Lex Technologiae

Information is valuable.  Governments know this.  Companies know this.  Consumer rights know this.  The Associated Press and NewsCorp know this.

Those last two run an entire business on the gathering and dissemination of information.  Both want us all to stop stealing their product.

The Associated Press announced details on how they are going to be more active in preventing people from stealing their news.  They have even provided us with guidelines on how their news product can be used in a way that, in their minds, isn’t theft.¹

NewsCorp, through its sometimes-controversial owner Rupert Murdoch, has told us that we need to begin learning to live in an internet age where news isn’t free.  The Murdoch Empire’s first step is removing the content from its various websites from Google’s databases.

Both AP and NewsCorp view the co-opting of its news product as theft.  These companies have valid theft and misappropriation claims in some cases, but on the whole their understanding of copyright law is inexact.

The Associated Press is the best example.  The furor originally arose over the use of AP content by the Drudge Retort, a parody of the Drudge Report.  The Retort apparently copied headlines and lead-in sentences from AP stories in a way that led to the lawyers being called in.

AP’s problem, other than in the PR realm, is that their lawyer does not understand basic and fundamental copyright law.  Namely, facts and ideas may not be copyrighted.  Justice Sandra Day O’Connor made this more than clear in her famous Feist Publications v. Rural Telephone Service Co. opinion.²

Now, copyright infringement is, to paraphrase The Doctor, like a big ball of wibbly-wobbly, legally-beagally kind of . . . stuff.³  There is no bright-line rule against which to measure whether something is, or is not, copyright infringement.  Each potential infringement must be analyzed on a case-by-case basis.

Nevertheless, news is reported fact, and facts may not be protected.  So, the underlying copyright AP does have in its reports is very thin and rests only on the AP’s expression of those facts.  This does indeed provide protection, but that protection is limited to exact or near-exact copying of the fact-based expression found in the story.⁴

The Retort, however, did not copy the whole story.  In fact, The Retort only copied a small portion of the story, redirecting readers to the entire story through another link.  Not only is there a real question as to whether The Retort has actually infringed the underlying copyright held by AP, but there is also a clear fair-use defense to the alleged infringing use.

Rupert Murdoch’s lawyers appear to be unwilling to explain these issues to their boss as well.  Murdoch views news aggregators as thieves stealing his news-story-shaped coin.  Despite the hypocrisy of decrying freeloaders while, in essence, freeloading off of the news and happenings going on around the world, it’s just not a valid or sound moralistic argument.  NewsCorp does not own a copyright in the facts it reports.

To be fair, what both outlets are actually worried about is the whole-sale copying of their product, without attribution or links, by bloggers and other news outlets.  There are websites that will cut-and-paste AP and NewsCorp stories wholesale into their Blog and act like it was that Blogger’s own work.

This clearly violates copyright.  It also clearly harms those news media outlets.

A secondary worry from both AP and NewsCorp is the power of Google and its news aggregator (news​.google​.com) over who reads or sees what news.  Murdoch’s decision to remove NewsCorp’s sites from the Google database is aimed at preventing Google from having too much power in this aggregation field.

The problem with this second view is how it operates in ignorance of copyright law and the true power of the internet.  Google’s news aggregator does not copy a whole story, but rather directs a reader to NewsCorp or AP’s own website.  This allows the news website to generate ad-based revenue because of increased viewership.

News organizations are in trouble, so it is easy to forgive the knee-jerk, ill-informed reactions from some leaders in the industry.  Still, it’s also sad to see them ignore the potential for rebirth offered by the internet.

Instead of Rupert’s walled-gardens of content, or AP’s DMCA takedown guidelines, the internet has the potential of allowing news to be more efficient and more profitable.

Most of a newspaper subscription, if not all of it, goes to the printing and delivery of that product.  The creation of the news, on the other hand, was paid for by advertising revenue.  The internet removes or significantly reduces the print and delivery costs for a newspaper, freeing it to focus on advertising revenue and the creation of content.

This power has not been captured and utilized by the news industry as of yet.  One reason is the reluctance of advertisers to pay rates for online ads similar to those for print ads.  In the end, however, it will be the news companies who adapt to this new low-cost distribution model who end up surviving.

Update: Nov 23, 2009, The Atlantic on Murdoch and Newscorp

You can read more about Rupert Murdoch and Newscorp’s efforts to capture more value and shake off freeloaders in an essay on The Atlantic website here.

1. These guidelines are contained in a document outlining their general position on the matter. [↩]
2. See here for a Wikpedia summary.Unfortunately for us, this case is far less interesting than if it had been about this Feist. [↩]
3. See Quotes from the Dr. Who episode Blink. [↩]
4. This is called ‘thin’ copyright, the kind of copyright Rural had in its phonebook.  This is opposed to ‘thick’ or ‘fat’ copyright — the kind you get from a novel. [↩]