The media are making much ado about a recent resolution by the Associated Press to pursue Websites that copy entire AP articles without permission. Does the AP have a case?
The AP is developing a tracking system to find Websites that clearly violate its copyrights. But it's not these clear-cut copyright thieves that everyone's talking about. Those sites are very small fish. Instead, everyone's looking right at Google (Nasdaq: GOOG), though it's unclear what tackle the AP thinks it can use to catch such a big fish.
Flash-back to 1918. During WWI, the AP sued William Hearst's International News Service (INS) for stealing the AP's hot news after INS was banned from Allied telegraph lines. The Supreme Court famously found that there is no copyright on factual news events and that INS had not infringed any AP copyrights.
The AP still won, however, because a divided court decided to give hot news some limited protection under a newly devised doctrine of misappropriation, a branch of unfair competition. Thanks to the Erie Doctrine, unfair competition claims are now decided under state common law, but INS v. AP has become the source of a lot of state common law in this area.
Fast-forward to 2009. It seems pretty clear that the AP doesn't have a copyright claim against Google for several reasons, the most obvious of which is that Google already licenses the AP's content. This license allows Google to post full AP stories in Google News.
There's been some speculation that the AP may be targeting the inclusion of AP stories in Google search results, but that seems unlikely. As Google stated in a response, if the AP doesn't want to be included in search results from Google or other search engines, it can use a simple robots.txt file to block the search engines' spiders from indexing its stories. But that seems like a net loss for the AP.
Looking past Google's license with the AP, legitimate news and search sites seem to clearly fall into copyright's fair use category. While courts have made it clear that each fair use case must be evaluated individually, the fair use factors are clearly defined in the Copyright Act, under 17 U.S.C. § 107. The factors include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the work used, and the effect of the use upon the market for the original.
While a court could surprise us, these factors seem to overwhelmingly favor legitimate aggregators and search engines that use only a small snippet of AP content and link to the original story.
This is probably the reason the AP is trying to draw attention away from fair use. AP senior vice president Sue A. Cross said, "This is not about defining fair use." If the AP is serious about going after a big fish like Google or Yahoo Inc. (Nasdaq: YHOO), it may try using the same tack it used in INS v. AP by using an unfair competition claim.
It's telling that the resolution that the AP board of directors passed is to protect AP content "from misappropriation on the Internet," mirroring the winning legal theory from INS v. AP.
The AP board further agreed to "seek legal and legislative remedies against those who don't [license its content]." Perhaps the AP is hoping, with the current precarious state of the newspaper industry and the government's disposition for bailouts, that it can get some sympathy from the legislative branch if the judicial branch doesn't cooperate.
And that could be important: Whether or not the AP is trying to redefine fair use, and whether it does so through the courts or through the legislature, if the AP is successful, it may change the Web dramatically.
— Scott Hilton is employed by Kunzler & McKenzie Intellectual Property Law.