Invasion of the Copyright Parasites

I still subscribe to my local newspaper, the St. Paul Pioneer Press, in dead-tree form. One evening in early August, just before my vacation, as I perused the ever-shrinking opinion page, my eye ran across this headline: “MEDIA, OLD AND NEW ‘FREE-RIDING’ AND COPYRIGHT.” The authors, Dan and David Marburger, argue that news aggregation web sites are responsible for the destruction of the newspaper and must be stopped:

Practically anyone can start a website and get software that snags fresh online news from those who originate it. Website owners pluck the freshest, most interesting reports and quickly post condensed rewrites. That costs them little, and they then surround the rewrites with cut-rate ads. … Usually we all benefit when more efficient competitors enter the market and drive inefficient competitors out of business. But the Internet has not made “new media” publishers more efficient at gathering news than their print counterparts. It has made them more efficient at taking news from their print counterparts and using it to compete while the news is fresh.

I love the little linguistic touches here: snags, fresh, cut-rate ads, “new media” in scare quotes, and, of course, free-riding. There are more in the article, but ironically, I cannot link to the Marburgers’ full piece because it is behind an archives paywall. Fortunately, the Madison, Wisconsin newspaper ran essentially the same article. (Apparently, I am ruining the newspaper business by quoting, linking, and discussing in this fashion…)

I later learned from Techdirt that the Brothers Marburger have been on a little crusade on this subject. Their solution, no surprise, is to resuscitate the “hot news” rule under the 1918 INS v. AP decision. That would allow newspapers to prevent others from linking to their original reporting content. (Technical detail for lawyers: There has been some confusion about exactly what the Marburgers support. The op-ed proposes lifting federal copyright law’s preemption of state unfair competition and unjust enrichment claims. They assume, I think correctly, that this would open the door to INS-style claims. I am, just responding to what they wrote.).

In their op-ed, they seemed unconcerned about the way this would devastate fair use and shut down all the vibrant discussion in the blogosphere. But since no less an eminence than Richard Posner has mused along the same lines, this strikes me as an idea to which a forceful and rapid response is necessary. As more papers begin to fold, there may be a sentimental rush to impose some kind of radical solution like this. I am very sad and worried about the threat to journalism too, but this certainly is a cure worse than the disease.

So I did what any blogging law professor does in response: I wrote a “Taking Exception” reply for the Opinion page. They ran it, but of course it is behind that paywall too. So I’ve reprinted it below. (Does that make me a parasite?) I talk a little about the law in very general terms (even simplistic, you might say), but I also try to respond to their panicked rewrite of journalism history:

In their argument for a sweeping and unwise expansion of copyright law to protect newspapers from online “free riders,” David and Dan Marburger make several unjustified assumptions. I understand and share their concern that competition from digital sources may cut ad revenue for traditional outlets. But they seem to blame the whole problem on web sites like or the Huffington Post that link to stories in many newspapers. This diagnosis is flawed, and their proposal would be a disastrous limit on free speech.

For starters, they ignore all the other long-term challenges facing newspapers, including changing reading habits, the arrival of 24-hour cable news, poor labor relations, and the movement of readers from traditional old cities to the suburbs and the Sun Belt. As television news matured in the mid-20th century, numerous dailies nationwide folded or merged (New York City went from eight to three), yet the authors baldly and incorrectly state that broadcast news did not depress newspaper circulation.

In light of this history, it is comical to blame aggregation web sites or blogs for all newspapers’ current woes. Copyright law already forbids reprinting the whole article or anything close to it. Usually, sites adhere to copyright’s fair use doctrine by posting only short blurbs and hyperlinks that highlight newspaper reports. Many readers will learn of stories they never would have found, and follow those links to the original publication. Anyone satisfied with just these little blurbs was never going to buy a regular newspaper subscription anyhow.

The Marburgers’ dangerous proposal would expand copyright and related unfair competition law to ban web sites (and presumably anyone else) from saying “The Daily Bugle ran a story this morning about the Mayor’s new budget” and quoting a paragraph of the article. Contrary to the authors’ assertions, a 1918 Supreme Court case about the Associated Press did allow news agencies to claim unacceptable monopolies over the facts they reported. Congress wisely abolished such special rights for media companies in 1976. Bringing them back would destroy the vibrant discussion found every day on countless blogs. (And perversely, it might prevent other traditional newspapers from giving credit to the original scoop when they write follow-up stories!)

Like the record industry, some newspaper publishers want to reshape copyright law so they can keep doing business exactly the same way, despite seismic societal and technological changes happening all around them. Special exclusive rights for media conglomerates will impoverish public discourse, and they won’t work anyhow.

4 Responses to “Invasion of the Copyright Parasites”

  1. Isn’t there still a “hot news” common law misappropriation tort that isn’t yet preempted? I swear just the other day I saw a New York case that spelled out the elements.

    The AP has turned its rhetoric from copyright to misappropriation, which leads me to believe it’s not entirely preempted:

    I wouldn’t want to restrict the blogosphere’s ability to hold forth on facts reported by Big Media — only so many folks have the resources to embed reporters with the military or reserve a seat in the press room, and they shouldn’t have a monopoly on public discourse.

    That said, it does require some expenditure of effort and money to “gather” the news in the first instance.

    So long as a misappropriation tort takes account of whether the subsequent user is adding value — either by selection of the content or by adding his/her commentary, then I suppose I could live with the result.

    But wait: that starts to sound a lot like fair use, doesn’t it? Why not just apply fair use, but just tap into the second factor to take into account the “hotness” of the story or the resources expended to get the scoop? Seems like the obvious answer to me — and arguably a basis for finding that the misappropriation tort should be preempted, if it isn’t already (as the “extra element” is really incorporated into the copyright analysis, albeit in the assessment of an affirmative defense).

    Clearly CNN isn’t down with the AP on this subject, given that they’ve stopped reporting the news entirely and are instead focusing on reading off people’s “iReports” and tweets all day long. But we’re just closing the circle here, with a mainstream media organization transforming itself into an aggregator of street-level Net minutiae.

  2. Phutatorius (if that’s really your name!): There is still some vestigial hot news doctrine unfair competition, but the Marburgers are correct that the 1976 Copyright Act effectively preempts most anything that would help fight the Evil Aggregators. A lot of what is left concerns *obtaining* information unfairly. As soon as it is about copying content, the Copyright Act basically preempts it. And as you point out, on fair use the newspapers lose.

  3. One other point that should be mentioned — it’s fairly easy for news sources to opt-out of news aggregators. They just need to put a single file, with a few dozen characters in it, and just about every news aggregator will pass them by. A few more characters, and they can let some in, and keep others out. It’s completely in their control. The Pioneer Press has surely figured this out.

    Newpapers don’t want to do this, of course, because if one newspaper decides to kick Google news out, it will be as if that newspaper disappeared from the net. Google news will continue to index all their competitors, and that newspaper’s website will lose eyeballs. And, they can’t very well all get together and collectively decide to keep Google News out — that’s a sure way to an antitrust lawsuit. Besides, before long, you’d have cheaters taking advantage of their competitor’s absence from the web.

    The real problem facing these companies is that thanks to the internet, their product has a minuscule marginal cost, and there are hundreds of providers. Economics tells us that in that environment, the end result will be that most of those providers will go out of business. The move to battle Google and the other news aggregators is just rent-seeking in an effort to forestall the inevitable.

  4. I think this is the SDNY decision I saw: AP’s “hot news” misappropriation claim against a news aggregator survives 12(b)(6).

    So copyright claims where the defendant copied the epxression, and misappropriation where the defendant “rewrote” the articles.

    If there’s any doubt where the court’s sympathies lie here, consider that it also upheld the DMCA claim of “removing/altering copyright management information,” which was predicated on the defendant’s dumping of AP’s copyright notices.

    Have you been following the ballyhoo with RECAP? Apparently it’s the FBI’s business to police the federal courts’ commercialization of public domain content:

    To be fair, Malamud had probably violated the pilot program terms of use. And presumably the court filings of the litigants are copyrightable (yes/no?). If that’s not enough to put a guy into a dark room under a floodlamp, what is?