The boundaries of fair use -- the legal doctrine that allows for the republishing and rebroadcasting of copyrighted material in order to encourage free speech -- are awfully hazy when it comes to the Internet. Lawyer-slash-journalist-slash-Web entrepreneur Dan Abrams (pictured) has been thriving in that haze, attracting visitors to his fledgling network of sites with abundant video clips pulled from TV. But can his business model endure the scrutiny of the media companies whose content he's been appropriating?

Abrams launched his network a year ago with Mediaite, a site about the business of news and media. While much of what Mediaite does is little different from what you'd see on the Huffington Post or Mediabistro, one distinguishing difference is how reliant it is on video: More than half of Mediaite's traffic consists of plays on its embeddable video player, which it licenses from a provider called Magnify.net.

And while Mediaite is sometimes scrupulous about observing the principles of fair use -- keeping the video clips it uploads short; using them to make an original point rather than simply rehashing them -- often it is not. For instance, here's a seven-minute clip of a CNN interview with Hugh Hefner that the site posted, in a single, unedited chunk, with minimal commentary of its own. When I asked a CNN spokeswoman whether the network regarded that sort of thing as fair use of its content, she replied, "It does not appear to be authorized," explaining, "We make our content available for third-party use via embeddable player or under license." (Mediaite sometimes uses the embeddable clips supplied by CNN and other news providers.)

Likewise, when I asked an ESPN spokesmen about a five-minute clip of Pardon the Interruption that appeared on Mediaite's sister site, SportsGrid, he replied, "The example you shared is a violation." And when I asked MSNBC President Phil Griffin about Mediaite's use of his network's clips, he said, "I don't like it and am taking it to our legal folks." (That was several weeks ago; Griffin did not respond to follow-up inquiries.)

A "Totally Locked-Up Legal Position"?

In a recent interview with The Business Insider*, Mediaite's editor, Colby Hall, addressed the way his site uses TV news clips, saying, "[W]e have a fairly aggressive, what we think is a totally locked-up legal position, pulling content from video, and we have the support of almost every network in doing that."

I emailed Hall and Abrams seeking elaboration on that claim -- in particular, which networks support Mediaite's practices and which don't, and whether the site licenses any of the content it hosts. Hall replied defensively, declining to address any of my questions. "Singling us out feels like another in a long line of repeated efforts rooted in some sort of vengeful disdain or general disapproval of Mediaite and Dan," he wrote. "Honestly, I've very little interest in assisting in this ongoing game."

One network that does seem comfortable with Mediaite's use of its footage is Fox News. Roughly half of the TV news clips on the site are Fox's, and it hosts them in its own player, with its own ads on them. Chris Silvestri, vice president for legal and business affairs, says, "Fox News will investigate on a case by case basis any third-party use of our copyrighted content and, when appropriate, will take the necessary steps to protect that content."** (It's surprising to see this apparent nonchalance from Fox, considering it's owned by News Corp. (NWS), whose chairman, Rupert Murdoch, has been rather vocal in recent months about the evils of online news aggregators and their "parasitic" ways.)

Magnify.net Would Be Responsible for Any Copyright Violations

But while the other networks might not like the idea of having their copyrighted content repurposed in this manner, they have yet to protest, says Steve Rosenbaum, CEO of Magnify.net. Rosenbaum notes that it's actually his company, not Mediaite, that hosts the video, and that would thus be held responsible for any copyright violations. "The Digital Millennium Copyright Act says as long as the hosts, which is us, make a good faith effort to respond to copyright claims, then we're not in violation," he says. "If we get two takedown notices a month, it's a lot."

Rosenbaum acknowledges that the notices could start to pick up as Mediaite -- which now claims 1.4 million unique visitors a month, not counting "syndicated" views of its player on other sites*** -- grows. "The elephant in the room is someone has to start making money," he says. "If Dan were making money putting pre-roll ads in front of Fox News clips, they'd say, 'We want some of that money.'" (Abrams recently told Newsweek his company will be profitable in 2011.)

But he believes time will ultimately vindicate Mediaite's aggressive aggregation. "
There is a history of media companies gathering content and adding an editorial package around it," Rosenbaum says. "I don't think they're doing anything fundamentally differently than lots of publishers. If they're slightly ahead of the curve, they're leading a trend that people are following."

For a disinterested opinion, I talked to Lloyd Jassin, a copyright and intellectual property lawyer. Jassin said the strength of Mediaite's claim to be following fair use depends in part on the site's mission. "It's unclear if they are in the news business or business of critiquing the news business," Jassin says. "If the latter, they have a better shot at fair use, provided they use the clips as a springboard for meaningful criticism or commentary about the clips themselves. If they are primarily in the news business, and the videos are used for substantially the same purpose for which they were originally used, they will have a much tougher time making a fair use argument.

"So, is it 'totally locked up' from a legal standpoint? I don't think so. Only a judge and jury can say for sure."

---------------------------------
*The person who interviewed Hall for The Business Insider was none other than Steve Rosenbaum of Magnify.net. I emailed Henry Blodget, TBI's editor in chief, to ask why he allowed someone to write about a company in which he had a financial interest. "We didn't commission the post on Mediaite, and we didn't know that Steve's company, Magnify.net, had a business relationship with the company," Blodget replied. "We would have run the post regardless -- Mediaite HAS been a big success, and...Colby's comments are interesting -- but we would have disclosed the relationship. We'll add the disclosure now."

It has been added.

**Statement from Fox News added at 2:25 p.m. An earlier comment from PR wasn't intended as an official statement.

***Clarification between site traffic and syndicated traffic added 12:40 p.m.

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Disclosure: Abrams approached me about working on Mediaite before its launch, but the discussions did not go far. More recently, I was briefly, tangentially involved in discussions about a partnership between Abrams and AOL which ended, to the best of my knowledge, without result.

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Lloyd J. Jassin

Colby & Jeff (and Dan) are invited to my house this Saturday for fair use mock trial & grill-off. Bring red meat, but no lawyers. But seriously, fair use is a balancing test -- not a mathematical formula.

It allows scholars, researchers and news organizations to borrow or use small (and sometimes large) portions of in-copyright works for socially productive purposes without asking permission. Fair use is a defense to copyright infringement. It's not for sissies.

The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster." Against this backdrop, fair use is imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators.

Like pornography, fair use is in the eye of the beholder. It asks, on a case-by-case basis, whether the unauthorized use advances the purposes of copyright law. Unfortunately, there are no mechanical rules to define with precision what is "fair" and what is "foul." It's only when a judge says it is fair, that we know.

If you wish to rely on fair use, then, your goal is understand the four factors courts weigh to determine fair use.

Let me know if you need directions to my house.

Lloyd

August 13 2010 at 11:34 AM Report abuse rate up rate down Reply