From the Winter 2009 issue of The News Media & The Law, page 27.
Though copyright law has long protected writers from unwanted reproduction of their material, the Internet has made it simple to cut, paste and link with the click of a mouse.
A lede here and a paragraph there — how much is too much? Lawsuits over shared headlines and links in recent years have driven this intensifying debate over the boundaries of the law. And no court has yet definitively set the limits.
“Copyright law is fundamentally the same,” said Michael Kwun, a senior intellectual property attorney with the Electronic Frontier Foundation. “The courts are struggling now to apply it when the facts are different. But the purpose that [the law] is trying to accomplish and the values it is trying to support are the same.”
One of the most recent lawsuits pitted one media company against another, culminating with a settlement agreement that appears to restrict the extent to which those companies will share Web material with each other.
Competition or copyright?
GateHouse Media owns hundreds of newspapers and Web sites across New England, including a handful of local newspapers in Newton, Mass. The Newton TAB, the Daily News Tribune, and the corresponding Web site wickedlocal.com have provided Newton residents with daily news and commentary for years.
In November, Boston.com, owned by The New York Times Co., launched a hyper-local Web site called Your Town that focused on the Newton area. The Your Town site used both an automated and manual system to aggregate headlines, leads and links from various local news sites, including GateHouse Media publications. Executives at GateHouse were not happy.
Within weeks they filed a lawsuit alleging copyright infringement against The New York Times Co. Shortly after, the Times Co. filed a counterclaim accusing GateHouse of doing the very thing they had complained of — linking on its site to other outlets’ articles — and only filing the suit against the Times Co. in attempt to stifle competition.
The two companies settled the lawsuit a month later, with Boston.com agreeing to remove all GateHouse content and to stop using the site’s news feed — a special file that makes a site’s content easy to track by an automated news reader — to automatically aggregate GateHouse news content. The settlement did not, however, require that the Times Co. stop manually linking to GateHouse content. In fact, the agreement specifically leaves available the option of manually linking.
The lawsuit raised questions in the blogosphere and the traditional news media about its broader legal and business ramifications, as well as online social etiquette among news outlets generally.
For some, like attorney Kwun, it was difficult to understand why GateHouse would not want Boston.com to link to its Web site. After all, Kwun pointed out, that links bring more viewers to the site, thus resulting in more revenue.
“I think a lot of the linking that is happening is entirely welcome,” Kwun said. “A lot of news sites out there recognize that linking creates traffic. They should welcome people coming to their Web site and reading material by whatever means.”
But in its complaint, GateHouse alleged that Boston.com’s linking to its stories guided readers past the Wicked Local homepage, directing them instead to the precise article — thus bypassing the homepage advertising.
“This creates the false impression that [GateHouse] has licensed, authorized or endorsed the infringing web site’s display and distribution,” according to the complaint.
Sharing news content in a new media environment
Some bloggers say they can understand GateHouse’s concerns.
Dan Gillmor, who runs the Knight Center for Digital Media Entrepreneurship at Arizona State University and is a blogger and author, called GateHouse’s fear of links taking away its traffic “misguided.” From a business perspective, Gillmor said, Boston.com linking to GateHouse sites will create more traffic for GateHouse.
But as a matter of social etiquette, he said, one company shouldn’t link to another that is adamantly opposed to it. Gillmor said he saw the issue more as a moral and social one, rather than a question of law.
“I am asking one player to be kind to another, even if they are misguided,” Gillmor said. “The law should not require them to.”
In traditional media, the concept of sharing and reprinting news stories without compensation is not an accepted practice — both as a matter of journalism practice and as a business model. Online though, news sites and blogs are constantly reprinting and linking to each other’s articles. (In fact, the primary innovation of the launch of the World Wide Web in 1991 was the creation of “hypertext” — text linked to other documents and other Web sites — and the associated “hyper-text transfer protocol” — the “http” at the beginning of web addresses.) As it becomes easier to share content in the online world, business and social practices are being forced to adapt.
The practice of linking has become so common place online, said Gillmor, that it is strange to understand why one party would be so upset that another is linking to its articles.
“Links are the basic unit of the Web,” he said. “It would be bizarre not to have people link. But there are some nuances to this issue we should consider.”
Besides the business and social concerns of sharing content in a new media environment, there are legal concerns as well.
Courts have generally upheld the right of Web sites to link to other’s articles, a process called deeplinking. The issue of whether one web site can re-publish portions of articles from another site is a thornier legal question.
The law has long recognized the concept of fair use — a legal doctrine that attempts to balance the rights of the copyright owner with the rights of the readers.
Fair use is a defense to copyright infringement lawsuits. When one party sues another for copyright infringement, the alleged infringer often replies that the use was in fact acceptable and fair.
Depending on how much of the article is re-published on a Web site, that re-publication could be considered to be a fair use.
Courts generally look at four factors in determining if it really was fair: The purpose and character of the use; the nature of the copyrighted work; the amount used; and the effect of the use on the market value of the work.
“The notion of using short excerpts to discuss other people’s work is nothing new,” Kwun said. “It’s part of the foundation of copyright. Copyright is not just about protecting material, it’s also about allowing other uses.”
Since the beginning of copyright law, there has been a debate about how and where copyrighted work can be shared. The Internet has not changed the law, Kwun said; it’s merely made taking and sharing content much easier.
The AP enters the debate
The debate over fair use raged last summer when The Associated Press demanded that blogger Rogers Cadenhead, who runs the Drudge Retort, remove 10 posts that quoted between 40 and 80 words from AP articles. AP then instituted a licensing scheme that charged bloggers per word they wanted to quote.
When that prompted a backlash of angry bloggers speaking out against the AP, the wire service eventually backed down and came to an agreement with Cadenhead.
The issue has been relatively quiet since last summer. Laura Malone, an intellectual property attorney for the AP, defended the news outlet’s copyright policy.
“Content owners work very hard in creating original work,” she said. “There is a lot of effort out there in covering and reporting the news, and that is protected.”
While many bloggers argue that their quoting from AP articles should be defended by the doctrine of fair use, Malone said the determination of whether something is fair is always made on a case-by-case basis.
“Any blogger who wants to quote [from an AP article] needs to consult with lawyers and learn what fair use is,” she said. “It depends on what is being taken and how much is being taken.”
As the Internet continues to revolutionize the way news is shared, it’s clear the debate over how much content can be taken and how many links can be used will continue. Copyright law and the defense of fair use, too, will keep having to adapt to the changing technological world.
“Fair use evolves over time,” Gillmor said. “I am hoping it will become a more liberal thing in general. The nature of this media world is to copy and share.”