Is it time to redefine ‘fair use’?

A number of years ago, I signed up to a free travel website to blog my travels. The site provided the opportunity to upload text and photos from the road, and to share links to the blogs. It was a fun way to involve my friends and family in my travels, and to chronicle and journal my experiences as I went along.

Fast forward a few years. The company has been acquired by a large parent company that is well known in the travel industry. All travel blogs have ads woven through them, and the only way to shut off the ads is to sign up for a paid premium account. Fair enough; they have to make their money somehow. The blogs themselves are restructured in a way that implies the promotion of specific hotels or locations, using text scraping from the entries. Not cool, but also somewhat understandable.

But a few weeks ago, I was rather shocked to find that my photos and blog entries had been mashed up to music and posted to YouTube as slideshows, promoting the blog site's parent company. I was never asked or even notified of this, and only found out months later when I stumbled on them in a Google search.

To be sure, I uploaded those photos and posted those blog entries myself. I did so knowing that I was posting them in a public space, and that the terms of use of the site I posted them to were vague, at best. In a strict legal defintion, there's probably nothing wrong with what this site did.

But as a marketing tactic, I rate this kind of tactic as a massive Fail.

Unanticipated use.

It's one thing for me to post content and photos to my own blog, and provide the link to some friends and family. It's another thing for those same photos to be rearranged and edited in a way I never could have anticipated – in an automatic slideshow, set to auto-selected music that has nothing to do with the content (horrifyingly, a blog post from a visit to Auschwitz concentration camp in Poland was set to a poppy, upbeat tune), and posted to a channel such as YouTube, which has much wider dissemination.

When I said that the company could display my photos, I never imagined that they'd use them that way. But that's the thing about the fine print; most people don't read it, and we give away our privacy without a second thought. We're basically asking for this kind of thing to happen, right?

Act first, ask later?

When I discovered these videos, I posted an angry message in the site's support forum. To be fair to the company, within 48 hours I had a reply from the product manager, who assured me that they would take my videos down.

But here's the thing: thousands of users had videos automatically created from their scraped content and posted to YouTube. Only a handful requested that these be taken down. Most users probably don't even know about it.

It's this sort of "act first, ask permission later" mentality that lets companies believe that they can act with impunity, without considering what their users actually think.

All you had to do was ask.

What really gets me about this whole mess is that they could have been so much smarter about it. What if, instead of going behind users' backs, the company had issued a call for submissions? What if it promoted this new tool as something that anyone could use to create and post their own slideshows (branded with the company logo, of course)? I might have been happy to participate. Heck, I might have created my own original content and sent it in.

Instead, what has the company created except for angry users? A few scraped videos have caused untold damage to its word-of-mouth reputatation – and to that of its parent company. Now, instead of encouraging people to use this site, as I used to do, I'll be warning them off. And I'm not alone. The travel community is all about word-of-mouth recommendations. The negative word of mouth that will be generated from this incident will more than offset any potential positive buzz that the company could have received from its slideshow tool.

Bigger questions.

This incident isn't unique. As more people publish content to public sites and to platforms that they don't own, the questions come up again and again. Facebook has faced countless issues and quite a bit of scrutiny over the past few years over its terms of use, relating to providing personal data to third-party application developers, or the use of uploaded photos in ads. These issues made headlines. And yet, most of us still use Facebook and continue to upload our photos and our personal data.

Information is big business. Facebook makes money from it. So do countless other companies. I don't mean that to sound sinister. It's just a fact. There's a goldmine of information contained within the data that Facebook owns. Us marketers use this kind of data all the time. We pay for it. It's a viable business model and it works.

But it does raise some big questions. With so many people using these platforms, when is it a violation of privacy to spread user content around, even when it's technically allowed by the terms of use? What does intellectual property mean when your property is hosted by a third-party site? To retain ownership over your artwork, photos or writing, is it necessary to set up your own hosting server in your living room? Or, if you upload it to, say, the Amazon cloud, can Amazon mash it up with a Michael Jackson song and use it to promote its website? Where do we draw the line?

The question of content ownership.

Intellectual property and artistic property used to be easier to define and control when these were hard goods and not virtual ones. A CD or a record needed to be pressed, so you could – to some degree – control who was copying it. The advent of mp3s and the lawsuits launched against Napster a decade ago signalled to us that we had entered a whole new era in terms of the definition of "owning" a piece of content – or the realistic ability to control it.

Now, flash forward ten years. We have content scraper sites stealing and posting our content anywhere and everywhere. We have YouTube mashups appearing in political ad campaigns. Creative Commons licenses and their terms are regularly ignored by people who equate unenforceable with free-for-all. We have a mentality that anything that's out there, anywhere, can be used in any way.

Given all that, what does 'fair use' mean in a 2011 context? When is it okay to steal someone's content? And is it really stealing?

Why should we care?

Content is meant to be shared, or so the theory of social media goes. If you don't want it all over the internet, why did you post it up in the first place? And, my favourite argument of all: you should be grateful that your content has been repurposed and is now serving as an ad shill for company X. After all, it's more exposure for your content, right? So why should you care about the issue of content ownership?

To me, that's the same argument as "there's no such thing as bad press". And it's a fallacy. Of course there's bad press, just as of course there's fair use and unfair use. There are ways in which I'd be happy to see my content shared. There are other ways that are simply not okay, no matter how you look at it.

The thing is, there are few rules out there, and those that exist are hard to apply to our digital context. Companies are making it up as they go along. As in this case, they're mostly acting first, and asking permission later – if at all.

All this means that we need a new standard for fair use, which takes into account a world where most of our content is virtual and much of it is posted and shared in public spaces by the owners themselves.

The standard ought not be whether it's legal. The standard should be, will you win friends, or  will you make enemies over it? Will people be happy that you've done this, get excited about it, tell their friends? Or will they be angry, feel betrayed, and warn their friends?

People trust content platforms with their stuff, even despite legal fine print that gives the companies the technical right to use it any way they please. People assume that their content won't be used in an unfair manner. It's a delicate trust, and companies who violate it could find themselves facing something far worse than getting sued: Being hated.