Hyperlocals and Fair Use: When Content Aggregation Becomes a Liability

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“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.