Operation Hot News, or Making the News Friends-Only

"My training tells me... that this is going to be a hot mess." (screenshot from Arrested Development from the-op.com)

"My training tells me... that this is going to be a hot mess." (screenshot from Arrested Development from the-op.com)

The newspaper industry is having severe problems, but is changing copyright law the way to fix things?

Richard Posner, highly regarded intellectual property scholar and Federal judge, suggested a drastic change recently:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

But while many others have discussed this proposal, a culturally valued way of solving the issue may be available — if the problem in search of a solution is indeed the problem of free riders through aggregation: Citation! and more generally, Attribution!

Presently, in U.S. copyright law, those who reuse copyrighted (and public domain) materials have no responsibility to attribute the works to the author. However, in countries that include moral rights as part of the intellectual property right, attribution is required. And even Creative Commons, which once had attribution as an option, now includes attribution in all of its licenses.

Traditionally, journalists have not always cited back to the original source, so this would require a change in style guides and editorial standards. But if what needs to be curtailed is “free riding” — then ownership over the news isn’t going to solve the issue.

But what about the “hot news” doctrine? Based on this doctrine, AP News recently settled a case with an online news aggregator (for law-talking people, the motion to dismiss decision is found at AP v. All Headline News Corp., 608 F. Supp. 2d 454 (S.D. N.Y. 2009). So should everyone that quotes news be concerned that the news is now locked away? This misappropriation claim is state-specific. For example, in New York, this claim only applies where all five  factors exist:

  • information is generated or gathered at a cost
  • the information is time-sensitive
  • the use of the information by someone else constitutes free-riding on the generator/gatherers’ efforts
  • the user of the already gathered information is in direct competition with a product or service offered by the gatherer
  • the ability of other parties to free-ride on the efforts of the gatherer or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. (quoted/paraphrased from NBA v. Motorola, 105 F.3d 841 (Second Circuit, 1997)

Changing the standard towards more citation and attribution will help the public understand where news is coming from.

After all, if everyone needs to cite who broke the story — yet continues to be able to use the information from that story, it would allow for, hmm, news reporting, to continue. The idea that the first-on-the-scene would be able to prevent others from being able to expand, develop, or critique the news would complete the destruction of the Fourth Estate, rather than saving it!

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