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On the Media: Las Vegas Review-Journal bares its claws

The newspaper has filed lawsuits against more than 30 websites and blogs it says used its works without permission. So what is fair use?

June 09, 2010|James Rainey

The newspaper people had me pretty much in their corner until they went after the cat people.

Allegra and Emerson Wong have a website called City Felines Blog. A few months back, the cat people posted a story about the suffering of a bunch of birds that died in a fire at a wildlife sanctuary.

That created a problem, not because cat people shouldn't write about birds, but because the story had been reported, edited and published originally not by the cat people but by the newspaper people, otherwise known as the staff of the Las Vegas Review-Journal.

Now the Wongs are facing a federal copyright infringement lawsuit, and possible damages, for duplicating the Vegas paper's work without permission. They are not alone — roughly three dozen other websites and blogs face litigation for using Review-Journal stories without permission.

The confrontation has the blogosphere whirring and sputtering. Much of the commentary drips disdain — just another establishment media company picking on a bunch of poor little upstarts. But others cheer the newspaper for standing up to the new-media freeloaders, whose best work is taking other people's best work.

It's not cats, but dogma, that dominate this debate. Newspaper people believe their cash-starved profession might be saved if only they could corral and get paid for all the content they create. Internet people believe the Web is a giant free-form party that boundaries and rules just might kill.

A certain generosity of spirit seldom gets traction in these new media/old media grudge matches. Still, I wonder if we can't find a bit of middle ground. Can't we acknowledge that copyright law has a righteous purpose, to protect original content and encourage creators to create even more? Can't we also admit that a little creative reuse, far from thievery, can drive new attention to good work?

The rub has been where to draw the line to determine what, exactly, constitutes "fair use." Stacks of court cases suggest many factors must be weighed — the amount of material reused, the purpose of the reuse (commentary and criticism get wide latitude) and, especially, the U.S. Supreme Court has ruled, the economic effect on the copyright holder.

Media law expert Rex Heinke gave me a crash course on the rules Tuesday, explaining that the courts have drawn no bright lines. The amount of Internet traffic driven to the originating publisher by the reuser has never been deemed a definitive factor in the judgments.

That leaves me — and a bunch of other journalists and Web masters — with about as much definition as Justice Potter Stewart once offered on another ill-defined subject. "I know it," the old jurist wrote of obscenity, "when I see it."

"Fair use" on the Internet would seem to be a use that probes and ponders the original, possibly repackaging or rewriting it, without subsuming it. A fair use calls attention to an interesting story or news flash, perhaps elaborates on it or disputes it, but doesn't replace it.

Two Web journalists who Twittered me on Tuesday independently offered the same rule of thumb —- don't republish more than three paragraphs. Always name your source. Always link to the original.

Reporters and editors get understandably peeved when they see paragraph after paragraph of their work reprinted by competitors — regurgitation so extensive that there's no reason for the reader to seek out the original, even when a link is provided.

Websites worry that such filching costs them substantial traffic and the ads they can sell with it.

But estimates about the extent of the economic damage are just that, estimates. One company trying to track unauthorized republication estimates that publishers lose $250 million a year to competitors, especially automated "splogs" that rake and republish information from mainstream sources.

Blogger and new media guru Jeff Jarvis believes splogs lift content, but he bristles at "the bogus meme that news stories are being copied wholesale everywhere by copyright thieves." Jarvis said researchers at City University of New York, where he teaches journalism, intend to study the "link economy" to learn how much republishing of information actually benefits content originators by driving Web traffic their way.

In Las Vegas, the Review-Journal isn't waiting for any research. Publisher Sherman Frederick wrote a blog post saying the newspaper had seen enough. It hired an upstart local firm, Righthaven LLC, that's taking an aggressive approach with those who reproduce its content.

Righthaven was founded by an intellectual property attorney funded in part by a company connected to Stephens Media, which owns the Review-Journal.

Righthaven has filed roughly 40 lawsuits in recent weeks against all manner of publishers, including the cat blog (allegrawong.com) and sites that follow motorcycle racing, emergency medicine, advertising and sports betting.

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