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[photo by lovelypetal]

[Part 1. See: Part 2]

My friend Victoria’s recent entanglement with a bloggregator site (BNN) that was aggregating her site without permission has me thinking again about the dissonance between provisions for fair use and the way the current information environment operates.

The basic outline of the problem is this: BNN apparently used to, without asking for any permission, re-purpose the full-content feeds of the sites it aggregated without providing any links back to the source (not to mention any easy way to opt-out). The illegality of that enterprise is obvious at the first order of operation– all else aside, you can’t simply publish, in full, someone else’s content regardless of what else you are doing. Rightly, many people protested this, including some of Victoria’s peers for whom the matter still resonates. [redacted as I can find no evidence that this was ever true of BNN]

However, the situation is this: BNN uses 50-word excerpts of the original feed, with the title and the “more” link both pointing back to the original source. The site provides a place for comments and a rating system, making it a form of reputation site. The new configuration is arousing similar ire even though the changes to it make the legal situation considerably different.

As I see it, what BNN is doing is legal. Making a legal case against BNN’s current practice is a non-starter and, even if it weren’t, much of the legality or not of an action governed by copyright law is practically determined by whoever has pockets deep enough to wage a successful legal challenge or defense.

But there’s a good case that BNN isn’t being very ethical… or at least that the owner isn’t paying much attention to how it could operate in a way that would be more profitable, ultimately, to both BNN and the bloggers it aggregates. Here are a few ways it could improve:

  • Most importantly, ask site owners if they would like to be included (and if they insist on not asking permission, which seems foolish, provide a clear opt-out system other than waiting to receive invective-filled email from unknowing contributors)
  • Recognize not just the source of the information by link, but by title– accompany each entry with a simple citation of original blog’s title and address
  • Beef up the associative links to the original sources by providing “more stories from” and “related stories” links with each article
  • Extend the voting, commenting, and click-through system to create some kind of leaderboard or other reputation-based ranking system to recognize those who are receiving increased attention [updated: this, among other things, is being done]

In other words, work to establish the service as a legitimate and more valuable enterprise rather than the quickest way to approach making a profit regardless of the ethics in doing so.

This won’t necessarily alleviate the discomfort that comes from finding out that someone (or some organization) you don’t like is using your words. Fair Use is essentially a kind of open license focused on limited bits of content, and like open content initiatives, anyone who puts material out into the world may experience the discomfort that comes from the flip-side of openness and rights…namely that the same rights that protect and allow you to participate in the intellectual commons protect and allow for those dissonant uses as well. Which is why I’ve not only given up on the prospect of preventing that kind of use, but I’ve made (and am much happier) the philosophical switch that the value of enriching the commons outweighs the ramifications of limiting my contributions and that the positive uses far outweigh the negative uses. That’s why I not only adopt open content licensing such as Creative Commons licenses for as much of what I write and share as I can, but I even adopt one of the more liberal licenses of that kind, requiring only attribution with all other uses being permissible