INTELLECTUAL PROPERTY LAW
Modern Web Tools Implicate Copyright and Hot News

By Evan D. Brown

We live in the era of the “read-write web,” a set of tools and accompanying norms that presuppose the importance of user-generated content. The tools of the modern web—used with more powerful computers having greater memory and over speedier broadband connections—makes the experience more participatory. Now a user can easily become a publisher. Within this environment of dynamic content lies the substrate that feeds some intriguing legal questions.

The ease of content sharing. It is relatively simple these days to publish one’s own content on the web, and it is perhaps even easier to republish the works of others. For example, one simply has to copy and paste a few lines of HTML to embed a YouTube video within another site. Del.icio.us (now at the more user-friendly URL http://delicious.com) allows users to easily bookmark and aggregate links to appear on publicly visible lists. FriendFeed ( http://friendfeed.com) is a tool for sharing content from other sources—such as Flickr photos, Facebook status updates, and Yelp reviews—to foster discussion around those items.

Content distributed via RSS (a web feed format) lends itself particularly well to redistribution by the end user. By its nature, RSS is flexible. Users can view RSS content in a feed reader such as Google Reader or Bloglines, and a person with just a little bit of know-how can run an RSS feed through a web publishing platform to generate new sites made out of others’ content.

What legal issues does this ability to easily redistribute content present? It would seem that copyright law has something to say about the legal relations among the generators of web content and those who so easily reuse that content. How should the law constrain wrongful misuse of protected material while encouraging creative remixing and informative sharing? The inquiry does not reveal a definitive answer but merely highlights a challenge to the law’s ability to control new digital media. The subject requires both legal and a sociological analysis, looking at the ways people use the web to distribute content, what their expectations are, and how they intend the content to be consumed. Questions of implied license and “hot news” rise from the fast-moving context.

Use by implication: The role of the implied license. When it comes to how content on the web may be permissibly redistributed by other users, so much depends on the intent of the copyright owner. Of course, copyrighted materials can be reused by others pursuant to a license. But in a universe where there are literally billions of pieces of content, express licenses negotiated for each reuse would be impractical. Creative commons licenses fill this void somewhat in that they permit a copyright owner to designate in advance to the world at large the conditions under which a work may be reused. But the vast amount of content available online is published without any license being designated, to be treated ostensibly as if the author had reserved all rights. What are the limits on how these works can be reused by others?

The web depends on the copying of works to accomplish certain essential functions. Perhaps the most important tool that allows the web to be useful is the search engine. Without searchability, online content would be an undifferentiated data set of limited utility. Search engines crawl the web and copy content into a cache, which the user searches when looking for information. Fortunately, this critical task of a search engine, though it exercises at least one exclusive right of the content’s copyright holder, appears to be permitted under an implied license. Case law provides some guidance.

In Field v. Google, Inc. (412 F. Supp. 2d 1106 (D. Nev. 2006)),the court held that Google did not infringe the copyright in a web publisher’s content when users would download a “cached” version of a page created and stored by Google. The court found that plaintiff Field knew how Google would use the copyrighted material he uploaded to the web (he knew that Google would create and store a cached copy available for download). Field also knew how to create his web pages in a way that would instruct the “Googlebot” not to add the content to the cache. Despite this knowledge, Field intentionally omitted those instructions and uploaded his content to the web, where it was subsequently added to the Google cache and made available for download. The court found that Field’s conduct amounted to an implied license to Google to use the web pages in the cache. The circumstances giving rise to such an implied license depend on what the content owner knows and does. “Consent to use the copyrighted work need not be manifested verbally and may be inferred based on silence where the copyright holder knows of the use and encourages it.”

From Field we learn that a web user who publishes content knowing how it will be used by others, and knowing how to prevent that subsequent use, will not be heard to complain about that use later. The implications for blogging and other forms of modern web publishing are relatively clear. Bloggers who knows that their content is being distributed via RSS would likely be found to have granted a license to downstream users who consume that feed in the expected ways, as through a feed reader. Flickr users who make their photos available along with the service’s “blog this” feature should know that other web users may indeed embed one of these photos in a blog post. This commonsense scope is defined in large part by the tools that the web publisher uses. Any subsequent use of the work made outside the functions of those tools or in a way that the publisher does not know how to prevent are less likely to be defensible under an implied license theory.

Hot news on the web. Typical content on news sites or on blogs has value for only a short duration after it is first published. It is this value derived from the newness of content that underlies the “hot news doctrine.” The tools that allow sharing on the web make it easy to republish news stories. The recent case of Associated Press v. All Headline News Corp. (2009 WL 382690 (S.D.N.Y. Feb. 17, 2009)) demonstrates how the hot news doctrine can be applied in the web publishing context. Defendant All Headline News is a company that does not undertake any original reporting but instead scours the web for news items that it modifies slightly and distributes to others. Among the items that All Headline News collected were Associated Press (AP) stories. The AP sued All Headline News under a variety of theories, including misappropriation of the AP’s rights under the hot news doctrine. The court denied All Headline News’ motion to dismiss, thereby validating such misappropriation as a valid cause of action under New York state law.

Unlike copyright law, which does not recognize the “sweat of the brow” required to create a work as a legitimate basis for protection, the hot news doctrine protects the efforts undertaken by news gatherers. A plaintiff has a valid claim for misappropriation when (1) the plaintiff generates or gathers information at a cost, (2) the information is time sensitive, (3) the defendant’s efforts constitute “free riding” on the plaintiff’s efforts, (4) the defendant is in direct competition with the plaintiff, and (5) the free riding detrimentally reduces the incentive to gather.

 


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