Dude, Where’s My Link?

Ian Shapira, fair use, and "The Death of Journalism (Gawker Edition)"

Ian Shapira’s essay in yesterday’s Washington Post does what good journalism is meant to do: it puts a human face on a broad problem.

In this case, however, the face in question is Shapira’s. The WaPo staff writer—he covers, broadly, Generation Y for the paper—recently wrote an article about Anne Loehr, a “business coach” who leads seminars for mostly-Baby Boomer clients on how to connect with members of the millennial generation. The piece—which was about 1,500 words long and which took, Shapira estimates, about two solid days to report and write—was picked up by Gawker’s Hamilton Nolan, who condensed it, quoted liberally from it, slapped a Gawkerized headline (“‘Generational Consultant’ Holds America’s Fakest Job”) on it, and made only the most cursory nods at attribution for the Post, never mentioning Shapira himself. The Gawker version garnered some 9,500 page views, Shapira notes (that number is currently at 11,000+).

Shapira’s essay—the tale of “How Gawker Ripped Off My Newspaper Story” (elsewhere: “The Death of Journalism (Gawker Edition)”)—is a Socratic dialogue-unto-itself, a conversation engaged in by two characters of the same name: Ian Shapira the Washington Post writer, and Ian Shapira the Washington Post staffer. Shapira-the-writer is, he notes, initially thrilled with the Gawker pickup. “I confess to feeling a bit triumphant,” he notes. The Gawker piece “featured several quotations from the coach and a client, and neatly distilled Loehr’s biography—information entirely plucked from my piece. I was flattered.”

But Shapira-the-Washington Post-staffer…not so thrilled. Shapira-the-staffer cares—or, more accurately, is made to care—about the bottom line. (“They stole your story,” Shapira’s editor tells him, igniting indignation. “Where’s your outrage, man?”) He wants recognition, but not merely through the vagueness of attribution or the imprecise compensation of credit-via-link. He wants monetized attribution—attribution that will help, in turn, pay his salary and contribute to his 410k. He wants to be remunerated for the troubles he’s gone to to create the story in question. So: he nitpicks. He nickels-and-dimes. He measures his worth as much by the hours he’s spent working as by the result of those hours. He defines his impact not by the fuzzy metric of “attention,” or even by the slightly-less-fuzzy metric of the links his piece has garnered, but by the revenue that comes from those online reverberations. Or, you know, the lack thereof.

It should go without saying that Shapira-the-writer, in this particular piece, is infinitely more likable than Shapira-the-staffer. The former is laid-back and fun and charmingly idealistic about the Web and his place within it. He is motivated by attention, to be sure, but for him attention is a function of his broader contribution to the Web’s storied marketplace of ideas. He is happy, then, to share his contribution with others. Mi story es su story.

Shapira-the-staffer, on the other hand, is crotchety and possessive, the kind of person, one imagines, who carries a tip calculator in his wallet and, as principle, never leaves anything beyond 11 percent. For him, journalism is a zero-sum game, and any ineffable joy that may be derived from the business of reporting and writing is subsumed by the commercial demands of the bottom line. He refers to that business as “labor,” with no trace of irony.

In all that, Shapira-the-amalgam makes a fairly fitting allegory for most every journalist still practicing right now: a giddy mix of gratification-at-still-being-employed, and fear-that-the-employment-will-prove-all-too-finite. So, then: who’s right? Which approach, applied to the paid content conversation, is the correct one to adopt?

The frustrating answer is that both of them are. Each side of Shapira, here, represents a valid side in the free/paid content debate. The conclusion he reaches at the end of his pseudo-dialectic conveys that mutual correctness through compromise itself: “I still want a fluid blogosphere,” he writes, “but one where aggregators—newspapers included—are more transparent about whom they’re heavily excerpting. They should mention the original source immediately. And if bloggers want to excerpt at length, a fee would be the nice, ethical gesture.”

In other words, Shapira—the Wronged Reporter and Rapturous Writer rolled into one—decides in the end that payment-for-attention should be a matter of choice. He writes not in the imperative mood, nor even the declarative—but, essentially, in the subjunctive. A fee would be nice, he says, and leaves it at that. Though he discusses the notion of changing copyright law to reflect the new realities of digital news, he concludes, finally, that compensation—whether in the form of link-love or monetization—should be guided not by a legal code, but by an ethical one.

All of which highlights a problem that is nearly as old as the Web itself, but that has been growing increasingly urgent in recent months: the extremely unsatisfactory nature of our current fair use doctrines. Legal and ethical. Journalism is still in a kind of moralistic Wild West when it comes to those codes, in large part because both of them are so subjective. (The fair use doctrine, as it currently stands, deals in such abstractions as “the purpose and character of the use” in question, the “nature” of the copyrighted work, etc. Its ethics-based counterpart is more a matter of inarticulate understanding among bloggers than anything else.) And now, as the Post’s ombudsman, Andy Alexander, discussed last Wednesday, we’re seeing individualized ethical codes: bloggers making their own declarations, for themselves, about the principles they will adhere to in their blogs.

It’s a tiny step in the direction, perhaps, but still considerably less than ideal. Transparency is clearly, if you will, to the good—the “new objectivity,” and all that—but it certainly doesn’t replace proper ethical codes. Which are, by definition, communal.

So does that mean we should, as the First Amendment lawyer David Marburger suggests in Shapira’s piece, update the fair use doctrine? Not necessarily. (Though the CUNY journalism professor Chris W. Anderson, it’s worth noting, has proposed an intriguing four-part supplement to the current fair use test.) Free speech principles make powerful arguments in favor of subjectivity, and even of inscrutability, when it comes to the doctrine—overly broad is better, in these cases, than overly constrictive. Besides, as Nieman Lab’s Zach Seward notes, quoting The New York Times Company’s general counsel, Ken Richieri: news aggregation, though it may constitute unfair competition, may not be a copyright issue in the first place.

What all this means, though, is that, as the journalistic community wanders through the desert, we need to come together to determine standards—and limits—when it comes to linking, quoting, attribution, and the like. We need, essentially, shared principles that will combine ethics with etiquette, and that will serve as benchmarks for our online behavior. Most of us, after all, want to be upstanding citizens of the digital nation; what we lack, though, is someone or something to act as a kind of Emily (Blog) Post and guide our way. Until we have that, the entire journalistic community will be a mirror of Ian Shapira, writer and laborer: torn between mercenary motives and munificent ones, between effusiveness and possessiveness, between the marketplace of ideas and the plain old market—struggling to find its place, and fighting, finally, against itself.

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Megan Garber is an assistant editor at the Nieman Journalism Lab at Harvard University. She was formerly a CJR staff writer.