When Google first introduced Google News, it was to help increase popularity of its search engine. The site posted stories from the past 30 days, displaying the headline, lead, any corresponding photos, and a link to the original page. Many of these stories came off of third party websites hosting stories from wires like the AP and Agence France Presse. According to AFP the content displayed by Google was licensed content, and the only parties that were authorized to publish them were those that paid licensing fees (Isbell 2010). This meant that Google News was infringing on their copyrights and, essentially, stealing their work. AFP filed suit in federal district court in 2005. After years of litigation, in 2007 AFP and Google settled the case. Google entered into a licensing deal for the right to post AFP content.
One year later, the AP sued All Headline News for “hot news” misappropriation, copyright infringement, removal or alteration of copyright management information, trademark infringement, unfair competition, and breach of contract for “repackaging and selling” AP content to clients. The parties settled out of court. All Headline News no longer uses AP content and had to pay the AP an “unspecified amount” for unauthorized use of AP content.
More recently, Gatehouse Media accused the NY Times of stealing content for publishing the first sentences of GateHouse stories. This case was also settled out of court.
What we can learn from these cases is what the real issues are. All cases included copyright and hot news misappropriation as charges against the defendant.
Under U.S. copyright law, a work is protected if it (1) is an original work of authorship, and (2) is fixed in a tangible medium of expression that can be read directly or with the aid of a machine or device (i.e., is recorded or embodied in some manner for more than a transitory duration). With certain exceptions, the owner of a copyrighted work has the right to prohibit others from reproducing, preparing derivative works from, distributing copies of, or publicly performing or displaying the work (Isbell 2010).
However, while the articles we write and the ways we express thought can be copyrighted, ideas and facts cannot. Neither can titles nor short phrases. This is the argument of news aggregators using headlines and leads. Another argument of aggregators is fair use.
The Ninth Circuit has repeatedly found that certain reproductions of copyrighted works by a search engine are a “transformative” use (United 2010). In Perfect 10, Inc. vs. Amazon.com, the court found that “a search engine may be more transformative than a parody because a search engine provides an entirely new use of the original work, while a parody typically has the same entertainment purpose as the original work,” (Isbell 2010). This protects aggregators under fair use.
The amount of text that is reproduced can also be used in an argument for fair use.
Aggregators that only use the headline and lead could argue that they are protected under fair use, but news sources will counter that the lead constitutes the “heart” of the article, and the courts weigh against a finding of fair use if the excerpt reproduces the “heart” of the work (Isbell 2010). However, copyright law provides “greater leeway being allowed to a claim of fair use where the work is factual or informational” (Harper 1985).
Of the four conditions for fair use, there is one that news sources can use to battle the fair use claim. That is, the effect of the use on the potential market for the copyrighted work (United 2010).
In the 1918 Supreme Court opinion, International News Service v. Associated Press, 248 U.S. 215, the court found that AP had a quasi-property right in the news that it had gathered. This right existed not against the world at large, because news is based on unprotectable facts, but against competitors, (Spaulding 1998). This finding is what formed the misappropriation doctrine cited when news sources sue for “misappropriation of ‘hot news’”. This is another tool of news content generators against aggregators.
In this video, a panel discusses hot news and copyright issues affecting news aggregators. The panel includes lawyers from both sides of the Gatehouse/NY Times case, the AP's in house counsel, and experts on hot news and fair use.
According to Kimberly Isbell, author of “What’s the law around aggregating news online? A Harvard Law report on the risks and the best practices,” there are 5 measures that aggregation services should take to protect themselves short of licensing all content:
“1. Reproduce only those portions of the headline or article that are necessary to make your point or to identify the story. Do not reproduce the story in its entirety.
2. Try not to use all, or even the majority, of articles available from a single source. Limit yourself to those articles that are directly relevant to your audience.
3. Prominently identify the source of the article.
4. Whenever possible, link to the original source of the article.
5. When possible, provide context or commentary for the material you use,” (Isbell 2010).
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