Would expanding US copyright law to incorporate news articles help protect newspapers from unfair competition online? Several columnists and commentators have come out on both sides of the issue in the past week, raising questions on the role of online aggregators and the efficacy of any action regarding copyright.
First off, US Court of Appeals judge Richard Posner proposed on his blog that copyright law should be changed to "bar access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing online content without the copyright holder's consent." Essentially, that would mean news aggregators like Google News would have to ask permission each time they linked to a newspaper article. Posner argues that traditional media lose so much revenue by these "free riders" reusing content it will eventually drive newspapers out of business.
Adding to this idea, Connie Schultz at the Plain Dealer put forth the proposals of the brothers Marburger - David, a First Amendment lawyer and newspaper advocate, and Daniel, an economics professor at Arkansas State University. David believes online aggregators are stealing readers and advertisers away from newspapers. These sites take the best material from newspaper articles and present it in a concise way so that there is no reason to read the original story. It costs far less to paraphrase than to produce the original article. Schultz asserts that as newspapers lose revenue from competing online sources, they are forced to cut staff.
The Marburgers think online aggregators should be forced to give a share of their ad revenue to the original news sources. They also want to give the originators of a news story 24-hour exclusivity before anyone else can use that material. David named a 1918 precedent for this second proposal in which the Supreme Court ruled the International News Service could not repackage stories produced by the Associated Press and transmit them to newspapers on the West Coast.
A more modern-day standard may be developing in Spain. After editors successfully prevented a press-cutting service from redistributing content without permission in May, they have filed a new suit against online aggregators to achieve the same goal.
Reaction to Posner's ideas has been somewhat scathing. Erick Schonfeld, writing for TechCrunch (via the Washington Post), argues that commenting on and linking to other news stories is part of the public discourse, something that should not be subject to any law. He further points out that newspapers get most of their traffic from links. According to Schonfeld, the online activities that Posner denounces are fundamental practices on the web that would have far-reaching consequences outside of the realm of newspapers.
Similarly, on the MediaPost blog The Daily Examiner, Wendy Davis contends changing copyright law is actually bad for newspapers. There is no way to copyright information, Davis points out. Many sites and publications build off of stories from other sources to produce their own articles. Davis goes so far as to claim the proposed copyright changes would violate free speech by giving one source the right to exclusively print certain information.
So who's right? Both sides seem to have gone to the extreme in presenting their respective arguments. Certainly online aggregators can be detrimental to newspapers, but outlawing all linking goes a bit too far. On the other side, Davis may have missed the point when it comes to the real motivation for adjustments to copyright law - it is not the ideas that would be copyrighted, but the actual words of articles that aggregators tend to simply regurgitate.
The flip side to the online versus print debate: Newspapers have not always been so kind to online news sources when it comes to crediting information. In the not so distant past, when a newspaper learned about a news scoop from a blog it was rare that the publication would acknowledge that original source when it produced its own story. At least those that paraphrase or link to newspaper content online usually list where it came from.
Perhaps not surprisingly, Editor & Publisher editor-at-large Mark Fitzgerald came out for copyright changes, citing Posner as well as Schultz and the Marburgers. The irony here is that Fitzgerald's blurb merely paraphrases the aforementioned arguments and does not even bother linking to the original articles - exactly what Posner and Schultz are fighting against.