Social Science Research Network
Few journalists understand the rules of fair use, but they often successfully fake their way through the issues it raises. That's one takeaway from "Copyright, Free Speech, and the Public's Right to Know: How Journalists Think About Fair Use," a study by Patricia Aufderheide, Peter Jaszi, Katie Bieze and Jan Lauren Boyles, who interviewed 80 journalists and compared their often-comical understanding of legal matters to reality.

Among their findings, people who work in newsrooms had the advantage of colleagues they could consult:

Interviewees who work within institutions had confidence that their editors had established a newsroom practice that they could comfortably follow. Journalists also referred often to “common sense,” or as one put it, “You just know in general you shouldn’t park too close to a hydrant.” Through this process, most journalists acquire baseline knowledge of fair use, often without realizing they are even relying on it. Those who lack newsroom support often display less confidence.

Amazingly, they often got it right:

Interviewees demonstrated a robust confidence in their ability to access other people’s copyrighted material without permission or payment, in some situations, typically without knowing they were employing fair use. Further, when they employed fair use without identifying it as such, they often accurately used the reigning logic of the doctrine -- transformative purpose and appropriate amount.

Photo editors were more sensitive to copyright concerns than others, maybe because so many of the people they work with get their stuff stolen all the time.

While most people the researchers spoke with knew they couldn't take images they found via Google searches, there was less clarity about pictures posted on social media. “Hey, it was you that put it on the Internet,” said an unidentified reporter at the Poynter-owned Tampa Bay Times, who probably has a seminar at the mothership in his or her future. “I’m sorry. I’m going to use it.”

When it came to text, the study's authors found a wide range of misperceptions informing journalists' work, leading them to do "risk analysis" that's "usually ungrounded in any information about actual risk."

Litigation (as opposed to threats, cease-and-desist orders and other forms of intimidation, which can be groundless) on fair use today is extremely rare. Were a journalist who had applied fair use within today’s judicial standards to be sued and the case actually proceeded (rather than, as often happens, either being thrown out for being groundless or being settled out of court), then the user would find him- or herself surrounded by organizations eager to take on pro-bono defense of fair users.

Everyone hates aggregators. But they rarely acted on their complaints. And they weren't clear, besides resenting others robbing them of clicks, on whether aggressive aggregation was illegal or just irritating. Ignorance of such legal niceties has consequences, the authors argue:

Without either an understanding of the non-copyrightability of facts or a clear fair use rationale either for taking or for watching their material show up on others’ website, journalists operated in a grey zone. They took without knowing whether it was legal or right, and exasperatedly watched others take without knowing which of such acts were legitimate. They confused business concerns with copyright violations, thus creating the possibility of reinforcing self-censorship in their own future work.

The Society of Professional Journalists is formulating guidelines the authors hope will help. The document should be ready by 2013. Just be careful until then!

Related: New York Times editor warns staff about posting documents (Jim Romenesko)