It all started when I was looking at a photograph of an otter that was, BuzzFeed said, "disappointed that [I] never finished Infinite Jest." The merits of this otter's feelings aside (I got pretty far after all), the whole gallery of "extremely disappointed" animals caught my attention. Out of the 33 animal photos, only two of them had attributions. The rest seemed to emerge from some Internet froth only to be reassembled by Jack Shepherd into something that I have looked at least four times since it was posted two week ago.
It got me thinking: where were they getting all of these photos? And how were they using them without worrying about copyright? Naturally, I tweeted at @Buzzfeed about it, and received an email with an invitation to talk with the site's founder, Jonah Peretti.
First, Peretti told me this morning, BuzzFeed pays licensing fees to Reuters, AP, and Getty Images for the use of their libraries.
But a lot of what BuzzFeed traffics in -- the fun stuff, that is -- emerges on Tumblr or Pinterest or 4chan. Users of those sites surface photos that in some cases have been shared around the Internet for a decade. In those cases, even if BuzzFeed editors try to track down the creator, which Peretti assures me they do, they probably won't find whoever uploaded the photo of every obese cat.
Which leaves BuzzFeed in a bit of a bind. While Tumblr and Pinterest and any other site to which users upload are protected by the safe harbor provision of the Digital Millennium Copyright Act if their users upload stuff that they didn't create, BuzzFeed has no such protections. (Except in cases where BuzzFeed users upload content that they didn't create, which happens sometimes.)
So while Pinterest users are *explicitly encouraged* to snatch photos from all over the Internet, no matter who made them or under what hypothetical licensing agreement, BuzzFeed editors (as well as Atlantic editors) face a tougher set of circumstances. "I would love if every image contained some secret metadata and a way to license that image," Peretti told me. "But the practical reality is that it is pretty challenging, particularly in the web culture of animals and the images that spread on Pinterest and Tumblr."
And it's in cases like these that things really get interesting. With these kinds of posts, Peretti is willing to make a Fair Use argument that goes like this. First off, the Fair Use limitation and exception to exclusive copyright is notoriously fuzzy. Let's quote from Wikipedia on this one point because the explanation there is reasonable and understandable:
To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.
So, Peretti told me that he considers a BuzzFeed list -- its sequencing, framing, etc -- to be a transformative use of photos. That is to say, including that unattributed photo of the otter in that list was OK because its inclusion as an "extremely disappointed" animal transformed the nature of the photo.
"It's a question," Peretti said, "of when lots of little things add up to a transformation as opposed to a copyright violation."
The photo below shows an intelligent pug trying to understand how this theory might be interpreted in a court of law. Also I stole it from Buzzfeed but I renamed the dog in it Mr. Pookie Pants and I would like you to imagine that he, in fact, considers David Foster Wallace to be only a middleweight author within his generation. Furthermore, the dog's aunt had just died, with whom he was very close, so don't take his sadness as any sort of commentary on whether including photos in posts should be considered a transformation within Fair Use law. I genuinely don't know where the line is and am pretty sure that no one else does either.
What I do know is that it's very strange that Pinterest and Tumblr users don't have to play by the same rules that media editors do. And I also know that I don't want the DMCA safe harbor provisions to go away so much as I want Fair Use law to have some bounded space in which we can all work on this here Internet.
Or as Peretti put it, "Is it good for the world to have a broad definition of Fair Use where people can create new things that are transformative or that people can enjoy? I think it is good for the world."