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Aug. 1, 2009, 1:02 p.m.

Gawker and The Washington Post: A case study in fair use

Washington Post reporter Ian Shapira wrote a whimsical profile of a dubious “business coach” who specializes in understanding Generation Y. (I think that includes me, but who knows.) Gawker, as is its wont, blogged about the piece, quoting extensively from the Post. Now, Shapira has penned a thoughtful and balanced essay on whether Gawker’s appropriation of his work should be considered copyright infringement. It’s exactly the situation at stake in recent threats by The Associated Press regarding the “protection” of their content.

Whatever your personal opinion about U.S. copyright law and how it should apply on the Internet, judges who consider the question are obliged to weigh four standards of fair use, including the extent of republication, whether the reuse is itself unique, and how it all affects the commercial market for the original content. In that spirit, here’s some data to consider from Shapira’s essay and my own research:

Words in Post article: 1,527
Words from Post article quoted in Gawker post: 226 (15%)
Original words in Gawker post: 204
Labor devoted to Post article: about 2 days
Labor devoted to Gawker post: 30-60 minutes
Cost of Post article: roughly $750
Cost of Gawker post: roughly $20
Revenue generated from Post article: unknown
Revenue generated from Gawker post: roughly $200
Blog links to Post article: 7
Blog links to Gawker post: 4
Rank of Gawker post among referrers to Post article: 2nd
Rank of Post article in Google search for profile subject: 3rd
Rank of Gawker post in Google search for profile subject: 6th

My estimates for cost and revenue are very rough, back-of-the-envelope calculations based on salaries and advertising prices. I should also note that the vast majority of Gawker’s quotes from the piece are themselves quotes from the business coach, which may affect your view of the appropriation. (Who owns a quote?) Meanwhile, it’s been suggested that the long-held standards of fair use don’t work well on the Internet, and in a wonderful post, C. W. Anderson recently posited four new standards for digital fair use.

But putting aside the broader debates for a moment, in this one particular case, given the available information, does Gawker’s use of the Post article constitute copyright infringement — and should it?

POSTED     Aug. 1, 2009, 1:02 p.m.
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