Earlier this week, in response to a few different disputes in the news involving sites aggregating content and deep linking to other peoples’ stuff, Henry Blodget of Silicon Alley Insider posted their content excerpting policy, which I post here in its entirety:
“We excerpt others the way we hope others will excerpt us.”
On the face of it, it seems an awfully soft policy. Mr. Blodget also draws a distinction between “fair excerpting” and “fair use,” which I’m not sure is a meaningful distinction. (Also, I have to look at their excerpting policy in light of their photo policy, which seems to be awfully permissive when it comes to using copyrighted works from movies and TV shows to illustrate their blog posts, with nary a photo credit in sight.)
Now, not being a lawyer, I’m not even going to attempt to dive into the murky waters of fair use doctrine right now. (For more info, start out with the Wikipedia article, and also this helpful comic book. Though I will say that your take on fair use will fall into one of two camps — either you think too much is covered by fair use, or too little, compared to what fair use actually covers.)
With the excerpting definition, the Insider seems to be swimming in the pool of tolerated use, which I find to be a fascinating, though murky, place. It’s a doctrine that basically tries to set a pragmatic middle ground — it says that, “I recognize that the way you’re using my stuff technically violates my copyright, but since it’s benefiting me (by drawing attention and getting pageviews), I’ll let you do it.”
(The example of YouTube giving copyright owners the option of getting the ad revenues from user-uploads of their copyrighted stuff, instead of taking it down, would seem to be another swing at tolerated use.)
When it comes to excerpting, there’s a whole handful of thumbs to hang rules from. Obviously, you should add value, even if it’s just punditry, parody, commentary, or snark. You also probably shouldn’t copy and paste the entire work, though this doesn’t really work for really short things, like news summaries or comic strips. And of course, you should attribute and link back to the original source.
Doing all this helps your tolerated use (if not fair use) argument, although again, as someone seeking to use someone else’s content, your interpretation of fair use is probably a lot looser than the reality.
As soft and squishy as their excerpting policy is, Silicon Alley Insider is still against outright cloning of their content, via screen scraping or RSS aggregation, so they do have limits, though others don’t — some folks go the “just spell my name right” route.
Anyway, if you’ve got your own thoughts about the polite limits of excerpting (note here that I excerpted just one line from the SAI blog entry, though I did reference a few other things), please leave a comment below.
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