The News Media Alliance, which represents many of the country's largest newspapers, is pressing the Copyright Office to take the position that aggregators can infringe copyright by displaying portions of news stories online.
“In practically all cases, news aggregators use publishers' creative content including ledes or other excerpts, photographs and headlines, to communicate expression of the essence of stories to the public and to keep users captive within their platforms,” the organization writes in comments filed Wednesday with the office.
The group's new filing comes in response to the Copyright Office's requests for comments about the viability of passing laws that could require aggregators like Google to pay licensing fees to display news snippets. The office undertook the study at the request of lawmakers including Sen. Thom Tillis (R-North Carolina).
In November, the News Media Alliance, which has long contended that judges interpret fair use too broadly, argued in its initial comments to the Copyright Office that news aggregators infringe copyright by displaying “news content” to web users.
On Thursday, the group reiterated those claims.
“Court opinions often articulate and apply overly-broad interpretations of fair use, and certainly the news aggregators advocate for even broader interpretations to justify their massive daily takings of copyright-protected material,” the organization writes. “As a priority, we urge that the Office’s Study should present an analysis of the state of the law and confirm that the substantial and systematic takings of partial or entire photographs, articles and headlines is unlikely, in most instances, to be fair use.”
In one high profile example of fair use, the 2nd Circuit Court of Appeals said Google didn't infringe copyright with its book-scanning project -- which involves digitizing books and displaying snippets in the search results.
The appellate judges said the project was protected by fair use principles, writing that Google's copying was "transformative," its display of text was limited, and the material posted doesn't harm the market for the originals.
In its filings, the News Media Alliance also cast blame on web companies for the well-documented drop in newspaper revenues in the last 15 years, noting that “tens of thousands” of newspaper employees have lost jobs and “thousands” of communities have lost newspapers.
“This is a fundamental challenge -- largely fueled by the online platforms’ devaluing of journalism -- not only for our communities’ continued access to high-quality journalism but also for a healthy democracy,” the group wrote in its most recent comments.
Not everyone agrees with the News Media Alliance.
The digital rights group Electronic Frontier Foundation cast blame for the newspaper industry's economic problems on "monopolist advertising networks," as opposed to online news aggregation.
“The harms facing news media are not those of aggregators and copyright. A far bigger factor is monopoly control of online advertising,” that group wrote in its initial comments to the Copyright Office. “Even though news aggregation services and monopolist advertising networks can be operated by the same companies -- as in the case of Facebook and Google -- conflating the two ultimately does not serve the best interests of the news media.”
The Electronic Frontier Foundation added that aggregation services offer benefits to journalists and the public.
“Aggregation can spread the work of journalists to those who would not have had access to it when it existed only in physical form,” the organization wrote. “And journalists use aggregation services themselves, either to amplify, iterate on, or debunk stories.”
The digital rights group also argued that the concept of fair use -- which stems from the First Amendment -- protects aggregators' ability to display excerpts of news articles.
“The typical use of news articles by aggregators involves reproduction of titles and sometimes short snippets of text. Such uses are nearly always a fair use of the original work, or are non-infringing in the first instance,” the Electronic Frontier Foundation wrote in its initial comments. “The inapplicability of copyright to these minimal reproductions has a Constitutional basis, and is a fundamental aspect of copyright law.”
The social news site Reddit also weighed in against new rules that could curb the use of news articles, writing new restrictions would “limit discussions and weaken the ability of [moderators] and users to fight misinformation.”
The company's filing quoted from its moderators, including one who said: “Misinformation is already rampant on the internet. Making it harder for the public to access and share information from reliable sources is going to empower junk sites that rely on clicks.”