Change the Model, Change the Game

My friend Josh posted last Friday a blog entry regarding content-producers' rights in the digital space. I'm late to the party because most things Josh writes demand a great deal of contemplation. Furthermore, as a former professional writer and editor, I find myself nodding my head vertically at his several of his arguments. However, after much consideration, I think Josh's post is misguided.

In the interest of full disclosure, let me state that I work for the Relegence Corporation, a wholly-owned subsidiary of AOL. We are a content aggregator. We made our nut aggregating real-time news for financial concerns, where business intelligence is held at a premium. AOL bought us to use our technology, which crawls and automatically indexes documents on nearly 40,000 sites, to serve relevant, real-time, and topic-specific news on any of our millions of sites. We do not repost content, but link out to its source. Think of us as a news or stock ticker.

Our latest initiative is the Love.com Network. The Love.com Network delivers a scrolling page of relevant news about any topic you might "love" as a subdomain of love.com. In corporate-speak, we call them "passion points". If, for example, you are a big fan of the artist once-and-now-again-known-as Prince, you might follow prince.love.com.

And before I continue, I also have to note that, though my opinions are clearly informed by my current work, none of the opinions stated here represent the opinions of the Relegence Corp. or AOL.

Primary among Josh's grievances is attribution. AllThingsDigital, to use his example, did not to his and several other people's minds indicate prominently enough which was their original content and which was their abstracted content. I have no idea whether AllThingsDigital is operating in good faith, nor am I an apologist for them. However, I do know that whether or not attribution is prominent enough is a huge intellectual property gray area and usually a design issue. Most often, it's subsumed by cost-saving decisions to use the same style sheets for both original and abstracted content. Again, I'm not arguing that this is necessarily acceptable, but it is a fact.

In a perfect world attribution would be impossible to ignore, but as long as it's attached to the title and excerpt with an appropriate link out, then I don't think there's much to carp about. Isn't this the model del.icio.us and Digg built their businesses on? And are footnotes and citation lists in books, which are either printed in smaller type at the bottom of a page or buried in the back, appropriate? Aren't they often hard to find, and don't people often ignore them? And at least links brings the reader immediately to the source, rather than forcing her to find the citation, go to the library or bookstore and find and checkout the material.

Another point of Josh's that I take greater exception to is his characterization of "big sites" that "skirt around copyright issues by only 'excerpting' posts." The legal principle, which covers excerpting, is fair use. It has long been held that the benefits of fair use to the public dissemination of knowledge—and, thus, the common good—far outstrip the individual's right to restrict the use of a small—very small—part of her work. And, at least in part, fair use is meant to counteract what Josh terms as the producers' right to "decide who uses their work, and how," which could be wielded as a tyranny of the minority. After all, what novelist would want passages of her novel used by a critic to show just how incompetent a writer she is in a review (a review that likely has ads sold against it, incidentally)?

Again, it's a gray area, but generally two or three sentences is fine as an excerpt (which is what most RSS feeds willingly serve up) and is all that most above-board aggregators use. In fact, the only ones really making a stink about the unfairness of fair use, excerpting, and appropriation right now are the AP and Time magazine, both big businesses. Just see the paces Time is putting Shepard Fairey through.

Finally, if you're going to publish in the digital environment and be a capable steward to your content, it is absolutely your responsibility to know and understand the rules, consequences, and tools of that environment. Just as print publishers once had to know some of the technicalities of paper and ink, digital publishers (a term that encompasses bloggers) must know what it means to publish on the Web. There are several ways digital publishers can prevent their sites from being crawled. Most blogging platforms will let writers restrict who can read their blogs (which Merlin Mann, whom Josh quotes, should know). And two lines of easy-to-find code can even hide your site from search engines.

The fact is, most publishers don't want to hide their content in this way because they want to publicize their ideas. And—this might sound crass and cynical—the Web is an ad-driven economy. It's has to be because the public is unwilling to pay an entry fee to the Web to anyone except their ISP. So even if you and your site don't advertise, often the price of publicizing and broadly disseminating your ideas is to allow someone else to advertise against a link to and abstract from them.

So, it's not just a matter of simply changing copyright laws, which won't work anyway because legislation is at least a decade behind technology and will be outstripped as soon the laws are passed. If anything, the change would have to come in the business model. Change the business model—or better yet, change the technology—and you change the game.

Correction: In the eighth paragraph I conflated the AP's fight against bloggers excerpting their stories and Time's suit against Shepard Fairey's artistic appropriation of their cover photo of Barack Obama. I fixed my mistake.

Update: Josh's level-headed response to my rebuttal. Gray areas abound, but it's in the debate that we discover what we can all live with.