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.
Righthaven Chief Executive Steve Gibson, who declined to discuss how his firm is paid, said most of the targeted websites reused Review-Journal stories in their entirety or reproduced huge chunks, beyond what anyone could credibly argue as "fair use." Some of the sites, but not all, linked back to the R-J, as the paper is known.
"It took some blood, sweat and tears to get this material," said Mark Hinueber, general counsel for Stephens Media. "It's just wrong to then have some guy in his basement taking this stuff wholesale, selling ads around it and making money."
Pilfered material dilutes the value of what the R-J posts and makes it harder for the paper, in these difficult times for newsrooms, to make enough money to maintain its news staff of 120, Hinueber argued.
Several of the lawsuits reportedly have been settled. The terms of just one agreement, a $2,185 payment by the National Organization for the Reform of Marijuana Laws, have become public, according to the Las Vegas Sun..
I could not track down the cat people, whose lair is reputedly somewhere in the Boston area.
But I suggested to the Vegas crew that their blog — a homey little site, bereft of advertising — appeared to be less than a menacing opponent. Lawyer Gibson told me that my point was not relevant. "Whether it's a commercial or non-commercial site," he said, "is not defining of whether it's an infringement."
The paper's in-house counsel, Hinueber, seemed to have a sense that his paper effectively had blasted a small tabby with a howitzer. He didn't promise to drop the suit, but offered: "I just learned about the filing on the cat thing. I'm going to talk to [Righthaven] about that."
In the meantime, a mortgage broker from Toronto, who happened on my query about fair use, may have had the wisest advice of all: "Don't use more of their story than you would want them to use of yours," wrote Russ Skinner ( Twitter handle: @russskinner). "And link, always."