Is aggregation theft? This is the not so simple question asked as the title for one of the SXSW panels I attended. The panel included Simon Dumenco of Ad Age, Julia Turner of Slate Magazine, Bill Faulk of The Week and Felix Salmon of Reuters Counterparties.

It’s important to understand, for the purposes of this panel, the conversation focused more on reworked stories instead of straight aggregation of headline and link. The discussion was more on the kind of sites link MediaGazer, Huffington Post, Drudge, The Daily Mail and others.

While the conversation mainly focused on the ethics of aggregation, many references to the law were made, primarily the transformative nature and supplementing the need for the original, both included in the fair use test. Interestingly, it was noted that the concept of fair use is an entirely American legal notion and not understood or recognized in the rest of the world.

Theses issues of fair use came up time and again while discussing rehashed content across different sites. What became most apparent in the majority of cases was this: if they gave credit, drove traffic to your site, did it differently for their audience or created something entirely new, aggregation was seen as acceptable. In fact as one panelist explained, sometimes looking at how others rework a story can be a learning experience, for example if your story is made “shorter, funnier and better,” you should look at the way it was done for future stories.

One example, given by Julia Turner, was where Slate had done a story and both Media Gazer and Huffington Post picked it up. Media Gazer did just a headline and a short summary and linked back to the original story, while Huffington Post did a complete rewrite of the story and linked to the original story at the bottom of the article. Media Gazer, the much smaller site, drove tons more traffic because many still wanted to read the entire article, while HP readers didn’t really need to read the original because the HP story was so complete.

It’s cases like these that make you consider not just copyright law but also ethics. So consider the four parts of the fair use analysis, especially transformative and desire for original, but also consider if it feels underhanded or lazy. Just because you might be able to get away with it legally, doesn’t mean you should do it; because what doesn’t get you fined, could still make you slimy.

OTHER NOTES

Check out the point-counter-point between David Carr’s article, A Code of Conduct for Content Aggregators and Gawker’s article, We Don’t Need No Stinking Seal of Approval from the Blog Police.

One panelist made the point that Pinterest and Tumblr have massive intellectual property issues that will likely end up in court.

One audience member pitched his product Free Range Content as an answer to aggressive aggregation and a way to share your content, while still getting credit, but he didn’t seem able to answer the question of what happens when someone doesn’t use your syndication tools and just rips you off? Guess fair use is for the courts to decide, if jurisdiction is in the U.S.