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

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

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.

Phishers Take Advantage of Financial Crisis

An interesting note in Foreign Affairs, Net Effect: Caught in the Net: Bank Customers:

The financial crisis may have caught most of us flat-footed, but there’s one group that has easily adapted to the new economic order: cybercriminals.

The financial crisis may have caught most of us flat-footed, but there’s one group that has easily adapted to the new economic order: cybercriminals. Capitalizing on popular fears with new phishing campaigns, scammers are enjoying something of a bull market, according to the FBI. In a particularly clever ruse, criminals sent a fraudulent e-mail instructing Wachovia customers to hand over their online banking credentials ahead of a prospective merger with Citigroup. One cybercrime expert, who detected a jump in malicious software as U.S. stocks first headed south, told Information Week that economic anxiety could be causing nervous users to make bad decisions: “If the stock market is crashing, there’s not a lot of confidence.” Unless you’re a thief, apparently.

Economic uncertainty, a rash of mergers and general fear of financial collapse tend to justify unusual communications to consumers, leaving them even more susceptible to phishing scams than they might be otherwise. Financial companies, particularly ‘newsworthy’ ones, would do well to be extra-vigilant in giving consumers clear expectations of the types of communications that are safe and the manner in which to respond.

Google’s Gatekeepers

George Washington Law Prof Jeffrey Rosen has a fantastic piece in the New York Times today on Google’s Gatekeepers, chronicling the central role the company is playing, voluntarily or not, in setting a kind of global free speech policy.

In March of last year, Nicole Wong, the deputy general counsel of Google, was notified that there had been a precipitous drop in activity on YouTube in Turkey, and that the press was reporting that the Turkish government was blocking access to YouTube for virtually all Turkish Internet users. Apparently unaware that Google owns YouTube, Turkish officials didn’t tell Google about the situation: a Turkish judge had ordered the nation’s telecom providers to block access to the site in response to videos that insulted the founder of modern Turkey, Mustafa Kemal Ataturk, which is a crime under Turkish law. Wong scrambled to figure out which videos provoked the court order and made the first in a series of tense telephone calls to Google’s counsel in London and Turkey, as angry protesters gathered in Istanbul. Eventually, Wong and several colleagues concluded that the video that sparked the controversy was a parody news broadcast that declared, “Today’s news: Kamal Ataturk was gay!” The clip was posted by Greek football fans looking to taunt their Turkish rivals.

Wong and her colleagues asked the Turkish authorities to reconsider their decision, pointing out that the original offending video had already been voluntarily removed by YouTube users. But after the video was taken down, Turkish prosecutors objected to dozens of other YouTube videos that they claimed insulted either Ataturk or “Turkishness.” These clips ranged from Kurdish-militia recruitment videos and Kurdish morality plays to additional videos speculating about the sexual orientation of Ataturk, including one superimposing his image on characters from “Queer Eye for the Straight Guy.” “I remember one night, I was looking at 67 different Turkish videos at home,” Wong told me recently.

After having many of the videos translated into English, Wong and her colleagues set out to determine which ones were, in fact, illegal in Turkey; which violated YouTube’s terms of service prohibiting hate speech but allowing political speech; and which constituted expression that Google and YouTube would try to protect. There was a vigorous internal debate among Wong and her colleagues at the top of Google’s legal pyramid. Andrew McLaughlin, Google’s director of global public policy, took an aggressive civil-libertarian position, arguing that the company should protect as much speech as possible. Kent Walker, Google’s general counsel, took a more pragmatic approach, expressing concern for the safety of the dozen or so employees at Google’s Turkish office. The responsibility for balancing these and other competing concerns about the controversial content fell to Wong, whose colleagues jokingly call her “the Decider,” after George W. Bush’s folksy self-description.

Google is clearly a victim of its success in the sense that we no longer care what Altavista’s free speech policies are. Google policies matter because of the de facto monopoly power its overwhelming market share gives it. I suspect we’ll continue to see some very interesting case law in this arena, particularly internationally.

Jeffrey Rosen, Google’s Gatekeepers, New York Times, November 28, 2008

Cass Sunstein and Eugene Volokh on Information Cocoons in Blogosphere and Elsewhere

Click the player below to listen to the Audio:

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Video available on bloggingheads.tv

Facebook Founder Sued

Mark Zuckerberg, the founder of online networking juggernaut Facebook (Add me! Add me!), is facing a lawsuit from three of his former college mates who claim Zuckerman stole the source code from a similar project and used it to start Facebook. They are seeking to have Facebook turned over to them.

WSJ: Judge Expresses Skepticism About Facebook Lawsuit, and the law blog’s take.

It doesn’t sound like it’s going extraordinarily well for the plaintiffs. From the law blog –

In a pretrial hearing yesterday, Judge Woodlock said that “dorm room chitchat does not make a contract.” He criticized the plaintiffs, whose site is called ConnectU, for scheduling a press conference after the hearing and speculated that they were seeking news coverage “for the purposes of a settlement.” Facebook is the world’s second most-popular social-networking site; ConnectU isn’t.

Oh, snap.

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