“Misappropriation” vs. Fair Use

The legal basis for a challenge by newspapers to Google is beginning to emerge.

In 1918, the AP was involved in a case called International News Service v. Associated Press. Like current competitor All Headline, INS didn’t actually copy AP’artime scoops off the wire, have a hired hack rewrite the story in his own words, and put out their own version of the breaking news without having to bear all the overhead (not to mention the considerable risk) of sending trained reporters to a war zone. It wasn’t quite copyright infringement, but it sufficiently offended the justices’ sense of fair play that they developed the doctrine of ‘misappropriation’ to cover the immediate copying and dissemination of ‘hot news’ by commercial competitors of a news organization. If such ‘free riding’ were allowed, the judges reasoned, the parasites would always be able to undersell their hosts, to the detriment of journalism in the long run.

It’s not hard to see why AP is concerned now. According to its annual report (PDF), the combination of subscriber attrition and the lower fees they’ve had to adopt to keep that dwindling, cash-strapped client base on board “will result in a revenue decline not seen by the company since the Great Depression.”

The Internet compounds the problem. The RIAA and MPAA can at least try—however ineffectively—to use copyright law to stanch unauthorized copying of their works. But what AP is selling isn’t really the scintillating prose of its writers: it’s fast access to the facts of breaking news. Now, though, a writer for any one of a million websites can read an AP story on the site of a subscribing news organization, write up their own paraphrase of the story, and have it posted—and drawing eyeballs from AP subscribers — within an hour of the original’s going live.

This might just work for AP. It’ll be harder for newspapers to argue, however — except for straight news coverage. I’d be surprised if they could make the argument stick for commentary — which, after all, is what most newspapers do nowadays.