Rich Gor
I won't claim to be an expert on the legal issues involved in this or any other case. But I do think there's a difference between a radio newscaster reading newspaper content on the air (without crediting the paper), and charging for a service that aggregates headlines from, and links to stories in, that paper. And I believe that under U.S. copyright law, there is a legal distinction as well.In the first case (and in the case of a typical "deep link"), there is no direct financial transaction between the consumer (the radio listener or the Web browser) and the company that connects the consumer and the information (the radio station or the Web site with the link). There's an indirect relationship, to be sure. The radio station and the "linker" Web site presumably are selling advertising based on the audience they assemble using content from other sources. But I think there's a big difference between that kind of relationship and one where the consumer *pays* the content aggregator.
As I understand (U.S.) copyright law, a radio station would *not* be permitted to read a newspaper story on air, verbatim. Nor could a Web site republish an entire copyrighted newspaper article. But there are a variety of things the station or Web site could do to take advantage of the "fair use" exemption to copyright law:
* Report the *facts* contained in the newspaper story (facts are not copyrightable)
* Excerpt the content (the smaller the proportion of the original content that's used, the more the use of the material moves toward "fair use")
* Comment on the original material ("fair use" allows quoting from copyrighted works for purposes of commentary)
* Parody the original material (this was the successful defense in the case of "The Wind Done Gone," the parody of "Gone with the Wind")
It's also worth noting that under the "fair use" exemption, whether the use of someone else's copyrighted material affects the content originator's ability to make money from it is a key factor.
In the radio station example, excerpting and/or commenting on the newspaper's story protects the station from a copyright violation -- in part, because it will be hard to argue that putting this limited amount of information on the air will reduce the listener's likelihood of buying the newspaper. (In fact, the radio station would argue that its broadcast *increases* the chances someone will buy the paper.)
In the Web linking example ... when a content aggregator or Weblog links to another site, they excerpt the original content in some way (headline and/or short description). They may also comment on the original content. And the link will drive traffic to the content originator's Web site, which will be good for its advertising revenue -- evidence that will protect the "linker" site from claims that the link is depriving the "linkee" site of financial benefit. (I don't think there is, or should be, a legal requirement that Web users enter a content Web site through the home page.) All of this is why, in my view, a "linker" site is on solid ground, ethically and legally. As soon as the "linker" starts charging for the service, though, I think its legal (and ethical) position become weaker. At a minimum, it seems to me that once a consumer pays for a "linker" content-aggregation service, he or she is going to be less likely to be willing to pay for content on the "linkee" site. Which means the "linker's" fair-use defense is weaker than if there was no financial transaction involved.
Finally, leaving aside the legal issues for a moment ... since it seems like there is going to be a greater share of online content available only to paying users ... *and* since there is clearly a need for content-aggregation services that help users filter through the "information firehose" ... isn't it in everyone's interest to find a way to share any revenue that results from helping people find content they're interested in?
