Hyperlocals and Fair Use: When Content Aggregation Becomes a Liability

“If the ethics of journalism has a First Commandment, it might be ‘Thou Shalt not Plagiarize,’” wrote Roger Carroll, editor of the hyperlocal publication Claremont Eagle Times in New Hampshire on March 5. Carroll was frustrated that a reporter from a competing publication “had regularly being taking stuff out of other papers and passing it off as his own for years.”

What pushed Carroll over the edge was an article in the competing paper that covered a high school basketball game, complete with quotes from coaches that were lifted from Carroll’s coverage of the game. No one from the competing paper was at the game. “The main reason I’m writing this is because it’s the only way I can think of to get him to stop ripping people off,” Carroll wrote.

Carroll believes the while the reporter “did nothing illegal mind you … there is no greater sin than plagiarism.”

His conclusion is not entirely correct. While pure facts are not protected by law, copyright law protects original expression of facts. The Supreme Court noted in Feist Publishing v. Rural Telephone Service that the way an author selects, coordinates, organizes and expresses facts would be protected by copyright law.

Some publishers have been aggressive against aggregation sites for republishing their content without permission. In 2007, the Associated Press filed a lawsuit against All Headline News claiming that AHN rewrote AP stories and then resold them. This year, AP filed another lawsuit against Meltwater news for taking “substantial verbatim excerpts” from AP stories and reselling them to subscribers.

As reported in Street Fight, the fact that content is posted on the Web does not mean it is free for the taking. Simply repurposing content from other sites to add content to your hyperlocal site will lead to problems.

On the other hand, hyperlocal publishers can rely “fair use” strategies to use third party content, perhaps in the form of short news or commentaries, so long as the publisher takes very little, gives proper attribution, and links to the site with the original content. Known as the “fair use” doctrine, excerpts from other content can be used for commentary, news or educational purposes. Judge Roger Hunt of the United States District Court in Nevada ruled this past week that a political website’s posting of approximately 10% of a news article for a political discussion forum would be considered fair use of another article. The excerpts were used for purposes of commentary.

Righthaven LLC, a Nevada company that claims it holds the copyrights assigned by Stephens Media LLC, a Nevada publisher, sued Democratic Underground LLC in a Nevada Federal Court, alleging that it republished five sentences from a Stephens Media publication and used it on a political discussion forum. Judge Hunt ruled there was no infringement. “That the act of posting this five-sentence excerpt of a fifty sentence news article on a political discussion forum is a fair use pursuant to 17 U.S.C. § 107,” Judge Hunt wrote in his opinion, “and that the fair use doctrine  provides a complete defense to the claim of copyright infringement from which this suit arose.”

The moral of the story is the same; wholesale copying of other content without permission will lead to trouble. Using short excerpts, as part of a news or commentary with proper attribution and a direct link to the original site, may be protected from infringement claims under the fair use doctrine.

Brian Dengler is an attorney with Vorys Legal Counsel and journalist who covers legal issues in eMedia. He is a former vice-president of AOL, Inc., a former newspaperman, and an EMMY-winning TV journalist. He teaches new media issues as an adjunct at Kent State University and formerly at Otterbein University.

  1. March 19, 2012

    The reporter that complained about another reporter reprinting the quotes of the coaches does not understand copyright law. You cannot copyright direct quotes of other people. News organizations can claim ownership over their own reporter’s words but they cannot claim to own the words of other people. 

    1. Brian
      March 19, 2012

      It depends on the context of how much was copied from the article. The selection and organization of quotes, facts and structure of the article can be protected by copyright law.

  2. Pams
    March 19, 2012

    Extremely dangerous to the second publication’s credibility to rely on someone else’s reporting. What happens if the quoted individual disputes the quote? 

  3. Ethan Ford
    March 19, 2012

    What about “copying” the quotes of a customer who has posted a review on a site like Yelp? Let’s say I own a plumbing business, and some of my customers have posted a very good review of me on Yelp–I think I should be able to copy some of their comments (with their permission),  because ultimately the words are their’s, not Yelp’s. 
        The standard  advice is to include a direct hyperlink to the source media of the quote. But that’s terrible advice. (1) Yelp has reviews of 75 plumbers in my area, so I am sending them away from my site and into the Yellow Pages to look at my competitors’ reviews; (2) People might see my “bad” reviews (because Yelp has “filtered” all my good reviews, as part of their “extortion” algorithm.
        I suspect I would be inviting a lawsuit from Yelp—but would Yelp prevail? 

    1. Brian
      March 20, 2012

       Ethan, you and Ken bring up good points. The actual “quote” by a reporter in an article would not be protected by copyright because the statement is not original to the reporter. However, the organization and structure of an article — including the selection of quotes — can be subject to copyright protection. 

      The Yelp situation is a bit different. The user who provides the review continues to own the copyright in the review per Yelp’s terms of service. In the Yelp situation, the user gives Yelp a license — that is permission — to use the review, but Yelp doesn’t own it.  The user remains free to give permission to use the review for other purposes. If the user’s identity also is used, the user must give permission to allow her or his name to be used in an ad. This does not mean, however, that the user can give permission to make references to Yelp in other advertisements.

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