The Huffington Post has become the bane of traditional media outlets, which by and large view it as a scourge that makes a giant profit off of stealing news stories from established newspapers. As Jack Shafer notes in his article yesterday in Slate magazine, one hears talk from the news profession of Huffington Post as a “parasite” (this via Leonard Downie Jr., former Executive Editor at the Washington Post) and Arianna Huffington as a “counterfeitor” (this via Bill Keller, current Executive Editor at the New York Times). As Shafer notes, Rubert Murdoch–and, yes, I am aware that recent events across the pond cast doubt on his ability to serve as judge of journalistic ethics–has referred to news aggregation websites, which would include the Huffington Post along with Google News, as “content kleptomaniacs.” Strong words, but it seems that much of the news industry is of that view.
Broadly speaking, there are two important legal issues relating to the business model of the Huffington Post and other news aggregators. The first is whether they are liable for copyright infringement. The second is whether they are liable for “hot news” misappropriation. In this post, I examine the copyright issue and in my next post I’ll address the misappropriation issue.
So long as the Huffington Post rewrites the articles that it publishes on its site, there can be no question that it is not engaging in copyright infringement. It is a basic axiom of copyright law that copyright law protects forms of expression, but not the underlying ideas. The factual information that news stories report–the news itself–is not copyrightable. This is a principle not only of American copyright law, but of international copyright law. Article 2 of the Berne Convention, to which the U.S. is a signatory, states: “The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.” If the Huffington Post only resorted to rewriting entire news stories, it would have nothing at all to worry about with respect to copyright law.
But the Huffington Post goes beyond rewriting news stories. As described by Michael Lindenberger in anarticle for the Citizen Media Law Project, the Huffington Post routinely republishes the opening paragraphs of news stories that appear elsewhere on the Internet. Visitors to this site may either read those paragraphs, or click on a link to the original story and read the article in full at the original online source. The Huffington Post pays the Associated Press for any AP content that the site uses, as does Google News, which entered into a new licensing agreement with AP in August of last year. The Huffington Post does not ask for permission for its practice of republishing online content, maintaining that its business practice falls under the umbrella of “fair use.”
Fair use is an affirmative defense under the Copyright Act. A defendant in a copyright infringement can raise it to overcome the allegation that he or she is liable for copyright infringement. The fair use test invites judges to weigh four factors and, while the Supreme Court has provided some guidance, in general judges have a great deal of flexibility in cases where there is an argument in favor of fair use. The downside to this flexibility is unpredictability, as this is an area of law where much is uncertain and in many cases it is not at all clear how courts will rule on the fair use question. The official test comes directly from Section 107 of the Copyright Act, which explicitly states that “news reporting” is one of the activities that fair use is meant to protect and delineates the four factors as follows:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The first factor does not support a finding of fair use in the case of the Huffington Post based on the commercial nature of news aggregators. Aggregators such as the Huffington Post generate advertising revenue off of republishing others’ news stories. There is an argument that news aggregators make a “transformative” use of prior works by categorizing them and making a large number of headlines available to the public at once, as described here. Works that are transformative and add something to the original, such as a parody, are more likely to be found to be supported by fair use. There is case law that states that Google’s use of thumbnail images is a fair use because of the social value of search engines. It is conceivable that courts will also apply the transformative argument to news aggregators. At the same time, organizing and presenting the headlines of the day does not necessitate providing the opening paragraphs of each story. Beyond that, it is already the business of traditional news media outlets to present the most important headlines, so there is at least a question of how transformative the news aggregators’ practice really is.
As regards the nature of the copyrighted work–the second factor–it is news reporting, which favors a finding of fair use. But that being said, if a court were to conclude that the copying was not transformative and was economically injurious to the original newspapers, it is unlikely that a court would conclude that fair use applies. The third factor–in this case, the proportion of copying of the original news item–depends on how long the original story was. Copying the first two paragraphs of a three paragraph story is obviously far different from copying the first two paragraphs of a long investigative report. For most news stories that the Huffington Post copies from, this factor is also probably not going to greatly favor either side.
To my mind, how courts come down on the fair use issue depends on whether they buy Huffington Post’s argument that it is driving readers toward the original news sources by linking to them. Huffington Post argues that not only does it not deprive the traditional news sources of readers, but it increases their web traffic because a number of readers do in fact want to read the original news articles and click on the links that direct them there. With an increase in web traffic, of course, comes the opportunity for greater advertising revenue. Seen from that perspective, the Huffington Post‘s copying, provided it is accompanied by links to the original source, only enhances the value of the copyrighted work.
But it is also possible that a court could conclude that the links are separate from the actual copying activity and that news aggregators really ought to be paying licensing fees to traditional newspapers. Not surprisingly, this is the position of the Associated Press. Given the current downtrodden state of the newspaper industry in general, one might expect that the courts will eventually squarely address the issue of news aggregators such as the Huffington Post and Google News. While, as noted earlier, both have agreements with the AP, they reproduce quite a bit of online content that is not formally authorized by any contractual agreements on the basis that it is fair use.
What do you think? Do you think courts should find that the practice of news aggregators falls within fair use or not?