Copyright Protection in an Opt-Out World: Implied License Doctrine and News Aggregators

Article excerpt

In the 1918 Supreme Court case that gave rise to the common law doctrine of "hot news" misappropriation, the Associated Press (AP) famously sued the International News Service (INS), a competing newswire, for copying factual content from AP news stories without crediting the AP. (1) Nearly a century has passed, and the AP is going after a news collection service again. In February 2012, the AP filed suit against Meltwater News, an online "news aggregator," for copyright infringement and "hot news" misappropriation. (2) On their face, the two cases present nearly identical issues, down to the same plaintiff. But times have changed--and so should the law.

The current suit is only the latest in a rash of recent copyright and hot news litigation (3) aimed at combatting news aggregators, or websites and mobile applications that digitally copy headlines and short excerpts of news stories from various Internet sources and display them all in one place. (4) In light of the many economic challenges facing traditional news media today, (5) commentators have been swift to blame news aggregators for free riding off newspapers' and magazines' expensively produced content. (6) Because intellectual property law does not grant copyright protection in news itself, (7) academics and government actors have sought new solutions to the news aggregator problem. In 2009, for instance, Judge Richard Posner suggested amending the Copyright Act so that news aggregators could be held liable for infringement. (8) Media law practitioners, meanwhile, have called for the federalization of hot news misappropriation through legislation. (9) The Federal Trade Commission even held a policy roundtable in 2010 that considered several different solutions to the aggregator problem, including compulsory licensing and statutory limits to fair use. (10)

All of these conversations are fundamentally misguided because they attempt to address the problem of online news aggregation as if it were a traditional hot news or copyright issue. The similarity of the current aggregator problem to the paradigmatic hot news case is actually a red herring. As it turns out, the Meltwater case has less in common with INS v. AP--or, for that matter, with traditional copyright infringement cases--and more to do with recent case law governing the operation of online search engines.

This Comment argues that the appropriate legal framework for addressing news aggregators lies in federal courts' handling of intellectual property claims against search engines. In the 2006 case of Field v. Google, Inc., (11) a federal district court applied a new version of the doctrine of implied license to hold that Google's indexing of websites does not amount to copyright infringement when a website owner has not affirmatively opted out of indexing through technological measures. (12) This Comment argues that extending the Field decision to news aggregators would establish a legal framework that is more appropriate to the technological reality of the modern news industry and could also prove mutually beneficial. Thus far, implied license doctrine online has been characterized primarily as benefitting would-be infringers. (13) Indeed, aggregators themselves have relied on implied licenses as defenses against infringement in recent litigation. (14) But this Comment is the first to recognize that implied license doctrine can actually benefit content originators too, by giving legal force to a nearly costless technological solution: so-called robots exclusion protocols, or lines of code written into websites that would tell aggregators to stay away.

In Part I below, I expand on the news aggregator problem and briefly consider commonly proposed solutions. Part II describes the emerging standard of opt-out schemes for gaining copyright holders' permissions online and examines how the Field decision enforces this standard as a matter of law. Finally, in Part III, I explain how extending implied license doctrine to news aggregators can benefit both aggregators and newspapers. …