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June 23, 2010, 10:55 a.m.

The battle lines are being drawn over fair use: Two POVs on the Barclays v. TheFlyOnTheWall.com case

We mentioned yesterday that Google and Twitter had filed an amicus brief in the Barclays v. TheFlyOnTheWall.com case. That’s the case involving a website’s reporting on stock recommendations from Wall Street firms. The firms argue that they have a right to limit public dissemination of their ratings; the website argues that it’s discovering those ratings through original reporting and that it’s a matter of fair use and free speech.

It’s actually, as you might expect, a lot more complicated than that. See Sam Bayard’s writeup for the detail. But in any event, it’s a critical case in determining how fair use and copyright match up with the new world of online sharing and aggregation. And the most recent ruling, by U.S. District Court Judge Denise Cote, came down on the side of the firms, issuing a permanent injunction requiring the website to delay its reporting a set period after the research is issued.

Google and Twitter’s position is that such an injunction doesn’t make sense, that it improperly creates a property right for information that sets an awful precedent. And that makes sense from their point of view, since they’re both in the aggregation/curation/indexing business. But there were at least two other amicus briefs filed yesterday that make sharply contrasting points on the subject. They’re an interesting window into how people are thinking about media law online today, and where the battle lines are being drawn.

The first is from an array of large news organizations, including the AP, The New York Times Co., The Washington Post, Gannett, and McClatchy, plus the Newspaper Association of America. As you might expect, it argues in favor of limits on aggregation, based on the “hot news” doctrine, derived from a 1918 court case, International News Service v. Associated Press:

The INS doctrine [a.k.a. “hot news”] ultimately rests on the public interest. It recognizes that free-riders who have not invested in a journalistic infrastructure can always undersell news originators. Unless generalized free-riding on news originators’ efforts is restrained, originators will be unable to recover their costs of newsgathering and publication, the incentive to engage in the news business will be threatened, and the public will ultimately have fewer sources of original news.

To counter arguments that hot news would limit reader sharing or occasional aggregation, the brief argues that the doctrine is “limited to a defendant that continuously and “systematically”…copies and republishes news gathered by another. As a result, the doctrine has no application to a vast category of situations in which individual news stories or content may be communicated without a license.” The examples it cites as acceptable: a news organization using another’s story as a tip to lead to its own reporting; a news org citing one story broken by another “(with appropriate credit to the originator)”, or a news org writing “occasional commentary or criticism of the journalism in a particular story.”

Read the entire brief to get an idea what the news organizations are arguing. The key element is a vigorous defense of the hot news doctrine, which leaves open news organizations’ options to seek legal action against aggregators and curators.

On the other end, you have a rival brief filed by our neighbors at Harvard’s Citizen Media Law Project, the Electronic Frontier Foundation, and Public Citizen. While neither amicus brief officially argues on behalf of either litigant, it’s not hard to see that this is the opposing argument on behalf of TheFlyOnTheWall.com:

Amici [a.k.a. the filers] seek to protect the vital role that journalists, publishers, bloggers, and others play in promoting discussion of matters of public concern, uninhibited by doctrines that violate constitutional principles. Amici file this brief because this case highlights an uneasy tension between the so-called “hot news misappropriation” doctrine and the First Amendment, one that has not yet been carefully explored by any court. In order to protect freedom of speech and the press, courts applying the hot news misappropriation doctrine must consider the strong First Amendment protections the Supreme Court has developed to help encourage and protect the sharing of truthful statements on matters of public concern.

The brief leaves to the court the matter of whether to deal with the constitutional issues in the case directly (the alternative being to “do so expressly in order to preserve the First Amendment issue for full consideration in a future case”). But on the free speech point, the brief filers “urge the Court to apply the heightened First Amendment scrutiny that is required where, as here, a party seeks to restrain the publication of lawfully obtained newsworthy information.” You can get the drift of the arguments from the table of contents: “INS and Its Progeny Threaten to Impede Traditional First Amendment Protections for Truthful Speech on Matters of Public Concern”; “Like Other Forms of Intellectual Property and ‘Quasi–Intellectual Property,’ The Hot News Doctrine Needs a First Amendment Safety Valve”; “The Free Dissemination of Hot News is Vital to Robust Public Debate”; “Hot News Misappropriation Could Chill the Development of Online Expression.”

I won’t pretend not to have a rooting interest here; I’m not a lawyer, but the Lab is cited in the CMLP/EFF/Public Citizen brief and I consulted with two of its authors as they wrote it. My natural default is not to build intellectual property protections around news events, and the thought of TheFlyOnTheWall.com not being able to print the results of its reporting because it might hurt the business prospects of a Wall Street firm doesn’t sit right with me. But I also recognize that news organizations feel they have their own business prospects to defend. In any event, read through both briefs; I’ve embedded them below, and here are links again to the news organizations’ and the CMLP/EFF/Public Citizen brief.

POSTED     June 23, 2010, 10:55 a.m.
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