Tools of Change for Publishing: Law

Law

Excerpting Best Practices Hinge on Intent

Mac Slocum
March 2, 2009 | Permalink | Comments (2) | Listen

A piece in the New York Times reignites the fair use debate by asking: How much excerpting does fair use cover?

It's a reasonable question, particularly since Google News, the Huffington Post and countless other sites rely on excerpt aggregation to drive traffic and sell ads. But the rules of excerpting are also -- to steal a line from Steve Jobs -- "a bag of hurt."

Fair use is a doctrine, and as much as editors, bloggers and others with an excerpting bent wish for structure (word count, percentage used, image size, etc.), it's not going to happen. Fair use is contextual and case-by-case. That's why Henry Blodget, co-founder of Silicon Alley Insider, has the right perspective:

"To excerpt others the way we want to be excerpted ourselves."

Intent is the key to proper excerpting. If your intent is to single out someone else's work, and drive attention and its associated benefits and detriments to the creator of that work, then excerpts will be short and filled with outbound links. But if your intent is to fool Google, boost your traffic, and use someone else's material to further your own efforts, then excerpts will be long and link-free -- or they'll contain links to your material.

Excerpting is an extension of white-hat vs. black-hat search engine optimization. The white hats understand that search engines are the essential utility on the Web. Gaming them for personal gain erodes value and reduces opportunities for everyone. Black hats care only about short-term efforts, so they do anything they can to turn attention into quick advertising revenue. What black hats don't realize -- or care about -- is the impact their actions have on the structure of the Internet. They're jackhammering the foundation they're standing on.

Sites that push the boundaries of excerpting are engaged in the same self-destructive behavior. They may see short-term traffic and revenue spikes, but the source sites will eventually cry foul and enact their own Draconian countermeasures. Long-term, this doesn't benefit anyone. Sites that rely on excerpted information will lose access, and originating sources will lose attention. To be effective, excerpting needs to be a mutually beneficial relationship that provides value to everyone involved. The only "rule" is intent.

New York Times Settles Linking Suit

Peter Brantley
January 27, 2009 | Permalink | Comments (0) | Listen

In what many of us thought was a slightly bizarre case, the New York Times Co. has settled with GateHouse Media in a suit attempting to cease the automated aggregation of Gatehouse content on Boston.com's affiliated properties (Boston.com is owned by the Times Co.). It is not clear why the settlement was reached, since precedence was on the side of the Times' operation.

Mathew Ingram examines the settlement at the Nieman Journalism Lab:

Because while the settlement is not a legally-binding precedent -- the one piece of what might be called good news -- it still involves the New York Times voluntarily refraining from what many would argue is perfectly defensible behaviour. As Joshua Benton notes in his post at the Nieman Journalism Lab, that could well embolden other publications to launch similar cases, on the assumption that if the NYT caved then someone else might too. [Links included in original post.]

"Amazon Tax" Moves Forward in New York

Mac Slocum
January 14, 2009 | Permalink | Comments (1) | Listen

A judge has dismissed lawsuits from Amazon and Overstock.com challenging New York's "Amazon tax," which was enacted last year. From the Associated Press:

The law applies to companies that don't have offices in New York, but have at least one person in the state who works as an online agent -- someone who links to a Web site and receives commissions for related sales.

In this case, "agent" is synonymous with "affiliate." Amazon and other online retailers share a cut of revenue generated by affiliate referrals. If further appeals go against Amazon and, as expected, other states jump on the sales tax bandwagon, affiliate programs of all sorts could take a major hit.

The AP notes that the law applies to "companies that have $10,000 or more in New York sales." There's some confusion around this $10,000 figure -- does it apply to companies that run affiliate programs (e.g. Amazon) and generate $10,000 or more in New York-based sales, or does it refer to affiliates who earn $10,000 through revenue share agreements? According to Law.com, the company that sells the products is held to the $10,000 standard. As such, a company could not skirt the law by cutting off individual New York-based affiliates before they reach $10,000 in referral sales. To avoid collecting New York sales tax altogether, companies would have to limit the combined income from all New York affiliates to less than $10,000.

(Via the Reading 2.0 list)

EFF Attorney: Google Book Search Settlement Weakens Innovation

Peter Brantley
November 20, 2008 | Permalink | Comments (3) | Listen

In an editorial in The Recorder, Fred von Lohmann of the Electronic Frontier Foundation says Google's settlement with publishers and authors signals an implicit abandonment of Google's legal team working on behalf of innovation across Silicon Valley:

.. By settling rather than taking the case all the way ... Google has solved its own copyright problem -- but not anyone else's. Without a legal precedent about the copyright status of book scanning, future innovators are left to defend their own copyright lawsuits. In essence, Google has left its former copyright adversaries to maul any competitors that want to follow its lead.

Google will doubtless be considering the same endgame for the Viacom lawsuit against YouTube. If Google can strike a settlement with a large slice of the aggrieved copyright owners, then it solves the copyright problem for itself, while leaving it as a barrier to entry for YouTube's competitors.

But when innovators like Google cut individual deals, it weakens the Silicon Valley innovation ecology for everyone, because it leaves the smaller companies to carry on the fight against well-endowed opponents. Those kinds of cases threaten to yield bad legal precedents that tilt the rules against disruptive innovation generally.

New Rulings Let Pubs Create Digital Archives With No Additional Royalties

Mac Slocum
July 7, 2008 | Permalink | Comments (0) | Listen

We often discuss the limited utility of "exact replica" digital editions of books, magazines and other content, but that same level of pure duplication could prove useful to publishers who reprint back issues in digital archive products. Law.com says two recent rulings allow publishers to create and sell exact digital archives without paying freelance photographers and illustrators additional royalties:

A publisher, according to the en banc majority, may reproduce a freelance photographer's work in a reprint of the original collective work (such as a magazine, newspaper or encyclopedia) to which that photographer contributed; or a revision of that collective work; or a later collective work "in the same series." Reproduction of copyrighted photos in a new work without permission would constitute copyright infringement.

In 2001's New York Times v Tasini, the U.S. Supreme Court found that publishers who post freelancer-created material through Lexis-Nexis and similar online databases must first get permission from the freelancer. The difference between Tasini and these latest rulings lies in "exactness" -- new products (Web sites, databases, mobile initiatives, etc.) require permission from freelancers, but 1:1 digital reprints require no further permission or payment. (Note: Presumably, most publishers now use carefully-worded contracts that stipulate digital permissions. These current cases apply to pre-digital contracts and older material).

In the majority opinion for Greenberg v National Geographic Society, one of the two recent cases, Judge Rosemary Barkett discusses the finer points of the Tasini framework:

Because the freelance authors' articles were "presented to, and retrievable by, the user in isolation, clear of the context of the original print publication" ... the publishers could not claim a privilege ... Thus, the "crucial fact" for the Supreme Court was the databases' ability to "store and retrieve articles separately within a vast domain of diverse texts" ... The articles were presented to the user "standing alone and not in context."

In Greenberg, National Geographic was in the clear because the digital archive it created included the same text, formatting, page numbers and advertising as the original print-based magazines; the digital material was not accessed "in isolation." This is an important distinction. If the context of the original print publication -- images, ads, pages numbers, etc. -- is not readily available or apparent to the end user, there's a chance publishers will not be covered by the "exact archive" privileges.

Law.com notes that add-ons, such as search engines that show results from across digital archives, do not transform reprint archives into new products.

(Via Exact Editions)

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