the point where no editor works in the same office with an ad salesman) to display his ad to a certain number of people. He knows the people will visit our site because of the content that's there.

We full-time staffers get paid. Our freelancers get paid. Those are corporate expenses, and we have to balance them with corporate income.

When someone copies our content and makes it available elsewhere, it can mean fewer people see the original on our site. That means fewer page views for the ads, which in turn means less income for the company. If that happens regularly, income goes down, which means expenses have to be cut, which means we stop paying for content and start laying off editors.

Mind you, this doesn't apply to every single item we post. We sometimes post articles under various open source licenses. When we do, anyone is free to repost them in accordance with the license terms.

Content piracy is a common and constant problem in the publishing industry. A similar situation that happened elsewhere last week made a stir on Slashdot. Linux Today copied a portion of an article from CMP Media's InformationWeek. CMP responded by blocking incoming links from Linux Today. CMP's Mike Azzara explained in a letter:

As a media company that generates a large volume of content on the Web, we are constantly under attack by others who excerpt large portions of our articles and then offer links which are then moot, given the content already provided. These companies monetize page views through ads or other means, leveraging on the backs of my employees. They are stealing from us, plain and simple, threatening our livelihoods and endangering my kids' college education.

I know Mike -- he's a good guy and smart. I'm not sure I would have worded things quite as strongly as he did, but then again, I don't have triplets on the verge of adolescence. But he's right that copyright violation is a form of theft, even though the goods being stolen aren't tangible.

Information wants to be free? Information doesn't want anything -- it's not alive. Some people want information to be free. Others, who put hard work into creating information, want to be compensated for their work. What's fair?

There's a legal answer to that question. It's called the doctrine of fair use. It states that it's fair to use a portion of someone else's copyrighted work, and lays out guidelines for the proper amount. Writer's Digest explains fair use better than I could -- I urge anyone who hosts a Web site that aggregates content from other sources to read its article. In a nutshell, there are four factors you need to consider in determining fair use. Two are "the amount and substantiality of the portion used in relation to the work as a whole" and "the effect on the market." In practical terms, that means reposters should excerpt only a small amount of someone else's work, and make it clear where the original source was with a link back to it, so it can retain its market benefits.

We don't mind other sites linking to us -- in fact we welcome it. Referrals from others who think well of what we do are both good for the business and flattering to the author. We just don't want that pointer to be an insignificant, worthless afterthought.

To deal with our situation this week I sent a polite letter to three of the sites that posted David's article, and all of them amended their postings. But that's not a realistic solution for every instance of copyright violation. Monitoring the Web for misappropriated works would be a full-time job, and not a productive one.

A better approach might be education. If everyone understood the economics of the situation, and that allowing creators to benefit from their creations raises everyone's standard of living, potential content pirates might think twice.

Then again, maybe not. Consider what happens with software development. Writing and programming are very analogous occupations. (I speak from experience -- I was a programmer for eight years before I became a full-time writer.) Just as independent programmers must choose a license for their original work, so must writers. Some of us choose to release our work without strings. Others retain ownership rights. But there's a huge cracker community that illegally distributes the works of others, and they clearly know that what they're doing is illegal and economically harmful to the companies and programmers who did the original work. And yet they persist.

Because original work is valuable, both its authors and those who can get easy access to it want to use it. Thus it ever has been, thus it ever will be. I think the best we can hope for is that most of the people will do the right thing most of the time.


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