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.