Headlines, Leads and Copyrights

Wired has a great article hyping what it calls a newsreader development war. Playing up the "man v. the machine" angle, the article describes how different newsreaders operate. From Digg, based on user comments that elevate articles to popularity, to Google News, based on Google's top-secret algorithms, and everything in between, the article points to a burgeoning industry whose aim is to get relevant news into the hands of readers. Unfortunately, there's a lawsuit lurking that could threaten to put the kibosh on these new technologies in AFP v. Google.

Agence France-Presse brought suit against Google (read AFP's complaint and read Google's answer) for copyright infringement and is seeking an injunction based on the fact that Google copies AFP's headlines and displays them on Google News. AFP is a wire service that makes money by licensing its stories, the most important part of which, it claims, are the headlines. Generally, the suit accuses Google of stealing AFP's creative content and distributing it for free, without AFP's permission, and to AFP's financial detriment.

The collective gut reaction is to view the suit as absurd: Headlines can't be copyrighted! William Patry over at Patry Copyright Blog calls the whole mess a big steaming pile of baloney, and offers this legal tidbit:

37 CFR 202.1(a) provides that registration may not be had for:
"(a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents."

LawMeme takes a bit more of an activist stance on the issue and calls for blood, claiming that the "case will redefine fair use and the way we link to and use material on the Internet." (Btw, looks like maybe I have to figure out a way to get into BNA to read their stuff).

However, Martin Bishop and Thomas Anderson have a great summary of the case and the issues in the Patent, Trademark & Copyright Journal. While they argue that while headlines are probably not copyrightable, and finding that they are would cause significant problems for the internet, and bloggers especially, they also point out the stark contrast between the two positions. If AFP wins, everyone will have to rephrase headlines on their blogs or get permission (and probably pay $) to use the real ones. If Google wins, AFP may lose its ability to make enough money to create the headlines in the first place. I mean, if I can take an AFP headline and lead paragraph, copy it onto my website (or search engine) and make money on advertising without paying AFP, why would I ever pay AFP?

It seems clear, however, that Google's use of AFP's leads does constitute copyright infringement. So what does this mean? Probably no more than that its ok to lift someone's headline, but if you want to include a lead to entice readers to read the full article, you'll need to write your own. This is what Digg does. Unfortunately, doing so tends to reduce the authoritativeness of the content and encourages plagiarism (read a great story about this by Lee Gomes here).

In another post I will look at the four part fair use test and see how the AFP case could work out under the thinking in Kelly v. Arribasoft and Perfect 10 v. Google. Using someone else's lead may be fair use nevertheless, as could using a headline if the judge here decides they are copyrightable. But I have to get to class now.