when the news When news broke that a photographer was suing BuzzFeed for $3.6 million for reusing one of his images, some on the Internet reacted with fear and horror. Because many of those people (and websites) are notoriously lax about image reuse and like to hide behind the cheerful view that it’s all “fair use.”
These debates about the limits of fair use will always be important, but they obscure a very unfair dynamic that is squeezing artists and turning the Internet into a battleground between humans and machines. The problem is that today, in many cases, there is no human artist, writer or editor creating what we see on the web. Some algorithm put the photos together and is enjoying a little lagoon. Machines trump copyright rules because the law allows these companies to blame any infringement on the chaos of the Internet. It is a system that tips the scales against any of the human artists who write, edit or illustrate.
In other words, the fair use battle is unfair to anyone who follows the old rules and tries to share with artists because human creatives can’t compete with automated services that don’t share with artists.
#### Peter Wayner
##### About
Peter Wayner is the author of *Disappearing Cryptography *(published by Morgan Kaufmann, now part of Elsevier) and *Free for All* (published by HarperBusiness), as well as several e-books*. *He wrote recently [*Attention Must Be Paid, But For $800?*](http://www.attentionmustbepaidbook.com/) and another short [book](http://www.futureridebook.com/) exploring the coming changes of autonomous cars. Wayner has contributed to *The New York Times*, *InfoWorld* and other publications. Lives in Baltimore.
I am not a practicing attorney, but I can speak from personal experience on the issue of fair use when developing You have to pay attention, but for $800?a brief economic history that compared two productions of Death of a salesman. A friend suggested adding some photos from 1949 and 2012 (the years the first and last productions hit Broadway) because the book used these events as a way to understand how life and our economy had changed. Adding images from the 1949 and 2012 production would really bring the manuscript to life.
While websites may invoke murky notions that the law is different in cyberspace, the law on the books is well understood. If I included photographs, I needed to share my royalties with the photographers or risk a punitive copyright lawsuit. As a creative worker, I understood sharing with photographers. And the images would really add depth to the book.
After working through the often Byzantine licensing matrices of major photo archives, I discovered that images would cost between $300 and $600 per image; Adding 20 images would easily add about $10,000 to the book’s budget. Would this be worth it? Would more people buy an illustrated book? An informal marketing survey suggested it wasn’t worth it; A friend told me flat out that if I wanted the photos, I would just go to Google. And he was right: all the photos were there.
The automatic machines beat me and the photographers. Aggregators (whether list creators, search engines, online curation boards, content farms, and other sites) can remove them from the web and claim that posting these images is fair use. (BuzzFeed claims what it does is “transformative,” allowing them to call their lists a new creation.)
We already know that these companies make money from ads. But what we don’t know is that the algorithms they use act less and less like a card catalog for the web and more and more like a author. In other words, the machine is not just a silly piece of silicon: it is a living creator. It looks less like a boring machine and more like a fully functional, content-producing Terminator.
>Algorithms act less like a card catalog for the web and more like an author. He is a living creator.
Anyone searching for “Death of a Salesman” gets search results with a nice sidebar filled with some facts and some images that Google pulled from websites under fair use. This way, they can do things that I, a humble human, cannot do. And even though I had to pay $10,000, they were able to “get” them for free.
Therefore, the market punishes people who try to do the right thing by photographers. If I raised the price of my book to pay for the images, even more people would choose the book “written” by Google’s computers.
