Are news aggregators under fire?

Beware bloggers.  The copyright trolls are on the loose, and apparently they’re gaining support.  In late August, a Las Vegas-based company, Righthaven LLC, gained a second client in its campaign to sue bloggers for reposting clips of published, online news content.

Back in March, Righthaven began purchasing the rights to news content from the Las Vegas Review-Journal for the purpose of suing bloggers who were reposting their content without license or permission.  Now Righthaven has taken up with Arkansas-based WEHCO Media to expand its campaign.  Since March, Righthaven has filed more than 100 lawsuits relating to content from the Las Vegas Review-Journal alone.  The number will likely continue to grow with the addition of a second client.

In another major move, coming less than a week after the addition of its new client, Righthaven showed that it will also be taking on larger targets when it filed a suit against U.S. Senate candidate Sharron Angle who had Tea Party support.  Filed Sept. 3, the suit from Righthaven seeks damages of $150,000 and calls for the forfeiture of Angle’s domain name after she posted two articles from the Las Vegas Review-Journal to her site earlier this summer.  Righthaven earlier had sued the state Democratic Party for similar violations.

Upon finding reposted content of its clients’ material, such as that posted on Angle’s site, Righthaven files copyright infringement suits usually in the amount of $75,000.  The strategy of its campaign recalls similar lawsuits regarding the online distribution of copyrighted music.  In that instance, the Record Industry Association of America lost a great deal more than it gained when, in 2008, it spent $17 million in attorney fees and recovered only $391,000.

Regardless of whether the legal campaigns make money, such lawsuits call to question the legality of redistributing factual content from news stories online.

Righthaven’s lawsuits are not the first example of media organizations trying to put an end to the unauthorized redistribution of news online.  Media mogul Rupert Murdoch spoke out in 2009 against online news aggregators, referring to their services as a form of theft.

Earlier this year, Murdoch blocked the aggregator NewsNow.co.uk from accessing the content of his British newspaper, News International by altering its file structures.

Online news aggregators were the focus of a white paper released last week by Kimberly Isbell of Harvard’s Berkman Center for Internet and Society.  The paper focuses specifically on the legality of online “news aggregators,” and considers possible legal approaches.

One of the approaches Isbell presents is a fair use analysis, which examines the protection news aggregators might find under current interpretations of the Copyright Act.  Isbell’s analysis of fair use, as it applies to news aggregators, offers the services a defensible approach to suits such as Righthaven’s.

The four factors to be considered in determining whether or not the use of a copyrighted work is protected under the fair use section of the Copyright Act 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.

Here’s a summary of Isbell’s analysis:

As most news aggregators feature advertisements on their websites, the purpose and character of their use of copyrighted work will most likely be determined commercial in nature.  While this would suggest a ruling against fair use, news aggregators may be able to outweigh this factor by arguing the transformative nature of their services.  Because aggregators collect news stories from a range of sources and reposition them in a new context, it could be reasoned that the repositioning of the work transforms its original quality.  Rather than existing alongside stories generated by the same news source, stories displayed by a news aggregator often exist in relation to other stories concerning a similar topic or issue.  As a result, it is possible that this transformative nature of aggregators may be enough to shield their commercial function.

The second factor of the fair use analysis seems a stronger argument for news aggregators.  In this case, the nature of the copyrighted work, more often than not, will be factual in nature due to its existence as a news story.  Under fair use, factual information generally finds greater protection than creative works or works of fiction.  This defense, of course, will not apply to articles such as columns or opinions; but, in regard to hard news stories, aggregators should find protection under this section of the fair use test.

Under the third fair use factor, certain news aggregators will likely find protection while others will have to argue this point on an individual basis.  For all aggregators, the amount and substantiality of the portion used in relation to the copyrighted work as whole will most often be only a small amount of the original work.  Aggregators typically post only the headlines of news stories or the headline and a small portion of the story’s lead in order to give users enough information to recognize the subject matter of the original story.  What could possibly weigh against some aggregators, under this factor, is the argument that the most important part of a story can often be found in its lead.  This detail will not apply to aggregators posting only headlines, but will have to be determined on a case-by-case basis for those reposting brief portions of a copyrighted story.

Finally, the fourth fair use factor, considering the effect of the use upon the potential market for or value of the copyrighted work, presents two major considerations.  The first, weighing in favor of news aggregators, is the fact that the stories provided by news aggregators have already been published.  As a result, copyright holders will not be able to argue that the initial market value of the work has been compromised.  On the other hand, copyright holders could possibly argue that news aggregators diminish the amount of traffic and ad revenue received by their websites when users read only the headlines and content provided by the aggregator and do not bother to visit the site of the original story.  By contrast, aggregators can argue the opposite position and defend the idea that their services drive more traffic to the story’s original site.  Supporting this claim, aggregators may suggest that, by grouping headlines by topic or within new organizational categories, they are actually delivering users to articles that may not have been found otherwise.  Again, this will be a factor that must be weighed on a case-by-case basis.

In the end, a fair use argument for news aggregators is by no means a guarantee.  Some aggregators will have a stronger defense than others, and, in many instances, it will rely solely on the interpretation of the courts.  Whichever way the courts rule, it may not be long before they do.  With the number of suits filed by Righthaven continuing to grow, it is only a matter of time before someone challenges them in court.

A similar blog by Koch is also published on the St. Louis Beacon: Spreading the word or violating copyright.