Blogging Liability II: News Aggregation: (The Art of Stealing er Borrowing Other People's Posts)
This is the second article on the pitfalls blogging operators face.
A very popular type of blog is the news aggregation website. you know those websites with headlines that beg, borrow or steal content from other actual stories and may or may not click through. According to Wikipedia, “a feed aggregator, feed reader, news reader, RSS reader or simply aggregator, is client software or a web application which aggregates syndicated web content such as online newspapers, blogs, podcasts, and video blogs (vlogs) in one location for easy viewing.”[1]
News Aggregators take many forms including: a “Feed Aggregator,” (closest to the traditional conception of a news aggregator, namely, a website that contains material from a number of websites organized into various “feeds,” typically arranged by source, topic, or story), a “Specialty Aggregator” that collects information from a number of sources on a particular topic or location, a “User‐Curated Aggregator” that features user‐submitted links and portions of text taken from a variety of websites, and a “Blog Aggregator,” which looks the least like a traditional news aggregator and uses third‐party content to create a blog about a given topic.[2] Common aggregator websites are: Reddit.com, Drudge.com, Breitbart.Com, Newsnow.co.uk, rawstory.com, fark.com, newser.com, newsmeback.com, onenewspagpec.com newszoom.com.[3]
But how are these websites legal? How are they able to use the content from other websites - isn’t that a violation of Copyright Law or something? Let’s see…
Disclaimer: The following information does NOT constitute legal advice and is only for general educational purposes. Each situation is different and specific legal issues usually require additional research and investigation, so do not rely on this article to address a particular legal issue; use it as a starting point to gain a general understanding.
1. Copyright Refresher
Copyright protection is guaranteed by United States (i.e. federal) law,[4] under the power of the U.S. Constitution to promote science and the arts.[5] “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”[6] In plain English, it means from the time someone writes something, it enjoys copyright protection.
Theoretically, registration with the U.S. Copyright Office and publication of copyrighted material is no longer necessary, however, without doing so, a lawsuit for infringement cannot be brought; also, with *timely* registration statutory damages and attorney’s fees are collectible.[7] If you find something of yours was used without your consent, among other things, you can register after the fact and sue them for infringement, but you should at least put them on notice beforehand with “Copyright 2015” so the plagiarist cannot claim accidental infringement.
So, having done this, it’s hands off to anyone else who wants to steal your stuff, right? Well… not exactly.
2. Fair Use and Other Exceptions
Certain things are not copyrightable. For instance, “titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents; ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration works consisting entirely of information that is common; standard calendars, height and weight charts, tape measures and rulers, and lists or tables.”[8]
Also, there is something called the Fair Use Doctrine, which says copyrighted material can be used if doing so would constitute “fair use,” that is for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.[9]
To determine whether a “use” is “fair” a court weighs these factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes (and whether it was transformative); and (2) the nature of the copyrighted work, i.e. was the copied portion more factual or more creative? (the more factual it is the greater the chance more of it can be copied); and (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (did the plagiarist take the “heart” of the copied article? if so, they’re in trouble); and (4) the effect of the use upon the potential market for the value of the copyrighted work (after reading the plagiarist’s story, is there a reason for the reader to look at the your original work?).[10]
Ok, let’s switch positions now. Now, you’re the “plagiarist.” You create your own awesome website, “Cool News Today”[11] (or whatever) and you carefully sift through stories from other web pages that actually gather the news, for instance the NY Times, the NY Post, the NY Daily News and Newsday, selecting only the “coolest” ones for your website - “coolness” being determined by your own sense of your audience, what constitutes “cool” to them, and your own highly evolved personal sensibilities.
Every time you do this, you see the little “c” in the circle on the websites from which you are pilfering, so you know you’re on notice for possible copyright infringement. You post headlines of your own creation, write your own description of the article, and have a link at the bottom so the reader can access the article for themselves, if they want, after reading your own excellent summary. There is also a space for comments (and responses) for different readers. So, what’s a cool creative cucumber quasi-plagiarist, like yourself, to do? Are you in the clear or is it Code Red?
3. Examples of Fair and Unfair Uses
First off, don’t panic. As mentioned above, you aren’t the first one to do this kind of thing. For instance, the Drudge Report is a news aggregator, which is largely a collection of headlines, often slightly rewritten, from other sources; interested readers click on the headlines and are whisked away to the original website of the interesting article.[12]
Why is that legal? Well, generally, news tends to be a collection of “facts” and “ideas” which usually are not copyrightable,[13] and promoting and disseminating “news,” itself, is a factor (but is not solely determinative) that usually cuts in favor of “fair use.”[14] Also “titles” are generally exempt from copyright protection.[15] Finally, such a tiny part is being used, and the reader is directed to the actual original source, thereby helping generate advertising revenue for the original publisher (instead of stealing it from them).[16]
However, it can be a small difference that makes or breaks a “fair use.” For one thing, just because facts can’t be copyrighted, doesn’t mean that the *presentation* of those facts cannot be.[17] Also, while a title can be copied (although it’s better practice still just to change it, if possible), borrowing the lede could result in a copyright infringement claim, because that lede, might be the “heart of the story”[18] (you know, the juicy part that people actually read, before they let their modern easily distracted selves be tempted to click another completely unrelated page).
So, on the one hand you have Drudge, with rewritten headlines and no ledes which, generally appears to be ok.[19] On the other, you have Meltwater News, an Internet media monitoring company, which did the opposite (used identical headlines and ledes of its source websites) and lost the initial lawsuit[20] against it by Associated Press.[21] Meltwater also was a competitor to the original sources discouraging readers to use the original sources, rather than a facilitator like Drudge which enticed readers to click through and visit the source sites.[22]
In order to be on the correct side of that small difference, the party copying from originals should attempt to be “transformative” since the more that party alters the original with new expression, meaning or message, the higher the chance it has of being an acceptable borrowing.[23] For instance, a “use of copyrighted material that merely repackages or republishes the original is unlikely to be deemed a fair use” and a “change of format, though useful” is not transformative.[24]
However, if copyrightable expression in the original work is used as “raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”[25] So, for example, Google’s use of other people’s photographs, purposefully in lower resolution than the originals from which it copied, with the intent to help others, at no charge, to find the *original source* picture and entice the searcher to click-through to *that original source*, was considered “transformative.”[26] On the other hand, Meltwater’s outright copying of the headline and lede, not so much.[27]
4. The Hot News Doctrine
The Hot News Doctrine goes back to 1918, when the Associated Press sued International News Service, to prevent it from pilfering and repackaging the news the AP originally collected (i.e. as opposed to using their own reporters to get the news themselves).[28] Basically, INS agents would read overseas stories (researched, reported on and published by AP reporters and editors) and then transmit those stories, sometimes slightly rewritten and sometimes not, by telegraph to the U.S. where INS newspapers would publish them in certain markets before AP was able to do so (thereby scooping the AP newspapers with their own stories!).[29]
The court was not impressed with this technique and said that “one who gathers news at pains and expense, for the purpose of lucrative publication, may be said to have a quasi-property in the results of his enterprise as against a rival in the same business, and the appropriation of those results at the expense and to the damage of the one and for the profit of the other is unfair competition against which equity will afford relief.”[30] Essentially, this can create a State common law tort for theft of property, instead of a federal copyright infringement claim.[31] So, what’s the practical difference? “Hot News” seems to revolve more around free-loading off the news service, gaining the benefit of their initial investigative staff.[32] Although, the good news is that such state claims could be preempted by federal law, but it’s not clear.[33]
5. Conclusion
So, we go back to you, our original cool cucumber blogger, where you hand-picked stories from original sources and rewrote or summarized them, adding commentary and a link back to the original article. Can you do all that?
As is often the case, this is a very fact specific situation. There are no guarantees you can do so safely without facing a federal copyright infringement or state “hot-news” misappropriation claim. By selecting the stories yourself (as opposed to automated web crawling en masse), for your highly particularized audience, and re-writing them, you are adding points to your defense by mixing in original creativity. By adding your own commentary and a place for others to discuss the article, you are further customizing the experience, and “transforming” it from the original source. The link at the end of your blog article is a nice touch, showing you are enabling “click-through” traffic to the original source and are not competing with your sources.
Now, for the bad news. You could be vulnerable on the claim that you are stealing the work of the original reporters, even with the re-write (after all, you weren’t in the war-zone or kitchen or bar or wherever collecting the original information) and that even though you have a link, way at the end of your own article, by that time the reader would have gotten everything they needed from you, and may not click-through to the original source - in other words, not only have you free-loaded (“hot news” misappropriation) but you are directly competing with and stealing business from the original source. It gets more complicated, because the Internet, you, and your sources, span or may span different jurisdictions, and not all appellate courts agree on all the same legal doctrines, when it comes to many of these defenses, rulings, and theories.
Your best bet may be to see if you can get written permission or enter into a licensing or business arrangement with your preferred sources, especially if there are not that many of them. Done correctly, you can be an asset to them rather than a competitor. Either way, remember, plenty of blogs do this and appear to be doing so legally, so with proper precautions and good business practices, it is possible.
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[1] https://en.wikipedia.org/wiki/News_aggregator (October 2015).
[2] Isbell, Kimberly, The Rise of the News Aggregator: Legal Implications and Best Practices, Citizen Media Law Project of Berkman Center for Internet and Society at Harvard University (8/30/2010).
[3] http://www.alexa.com/topsites/category/News/Headline_Links (October 2015).
[4] Title 17 of the United States Code.
[5] “Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. U.S. Const, Art. I, Sec. 8.
[6] 17 U.S.C. §102.
[7] http://www.copyright.gov/circs/circ01.pdf (May 2012) (page 7).
[8] http://www.copyright.gov/circs/circ01.pdf (May 2012) (Page 3).
[9] 17 U.S.C. 107.
[10] 17 U.S.C. 107.
[11] At the time of this article such an URL does not exist.
[12] DrudgeReport.Com (October, 2015).
[13] Feist Publications, Inc. V. Rural Telephone Service Co., 499 U.S. 340, 344 (1991) (“This principle, known as the idea-expression or fact-expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.”).
[14] 17 U.S.C. 107.
[15] CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1519-20 (1st Cir. 1996) (titles and short phrases not copyrightable).
[16] Drudge Report has sent traffic to 2,641 domains; In 2014, DrudgeReport.com was the No. 1 site of referral traffic to the Daily Mail, CNN, Fox News, Roll Call, Breitbart, The New York Times, National Journal, USA Today, Associated Press, Reuters, The Wall Street Journal and POLITICO, Intermarkets found. The Daily Mail had 99 MILLION referrals from Drudge, and even CNN (arguably an ideological counter-point news organization) had 64 million referrals from Drudge in the same year. http://www.politico.com/blogs/media/2015/04/drudge-report-still-dominant-205182 (April 8, 2015).
[17] Feist Publications, Inc. V. Rural Telephone Service Co., 499 U.S. 340, 344 (1991).
[18] Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994); Associated Press v. Meltwater, Case 1:12-cv-01087-DLC Document 156 (S.D.N.Y 2013) (page 49).
[19] http://www.forbes.com/sites/jeffbercovici/2010/12/10/why-drudge-is-a-poor-target-for-copyright-vigilantes/ (December 2010) (Drudge settled a claim for copyright infringement regarding a single picture it took without permission from another source, but “what makes this extra strange is that Drudge is not even one of the bad guys, relatively speaking. Since Drudge Report consists mostly of single-line links, there’s no real question of fair use bleeding over into infringement.”).
[20] Meltwater and AP settled during the appeal process. http://www.usatoday.com/story/money/business/2013/07/29/ap-meltwater-settle-copyright-dispute/2595769/
[21] Associated Press v. Meltwater, Case 1:12-cv-01087-DLC Document 156 (S.D.N.Y 2013) (pages 5, 13, 49) (the court found that Meltwater routinely copied the major lede in every story they borrowed, thereby dispensing with the reader’s need to actually click through to the original article, since the AP described a typical lead as the “heart” of the story, rather than a tease to entice the reader to peruse the entire article).
[22] Associated Press v. Meltwater, Case 1:12-cv-01087-DLC Document 156 (S.D.N.Y. 2013) (pages 10 and 20) (Meltwater and AP are competitors) (Meltwater’s click-through rate to original sources was less than 0.08%, in the handful of samples the court could examine).
[23] Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).
[24] Infinity Broadcast Corp v. Kirkwood., 150 F.3d 104, 108 (2nd Cir. 1998); Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990).
[25] Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990); see also Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132, 1142 (2d Cir. 1998) (paragraph #24).
[26] Associated Press v. Meltwater, Case 1:12-cv-01087-DLC Document 156 (S.D.N.Y. 2013) (page 40).
[27] Associated Press v. Meltwater, Case 1:12-cv-01087-DLC Document 156 (S.D.N.Y 2013) (pages 46, 49).
[28] International News Service v. Associated Press, 248 U.S. 215 (1918).
[29] International News Service v. Associated Press, 248 U.S. 215 (1918).
[30] International News Service v. Associated Press, 248 U.S. 215, 216 (1918).
[31] http://www.law360.com/articles/577359/dow-jones-is-owed-5m-over-headline-theft-judge-says (September 2014).
[32] https://www.skadden.com/insights/second-circuit-redefines-elements-hot-news-misappropriation-claims (June 2011).
[33] http://www.fed-soc.org/publications/detail/hot-news-the-hot-news-doctrine-is-hot-again-or-is-it (December 2011).
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