Newspaper Industry Lawyers Attack Fair Use, Claim Google Is Illegal

from the and-so-it-begins dept

Fri, Nov 13th 2009 6:21pm — Mike Masnick

Hmm. So, on Monday Rupert Murdoch suggests that the courts would reject fair use as a concept, and by Friday two newspaper industry lawyers just happen to have an op-ed piece in the Wall Street Journal explaining how Google violates copyright law by caching the websites it indexes. If the names of the lawyers -- Bruce W. Sanford and Bruce D. Brown -- sound vaguely familiar, that's because they're the same two lawyers who, six months ago, wrote a laughably ridiculous editorial (that time for the Washington Post) proposing special new copyright laws to save newspapers, while destroying pretty much everything that makes the internet useful. Of course, both the Washington Post and the WSJ conveniently left out the fact that these two lawyers regularly represent newspapers and other media and entertainment firms -- even as that seems rather relevant (what happened to those FTC disclosure laws?).

While I do actually agree with the lawyers that it's a shame the focus on the Google Book Search settlement avoided the big fair use question, I think they're entirely wrong to suggest that Google itself violates copyright law.

The copyright code allows public libraries to copy texts as long as there is no "direct or indirect commercial advantage." But that does not describe what search engines do. They use the complete copies they take for free to sell the advertising that has made them enormously profitable. This has a direct impact on book publishers, and on the publishers of magazines and newspapers that are losing the advertising that once supported them. According to Ken Auletta's recently released book "Googled," its search business alone now takes in 40% of all advertising across the Internet.

Perhaps Sanford and Brown are unfamiliar with basic copyright law, but the commercial advantage issue is only a small part of copyright law, and there are plenty of well-established cases of fair use in commercial use. In fact, I'd suggest that they consult the very media companies they work for, as most of them regularly rely on fair use defenses for reprinting or broadcasting content -- despite the fact that they're very commercial entities.

Furthermore, it appears that Sanford and Brown are either unfamiliar with how Google works -- or are purposely misrepresenting it. In the case of most news stories, Google has little or no ads. It only recently put ads on Google News -- long after the decline in ad revenue for newspapers. Besides, if local advertisers are finding a better return by advertising on Google, isn't that a good thing? That's called competition, and I'm surprised these lawyers would be against that.

In the last year, many fresh ideas have begun to circulate on how to help the publishing industry transition profitably to the online world. But without legal reform to back up these new business models, publishers will not have the bargaining power to make the search engines into true partners willing to compensate them meaningfully for their copyrights.

Yes, proposals like the ones that you guys suggested in the Washington Post without disclosing who pays your bills? Funny how that works. And those proposals are not about "helping the publishing industry transition profitably." Plenty of smart publishers are perfectly profitable. The proposals are about protecting the status quo and hurting the innovators who better serve the market. Sanford and Baker are trying to protect their big clients, but they'd be better off telling them to innovate, rather than push bogus editorials and pass ridiculous laws designed to hold back progress.

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Filed Under: bruce brown, bruce stanford, copyright, fair use, newspapers, search
Companies: google

43 Comments

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Anonymous Coward, 13 Nov 2009 @ 6:40pm

They found water on the moon and now I have a government granted monopoly on it. No fair use, you can't use it, period. It's MY water. I just came up with the idea that we can filter the water and use it to drink one day. It's MY idea, no fair use applies.
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Overcast (profile), 13 Nov 2009 @ 7:51pm

Google violates copyright law by caching the websites it indexes.

In that case...

All browsers also violate copyright law, as would DNS servers that cache any domain name that's 'copyrighted'.

Fox News... and other News Corp computers - no doubt have browsers and I'm sure News Corp has DNS servers.

Therefore: they are also violating copyright law.
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Anonymous Coward, 13 Nov 2009 @ 8:32pm

So you don't want your supposed "copyright" infringed upon?

Set robots.txt to "DISALLOW". Problem solved!

Otherwise, if it isn't word-for-word copying of the entire article and republication, it's fair use and not infringement.
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Bryan, 13 Nov 2009 @ 8:43pm

robots.txt
before long if you want Google to index your page you will have to make a special robot.txt granting Google usage rights.

Stupid world making more work for us for no good reason.

Bryan
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Anonymous Coward, 13 Nov 2009 @ 8:59pm

Really
"Besides, if local advertisers are finding a better return by advertising on Google, isn't that a good thing? That's called competition, and I'm surprised these lawyers would be against that."

I would think that most people would love to have a complete monopoly where they could charge whatever they wanted.
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Trails, 13 Nov 2009 @ 9:10pm

They're not just missing how google works
They're missing how the web works.

When a user agent, a browser or a search engine or whatever, requests a page, the server copies the page into its outbound network stream. The copying is done by the server.

The copy isn't made by google, it's requested by google and made by the server. Further, if you don't like what "the Goog" is doing, robots.txt.
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Anonymous Coward, 13 Nov 2009 @ 9:11pm

Re: Really
Well.... tell that to those who release their music under creative commons licenses and do so because they think music should be free.
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Anonymous Coward, 13 Nov 2009 @ 9:41pm

Microsoft patented the sudo linux command.

http://www.groklaw.net/article.php?story=20091111094923390
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Patrick, 13 Nov 2009 @ 10:59pm

Re:
All the newspapers know they can be excluded from the search results, they are just drama queens from a dying industry trying to make news for themselves so the can feel important
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Anonymous Coward, 13 Nov 2009 @ 11:34pm

Wasn't this shot down a few months ago when someone tried to sue google books for caching their digital book copies?
I'm sure i remember reading a very similar piece recently.
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Fred McTaker (profile), 14 Nov 2009 @ 3:13am

Store and forward
Rupert Murdoch and his cabal know nothing about how the Internet works. I just ran a traceroute to fox.com. Packets between my home and fox.com go through about 11 routers along the way. If any of them are store-and-forward type equipment, they are violating Fox's copyrights just as much as Google is.

In addition, I noticed this was the final device touched in the route:

a72-247-242-217.deploy.akamaitechnologies.com

Akamai Technologies get paid to cache their client's web pages everywhere, so the site data gets to your browser faster than it would if it were coming all the way from the original website. I hope Newscorp realized this when writing up their contracts with Akamai, or they could be facing a copyright theft suit as well!

I hope they do cut Google off in their robot.txt files. I want that trash to stop showing up in my *news* searches, since all they offer is fake news.
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Ima Fish (profile), 14 Nov 2009 @ 4:59am

Re: They're not just missing how google works
That's exactly what I was going to say. Even if this is copying, the various websites authorize it in their robot.txt files!

These lawyers are either ignorant about how this works or are outright lying. Google will completely ignore your site if you so wish.
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Daemon_ZOGG (profile), 14 Nov 2009 @ 9:54am

Re: Microsoft patented the sudo linux command.
Technically, and legally, M$ would never be able to take the use of Linux/Unix "su" or "sudo" to court. Due to the fact it is for Linux/Unix, protected by OpenBSD Licenses, and dates back 1979 for "su" and 1980 for "sudo".

:)
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Rasmus, 14 Nov 2009 @ 11:35am

You're all misunderstanding Murdoch's strategy
I've recently done this mistake myself, but after reading this the strategy is crystal clear.

Murdoch is aiming to get legislation in place that will force Google and other search engines to pay for Indexing Rights. And in such a way that Murdoch can play search engines against each other for exclusive indexing rights and at prices he can control.

Imagine an auction between Google and Bing for the rights to exclusively index all Murdoch's publications. It could easily become very expensive and a greater revenue source for Murdoch.

This is also completely in line with how Murdoch has always done business. He's an old style land grabber who has never shunned from just taking other peoples property, often with the help of the law, and then start charging the previous owners for using the property.

He is out to grab a large bite of Googles property, their search index, and make Google pay for accessing it.
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Lucretious, 14 Nov 2009 @ 11:48am

Maybe I am naive but I still can't comprehend how the newspaper industry thinks that Google printing the first 2-3 sentences of a news story and linking it back to them is somehow hurting their business in any appreciable way.
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Anonymous Coward, 14 Nov 2009 @ 12:51pm

You know what would make everyone feel better? If Google charged content providers to put their stuff up...
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Errr - What?, 14 Nov 2009 @ 12:59pm

Re: You're all misunderstanding Murdoch's strategy
"Murdoch is aiming to get legislation in place that will force Google and other search engines to pay for Indexing Rights."

There are so many things wrong with this - it will never fly. I would, no doubt kill the internet as we know it today.

But even if it did, who would care? I do not need any of news corp products, and honestly I try to avoid them when I am aware of it.
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Yeebok (profile), 14 Nov 2009 @ 2:24pm

Re: You're all misunderstanding Murdoch's strategy
"It could easily become very expensive and a greater revenue source for Murdoch."
Pfft. LOL! If it's valueless now, why will an arbitrary price tag make it worth more ? Just means less people will see his vomit.
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Anonymous Coward, 14 Nov 2009 @ 3:56pm

Re: You're all misunderstanding Murdoch's strategy
Except...neither Google nor Microsoft give a damn about Murdoch.

If Murdoch says "pay or you don't get my sites", Google and Microsoft will both say "fine, we won't pay".

The funny thing is, there isn't even a bluff to call. Murdoch is insignificant. His websites are a blip on the internet, and will be lost in a pile of Google caching if he really was intent on hiding his content away behind paywalls.
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Anonymous Coward, 14 Nov 2009 @ 4:18pm

Re:
Because I can get a nuanced view of a newspaper story by only reading a superficial amount of that story.

For example, 9/11 happened because terrorists hate freedom.

USA! USA! USA!
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anon, 14 Nov 2009 @ 8:54pm

Re: Re: Microsoft patented the sudo linux command.
actually they just patented their uac.
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Anonymous Coward, 14 Nov 2009 @ 11:57pm

Attack Fair Use? Google is marketing your columnists.
The point is that print subscriptions are drawing down for several reasons, but perhaps the the simple reason that a print copy is already 18 hours old when you receive it.

So many people seek to more up-to-date sources for news such as Google, Drudge, and online properties such as CNN, or Twitter.

With these up-to-the-minute sources, how can you begin to expect to compete with an 18-hour old product?

At this point, a better idea would be for newspapers in a given geography to consolidate printing and distribution operations under a separate corporate entity. Outsource it in a way.

This would allow the newspapers to focus on their core competencies of reporting, copyediting, ad sales, subscription services and developing their own online presence.

The online presence is the future. How you decide to derive revenue (be it from online ad sales or subscription model) should be up to the individual paper, and be fluid: Perhaps one month you want to let anyone access the news, and the next, you want to convert freeloaders over so you require a login or online subscription model, The next month, maybe you're free again. Maybe certain columnists have a loyal following and their articles need a subscription for a month. Play with it. But only when you have solid SEO and analytics in place. They will provide insight into and will be major factors in a successful campaign.

But in order to get to this point, you have to see Google as your marketer, or 2011 version of a street corner newsie.

Printing is the biggest cost in the industry and will continue to decline. It doesn't make sense to protect it and fair use.

If people see value in what your reporters and columnists do, and can connect with them, (key concept) they will probably become more loyal and pay more than a print subscription.

But we're probably a few years out before anyone figures out how to do the whole gamut successfully.
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The Buzz Saw (profile), 15 Nov 2009 @ 12:11am

robots.txt
They continue to dodge that issue. They are in complete control of how Google accesses their content. Use robots.txt, and stop your whining!

I love the attitude of "we're working on getting onto the Internet, but we need the government to come in and secure our future for us".
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Anonymous Coward, 15 Nov 2009 @ 1:02am

Re: robots.txt
>> They are in complete control of how Google accesses their content. Use robots.txt, and stop your whining!

You're right! However, a good description of how to properly use robots.txt functionality as part of an overall online strategy is found in comment 23. I put that together in 20 minutes. Surely it can be improved upon.

At minimum, comment #23 provides a foundation to build the business outside of legalistic tactics, which I believe everyone on one level or another desires to strive towards.
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Anonymous Coward, 15 Nov 2009 @ 1:06am

Re: Re: robots.txt
Maybe some spammy comment was deleted. #23 is now 22.

In any case, see the comment titled
"Attack Fair Use? Google is marketing your columnists."
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Nick, 15 Nov 2009 @ 1:24am

I wonder if they have considered the fact that advertising in newspapers is just badly spent advertising dollars? Some businesses, like mine, have a very small advertising budget and find that the exorbitantly high prices newspapers charge aren't even remotely justified when you consider the exceedingly poor response they get.

I would say that's the root of their problem, not Google.
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Michael Price (profile), 15 Nov 2009 @ 2:46am

Corporate lawyers against competition, what a shocker!
"That's called competition, and I'm surprised these lawyers would be against that. "

A lawyer for a big corporation against competition is about as surprising as a bank robber against guards carrying shotguns.
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Deneen, 15 Nov 2009 @ 7:49am

So many ways to save the industry...fighting over ownership of content isn't one of them
I find it very interesting that the industry’s attorneys are fighting Google over copyright laws when rumor has it that so many newspapers plagiarize. When I learned that many articles that appear in one paper will also appear in many others and often times no content is changed, I was dumbfounded. We teach students that plagiarizing is wrong and illegal. Many people, not just students, have been penalized over the years for plagiarizing. Yet the papers grab articles from RSS feeds and may change a word or two and then slap a new author on the article and publish it. So, how does one fight over ownership of content when in fact it may not belong to them to start with? The newspaper industry is definitely struggling. However, it could be easily rectified if the “good ole boys” that have been running it for years would take a look at some basic marketing. I would love the funding to redefine the industry. There is so much potential! Unfortunately, they want to continue running business they way they have over the past. Life has changed and they need to recognize it, embrace it and celebrate it. They need some fresh blood to take control and breathe life into it. However, there are times that I watch the industry slowly dying and have to ask, is this part of some business/finance strategy? Do they not want to succeed? Will they get some tax break if they fail? Seems odd but stranger things have happened. I guess I just can’t imagine that an industry that has so much money and so many resources could fail on such a grand scale without some ulterior motive.
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Anonymous Coward, 15 Nov 2009 @ 11:34am

Re: Attack Fair Use? Google is marketing your columnists.
drudge?
lol
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dkp, 15 Nov 2009 @ 11:43am

Re: You're all misunderstanding Murdoch's strategy
or both could just cut off everyone of his sites and act as if he does not exist.
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Patty (profile), 15 Nov 2009 @ 2:26pm

Newspapers vs Google
Making information harder to find, making it restricted does not serve the citizenry. The fight always seems to be framed as the internet on one side and old media on the other. The crucial question should be what developments enhance the growth and health of the society.
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do we need newspapers anymore, 15 Nov 2009 @ 2:49pm

why do we still kil trees to support newspapers
lets just get around that tree hugging notion that supporting newspapers kills you in the end as we should be migrating to a knowledge based NON tree destructive society.

ADD if the freemasons ever did anyhting for hte world it was the adjutant to free knowledge to make it so that the world can all share in its enlightenment.

TO take knowledge away is to destroy man. IT is to make you all slaves to someone elses will. DO YOU WANT TO BE SLAVES
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spagett!, 15 Nov 2009 @ 7:47pm

I wonder who's in charge of the PR and social media damage control over at NewsCorp? Because just the Tech Dirt user comments alone have torn apart Merdoch's case.

I can't wait until this era of "Wheel Chair and shit-bag baby boomer ignorance" is done & over with.
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vvurdsmyth (profile), 15 Nov 2009 @ 8:18pm

Claim Google Is Illegal,,,?
Google drives traffic to sites which have advertising and ad revenue of their own. If anything Google should charge for the indexing service they provide, but they don't because their overhead is covered by advertising with Google's search results. What Google and other search engines might do is call Murdoch's bluff by NOT indexing Murdoch sites, and then we shall see what happens... Somewhere above is mentioned that print news is 18 hours old and with search engines constantly crawling news sites, we often get news that is seconds old and everyone benefits, Murdoch, search engines and the viewing public. It WORKS and that's the way it should be.
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BobinBaltimore (profile), 16 Nov 2009 @ 4:20am

Re: Re: You're all misunderstanding Murdoch's strategy
Wha? Look, I agree that these lawyers (and Murdoch) are getting into territory that is murky, dangerous and overly dramatic, but it is simply nuts to say that Murdoch (NewsCorp) is insignificant, and his sites are a blip. Have you LOOKED at what he owns outright, or has a substantial stake in? Forget fox.com and foxnews.com, even wsj.com and all his Sky news services, how about MySpace and Hulu? How about his HarperCollins book division, one of the world's largest publishers (including of some very interesting economics and digital culture titles)? NewsCorp puts out a HUGE amount of content (which is, of course, not the same as information. I agree with the general sentiment of the thread here, but that sentiment is only undermined by trying to erroneously belittle the scope and impact of this massive media house.
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BobinBaltimore (profile), 16 Nov 2009 @ 4:28am

Re: Claim Google Is Illegal,,,?
I agree with your sentiment, but never forget the inconvenient truth: internet advertising revenue for most sites is peanuts in both absolute terms and when compared to print ad revenue. That's a big part of the problem.
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Josef, 16 Nov 2009 @ 4:34am

Over and over and over and over.....
Love your blog Mike. Even if you do find a new way to keep saying the same thing almost everyday. Btw that wasn't meant to be offensive, I just find it funny that no matter how many times you repeat that "new business models need to be investigated and / or adopted", its not getting through.

Best thing to do is just be patient. The people fighting for the status quo are expending enormous resources (losing money) in a battle to save dying business models (losing money). Let them. If you ignore bleeding long enough the problem fixes itself.

As for file sharing and the music industry The problem is their own fault. They had the chance to deal with this decades ago. Consumers have been file sharing forever, we just did it differently and no one minded. Or did everyone for get the "mix tape"?

As the formats in music changed there wasn't a lot of whining. Vinyl became 8tracks which became cassettes which became CD's; and I don't recall the RIAA sending me a notice telling me that because the format changed I could bring in my old Vinyl which I paid for and get a brand new shiny CD for the music I already paid for. No I had to buy it again and again and again. Then the format changed again (and I'm sure they were ready for the next gray train at first), but this time it was greeted by the internet which happened to be an insanely good distribution channel. So as far as the RIAA is concerned, enjoy the old profits and welcome to the new world, and good luck.

As for movies and software, those issues are a little more complex. I'll save my thoughts on those for another post.
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Matt, 16 Nov 2009 @ 6:23am

Why doesn't google just fix this with a new business model.
Honestly, Why doesn't Google just remove the newspapers that complain about this.

Put in big 24pt font a link to exclude your newspaper (With some authentication of course).

Then put one guy at google to work browsing the web and remove any website that has a formal complaint about news aggregation. Seeming how most stories have the "All 3,823 news articles" link, losing a few hundred stories wont affect the quality of the service.

Then wait two weeks and when all the newspapers freak out because traffic dropped 90% overnight, charge them a few thousand to get re-enrolled.

Problem solved.
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Anonymous Coward, 16 Nov 2009 @ 8:29am

They should present all their text in .Gif or .Jpg format if they don't want it sucked into the great google-verse. Oh wait, they want you to be able to find it via Google.
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Jim Sadler, 16 Nov 2009 @ 12:54pm

They Will Fail
Publishers who count on ink and paper are going to drown in the new era. Paper costs more and more money. Inks are more and more expensive. Transporting books and magazines is expensive.
It doesn't take a genius to see it coming. Go to any large book store and check out the prices on new books. It is no wonder the industry is suffering. No longer can one buy a good magazine for fifty cents. These days five or six bucks are typical.
Electronic technology including this new sixth sense technology will be the final nail in the coffin of the traditional publishing industry. Crying about trivial stuff like Google using their material won't help one little bit.
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The Art Man, 16 Nov 2009 @ 1:31pm

Idiocy
Only an idiot prosecutes someone for sending them customers....
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Derek Kerton (profile), 16 Nov 2009 @ 2:08pm

Bloggers Disclosure Requirements
I love how our government wants to require bloggers who get a free trinket to fully disclose that $60 gift when they write about the product or company, but somehow our high-circulation, "integrity-drive" major publications neglect some fairly obvious conflict of interest. Did those article authors ever earn something more than a hundred bucks or so from the newspaper industry?

"the Washington Post and the WSJ conveniently left out the fact that these two lawyers regularly represent newspapers and other media and entertainment firms -- even as that seems rather relevant (what happened to those FTC disclosure laws?)."
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Murdoch disliker, 27 Dec 2009 @ 9:27am

Who wants Murdoch crap anyway?
i hope all murdoch news is blocked from google as this guy is now insignificant as people can find out the truth for themselves. The reporting of hamas as all bad launching rockets into israel from Lebanon sparking israel to level parts of lebanon hide the real truth that israel is illegally occupying part of lebanons land. search this and you will see the murdoch machine pulling the wool over everyones eyes again. Crap from murdoch news from the opening question. His media pulls the wool over peoples eyes on the west bank when in fact that israel illegally occupies pallestinian land. These are simple facts that most of the popullation have no idea about. I have no time for murdoch. Check out REALNEWS.COM get informed with questions murdoch media never asks. If you depend on murdoch news you get some news but are often manipulated with his agenda. Murdoch news is a weed that is becoming out searched.
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