The Legality Of News Aggregators
from the blog-aggregator? dept
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.