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Do Search Engines Compete with - or Simply Publicize -- Online News Outlets? Calculating Damages If Copyright Infringement Occurs

Currently, Google News links to online news sources, such as newspapers' websites, and features a snippet of content from them. Could the newspapers sue for copyright infringement?

That's doubtful, for a few reasons: Links probably do not count as "copying" under copyright law. Also, taking only minimal content from an article falls under the "fair use" doctrine. (The "fair use" doctrine allows, among other things, small parts of a copyrighted work to be copied without legal liability, even if technically, copyright has been violated.)
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Moreover, even if a copyright suit could be brought, damages would be paltry: Google News may actually help - not hurt - the news outlets' finances by increasing their readership and offering them free publicity. Media companies pay real-life, human publicists for far less effective promotion.

Put another way, as they currently exist, the search engine and content markets are discrete: Content on Google News (and other search engines) does not really compete with content on a news site - even if it draws from that content.

(This is true even for paid content: If Google News were to take snippets from paid content, it might be violating the Terms of Service agreements the content sources impose on users, but it still might be financially benefiting -- not hurting -- the content source, by luring more readers to pay for full access.)

Does that mean that Google News is likely lawsuit-proof when it comes to copyright infringement? In a previous column, I argued that, the answer is yes - unless and until the copyright statutes are amended to target it.

But if Google News - and the Internet - were to evolve in certain ways, the legal situation could change. In this column, I will explain why.

Competing with Composites: Sloan and Thompson's Scenario

Currently, as noted above, the search engine market and the online news market are more or less discrete: The two sets of entities do not compete in the same market.

And they are not only separate, but symbiotic: Google News publicizes news sites, and news sites provide grist for Google News' mill. But what if Google News got more aggressive - and began to compete with news sources?

Robin Sloan and Matt Thompson have imagined a scenario where that would occur: In the future they describe, Google News would employ fact-stripping robots that would construct composite news stories by combining factual snippets from traditional news sources.

Would these composite stories compete with the various news stories from which the facts are drawn? You bet.

As Sloan and Thompson point out, information on the user (the kind of information to which say, Amazon has access - in the form of book preferences and the like) could be used to personalize the composite story based on the reader's interests. And readers might well opt for stories specifically designed to cater to their interests, over stories written for a more generic audience.

Consider, for instance, a story about possible U.S. action relating to the crisis in Darfur. An international news buff would get lots of content on that angle; someone who was interested in the details of government decisionmaking would get lots of content on that angle. Each would very probably prefer his or her personalized story, over a story that mixed the two angles - the kind of story as a traditional newspaper might provide. Not only would the stories compete, then, the composite story might win.

Thus, if a copyright suit were to be brought based on the construction of the composite story, there would be damages - indeed, potentially massive damages - if readers opted for the composite, personalized stories, as they well might.

As I discussed in my last column, I believe that the Supreme Court probably would hold such composite stories to be "fair use" -- as long as the robots were careful to take only tiny snippets from each source. But in the wake of such a decision, Congress might well expand copyright protection to render such fact-stripping robots illegal.

If it did so, a constitutional challenge to its statute would probably follow: This isn't exactly the kind of copyright protection the Framers intended. But it's hard to predict what the Supreme Court would do in the face of such a challenge.

Suppose, however, that this hypothetical new copyright law were upheld.

Google News (and any others who had opted to use fact-stripping robots) might then have to shift ground, and start taking content from the kind of news sources that are would not be prone to sue - such as blogs. (Bloggers would probably be delighted to be featured, and could be rewarded with a link from the particular fact - or facts -- the blog provided, to the blog itself.)

Even now, not all the search results on Google News come from the Internet outposts of newspapers. Many come from other websites. And if it had to, Google News could operate entirely without reliance on the Internet outposts of newspapers.

Suppose Google News did shift ground, and borrow from bloggers and other sites. Could personalized composite stories from nontraditional news sources (such as blogs) compete with traditional news sources? I believe so.

If so, this kind of content would be liability-free - except in the virtually unimaginable, and probably unconstitutional, scenario where Congress created an antitrust exception in favor of traditional media. (This would violate the First Amendment, in my view.)

Read more at FindLaw.com

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