Last week I wrote up some notes on the ongoing AllThingsDigital reposting controversy in which the WSJ’s pet site was failing to distinguish third-party, aggregated blog posts from their own original content.  I don’t like the practice, not because it compromises existing copyright laws but because a) it assumes the bloggers want their work to be reposted, and b) it isn’t nearly transparent enough, and it’s too difficult to tell what is original content and what is reposted from elsewhere.  I’m a huge fan of creating online conversations, and quoting, excerpting, and linking are integral to that practice.  But this is a different issue.

My old publishing buddy Terence wrote a friendly rebuttal to my post in which he makes a number of good points.  I actually agree with most of what he says, though I think he mischaracterizes my critique a bit.  First, Terence:

Another point of Josh's that I take greater exception to is his characterization of "big sites" that "skirt around copyright issues by only 'excerpting' posts." The legal principle, which covers excerpting, is fair use. It has long been held that the benefits of fair use to the public dissemination of knowledge—and, thus, the common good—far outstrip the individual's right to restrict the use of a small—very small—part of her work. And, at least in part, fair use is meant to counteract what Josh terms as the producers' right to "decide who uses their work, and how," which could be wielded as a tyranny of the minority. After all, what novelist would want passages of her novel used by a critic to show just how incompetent a writer she is in a review (a review that likely has ads sold against it, incidentally)? Again, it's a gray area, but generally two or three sentences is fine as an excerpt (which is what most RSS feeds willingly serve up) and is all that most above-board aggregators use. In fact, the only ones really making a stink about the unfairness of fair use, excerpting, and appropriation right now are the AP and Time magazine, both big businesses. Just see the paces Time is putting Shepard Fairey through.

Again, I’m not making any claims about copyright.  I absolutely agree with Terence that the grey area of fair use is what’s at play here, and it’s not particularly helpful to hash out the legal consequences of excerpting blog posts – a practice that helps keep the engine of online conversations running.

Instead, I’m concerned about the lack of transparency of ATD’s practices, and the ethics of wrapping ads around third-party content without third-party consent while disengenously and paternalistically arguing that it’s always good for the bloggers in question.

There’s also a difference between ATD and Digg and delicious (a comparison Terence made in his post): Digg and delicious are bookmarking sites, only listing headlines (which are frequently changed from the originals) and brief descriptions (usually written by the bookmarkers themselves).  ATD is a content publisher, producing creative work of the same type as the blog posts it appropriates.

Proving that we all had a legitimate point, ATD’s Kara Swisher not only responded to criticism from Merlin Mann, Andy Baio, and others, she went as far as to change ATD’s policy:

While we did not agree with all the complaints in the story, the debate did make us realize we needed to be a lot clearer and more explicit about what we are doing, and to make those policies–which we had not posted in as much detail as we have, for example, about our ethics statements (you can see mine here, for example)–more prominent and transparent. Some will disagree with the changes we have made and some will not think they go far enough. But we hope we have addressed the key issues, including making it clearer that these posts are not ours, posting our policy prominently to avoid confusion about exactly what Voices is and removing all comments and sharing icons from posts that are not original to our site. We are also now linking directly to original sites from the front page excerpt, without forcing anyone into the Voices section, where we also link to original sites.

(Check out Merlin Mann’s parody of ATD’s old policy too.)

Again, I agree with most of what Terence (and Swisher) have to say, and I think the issue has been around a fairly esoteric set of editorial practices that had no real precedent, making it hard for us to all agree on the proper language and approach to use.  We’re all grappling in the dark here, but I think Swisher’s openness to these ideas has shed some light on the issue.