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The paywall impact on copyright

Copyright.KMMThe boundaries of copyright and fair use have increasingly been debated as the linking culture of the Web has grown. One only needs to Google copyright enforcing company “Righthaven” to see the legal controversy surrounding fair use on the Internet.

But for many bloggers and online entities, the main way to increase traffic is through search engines and algorithms largely based on linkbacks to a site, noted Monty McMahon, co-founder of a blog that covers the Green Bay Packers called Total Packers. “If I have a link from another strong football site, that essentially boosts my search engine process,” he said. “Links are the currency of the Web.” Bloggers and online publications often use portions of other Web content in reference or to supplement coverage. McMahon, for example, said he will pull a quote or two on occasion because the Green Bay Packers organization still doesn’t recognize bloggers as a legitimate media entity and won’t issue McMahon a press pass.

As the linking culture has grown, so has the number of newspapers erecting paywalls. The New York Times’ paywall, for instance, has dominated headlines for months. Does the existence of these paywalls put the linking culture in danger? If a blogger were to go behind a paywall and use a portion of that content could a whole new can of worms be unleashed?

Mayer Maloney, publisher of the Bloomington, Ind.-based Herald-Times, noted it would probably depend. The Herald has been a paid site since 2003 and Maloney hasn’t experienced any issues with content lifting. “We do allow others to reprint content from our site to another website just like we let them reprint from the print edition. We ask that they give credit to the newspaper. If someone were to copy and paste a small amount of the story – three or four paragraphs – I wouldn’t have heartburn over that,” he said in an e-mail interview. “If someone were clearly trying to circumvent our paywall and reproduce our original material, I would move to stop that.”

But for those more rigid news organizations, a paywall can create a disadvantage for those looking to reproduce content. According to Art Neil, executive director and attorney for New Media Rights, a small quote from an article is generally viewed as fair use. “That said, even if the person is re-posting the story, or a portion of the story, with a good fair use argument, the paywall has the added advantage of creating a contract with the customer when the customer pays for access to the paywall,” he said in an email interview. “So long as they created a binding contract, they may be able to use that contract to hold the customer to terms not to redistribute the work, regardless of any rights under fair use.”

There are a couple of different types of contracts online, including what Neil called “browsewrap” and “clickwrap.” In the case of a browsewrap, a website tries to claim a reader is agreeing to the terms of service merely by browsing the site. A clickwrap, on the other hand, requires a sign up process to read the content and states above the submit button that the reader agrees to the terms of service. “The whole thing is complicated by newspapers because there are many ways people get to semi-paywall sites through social media, blogs, etc., which do not require account creation, and therefore don’t necessarily require a contract that could bind or somehow reduce their right to fair use,” he said.

McMahon isn’t a stranger to sites dealing in paid content. And while it might be irritating on occasion, he brushes it off. “Typically, we’re very selective about the content we link to and the content we post. If an outlet doesn’t play by the same rules as everyone else – for example, if they put content behind a paywall or won’t let others embed videos – we feel they don’t want our links or traffic, so we don’t use their content,” he said. “That’s the great thing about the Web, if someone is going to make you pay, I’ve always found there’s very similar content in other places. Certainly you respect ESPN and you respect the New York Times, but I don’t need to read those outlets if they are going to charge me.” he said.

— Katrina M. Mendolera

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