“[They use] a doctrine called fair use, which we believe can be challenged in the courts and will bar it altogether.” –Rupert Murdoch
This is a recent quote from the seemingly-really-annoyed Captain of the Publishing Industry on the subject of fair use, aggregators and search engines. I’m not sure if Murdoch believes any of this, or if he’s just lobbing the threat of long and expensive legal action out there to try and compel a nice, fat licensing deal with Google and others. If he does believe it, I have a hard time with a major newspaper publisher actively seeking to gut a staple of journalism. After all, it’s kind of difficult to build stories when you can’t quote or reference anyone without having a licensing agreement.
So today, I thought I’d take a look at fair use as it relates to the internet, newspapers and whether Rupert actually may have a point. First, despite the harshness of the above quote, I seriously doubt that Murdoch would like to see Fair Use done away with altogether. He might, but I’m going to give him the benefit of the doubt and assume he was referring barring the types of things Google News and other news aggregators do under the banner of fair use. Even Rupert isn’t crazy enough to want fair use completely done away with. Publishing, and journalism in particular, would grind to halt without it, ending up with reporters either redoing pieces from scratch because their particular company doesn’t have the copyright or spending all their time hunting down licenses to provide even the slightest amount of context to their work. It would be a nightmare.
Fair use is a doctrine laid out in Section 107 of the Copyright Act which provides for limited exemptions for the use of copyrighted material without express permission. There are four basic questions the fair use doctrine asks to determine whether or not the use in infringing. I’ll go through each.
One, is it commercial or non-commercial use? Well, all Rupert cares about are the commercial uses. Sites like Google News use headlines and links to attract visitors then sell ads on that traffic; clearly commercial. But maybe not infringing. This standard also lays out a specific set of circumstances allowing fair use, commercial or otherwise. Use for any of the following is essentially okay- criticism or commentary; satire or parody; research or education; and (most crucially) news reporting. This means that aggregation done like I have or many other websites, with brief snippets of articles for the purposes of commentary is allowed, whether I’m selling ads here or not. It also does not bode well for Murdoch that news reporting is a clearly specified case.
Two, what is the copyrighted work you’re using? There has long been a broader standard of acceptance of fair use when dealing with informational works, particularly news. This also doesn’t bode well for Murdoch’s argument as his primary concern is day-to-day, fact-based news, an area that has traditionally been allowed the widest latitude in fair use.
Three, how much of it do you use? This could be a sticky point. News aggregators harvesting headlines may be okay here, but some sites that provide summaries of the articles and little else really are replacing the article. That kind of stuff may actually run afoul of fair use, even if they provide a link. There is no set standard of how much material you can use, but as long as you’re not picking it up wholesale, and not trying to replace the original, you’re probably in the clear, and that likely includes headlines, especially for news, regardless of what the A.P. has to say.
Four, what effect does the use have on the original? Again, if you’re summarizing the article beyond just a teaser sentence or two without adding anything to the discussion, you’re basically undermining the market for it and that likely isn’t allowed. A headline and a link, even a brief snippet, on the other hand, could be argued actually increases the value and exposure of the original. Murdoch doesn’t think so, but then he’s not the law.
So, does Rupert have a point? Possibly, but in a far more limited way that his rhetoric is implying. Linking, commentary, siting, and some aggregation (particularly for news) are all pretty clearly allowed, commercial or otherwise. However, aggregation that does little more than collect the news and summarize may not be. Does that mean that Google News is actually infringing? By this standard, I don’t believe it does, but it’s always possible that a judge may see it differently.
Is it commercial? Undoubtedly, but it is also clearly done to report the news. Is it informational or fact-based material being cited? Most definitely, so it meets the broader standard for use. How much do they use? A headline and the first sentence or two. Roughly about the same that would be available openly if Rupert were to put his stuff behind a paywall. Is it undermining the original? Not in my opinion, and is, in fact, helping to expand the exposure of it.
All of this may be moot point, however, because there is no earthly way that Murdoch or any other publisher is going to challenge fair use in court under the current law. It’s just too risky. What happens if a judge clearly rules that news aggregation is just fine? They lose any and all ability to negotiate any kind of exclusivity deals with Google, Microsoft or anyone. No way they’re going to chance that. All this bluster is far more likely a hollow threat than a real possibility.