Recently fired blogging pressman Ed Padgett had some interest commentary regarding the layoffs:

“Those folks each got $20,000 in severance,” claims Padgett about the suicides.

Padgett also comments on how he and others were accused of planning a sabotage at LA Times:

“Two of the fellows were let go two weeks early because they were worried about sabotage. They’re so paranoid, because it’s not just my department — it includes editorial.”

Reportedly, the layoffs came just before the company decided to give huge bonuses to management at the organization.

An LA Times piece this week looks at a publication – the Las Vegas Review Journal – that has reportedly filed over 30 lawsuits against blogs that it claims use its content without permission, leading author James Rainey to ask, "So what is fair use?"

How would you describe fair use? Tell us in the comments.

Again, this is not a new question, but it is one that has yet to be collectively resolved. We took it upon ourselves to reach out to a number of media professionals from both blogs and traditional media publications, as well as lawyers, and readers, with the aim of presenting a well-rounded view of how these different parts of the media-picture see fair use. Unfortunately, not everyone was too eager to lend their opinions on such a touchy subject, and I have yet to receive any real response from any of the traditional media publications I contacted (I’ll update if I do).

Viewpoints

Rich Ord, CEO of the iEntry Network and Publisher of WebProNews says, "Fair use is taking small amounts of content in order to add perspective or additional information to your own content. A publisher should also link to the content source and credit them accordingly."

Marshall Kirkpatrick, Co-Editor, VP of Content Development and Lead Blogger at popular tech blog ReadWriteWeb tells WebProNews, "Aggregation and filtering is a beautiful thing.  Give me a day with a HuffPo appearance and it’s a good day for us at ReadWriteWeb. Excerpts with as much as three paragraphs, with attribution and a link, are a great way to add value and share traffic. Fair use paves the way for rapid content creation and curation – I have no fear of it at all."

Here’s how one of our Facebook fans described fair use: "I see fair use as similar to writing papers. Name the source and link, if necessary and do your homework. Some companies do not allow use of their materials at all without their permission. There aren’t documented rules as there are for writing papers such as the writing formats MLA or APA but they do include rules to follow when using online content in writing."

The Law

Attorney John Burton, who practices Trademark/Copyright and Internet/Technology law, tells us: "Fair use is a legal doctrine under U.S Federal.Copyright law that provides for limited use of copyrighted material without requiring permission from the copyright owners, such as for news, research, teaching and commentary.  It provides for the legal use of third-party copyrighted material under a four-factor test:

1.    the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2.    the nature of the copyrighted work;

3.    the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4.    the effect of the use upon the potential market for or value of the copyrighted work."

"Kelly v. Arriba Soft Corporation (2003) set a strong benchmark for fair use and the Internet," Burton continues. "Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly’s website in Arriba’s image search mechanisms.  The decision was appealed."

"On appeal, the 9th Circuit Court of Appeals found in favor of the defendant," he continues. "In reaching its decision, the court utilized the above-mentioned four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Second, the fact that the photographs had already been published diminished the significance of their nature as creative works. Third, although normally making a ‘full’ replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase exposure of the originals."

Interpretation

So how would this apply to written content? Would a snippet and a link, designed to send traffic to the original source, be the text equivalent of a small thumbnail increasing the exposure of the original?  It’s not so clear.

Burton seems to recommend a better safe than sorry approach. "Essentially, caution is the word when using copyrighted content of another on your website," he says. "I strongly recommend receiving written authorization from the copyright holder prior to redistributing their work or link, especially if there is a commercial interest in why you are using the work."

WebProNews spoke to Attorney Michael Donaldson of the law firm Donaldson & Callif and Pat Aufderheide, the Executive Director for the Center of Social Media at American University, who has worked with the university’s law school on developing best practices for fair use, at SXSW a couple months ago. They also spoke about fair use from the legal perspective. Watch this clip if you’d like to hear more on the subject from this standpoint:

"Fair use is part of copyright law, and it says you have the right to use other people’s copyrighted material without licensing it, without paying for it, or even asking them permission under some circumstances," said Aufderheide. "The law itself is rather vague, so the question is , ‘how do you interpret that law?’"

"The newspaper people had me pretty much in their corner until they went after the cat people," writes James Rainey, the LA Times writer who covered the Las Vegas Review Journal story. Basically, the story is about a newspaper publication going after dozens of blogs for using content. To what extent this content was used is not really delved into, but the highlighted example is of a small cat blog that doesn’t even have ads on it, and could hardly be considered a competing publication. In all "fairness," you should read Rainey’s story for more on these suits.

Regardless of how you interpret fair use law, it appears that the traditional media will continue to put pressure on new media. One minute the New York Times is talking about how important blogs are, and the next, it’s keeping feed readers from using its content. Of course, as Search Engine Land Editor-in-Chief Danny Sullivan recently showcased, traditional media also pushes the boundaries of fair use itself. It goes both ways. Unfortunately, traditional publications are more likely to have the funding that bloggers may not have, when it comes to legal disputes.

Are traditional media publications justified in going after bloggers who use samples of their content and link to the original? Share your thoughts in the comments.

It’s not surprising that marketers are utilizing the service to advance their own agendas, but the LA Times’ Mark Milian’s claims that the Marines and the Mormons are willful participants certainly are surprising and fairly disturbing, each for their own reasons. While the few and the proud, if the news is true, are manipulating a supposed democratic news source to advance favorable stories (i.e., propaganda), the answer to the famed question—what would Jesus do?—apparently is condone fraud (which is lying) to promote oneself.

The Apostle Paul did say he became all things to win men to Christ, and if you stretch it—really stretch it—one supposes that could mean a phony Digg user 2,000 years later.

Neither the Marines nor the Church of Latter Day Saints returned our requests for confirmation or denial of contracting uSocial to game (defraud) the Internet. Hill brags about contracting the Korean government in this release.

Hill says he ignored a cease and desist order from Digg.com because uSocial isn’t based in the US and his employees are “scattered across the world.” He fails to connect that a company wishing to sue him out of business only needs to sue him, not his employees, and now that he’s messing with Yahoo, an international corporation, his Australian immunity may be short lived.  

The Latest In Fear: Journalism Professors

It’s not easy watching one’s fiefdom being broken into shards by uncontrollable forces. Dr. Norm Matloff at UC Davis has written frequently about outsourcing’s effect on technology, and the impact it has had on computer science departments.

Fewer students means less clout in the labyrinthine power structures of higher education. It’s happened with computer science, and maybe it’s happening with journalism programs as well.

Recently, Elon University journalism professor Michael Skube, a Pulitzer Prize winner for Criticism, brought his view of blogs to the Los Angeles Times. He argues that bloggers aren’t journalists, no matter what legal protections or press credentials have been bestowed upon those who don’t work directly for a traditional media organization.

While it’s true many bloggers don’t plumb the depths of stories they cover, many have figured in greater stories. Skube gives bloggers credit for bringing abuses at Walter Reed Medical to public attention, but reserves deeper praise for the deserving investigative reporters who covered it in depth.

Fair enough. But why the attack on bloggers? We can’t help but feel that The Fear may be slipping into campuses, sliding up ivy-covered walls and into the minds of young, inquisitive students. Why sit through semester after semester of lectures and tests when you can dive in and make a journalistic splash?

The problems with blogging that Skube lamented ended up having a minor role in the piece he contributed to the Times, a long-time name in professional journalism. Josh Marshall at Talking Points Memo didn’t care for being lumped in with hobbyist bloggers, and called Skube out on his assertion.

One problem: Skube didn’t put Marshall’s name in the op-ed piece. The bastion of "thorough fact-checking and verification and, most of all, perseverance," the LA Times, did:

So against my better judgment, I sent Skube an email telling him that I found it hard to believe he was very familiar with TPM if he was including us as examples in a column about the dearth of original reporting in the blogosphere.

Now, I get criticized plenty. And that’s fair since I do plenty of criticizing. And I wouldn’t raise any of this here if it weren’t for what came up in Skube’s response.

Not long after I wrote I got a reply: "I didn’t put your name into the piece and haven’t spent any time on your site. So to that extent I’m happy to give you benefit of the doubt …"

This seemed more than a little odd since, as I said, he certainly does use me as an example — along with Sullivan, Matt Yglesias and Kos. So I followed up noting my surprise that he didn’t seem to remember what he’d written in his own opinion column on the very day it appeared and that in any case it cut against his credibility somewhat that he wrote about sites he admits he’d never read.

To which I got this response: "I said I did not refer to you in the original. Your name was inserted late by an editor who perhaps thought I needed to cite more examples … "

And this is from someone who teaches journalism?

One would expect someone who argues so passionately in favor of rigorous, professional journalism would go the extra step of making sure his words were not being altered. It’s a sterling example of why people view journalists of all stripes with varying measures of distrust.

In many ways, just as shown here, that distrust has been earned. All a blogger like Marshall has to do is be transparent with sources and reporting for people to perceive value in blogging.

If enough future journalists embrace that perception, they may be more likely to spend their college tuition on a laptop, a video phone, and a fast Internet connection, rather than four years of education for an uncertain future in traditional media. If that happens, will universities start trimming their journalism programs?

It’s enough to make a professor mad at the blogosphere, isn’t it?