Fair Use Online

Journalist and, now, Journalism PhD CW Anderson thinks about how the fair-use test could expand moving from a mostly print environment to an online environment. (See the Wikipedia breakdown of the current fair-use test at in its section on fair use under US law.

The major difference today is that an “appropriating work” can do more than just tell you where it got the information: it can actually link you directly to it, thereby explicitly increasing the audience for the original work. This doesn’t make people feel any better, it turns out. As Ian Shapira notes, in an article discussing a Gawker post that distilled a story of his, “Would the average visitor have clicked on the link to read the whole story? I probably wouldn’t have.” I did, but then I’m older than Shapira.

Anderson is jumping off from the AP’s plan to use beacons to track repurposing of their content, but I encountered it in a Nieman Journalism Lab article analyzing the Shapira story according to the 4 fair-use criteria.

Anderson is trying to spotlight the online ease of funneling traffic to source, but he is sidestepping some of the revenue concerns here. The AP and major metro newspapers aren’t facing the same kind of revenue-source problems, for one thing. The AP sells access to its work to venues that put it in front of the eyes of readers, so it has good reason to treat Google as a newspaper rather than just an indexer, or try to get into the ad-supported news or aggregation business itself. Or any number of things – Google is a direct threat to AP. Newspapers like the Washington Post are already bringing eyes to pages on which they sell advertising, so they can potentially treat sites like Gawker as a promotional venue – as long as they can make their websites sticky and surfable for people who get referred to them, or at least make sure they are extremely visible as the kind of hardworking, careful-reporting sources that Gawker neither could nor wants to be.

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