The usually reliable New Yorker writer Louis Menand thinks I’m stealing this article when I do this.
In a critical look at America’s copyright laws (20 October 2014), Menand sets up a little thought experiment. Imagine, he writes, that a year from now, someone reprints without permission his article in a book called “The Most Thoughtful and Penetrating Essays of 2014.” Menand rightly says that he can sue the book’s publisher because his exclusive rights to make copies of his creative work have been violated. A court finding in his favor could go so far as to award damages and “compel the publisher to pulp all the unsold copies.” And, he adds, even we readers would probably share his indignation, even though we had nothing to gain from that outcome.
So far, so good.
But, Menand continues – and I need to quote him at length, which Menand will probably think is more thievery – suppose that a Web site called awesomestuff.com:
ran an item that said something like”This piece on copyright is a great read!” with a hyperlink on the word “piece” to my article’s page on The New Yorker’s Web site. You wouldn’t think this was banditry at all. You would find it unexceptional.
This is partly because of what might be called the spatial imaginary of the Web. When you click on a link, you have the sensation that you no longer are at a place called awesomestuff.com but have been virtually transported to an entirely different place, called newyorker.com. A visual change is experienced as a physical change. The link is treated as a footnote; it’s as though you were taking another book off the shelf. The Web reinforces this illusion of movement by adopting a real-estate vocabulary, with terms like “site” (on which nothing can be built), “address” (which you can’t G.P.S.), and “domain” (which is a legal concept, not a duchy).
Some courts have questioned the use of links that import content from another Web site without changing the URL, a practice known as “framing.” But it’s hard to see much difference. Either way, when you’re reading a linked page, you may still be “at” awesomestuff.com, as clicking the back button on your browser can instantly confirm. Effectively, awesomestuff.com has stolen content from newyorker.com, just as the compiler of “Most Thoughtful Essays” stole content from me. The folks at awesomestuff.com and their V. C. backers are attracting traffic to their Web site, with its many banner ads for awesome stuff, using material created by other people.
I was fellow-traveling with Menand for two paragraphs, wondering where he might be headed. But when I arrived at the third paragraph, I had a case of WTFs? At first, I wondered if a transition paragraph had been edited out, or accidentally excluded.
Yes, using an iframe or some other embedding technology to present another’s content on your own Web site seems unethical and illegal. But what is Menand getting at with his next sentence? “Either way, when you’re reading a linked page, you may still be “at” awesomestuff.com, as clicking the back button on your browser can instantly confirm.” Clicking the back button on your browser doesn’t provide any evidence that you are still “at” a previously visited site. If I am at Wikipedia.com and I hit the back button, I might find my browser pointing to ESPN’s fantasy football site. Or the New York Times Opinionator blog. Or Facebook. The browser’s back button merely points you one step back in your browser’s current history.
But that sentence by Menand is just confused. The next one — Effectively, awesomestuff.com has stolen content from newyorker.com, just as the compiler of “Most Thoughtful Essays” stole content from me — is flat out wrong.
Remember the set-up? Menand says in his thought experiment that the imaginary site “ran an item that said something like ‘This piece on copyright is a great read!’ with a hyperlink on the word ‘piece’ to my article’s page on The New Yorker’s Web site.”
That’s not theft. In fact, it’s the opposite of theft.
For about a decade, I was responsible for the operations of a half-dozen media web sites. During the last five of those years, I was also responsible for the company’s bottom line — and issues of copyright, digital piracy, page views, audience and advertising were vitally important to me. If another web site was substantially reproducing articles from my sites, it was stealing both copyright-protected content and undermining my revenue model. Fortunately, this was rare, and it didn’t take much more than a friendly cease-and-desist letter (and an offer to create a syndication partnership) to put an end to it.
But we certainly encouraged linking to our content. In fact, we had an initiative in which our digital content manager actually reached out to competitors to include links to our news coverage in their e-newsletters. And this was over and above our standard SEO efforts.
Pace Menand, a hyperlink is a reference to content which the linker knows to be someone else’s work, and knows is protected by copyright — otherwise, why link to the other content? Why not just reproduce it?
By linking to my content, the editors at awesomestuff.com are sending their audience to my site, where my content is exclusively published, and where I am able to generate revenue (either through advertising or a pay wall) through that exclusive presentation.
Menand claims there’s something “that is almost universally condemned when it happens in the medium of print” that’s apparently OK when it happens in the digital print. But he may be the only one who thinks so. The hyperlink as he has described it (as opposed to embedding) doesn’t republish content — it references content, much the same way a footnote or end note directs the reader to source material. Menand does consider this function briefly, but dismisses it without further comment.
At bottom, perhaps what Menand is confusing is the difference between the exclusive right to control publication of one’s work and the exclusive right to profit from it. Copyright has always allowed — and in fact, encouraged — some profit leakage. Can you imagine buying a textbook on political science that doesn’t include any footnotes or references to primary sources? That would be a poor acquisition — part of the value of the textbook is that it can provide evidence for the claims it makes, and can show students where to learn more. On the other hand, few students would buy a textbook that was only footnote and references.
In any case, no one would argue that a print textbook (or a digital textbook, for that matter) is stealing content from the primary research it sources or references, even though the text book is able to earn some identifiable but incidental portion of its revenue because it does reference others’ content.
There are, of course, many publishers who agree with Menand in one particular case, and it’s a case to which I’m sympathetic — Google Search, which in the course of a decade has come to dominate digital advertising while creating no original content of its own. When you execute a search using Google (or any other popular search app), what you see in the results are titles, blurbs and links created by other publishers. Google’s basic value-add consists in ordering the results by relevancy, as determined by your query and its algorithm.
The same may be even truer for Google News — again, Google isn’t creating any of the content, but it provides tools for content seekers (titles, blurbs, links and relevancy lists) that in many cases undermine the need for the user to go to the original source. What angers publishers about this is that Google’s revenue model wouldn’t work at all without the existence of the content that a publisher has paid to create. Meanwhile, Google is sucking up all of the revenue that publishers had used to create that content (and earn profit, and pay tax, etc).
What’s the difference between the textbook case and Google? It’s not the academic or civic value of the content referenced, or even the number of references offered to the user. Rather, it’s that Google’s value-add doesn’t seem substantive in any familiar way that intellectual property and copyright laws have traditionally recognized – it doesn’t criticize, or parody, or summarize. As Menand himself writes of the fair use doctrine:
The key concept is “transformative copying.” You can use someone else’s creation if the purpose is to make something new with it.
Google’s copying doesn’t seem transformative in the way that a textbook’s use does. In the case of News or Search, Google probably should pay a licensing fee to the copyright holders for the use of the title, blurbs and links. It wouldn’t be merely the legal or moral thing to do, but it would also help Google ensure, over the long term, that there’s high value content to be indexed and searched for.