The debate over “the blogger as journalist” has been swirling for some time now, and while several high-profile court cases are currently considering the question, it doesn’t appear close to being settled to anyone’s satisfaction any time soon.
But there is another, bigger issue — often ignored — which cuts to the very heart of how bloggers and Web sites routinely cite and use outside content. The legal ramifications of that issue may in a very real way come to define the medium itself. Case in point is the $17.5 million lawsuit filed last week against Google by the French wire service Agence France Presse (AFP). AFP, which sells subscriptions to its news service, claims that Google News is hurting its subscription business by linking to its stories without first subscribing. As the official complaint notes: “Without AFP’s permission, Defendant is reproducing and publicly displaying AFP’s photographs, headlines, and story leads on Defendant’s news aggregation Web site.”
Google responded, in part, by removing all links to AFP content from it News site, but the French news agency is nevertheless pushing ahead with its lawsuit — one which has enormous consequences for online news aggregators and for blogs that link to unpaid content.
The story has yet to find much traction in the popular press. But the tech-oriented media has run with it, providing some much-needed analysis of the issue. Internet News notes that:
The issue at the center of the dispute, said Martin Schwimmer, an attorney specializing in copyright and trademark, is, “Where is the line where costs get shifted from the IP owner to the intermediary? Can Google assume that the world is free to index? How hard does it have to try when someone objects?”
At the heart of the matter is the byzantine nature of US copyright law and what lawyers call “fair use.” AFP, in its suit, claims that Google is violating the fair use provision set forth in Section 107 of the copyright law. And for vague and hard to prove legalities, you can scarcely do better. Here it is, for your edification and delight:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall 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.
In other words, this is utterly subjective stuff, and even the U.S. Copyright Office admits that the line between fair use and infringement “may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.”
This raises some important questions. What is the character of Google’s “use”? AFP claims that it is not “transformative” (a protected use), by which the wire service means that Google is essentially stealing wholesale, while failing to create something new using AFP’s content.
It’s on this issue that bloggers can take heart, and if it ever came to it, here would be the place to plant their flag and fight it out, claiming the transformative nature of their critique of the quoted material.
But there’s more to the story than merely transforming content. Another salient issue is the equally opaque nature of using copyrighted material that is considered to be the “heart” of the work. The Detroit Free Press reports that in 1985, the Supreme Court ruled that “small excerpts can constitute infringement if they represent the heart of the work.” The AFP is all over this one, too. Its complaint states: “The story headlines and leads are qualitatively the most important aspects of a story and are painstakingly created. They capture the reader’s attention and describe what the rest of the article is about.”
This is all very nebulous stuff, but if the case makes it to trial it may set a precedent for both news aggregator sites like Google News as well as blogs that use content from news sites. Under the broad outline AFP is using in its lawsuit, even links to stories may come under fire.
In a somewhat ironic twist, the thing Web journalists most hope for — legitimacy — may be an argument that AFP ultimately uses against them. Joshua Kaufman, a partner at law firm Venable LLP, which represents AFP, told eWeek that Google News should be viewed in the same light as a traditional newspaper, because the way it displays and uses content independent of a user’s search request is akin to a traditional print publication.
Once this all shakes out, if AFP and the other producers of copyrighted content decide that their rights continue to be violated, online publishers will have a stark choice to make: pony up and start paying copyright fees, like the print papers and magazines that they want to sit at the table with; or run the risk of defending some big-time lawsuits.
It is unlikely that any of this will be sorted out quickly or cleanly, but it’s about time that the parties involved in the debate understand the consequences.
— Paul McLeary
Paul McLeary is a former CJR staff writer. Since 2008, he has covered the Pentagon for Foreign Policy, Defense News, Breaking Defense, and other outlets. He is currently a defense reporter for Politico.