There was much hyperbole at the recent Fordham conference about how news aggregators are, in the words of one of Rupert Murdoch important lieutenants and the editor of the Wall Street Journal, “parasites or tech tapeworms in the intestines of the Internet”.
My attempt to ask exactly how news aggregators that index and link to stories in online newspapers infringe copyright was, regrettably, not answered.
Google News, for example, provides links to countless stories that one would never find otherwise. Although the newly made over format is inexplicably worse in some respects than it was before, it can still be used - albeit with much more difficulty - for such useful purposes as finding the "latest" story on a particular topic of interest. Any source site can, as I understand, opt out. Few do - presumably because the exposure is more often than not beneficial.
I don't know whether or not Google "reproduces" on its servers the stories to which it links, and if so whether ephemerally for indexing purposes, or more permanently. If the reproduction is ephemeral, I don't know how long it lasts and how it works. If there is "reproduction" involved, I would imagine that there is an even better fair use argument under American law than is the case in the litigation which is now in limbo in the Google Book Settlement saga. The obvious difference is that there are significant chunks of scanned books available on Google servers, whereas Google News normally provides only a few words, the occasional thumbnail picture, and a link to the actual source.
What I do know is that, in most cases, the link on Google takes me directly to the Toronto Star, San Jose Mercury, Washington Post or whatever site to which it points - where I just might click on an ad and generate some revenue for one or more parties. I have access to the most famous and most obscure newspapers from around the world - with aggregation based on a vast choice of country based templates. Since few people subscribe to more than one paper, and even libraries can't subscribe to all papers, this is surely a useful and economically productive development.
For example, Google News took me to this op-ed in the Washington Post dated May 16, 2009, which is essentially an attack by a couple of Washington lawyers (Bruce W. Sanford and Bruce D. Brown) on Google News. Among other things, they suggest:
-- Bring copyright laws into the age of the search engine. Taking a portion of a copyrighted work can be protected under the "fair use" doctrine. But the kind of fair use in news reports, academics and the arts -- republishing a quote to comment on it, for example -- is not what search engines practice when they crawl the Web and ingest everything in their path.Both of these are frankly regressive suggestions that would serve to perpetuate a business model that goes back more than a century and is doubtlessly much beloved by Rupert Murdoch. Much as I disagree with this article, I never would have found it without Google News.
-- Federalize the "hot news" doctrine. This doctrine protects against types of poaching that copyright might not cover -- the stealing of information not by direct copying but simply by taking the guts of the content. While the Internet has made news vulnerable to pilfering because of the ease of linking from one site to the next, the hot-news doctrine has limited use because it is only recognized in a few states.
The battle over whether the providers of news aggregation services and other "information location tools" need to be made explicitly subject to copyright liability or explicitly sheltered from it is bound to loom large in Canada and elsewhere.
But, whatever is killing newspapers, I have yet to understand how Google News is part of the problem.