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July 22, 2009, 9:57 a.m.

NYT Co.’s top lawyer doubts that aggregation is a copyright issue

It’s been four months since Josh predicted that a news organization would sue The Huffington Post for copyright violation over its aggregation of headlines, ledes, and article summaries. The interim has been marked by saber-rattling, settlements, and dubious proposals for changes to federal law.

But I’m still hoping to see that lawsuit — not because I think The Huffington Post is necessarily in the wrong but because a major case of that sort could begin to clarify the increasingly muddled issues of copyright on the Internet. For instance, how do you apply a 91-year-old legal doctrine known as “hot news” to a website that never heard of news that isn’t sizzling?

Well, I’m no copyright lawyer, but UCLA professor Doug Lichtman is, and he just released a wonderful, hourlong podcast on what intellectual property means in the context of news reporting. Most of the program focuses on the dueling lawsuits over Shepard Fairey‘s use of an Associated Press photograph in his iconic Obama “Hope” poster. Lichtman interviews lawyers from both sides and offers a more thoughtful discussion of the case than I’ve seen anywhere else.

But my interest was really piqued by his chat with The New York Times Co.’s general counsel, Ken Richieri, who considers whether news aggregators are protected by “fair use,” the legal standard that permits reproduction of copyrighted material under guidelines that, as Richieri says, “work a lot better in the analog world than they do in a digital world.”

He ends up largely dissenting from the view of other media companies in suggesting that while news aggregation might constitute unfair competition, it isn’t really a copyright issue: “The AP’s saying, ‘Well, if all of these facts are listed in the same place [on an unlicensed site], that’s a substitute.’ And that may well be, but I’m not sure it’s a substitute for the expression, which is what copyright protects.” He also observes that “traditionally, newspapers were the users of fair use, and pretty much that’s all they did and saw themselves as.” Richieri:

I mean, I think the big issue online and the pressure publishers are feeling is that publishers online are having a hard time replicating the economics that they saw offline. And many of them are looking at that through the lens of copyright…. I think where I would just draw a distinction is I am not so sure that copyright is really the culprit in a lot of this…that that’s an imperfect lens and an imperfect remedy.

Lichtman has graciously allowed me to clip his 7-minute interview with Richieri and reproduce it here with a transcript, which is after the jump. (Despite the news value, I’m pretty sure this wouldn’t qualify as fair use of Lichtman’s podcast. But, again, I do think the full hour is worth your time.) Here’s the clip, which begins with Lichtman:

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Richieri and Lichtman have an interesting backstory: They were on opposite sides of a copyright and unfair-competition lawsuit that ended in January. The Boston Globe, which is owned by the Times Co., had launched a series of localized aggregation sites that, among other material, reproduced headlines and ledes from GateHouse Media’s community newspapers. GateHouse sued and hired Lichtman to produce an expert opinion supporting their case.

The Times Co. defended its practice but ultimately settled on terms that were favorable to GateHouse and which ended much of the aggregation in question. Though they don’t address the case specifically, that’s certainly part of the background from which Richieri and Lichtman approach the issue of fair use.

Here’s a transcript of their conversation:

Doug Lichtman: I would think that the newspaper world would look at fair use and also at the idea-expression dichotomy and all the rest and want to be very cautious. In essence, saying, Look, we’re in trouble. We’re having a lot of our stuff used or reused and linked to and so on, and that’s wonderful for spreading information and good for public policy and learning. But, wow, we need to still defend some boundaries to make sure that somehow we can still fund the business. Is it the right starting point, to think about fair use?

Ken Richieri: I actually don’t think that’s the right starting point just ’cause historically it’s not. Most newspaper lawyers, as opposed to copyright lawyers — copyright lawyers are going to approach fair use from an ownership perspective, and newspapers approach fair use from, for lack of a better word, the fair perspective. In other words, traditionally, newspapers were the users of fair use, and pretty much that’s all they did and saw themselves as. So there’s a much more First Amendment component to how newspapers view fair use and the Copyright Act generally than, I think, you would get if you just talked to people whose formative experience was solely on the IP world. So they’re solely representing licensors and licensees.

Lichtman: I get that. To make good news reporting, you’re going to be doing a lot of borrowing and quoting. That sounds right to me. Is there a good touchstone that the newspaper industry is kind of fumbling toward to understand where we draw the line?

Richieri: Well, I think fumbling is a very good verb to use. I think that people are fumbling towards a standard. And I actually think that some of the best work or thinking is done on some of the larger sites like, where we are at the same time creators of content as well as users of other content. And so we’re very much in two camps sometimes. You know, sometimes you have a creator cap on and sometimes you have more of the cap of somebody who is trying to utilize fairly someone else’s content.

Lichtman: Fair use tries to articulate touchstones — transformative, economic impact, and so on. Do those work?

Richieri: I think the traditional fair-use guidelines, in my experience, work a lot better in the analog world than they do in a digital world. Now, whether that’s because we’re more used to the analog world so the rules are better known. I think that’s part of it. I think a large part of it, however — there are several things. One is that in the online world things move so rapidly and the underlying economics are still developing, so it’s very difficult to have a settled legal rule when those things are moving so quickly. And then also, you have just new innovations, constant layering. You think, OK, I understanding framing or something like that and then layer on layer comes on top of it and changes it how it works and what the economics are.

I mean, I think the big issue online and the pressure publishers are feeling is that publishers online are having a hard time replicating the economics that they saw offline. And many of them are looking at that through the lens of copyright, and I’m not — I think where I would just draw a distinction is I am not so sure that copyright is really the culprit in a lot of this, and I don’t know — that that’s an imperfect lens and an imperfect remedy.

Lichtman: So what changes when we go online? One thing that changes, obviously, is there are more sources. And that kind of competition, we would just say, the industry has to mature and live with. So to the extent the economics changes because there’s a bunch of bloggers or Twitterers or this’s or that or everybody can — great. And maybe that will lead to nice diversity of viewpoints in reporting. Maybe it’s too many voices, and we drown each other out. Regardless, the law wouldn’t intervene with that. We let competition go. Another story, though, is about all the linking, the framing you mention. There are all these ways where the competition is competing with your own stuff. And I think that’s why people go back to copyright law. Because that’s used to be a set of rules that stopped you from having to compete with yourself.

Richieri: Well, I would say, see, let’s just start with linking. It’s very hard for me to see linking as a copyright violation. Linking is what makes the web the web. Without linking it wouldn’t be a web. Linking is a way to get from one place to another. To the extent that people, the content creators, are complaining — in my perspective, oftentimes — to the extent they’re complaining about the copyright implications of linking, what they are really saying, is, “I’m not able to monetize that traffic as much as I would like.” That’s really their underlying complaint. I don’t know that — if it were a true copyright, if it were really grounded in copyright, the argument would be, “Well, because these links exist, people are not coming to my site. They are just reading the link and being satisfied with it.” That’s not what I think they’re saying. So I don’t think it’s a substitutability issue.

Lichtman: And yet, sometimes the link could be a substitute, like in news aggregation. The Associated Press has been active on this, for instance, arguing, Look, you take a bunch of our links and maybe and take our headlines or a snippet of our stories, and people won’t come to the other sites that have that data because you’ve basically taken over the aggregator’s role, to the extent of demand is just, skim the headlines to know the big ten stories. Now no one clicks through the link, and you’ve really hurt me.

Richieri: Yes, the AP has made a lot of that. I think that that kind of a position is best articulated on some notion of unfair competition than it is under copyright, which again, at bottom, is grounded on taking the expression. You know, there is that old fact, you know, the fact-expression dichotomy in copyright. And, at some level, again, if you just abstract the argument, I mean, the AP’s saying, “Well, if all of these facts are listed in the same place, that’s a substitute.” And that may well be, but I’m not sure it’s a substitute for the expression, which is what copyright protects.

Lichtman: Right. And I guess you could go the other way to say, Look, if I didn’t take any of your expression and I’m careful about how I link back and how I choreograph my links, the big-picture economic issue might look exactly the same.

Richieri: Exactly right.

Lichtman: And so that tells us then that we ought to be thinking about the big-picture economic issue using different words rather than the copyright words, which go to expression.

Richieri: Right. I think it’s useful to keep in mind that certainly the newspaper world lived with this for a long time. I mean, I’ve — there have been many years, when for years I’d get up in the morning, I’d turn on the radio, and you hear, The New York Times is reporting today that, blank.

Lichtman: Right.

Richieri: That was a mainstay of television and radio reporting of news.

POSTED     July 22, 2009, 9:57 a.m.
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