The Legality Of News Aggregators

from the blog-aggregator? dept

Wed, Sep 15th 2010 12:46am — Mike Masnick

There's been this a lot of talk about "aggregators" recently -- often in the context of traditional newspapers claiming that such aggregators are somehow damaging their business. As we've discussed in the past, if you look at the details, there's little evidence that aggregators are really the issue. Instead, many of the complaints appear to be confusing a correlation of their own business declines with the rise of aggregators, and falsely believing there's a causal relationship when there's little, if any, evidence to support that.

However, that's not going to stop ongoing legal actions from those publishers against the aggregators they believe are a problem. One reason for this is that the specific legal situation at times can be a bit vague, as internet aggregators are quite different than past businesses. If you're interested in this subject, you should absolutely read Kimberly Isbell's very thorough look at the legal issues related to online aggregators. She very carefully breaks out the different types of aggregators (though, I'm a bit surprised that people seriously consider commentary blogs to be "aggregators") as well as the specific legal issues facing each of the different aggregators. The problem, which becomes clear, is that the law is not anywhere close to settled on the key issues, and leave an awful lot of key questions up to the interpretation of whatever judge gets the cases in question. We've discussed in the past the idea that it's often possible to take the "fair use" factors and interpret them in either direction (something is or is not fair use), and the same may be true with "hot news" in some cases as well. That's a problem, and makes both concepts somewhat useless and dangerous as well. If you have a law where the boundaries are incredibly vague, unclear, and up to the whims of a randomly selected judge, it leads to potentially damaging situations, where people avoid liability by not even trying to do certain things for fear of getting sued.

The concept of hot news is now being tested in a few different courts, so we can be hopeful that within a few years, perhaps, the courts will dump the concept entirely as a violation of the First Amendment (an analysis that hasn't been done yet), but with that question still up in the air, there's still a chance that a confused court could rule otherwise, creating a massively damaging situation for value added content services online.

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Filed Under: aggregators, copyright, fair use, hot news, legality, news

7 Comments

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Richard (profile), 15 Sep 2010 @ 2:01am

I would consider commentary blogs an aggregator. Take TechDirt for example, which I use as a source for many IP related topics. Instead of trolling about all the variety of different sites that spawn your blog posts, I just come here to read about the topic, as well as get your commentary on it.
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Anonymous Coward, 15 Sep 2010 @ 2:29am

Who are you?
I still think that most aggregators don't understand the internet's 1% rule.

http://www.90-9-1.com
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Anonymous Coward, 15 Sep 2010 @ 2:40am

I should think the fact that an aggregator can be blocked by a simple robots.txt file on the site would be sufficient grounds to dismiss any lawsuit. How can you have a complaint when the solution is readily implemented?

I really don't understand why they just won't use it if they think it's harming their business. That way, papers that know better (i.e. know aggregators drive eyes to ads) can still benefit and the retards can continue cutting off their ever shrinking noses to spite their faces.
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Anonymous Coward, 15 Sep 2010 @ 4:22am

It never will get settled, conditions change, laws change and a number of other things change, the only thing that never changes is the confusion about the law.
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Hephaestus (profile), 15 Sep 2010 @ 8:09am

Re: Who are you?
The one percent rule is so off. Think about it you added to the discussion by posting here. Oh my! an act of creation ...
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Pax Arcana, 15 Sep 2010 @ 10:42am

It occurs to me
Clearly the news industry has an interest in protecting as much scarcity as it can, so it will go after any entity perceived as diluting that scarcity. It occurs to me that the real issue for news sites is not that aggregators link to them, but rather that aggregators link to others.
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DV Henkel-Wallace (profile), 15 Sep 2010 @ 12:22pm

I agree it makes no sense
A news site that wants to block external links can/should use two mechanisms, actually: robots.txt (for search engines and other automatic tools) and by rejecting / redirecting references that come with external, or no Referrer: field.

The fact that the sites aren't doing this demonstrates clearly that they value the aggregators. They are just trying to gouge them.

I have no sympathy at all for news sites that attack aggregators and search engines.
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