lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Clicks or Credit? Determining Value in the Excerpt (while working in yet another fox-hunting analogy)

Writing in the New York Times this morning, Brian Stelter raises a long-running but increasingly contentious issue in the market for online content: Copyright Challenge for Sites That Excerpt.

Lest I court irony too brazenly by excerpting an article on the legal liabilities of excerpting, I’ll posit this post as a picture of a world without excerpting and leave it up to the reader to hunt down the quotes I might be referring to.

The crux of the complaint of those who have been ‘overly-excerpted’ is that they are thereby wrongfullly deprived of the traffic they would have otherwise received. Instead the excerpters capture that traffic for themselves, through their parasitic use of quotes, which no amount of attribution can fix.

So Who Owns the Fox (News Headline)?

fox

This is the classic question of Pierson v. Post. (I have previously dredged up this hoary spectre of 1L property in Who owns the (notes about the case about) the fox?) In Pierson, two sets of hunters “upon a certain wild and uninhabited, unpossessed and waste land, called the beach, find and start one of those noxious beasts called a fox.” The court found that mere hunting did not entitle one to an animal; one must “mortally wound, physically capture, or kill the animal in order to have his title in it vest.”

What is being hunted here? the elusive ‘click’ – the atom of attention upon which online media companies build advertising empires. Note the zero-sumness of the argument put forth by the excerpt-complainers. There is a fox (the click) and either you will have it or I will have it but we shall not both have it. It’s a narrow but not altogether unrealistic notion of what happens on the internet. If site A quotes site B and what I read seems so complete that I feel I have no need to go to site B, then I might indeed give site A the click I would have given site B. If the A quote is intriguing however, then I might click through to site B as well. The fact that I’m on site A is de facto proof that my relationship begins with them, so the obvious counterpoint is that but for the excerpt I might never find site B at all – no clicks for anyone in the no-excerpt world.

Setting aside existing copyright laws for the sake of a more freeform analysis, what rule for excerpting would make the most sense? In my example above, Site A to a certain extent, already has the fox since it attracted the initial click – the question is whether they should be able to reinforce their fox-gathering abilities with the fox-bait of others. Is being able to attract an audience a value added proposition in itself? sufficient to justify an exception to unauthorized copy-prohibition such as fair use? If it is, then we can stop there and impose a laissez-faire regime on copying publicly available web content. In this sense publicly available = public domain and we’ll let God (Google?) sort out the rest.

Another option might be to look at the quality of the excerpting. Any blogger would recognize the difference between automated and manual excerpting. Even though copying and pasting isn’t exactly a laborious process, it indicates a more focused attention than say, screen-scraping or syndicating an RSS feed. These activities (the first in particularly) more clearly violate the social norms an expectations of the content providers in ways that should perhaps be sanctionable. Similarly a complete copying, as if A effectively copied B’s entire site, not just a particular post it wanted to call attention to, seems a more egregious violation of social norms on the internet. Yet content syndication sites such as the ABA Blawg Directory and Justia do exactly that, but in ways that make some of us feel like it’s helpful rather than harmful.

All this is to say that the anti-excerpt crowd might be unwisely reactionary in seeking to deter all excerpting. To the extent they already have the fox (the clicks) it’s not clear they’re in any danger; to the extent the excerpters have the fox, it’s not clear forbidding excerpting will help either get the fox. More fundamentally, it’s not entirely clear why they might not have their fox and share it too.

But I’ve tortured this analogy long enough and as a catch-and-release fox hunter, I invite you to click over to the New York Times article Copyright Challenge for Sites That Excerpt, so that we might both have our foxes.

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