Copyright protection in an opt-out world: implied license doctrine and news aggregators.

AuthorJasiewicz, Monika Isia

In the 1918 Supreme Court case that gave rise to the common law doctrine of "hot news" misappropriation, the Associated Press (AP) famously sued the International News Service (INS), a competing newswire, for copying factual content from AP news stories without crediting the AP. (1) Nearly a century has passed, and the AP is going after a news collection service again. In February 2012, the AP filed suit against Meltwater News, an online "news aggregator," for copyright infringement and "hot news" misappropriation. (2) On their face, the two cases present nearly identical issues, down to the same plaintiff. But times have changed--and so should the law.

The current suit is only the latest in a rash of recent copyright and hot news litigation (3) aimed at combatting news aggregators, or websites and mobile applications that digitally copy headlines and short excerpts of news stories from various Internet sources and display them all in one place. (4) In light of the many economic challenges facing traditional news media today, (5) commentators have been swift to blame news aggregators for free riding off newspapers' and magazines' expensively produced content. (6) Because intellectual property law does not grant copyright protection in news itself, (7) academics and government actors have sought new solutions to the news aggregator problem. In 2009, for instance, Judge Richard Posner suggested amending the Copyright Act so that news aggregators could be held liable for infringement. (8) Media law practitioners, meanwhile, have called for the federalization of hot news misappropriation through legislation. (9) The Federal Trade Commission even held a policy roundtable in 2010 that considered several different solutions to the aggregator problem, including compulsory licensing and statutory limits to fair use. (10)

All of these conversations are fundamentally misguided because they attempt to address the problem of online news aggregation as if it were a traditional hot news or copyright issue. The similarity of the current aggregator problem to the paradigmatic hot news case is actually a red herring. As it turns out, the Meltwater case has less in common with INS v. AP--or, for that matter, with traditional copyright infringement cases--and more to do with recent case law governing the operation of online search engines.

This Comment argues that the appropriate legal framework for addressing news aggregators lies in federal courts' handling of intellectual property claims against search engines. In the 2006 case of Field v. Google, Inc., (11) a federal district court applied a new version of the doctrine of implied license to hold that Google's indexing of websites does not amount to copyright infringement when a website owner has not affirmatively opted out of indexing through technological measures. (12) This Comment argues that extending the Field decision to news aggregators would establish a legal framework that is more appropriate to the technological reality of the modern news industry and could also prove mutually beneficial. Thus far, implied license doctrine online has been characterized primarily as benefitting would-be infringers. (13) Indeed, aggregators themselves have relied on implied licenses as defenses against infringement in recent litigation. (14) But this Comment is the first to recognize that implied license doctrine can actually benefit content originators too, by giving legal force to a nearly costless technological solution: so-called robots exclusion protocols, or lines of code written into websites that would tell aggregators to stay away.

In Part I below, I expand on the news aggregator problem and briefly consider commonly proposed solutions. Part II describes the emerging standard of opt-out schemes for gaining copyright holders' permissions online and examines how the Field decision enforces this standard as a matter of law. Finally, in Part III, I explain how extending implied license doctrine to news aggregators can benefit both aggregators and newspapers. Specifically, I argue that courts should clarify that aggregators expose themselves to copyright liability when they ignore robots exclusion protocols. This simple doctrinal fix would restore some degree of informal protection to the news by making it more difficult and costly for aggregators to copy original content without permission. It would also provide newspapers with a bargaining chip they can use to channel negotiations with news aggregators toward mutually beneficial licensing deals.

  1. THE NEWS AGGREGATOR PROBLEM

    Although there are many causes underlying the current economic crisis in the news industry, media insiders partly blame news aggregators, which copy headlines and excerpts from news stories from various websites and display them in a single forum, often without the advertisements that originally accompanied the stories. News aggregators, the argument runs, "free ride" off content in which traditional news institutions have invested costly time and effort. Media mogul Rupert Murdoch, founder of News Corporation, has even gone so far as to call news aggregation "theft." (15)

    In reality, the news media's relationship with aggregators is a complicated one because, even when aggregators copy portions of news stories without permission, they may actually be helping newspapers distribute their stories to new audiences. (16) In fact, there appears to be no direct empirical evidence that news aggregators are actively cutting into the news industry's advertising revenue.

    Yet this is not to say that the traditional media's concerns about potential losses to news aggregators are unwarranted. More than ever, newspapers feel the need to be protective of their ad revenue, which plummeted forty-five percent in the first decade of the 2000s. (17) By presenting original content stripped of ads, aggregators threaten to deprive content originators not only of website traffic, but also of precious advertising income. And if that income continues to spiral downward, one may reasonably fear that news stories that are costly to produce--such as investigative reports--will cease to emerge in the first place. (18)

    What makes news aggregators particularly threatening from a news originator's perspective is that, despite the intuition that news aggregators are guilty of free riding, their activities frequently lie beyond the reach of copyright liability. This is so for two reasons: copyright protection in news is thin, and aggregators' taking of content often falls within the fair use defense. Because facts alone are not copyrightable, copyright protection in news stories only extends to the elements of the story--like wording and organization--that are original to the author. (19) Moreover, even longer excerpts of news articles displayed by aggregators are typically protected by the fair use defense, particularly because section 107 of the Copyright Act specifically lists "news reporting" as one of the purposes of use that are privileged in fair use analysis. (20) This means that aggregators can convincingly claim that, by copying publications' stories, they are merely re-reporting the news and disseminating it to a broader audience.

    Until recently, in the absence of clear copyright protection for news, newspapers and other original content providers were able to rely on the protection of "tedium" to prevent free riding on their expensively produced content. That is to say, third parties would not copy extensively from news outlets when copying and distribution technologies were too cumbersome to make free riding worth it. The trouble with today's news aggregators is that digital technology enables them to instantaneously copy and distribute news content to thousands of users on their laptops, tablet devices, and mobile phones. (21)

    So the question arises: How should intellectual property law stop news aggregators from free riding on publications' content? The prevailing answers to date have fallen into one of two camps: either amend the Copyright Act to expand copyright protection in news, or rely on hot...

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