Draft Fair Syndication Guidelines Unveiled

In late October, while I was on hiatus for my haunted house, the Fair Syndication Consortium unveiled a 0.9 version of its guidelines (PDF).

The Consortium (previous coverage) hopes to turn unauthorized usage into a profit center for content creators. The idea is that, by working with advertising networks, they can redirect some of the ad revenue from sites that use content without permission to the original creators. This would be done using content matching technology provided by Attributor, which is a charter member of the group.

The group has already announced an agreement to work with AdBrite and is reported to have over 1000 members, including, according to a recent article, The New York Times Company, the Washington Post Company, Hearst, Reuters, Media News Group, McClatchy and Condé Nast.

The new guidelines, which are a “beta” attempt at establishing the rules the members of the consortium would follow, is not meant to be a final set by any stretch, but to serve as more of a “conversation starter”.

So what’s in the draft guidelines? Read on to find out.

The Basics

The guidelines first define three different kinds of “value” that content reusers can add to a company from their site. The are as follow:

1. Link Value: The value added by linking to a source, including both direct traffic and SEO benefits.
2. Brand Value: The name recognition value from being mentioned as a source.
3. Monetary Value: Direct monetary benefit, including licensing or, in the case of the consortium, revenue sharing.

From there, the consortium attempts to define three different content usage scenarios to describe what is being syndicated.

1. Headline: The headline of up to 40 words is used, a good example being my 3 Count column.
2. Excerpt: Any amount of the original work that is used, but is not a “full copy”
3. Fully Copy: Cases where more than 125 words are used AND more than 80% of the original article are copied.

In cases where the reuse is welcome and the publisher is participating in the Fair Syndication Consortium’s revenue sharing model, both headlines and excerpts would be used solely to build link and brand value, through proper attribution, and “full copy” cases would be used to earn monetary value.

In cases where the reuse was not desired or the creator is not participating in revenue sharing, action would be limited to full copy cases, save a letter direct to the person doing the copying in hopes of bringing them into compliance, which is used in all cases. The action, when taken, would first consist of a takedown notice sent to the search engines and the site’s advertising network, if applicable. If that fails to bring about compliance, then a takedown notice is issued to the host. In all cases, legal action is only considered if the problem is “systematic”.

This creates a climate where only fully copy uses of ones content are pursued actively, either for monetization or removal. Other cases are used solely to build link and brand value, but even in cases where that is not applied, pursuit is never more aggressive than a letter to the person reusing the content.

The question is whether or not this is the way to go and, on that front, I have mixed feelings.

My Thoughts

I think the big ideas in the guidelines are pretty good. There is a lot of positive content reuse going on and this system does seem to try and reward/encourage it. It’s focus on attribution, both with links and names, is a solid start and I’m hopeful that newspapers and other mainstream media outlets will get behind this.

Also, I agree with the proposal of focusing all resolution efforts on full copy cases. Not only is doing otherwise impractical, both in terms of the law and available resources, but it is the right thing to do ethically. Finally, I also agree that the first method of resolution should be to contact the infringer directly, something I’ve been saying since I opened this site.

That being said, there are a few qualms and concerns I do have with the guidelines.

1. The Definition of “Full Copy”: I don’t think I’ll ever find a mathematical definition that separates excerpt from full copy that I am happy with, but this one does seem to go a bit too far. First off, almost no works under 150 words can ever be copied in full, meeting both the 80% and 125 word criteria, and having used the Attributor system for many years I know the text matching is very good, but imperfect, making even full matches hover in the high 80% range. Though I agree it should be kept high to avoid false positives, it would be nice if A) it looked at the copy as well and B) was somewhat lower.
2. The Favoring of Ad Networks and Search Engines: The system makes ad networks and search engines the front lines of copyright enforcement and I disagree with this. First, I’m uneasy about making them the policemen of the Web but ad networks, in particular, don’t have an explicit role in the DMCA. Most have takedown procedures, but as neither hosts nor information location tools, it is unclear if the safe harbor provisions even apply to them. However, even though it is supposed to be the most “gentle” way to handle such disputes, it actually can play out much worse for the person reusing the content. A traditional takedown removes a few works or temporarily closes a site, an ad network takedown can, and often does, cut off a major source of revenue.
3. Only for Individual Cases: Finally, the guidelines really don’t deal with syndication in the sense that we normally think of it. The guidelines are for cases of limited use, an occasional article for example, not for actual syndication of content. Those matters are left open to the content creator and can even result in legal action. In short, the guidelines seem to punt when it comes to recurring use of content, instead focusing on isolated incidents.

Still, I think the guidelines are overall pretty solid and they definitely achieve the goal of being a starting point for a conversation. That is something I am trying to do here and encourage others to do as well. My hope is that the 1.0 guidelines will come out with some significant changes, but much of the tone and sense of cooperation that is in the existing ones.

Bottom Line

Now it is your turn. Either leave a comment below or, better yet, send an email to guidelines at fairsyndication dot org to offer your thoughts. I’m eager to hear what you think about the guidelines and if you would be comfortable with your content being used under them.

There is no “deadline” for comments, at least none that I have found, but due to my hiatus I am behind the curve on this one so it would probably be best to send in those thoughts sooner rather than later.

Thank you very much for your input and I look forward to hearing what you have to say.

Disclosure: I have consulted for Attributor in the past and Attributor is a technology provider for my current employer, CopyByte.com