Sidebar: Agence France Presse (AFP) v. Google Inc. 2005
AFP claimed that Google was infringing on their copyright for their photos, headlines and leads. AFP claims fair use” doesn’t cover lifting headlines and lead paragraphs verbatim from their articles. Google News was making a huge profit from these works. AFP further claimed Google removed or altered their copyright management information; and a claim for “hot news” misappropriation (see above sidebar). Google responded to AFP’s claims by filing two separate motions to dismiss: the first, based on AFP’s failure to identify with particularity all of those works it alleged Google to have infringed and the second, a partial motion to dismiss AFP’s claim for copyright infringement of AFP’s headlines, because the headlines constituted uncopyrightable subject matter because they fall under fair use. After nearly two years of litigation, no judicial decision was reached because AFP and Google settled the case. AFP entered into a licensing deal granting Google the right to post AFP content. Most likely because AFP realized that Google News was sending them a tremendous amount of potential subscribers. There have been a couple other cases but they all settled.
Sidebar: Barclays Capital v. TheFlyontheWall.com 2011
The Hot News Doctrine was tested once again in 2011 in federal court. TheFlyOnTheWall.com, runs a financial news service that gathers and reports on stock recommendations from investment banking firms. The Firms claimed that the information was “hot news” and that Fly was free-riding on the firms’ work in creating the recommendations. They further complained that Theflyonthewall.com was impairing their traditional business model. Google and Twitter filed Amicus briefs supporting the defendant and asking the court to consider First Amendment rights. The court declined to consider the First Amendment as a defense in this case even though it clearly involves free speech in my opinion. The court found that the tort survives only in the narrow circumstance and ordered Fly to delay reporting for two hours. However the court decided that Fly was not free-riding because it was reporting on the fact of the Firms’ recommendations — not attempting to pass those recommendations off as its own. The court also said (in a nutshell) that old business models cannot prevent the application of new technologies just because they are damaged by it. The bottom line here is that news organizations will very rarely be allowed to use this doctrine in a lawsuit. The Hot News Doctrine is still on the books but it will be very difficult to prosecute.
Outdated Business Models
Big business with outdated business models have been doing everything in their power to convince, cajole and influence legislators that they are too big to fail and to limit disruptive upstarts through legislation. Legislation like the Copyright Term Extension Act. (see Chapter 7) Business models that are complaining and suing over a constant barrage of copyright infringements in order to function are flawed and need to be changed. It is important for owners of intellectual property to protect their rights but outdated business models that quash new innovative technologies need to adapt. The Internet will not survive and thrive under these archaic laws. Many innovative and efficient technologies are being prevented from being used by Copyright law as it stands today. The Government should an enabler not an inhibitor of creativity and connectivity not simply a protector of big business.
As covered extensively above in the news aggregator section, you also have fair use rights as shown by Nevium, which empower you to quote or use excerpts of content from another source. Most of this is acceptable behavior. Giving a link and credit to the source does NOT actually mean you have permission though and the law is rather vague. Social networking sites generally defer to the Safe Harbor laws. If they get a notice that someone has posted infringing material, they will remove it and send a notice to the member that posted it. Members that get multiple complaints may get banned from the site.
Copyright Issues for Authors
Paraphrasing and reusing quotes from other sources is considered fair use if you give credit and only use a small amount of the work. The fair use doctrine is a legally defensible position and not a law. Let’s say you want to use a famous quotation in a book, this could be considered fair use and most probably will not bring a lawsuit. However, if you create an entire book filled with famous quotations, which is within copyright registration, without permission you could be guilty of copyright infringement. There is much disagreement on this sort of issue amongst lawyers. The simple fact is that there have not been enough test cases on this. In most cases a cease and desist order ends the issue. If you comply you can’t be successfully sued.
Some people say it is not recommended or necessary to quote your sources because if you get sued for infringement this citation will end up being the evidence the plaintiff needs to be successful. (I personally do not subscribe to this school of thought.) Reusing quotations from other sources without permission will fall under the fair use doctrine. There is no exact amount of quotation you can take from other sources without permission.