How much use is "fair use" when it comes to Web-based content?
That's a question that I expected would receive more attention in the blogosphere when Google announced last month that it had reached a deal with the Associated Press that would permit it to continue to link to AP stories at the Google Website — for a price. Every story I recall reading focused fairly narrowly on the specific deal, or at most on the economics of the relationships between major aggregators and major content producers. But in fact, the rights at issue relate to every Website in the world that provides more than a simple link to copyrighted content hosted on another Website.
As a first proposition, any part of a creative work (whether literary, musical or otherwise) that is large enough to be an identifiable part of that work (as compared to a few words or notes that could randomly appear in many works) becomes protected by copyright at the moment of creation. Unless copyright ownership is voluntarily surrendered (i.e., the work is placed in the public domain) in a work, or it is placed under a Creative Commons license that voluntarily limits that protection, no part of that work may be reproduced without the consent of the copyright owner.
Under United States copyright law, there is a narrow exception to that rule called the "fair use doctrine," http://www.mercurynews.com/mld/mercurynews/news/15157800.htm which permits a portion of a work to be reproduced without permission from, or payment to, the copyright owner (some other countries have exceptions that are in some ways similar as well). Examples of fair use include inclusion of brief text excerpts in book and play reviews, and quotations of material in academic works.
For many years, the fair use doctrine was a product of judicial opinions that recognized the need for some flexibility in the use of copyrighted materials, and then tried to determine whether or not a given use fell within the exception or did not, based on the holdings in previous cases. In order to provide a greater degree of certainty of outcome in such matters, the U.S. Congress in 1976 codified the fair use doctrine in an amendment to the copyright law, adding the following text in that year:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
What Congress did in effect was to largely list the exceptions and the tests that the courts had already developed, but which might vary from federal district to federal district until the Supreme Court might periodically step in to reconcile the separately evolving judicial threads.
Still, the test itself is relative rather than absolute, leaving plenty of room for interpretation. This is not all bad, especially when old legal wine needs to be packaged in new technology bottles — like the Web.
Which brings us back to the present world of mashups on the Web, sampling in music, search engine snippets and news clips (like those on the right hand side of this page). Are the few lines of text in a Google search fair use? What of the two sentences in each of the news clips on this page? Should the tests be applied in exactly the same way on the Web as they are in relation to text in a newspaper, or does the technology or the use suggest that they be applied differently? And if not, should the weighting of any of the factors change?
The most notable difference between fair use in printed material and in Web-based lifts is that the latter invariably include a link back to the original, copyrighted material, and as a result can be expected to drive some amount of traffic back to the source. Given that the copyright owner had taken the trouble to place their material on the Web to begin with, shouldn't they welcome the traffic?
Well, in many cases the answer is yes. But in other cases, as with the Associated Press and Agence France-Press, the answer was clearly "no" (or "non," as the case may be). This isn't surprising, because there is more than one business model on the Web. For example, if a copyright owner makes its money only by selling content, then traffic driven to that content in the hands of its customers does no good to the copyright owner, unless it receives a share of traffic-based revenue. But to a site that relies totally on advertising revenue, the linking may be economically positive.
As a generality, there are many more content owners that welcome the traffic than resent the use of their content, and as a result there has been a fairly laissez-faire attitude towards lifts in the millions upon millions of Websites in existence. But that doesn't mean that this tolerance is based upon a legal conclusion that currently prevailing practices do, in fact, represent protected fair use.
When it came to the AP, Google was on somewhat shaky practical, if not legal, ground to begin with, because(according to an AP attorney), AP receives license revenue from AOL, Yahoo and Microsoft MSN, although it's not clear to me whether this relates only to search functions or to actual news clips displayed as such. Suffice it to say that with its appetite thus whetted, AP wanted to shake the much bigger Google tree as well.
Until the AP deal was disclosed, Google has always claimed that its search function does not violate copyright laws. And no wonder, since if it pays one copyright owner, why would it not need to payoff every other owner of valuable content that its spiders discover and a search may pull up? After all, there is nothing unique about news content, even if news services are currently more concerned about free reuse of their material than many other owners.
Not surprisingly, the deal that Google and AP cut therefore does not involve simply search, but also the display of AP content in a new tailored news product which Google says it will launch in the coming months. As a result, Google can maintain that it is not paying for search responses but for using the AP content in the new product, while AP receives the revenue it wants, gaining a new content customer in the process.
Peace with honor?
Well, yes and no, because it leaves unresolved the question of what "fair use" of small bits of content on the Web may be. Perhaps this is a good thing, because it allows the marketplace to sort out on its own what should be paid for, and by whom. But it could also be a bad thing, if the marketplace guesses wrong, and the inevitable court case comes out the other way, forcing countless Websites to rejigger what content they use, and how.
For now, it looks like business will continue as usual. But while that continues, the forces along the fair use fault line will continue to build up. Let's take just one example: Google's own Adsense ads.
As you may notice, I've pulled all of the advertising from my site. Why? Because it was only netting pennies a day, even though this site serves as many as a million page views a month. So why waste the real estate on someone else's "long tail" advertising?
Obviously, thousands of other site owners have come to a different conclusion, and continue to display the Google ads, since it takes seconds to set them up, and there's nothing to do thereafter but take whatever money dribbles in as a result. But - now let's go back and look at the fair use test embedded in US copyright law, and specifically at the first of the four factors: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
Hmmm. So long as there is advertising on a page with someone else's content, clipped without permission, it would be much harder to claim "fair use," at least under this factor of the test. For a few pennies a day, why take a chance?
If there is ever a strong court ruling in that direction, then Google's currently very long Adsense tail could very suddenly get a whole lot shorter.
As, one could assume, the Associated Press's lawyers — and Google's — well knew.
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