Magazine article Information Today

The FTC Looks at the News

Magazine article Information Today

The FTC Looks at the News

Article excerpt

The internet has made me a news junkie. Before the web, I would read the local paper and maybe watch the news at 11 before The Late Show With David Letterman, but that was about it.

Now, I have a page with feeds from AP, Reuters, The New York Times, The Wall Street Journal, CNET, ESPN, and (yes, I confess) E! Online. I check my page regularly during the day and evening, scanning headlines and abstracts and reading articles that catch my fancy. For breaking stories, I turn to Google News. Although I may glance at the day's newspaper (mainly for sports, comics, and an occasional local story), I rarely bother with TV news.

I am apparently bad news (pun intended) for the news producing industry. Brick-and mortar newspapers have been seriously impacted by the transition to web-based news providers. However, news aggregators impact even some web-based providers. News aggregators, which can include search engines such as Google News, are services that gather links to articles from a variety of news providers and then they provide access to those articles. In bypassing advertising and other front-page content, the news providers lose out on advertising and other revenue.

In addition to the economic challenges, news-aggregating services have also triggered a number of legal challenges. As many lawsuits were ultimately settled, these legal issues remain unresolved. These legal and economic challenges were the subject of a recent workshop held by the Federal Trade Commission (FTC) on the news media in the internet age.

The legal issues that the appropriators raised generally fall into three categories: copyright, trademark, and mis appropriation. At the core of the copyright issues is (as is often the case) the Fair Use Doctrine, which specifically includes news reporting as one of the possible fair uses of a work. In most cases, the news aggregating service is not copying or reposting the full text of the article, but it is posting the headline (and occasionally a short abstract, summary, or the first paragraph) with a link to the article. Because the use is a brief portion and is designed for news reporting purposes, aggregators have claimed that their use is fair.

Value of the Headline

However, at the FTC workshop, some of the speakers addressed the value of the headline itself as a part of the copyrighted work. According to statistics presented by Outsell, Inc., nearly 50% of users will scan news headlines from an aggregator without going to the provider's site. In that case, it was suggested that fair use does not apply because the headline either has an independent market value on its own or it represents the "heart of the work." Both of these elements would be strong factors against a finding of fair use. However, because of the nature of fair use, the issue can't be resolved except in the courts.

The aggregators' practice of posting headlines and deep linking to articles also raises trademark concerns. Title 15, Section 1125 of the U.S. Code makes it a violation of trademark law to confuse or deceive consumers by using false or misleading practices as to the origin of a trademarked good or service. News providers have complained that some aggregator practices confuse consumers by making them believe that the news article is produced by the aggregator and not the provider. …

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