FOR IMMEDIATE RELEASE

Arlington, VA – Today the Senate Judiciary Subcommittee on Privacy, Technology, and the Law will hold a hearing at 2:00 p.m. ET, on “Oversight of A.I.: The Future of Journalism,” which will explore the impact of the growth of generative artificial intelligence (GAI) technology on publishers’ ability to provide high-quality journalism and possible oversight mechanisms to help protect and sustain quality journalism.

Witnesses scheduled to testify at the hearing include Danielle Coffey, President & CEO of the News/Media Alliance (written testimony here); Roger Lynch, CEO at Condé Nast (written testimony here); Curtis LeGeyt, President and CEO of the National Association of Broadcasters (written testimony here); and author Jeff Jarvis (written testimony here).

Coffey’s comments before the Subcommittee will explain how Generative AI tools exploit news content to compete directly with publishers, yet need quality journalism to train their systems. Coffey will focus on the copyright infringement implications of how GAI developers train and use their models, as well as the need for legislation, including requiring transparency and responsibility from GAI developers, and passing the Journalism Competition & Preservation Act (JCPA), which would allow publishers to collectively negotiate for fair compensation for use of their content by the dominant tech platforms, such as Meta and Google.

Since generative AI technology took off exponentially last year, the News/Media Alliance has been leading the call for AI companies to seek proper permissions and licensing from publishers for use of their valuable content. Last fall, the Alliance published a White Paper revealing that GAI systems copy massive amounts of publishers’ original works, almost always without authorization or compensation, and publisher content is overweighted in materials used for training these systems. The White Paper and comments the Alliance submitted to the U.S. Copyright Office also explain the legal implications of such use.

In response to the hearing, News/Media Alliance President & CEO, Danielle Coffey stated, “We commend Subcommittee Chair Richard Blumenthal and Ranking Member Josh Hawley and the Senate Judiciary Committee for recognizing the urgent need to address our very serious concerns about the impacts of AI technology on providers of quality journalism, as well as the legal questions this raises. AI companies are scraping our content to compete with it – usually without any compensation to, or permission from the publishers of that content – while they reap all the benefits. This is classic freeriding that infringes publishers’ copyrights and goes far beyond fair use.”

Coffey’s testimony offers multiple suggestions for policymakers, including:

• Recognizing that unauthorized use of publishers’ expressive content for commercial GAI training and development is likely to compete with and harm publisher businesses in a manner that infringes copyright;
• Creating transparency requirements to require the recordkeeping and disclosure of unauthorized training uses of material that is protected by copyright, by technical protection measures, or governed by contractual terms prohibiting scraping; and
• Adopting legislation to remedy existing market imbalances that prevent publishers from engaging in fair negotiations for the use of their content against dominant platforms.

A new report released by the Medill School of Journalism at Northwestern University in November found that the rate of newspaper closures has accelerated, now at 2.5 closures per week (with more than 130 confirmed newspaper closings or mergers in the last year), resulting in the expansion of news deserts, in which communities lack a source of local news.

Coffey concluded, “For years the tech platforms have gotten away with using publishers’ content without appropriate compensation. This problem, having gone unaddressed, has been getting worse and now, AI doubles down on the threat the largest tech platforms pose to publishers’ viability. Countries all over the world are introducing and passing legislation requiring the tech platforms to pay news publishers. The United States cannot fall behind other countries and should pass the JCPA, which will ensure publishers can continue to provide important high-quality journalism we all depend on. We have to act now before it’s too late.”

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Media Contact:
Lindsey Loving
Director, Communications
lindsey@newsmediaalliance.org

The News/Media Alliance is a nonprofit organization representing more than 2,200 news and magazine media organizations and their multiplatform businesses in the United States and globally. Alliance members include print and digital publishers of original journalism. Headquartered just outside Washington, D.C., the association focuses on ensuring the future of journalism through communication, research, advocacy, and innovation. Information about the News/Media Alliance can be found at www.newsmediaalliance.org.

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Arlington, VA – Today News/Media Alliance President & CEO Danielle Coffey is attending as an invited participant in a bipartisan forum hosted by Senate Majority Leader Chuck Schumer on “AI – Transparency, Explainability, Intellectual Property, & Copyright.”

This is the seventh AI Insight Forum that seeks to further innovation and develop bipartisan artificial intelligence legislation that takes the opportunities as well as the threats of AI technology into account. Also participating in the forum are 19 leaders from various industries, including the news media, entertainment, and tech industries.

Today’s Forum focuses on two key areas of AI policy: 1) transparency and explainability and 2) intellectual property and copyright, including addressing concerns around the use of copyrighted content in training and prompting. These are the most vital artificial intelligence concerns for the Alliance’s members.

In addition to a written statement provided in advance of the Forum, Coffey will provide oral remarks sharing the unique perspective of the news and magazine industry.

Coffey stated, “I am honored to be invited by Majority Leader Schumer, Senator Rounds, Senator Heinrich, and Senator Young to participate in this AI forum and I look forward to the dialogue. This is a critical time in the evolution of AI technology, and it is important to strike the right balance of creativity, innovation, regulation, and respect for existing rights. We must ensure that publishers of high-quality journalism whose content is being used to train AI systems have a seat at the table.”

The Alliance – whose members comprise over 2,200 news and magazine media organizations and their multiplatform businesses in the U.S. and globally – has been leading the call since the advent of generative AI chatbots earlier this year for AI companies and developers to properly compensate publishers of quality journalism for use of their valuable content to train generative AI systems (GAI).

In April, the Alliance released AI Principles for the news and magazine media industry, which highlight the overarching principles that must guide the development and use of GAI systems as well as the policies and regulations governing them. Among other things, the AI Principles outline the need for GAI developers to obtain explicit permission for use of publishers’ intellectual property, and for publishers to be able to negotiate for fair compensation for use of their IP by these developers. In addition, the Alliance helped organize the publication of Global AI Principles in September, endorsed by 31 organizations representing thousands of creative professionals around the world, including news, entertainment, magazine, and book publishing companies and the academic publishing sector.

On October 31, the Alliance released a White Paper entitled, “How the Pervasive Copying of Expressive Works to Train and Fuel Generative Artificial Intelligence Systems Is Copyright Infringement And Not a Fair Use,” which shows that GAI systems have been developed by copying massive amounts of the expressive material published by the Alliance’s members, almost always without authorization or compensation, to create new products and services that frequently compete with Alliance member publishers.

The Alliance also recently submitted comments to the U.S. Copyright Office on the use of publisher content to power generative artificial intelligence technologies (GAI). The comments, White Paper and accompanying technical analysis together document the pervasive, unauthorized use of publisher content by GAI developers, the impact this may have on the sustainability and availability of high-quality original content, and the legal implications of such use.

The Copyright Office comments and the White Paper offer multiple recommendations to policymakers, including recognizing that unauthorized use of publishers’ expressive content for commercial GAI training and development is likely to compete with and harm publisher businesses in a manner that infringes copyright; creating transparency requirements to require disclosure of the use of copyright protected content in training; encouraging and facilitating effective licensing solutions; supporting international cooperation and harmonization on GAI regulations; and adopting legislation to remedy existing market imbalances that prevent publishers from engaging in fair negotiations for the use of their content against dominant platforms.

Coffey added, “For years the Big Tech platforms have gotten away with using our publishers’ content to add billions to their bottom lines, all while publishers have suffered. Now, the platforms and AI companies are scraping publisher content and using it to train their generative AI systems – again without compensating publishers. This goes far beyond fair use. Journalists, writers, publishers, and other creators make the investments and take the risks while generative AI developers reap the rewards of traffic, data, brand creation, subscription fees, and advertising dollars. This is freeriding, and it is antithetical to established copyright law and the public interest that it serves.”

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Media Contact:
Lindsey Loving
Director, Communications
lindsey@newsmediaalliance.org

The News/Media Alliance is a nonprofit organization representing more than 2,200 news and magazine media organizations and their multiplatform businesses in the United States and globally. Alliance members include print and digital publishers of original journalism. Headquartered just outside Washington, D.C., the association focuses on ensuring the future of journalism through communication, research, advocacy, and innovation. Information about the News/Media Alliance can be found at www.newsmediaalliance.org.

The post News/Media Alliance President & CEO Danielle Coffey Participates in AI Insight Forum Hosted by Senator Chuck Schumer appeared first on News/Media Alliance.

Arlington, VA – Yesterday, the News/Media Alliance published a White Paper and a technical analysis and submitted comments to the U.S. Copyright Office on the use of publisher content to power generative artificial intelligence technologies (GAI). Together, the three publications document the pervasive, unauthorized use of publisher content by GAI developers, the impact this may have on the sustainability and availability of high-quality original content, and the legal implications of such use. GAI systems have been developed by copying massive amounts of the expressive material published by the Alliance’s members, almost always without authorization or compensation, to create new products and services that frequently compete with Alliance member publishers.

The Alliance recognizes the exciting potential of GAI models and applications to improve aspects of our lives and supports the principled development of these systems. But this development must not come at the expense of publishers and journalists who invest considerable time and resources producing material that keeps our communities informed, safe, and entertained, and holds our government officials and other decision makers in check. The Alliance and its members would welcome working with GAI developers to help build and grow these technologies in a sustainable and responsible manner.

While the Copyright Office submission and White Paper discuss the wider publisher landscape in the face of the GAI revolution, including relevant principles of copyright law, the accompanying technical analysis documents the extent to which GAI developers rely on high-quality journalistic content to power their models. In particular, the results show:

• GAI developers have copied and used news, magazine and digital media content to train large language models (LLMs).
• Popular curated datasets underlying LLMs significantly overweight publisher content by a factor ranging from over 5 to almost 100 as compared to the generic collection of content that the well-known entity Common Crawl has scraped from the web.
• Other studies show that news and digital media ranks third among all categories of sources in Google’s C4 training set, which was used to develop Google’s GAI-powered products like Bard. Half of the top ten sites represented in the data set are news outlets.
• The LLMs also copy and use publisher content in their outputs. The LLMs can reproduce the content on which they were trained, demonstrating that the models retain and can memorize the expressive content of the training works.

Alliance President & CEO Danielle Coffey stated, “The research and analysis we’ve conducted shows that AI companies and developers are not only engaging in unauthorized copying of our members’ content to train their products, but they are using it pervasively and to a greater extent than other sources. This shows they recognize our unique value, and yet most of these developers are not obtaining proper permissions through licensing agreements or compensating publishers for the use of this content. This diminishment of high-quality, human created content harms not only publishers but the sustainability of AI models themselves and the availability of reliable, trustworthy information.”

The Copyright Office comments and the White Paper offer multiple recommendations to policymakers, including recognizing that unauthorized use of publishers’ expressive content for commercial GAI training and development is likely to compete with and harm publisher businesses in a manner that infringes copyright; creating transparency requirements to require disclosure of the use of copyright protected content in training; encouraging and facilitating effective licensing solutions; supporting international cooperation and harmonization on GAI regulations; and adopting legislation to remedy existing market imbalances that prevent publishers from engaging in fair negotiations for the use of their content against dominant platforms.

Coffey continued, “Generative AI systems should be held responsible and accountable, just like any other business. This White Paper demonstrates that these systems rely on journalistic and creative content, which have the benefit of investment in quality on the front end, as well as publishers who are required by law to take responsibility for the content they share with the public. Continued unauthorized use will harm existing markets that acknowledge the value of archived and real-time quality content, and over time the GAI models themselves will deteriorate. You get out what you put in. It is critical that our copyright protections are properly enforced and that high standards of quality and accountability are the foundation of these and other new technologies.”

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Media Contact:
Lindsey Loving
Director, Communications
lindsey@newsmediaalliance.org

The News/Media Alliance is a nonprofit organization representing more than 2,200 news and magazine media organizations and their multiplatform businesses in the United States and globally. Alliance members include print and digital publishers of original journalism. Headquartered just outside Washington, D.C., the association focuses on ensuring the future of journalism through communication, research, advocacy, and innovation. Information about the News/Media Alliance can be found at www.newsmediaalliance.org.

The post News/Media Alliance Study Finds Pervasive Unauthorized Use of Publisher Content to Power Generative AI Technologies appeared first on News/Media Alliance.

Rawpixel Ltd / iStock/Getty Images Plus via Getty Images

The below Q&A is from an interview with News/Media Alliance Executive Vice President & General Counsel, Danielle Coffey, published in the February 2023 edition of Editor & Publisher Magazine. The original article is available here.

Q: In what ways have copyright laws and compliance become more complicated in the digital, social media age?

A: There are two sides to this question. First, digital transformation has led to a proliferation in the availability of news sources and content for journalists and publishers, as well as the number of middlemen that publishers have to deal with regularly. As a result, publishers must pay more attention to due diligence — ensuring that they understand the relationships between the original copyright owner and any platforms or middlemen they may use and that they have the necessary rights to any content they publish.

For example, many publishers have recently struggled with the legal uncertainty around using embedded content on Instagram without explicit authorization from the original poster. Related to this, the increased availability of photos and videos taken by amateurs during news events — especially fast-moving ones where time is of the essence — raises important questions on how to acquire the necessary licenses while remaining on top of the newsworthy situation. These conditions require publishers to pay particular attention to ensuring they comply with applicable copyright laws.

Second, the digital age has also made it more complicated for publishers to protect their content against unauthorized uses. These uses range from the overly-expansive use of news content by search and social media platforms, which the Alliance has advocated against at length, to the use of news content for AI training purposes, to the unlawful posting of full-text articles on services often based abroad, often within minutes of publication, threatening the original publishers’ ability to benefit from subscription and digital advertising revenues. These uses are often systematic, and the infringers are hard to detect and locate, making enforcing copyright laws difficult, time-consuming and expensive.

Q: How have U.S. copyright laws and protections been challenged in the courts in recent years? Are there particular cases that news publishers should be familiar with — or concerned about?

A: There have been a few cases in the last five years with implications for news publishers, with some of the most important being Fox News Network v. TVEyes (2018), Goldman v. Breitbart (2018), and Warhol v. Goldsmith (ongoing).

TVEyes concerned a service that copied broadcasts from over 1,400 TV and radio stations and allowed its subscribers to search, download, watch and share clips of these programs. The District Court had found that both the search function and the watch function were fair use. Fox appealed the decision as it related to the watch function, and the Circuit Court reversed, finding the fourth fair use factor — related to potential market harm — decisive. This was a key victory for rightsholders, with the Court correctly noting that the market effect on the copyright owner should be a major factor in fair use analysis and giving leverage to the argument that even the use of clips of protected content can hurt the copyright owner and should be subject to serious scrutiny.

Meanwhile, Goldman focused on publishers’ ability to embed third-party content from social media. Specifically, the defendants had embedded a tweet with the plaintiff’s photograph of Tom Brady without the original poster’s authorization. Rejecting the Ninth Circuit’s “server test,” the Second Circuit agreed with Goldman, finding that the embedding violated his exclusive rights despite the image being hosted on a third-party server. Similar questions have since arisen in other cases, often concerning Instagram — which recently introduced an option to opt-out of embedding following discussions with the News/Media Alliance — with one publisher settling a case brought by a photographer in New York and Instagram managing to squash a class-action lawsuit against itself related to its embedding function in California. This remains an important debate for publishers to follow.

Lastly, we’re also eagerly awaiting the Supreme Court’s decision on Warhol, which concerns Andy Warhol’s paintings of Prince, based on a portrait taken by photographer Lynn Goldsmith for Vanity Fair before Prince became famous. Following Prince’s death, Goldsmith discovered that Warhol had made a whole series of paintings based on the photo without her permission. The case raises important questions about what amounts to “transformative use” within fair use analysis. The Alliance submitted an amicus brief in support of neither party, outlining some of the delicate considerations the case raises, including how an overly broad definition of “transformative use” could threaten the copied work right. The Court heard oral arguments in the case this past October, with the decision due this spring.

Q: Copyright was at the heart of the news publisher v. Big Tech negotiations in Europe. Can you share a synopsis of those negotiations and where things stand in Europe? Also, help us wrap some context around what’s happened in Europe and what it may mean for news publishers here in the States.

A: The European Union’s adoption in 2019 of its Directive on Copyright in the Digital Single Market, including Article 15, which requires member states to create a so-called “Publishers’ Right,” was a landmark development. It acknowledged the inability of publishers to effectively protect their content online against unauthorized uses by online platforms and provided publishers with an independent right to do so. In France, the first country to implement Article 15 in national law, publishers soon encountered problems negotiating with Google. In 2019, soon after the law’s adoption, Google refused to pay publishers and indicated it would stop showing excerpts in search results unless a publisher waived its right to compensation. Following a challenge by French publishers, the French competition authority issued an interim ruling, finding that Google likely engaged in anticompetitive behavior and required Google to engage in negotiations. While Google engaged in negotiations and reached some deals after the decision, the French competition watchdog issued a €500 million fine against Google a year later for failing to comply with the orders on conducting such negotiations. Following this fine, Google proposed commitments in early 2022 to change its practices and to resolve the investigation into its anticompetitive practices. The competition authority accepted Google’s commitments in June, with Google expected to negotiate with a broader selection of publishers in good faith.

From the publishers’ viewpoint in the United States, Europe established a precedent that Australia improved upon. The Alliance has embraced a model similar to Australia based on competition law, where the anticompetitive conduct and power of the monopolies are more squarely addressed. The Journalism Competition and Preservation Act, considered by Congress during the last session, would have adopted a similar approach in the U.S. to the Australian model, while Canada, the UK, and India are also considering similar approaches. All of the approaches attempt to address the disparities in the digital ecosystem that allow dominant online platforms not only to set the rules of the game but to reap the vast majority of rewards. Publishers need more leverage to negotiate fairer terms and compensation that help preserve high-quality journalism for future generations.

Q: Is the News/Media Alliance engaged in lobbying Congress for any changes to copyright law or protections granted to news publishers?

A: In comments submitted with the Copyright Office, the Alliance recommended that Congress explore a sui generis, or quasi-property right, that would recognize an exchange of value outside of the fair use factors but within copyright law. We are also actively advocating for changes that would allow publishers to register dynamic web content, which is currently impossible. This would significantly affect the publishers’ ability to register and protect their content online effectively.

Q: Who, typically or ideally, should be concerned with or tasked with copyright compliance at the news publisher?

A: This depends a lot on the type and size of the publication, with no easy one-size-fits-all answer. Some large publishers may have whole teams responsible for ensuring compliance with various laws, including copyright, while smaller outlets may rely on an individual person, such as an image editor. The most important thing is that whoever is responsible for compliance takes their job seriously, has the time and resources to do so properly, and has the authority to affect publishing decisions.

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By Johannes Munter, outside consultant, and Allison Reed

In late June, the U.S. Copyright Office released its long-awaited report on copyright protections for news publishers. The report, requested by Senator Thom Tillis (R-NC) and others last year, focused on whether the United States should adopt similar ancillary copyright protections for news publishers as those created by the European Union in 2019.

Article 15 of the EU’s Directive on Copyright in the Digital Single Market – a broader package to harmonize copyright laws across the Union – required members states to implement national laws to better allow publishers to protect their content online and to negotiate with online platforms for compensation. This so-called “publishers’ right” was warranted due to considerable variance in rights afforded to news publishers across the EU, leaving many publishers with no independent rights to protect their works.

The study – informed by two comment periods and a public roundtable, all of which the News/Media Alliance participated in – does not recommend the creation of new ancillary copyright protections for news publishers in the U.S. This conclusion was consistent with the News/Media Alliance views.  This recommendation is based on the undisputable fact that American publishers in most case already own the copyrights to the content they publish, in addition to which, they have at their disposal various other ways to protect their content – including paywalls, technological circumvention protections under Section 1201, and contractual provisions. Implementing new ancillary rights would not lead to a significant improvement or change for U.S. publishers, especially as the marketplace is characterized by an uneven playing field and bargaining power between publishers and a few dominant online platforms.

The report closely follows our recent white paper on Google’s abusive business practices and the recommendations made by the Alliance in our comments and during the roundtables in highlighting the current state of news media, acknowledging the existing protections, and noting the imbalanced bargaining power that prevents publishers from enforcing their rights effectively in the digital ecosystem. The Alliance’s comments noted that U.S. publishers already enjoy protections similar to those established by the EU Copyright Directive, while being unable to effectively enforce those rights due to existing power imbalances. Consequently, the Alliance called on the Copyright Office to endorse the Journalism Competition and Preservation Act (JCPA) as a potential solution to the competition problem and to conclude that the use of news content by aggregators is not, in most cases, fair use.

While the report recognizes that problems in the digital marketplace are largely competition-based, and therefore outside the Copyright Office’s remit, it highlights the JCPA as a potential non-copyright solution to the problem. The report also includes an extended fair use discussion, balancing both sides of the argument, and acknowledging that not all uses of news content by aggregators are likely to be fair use. Related to the Alliance’s argument that systemic aggregation has a noticeable negative effect on the demand for news content, the Office notes that “widespread aggregation may significantly impede the ability of press publishers to obtain payment for their expression” and that “[t]o the extent that aggregation provides a substitute that ‘satisfies most demand for the full original’ and decreases the resources available for original news reporting, this would cut against a finding of fair use.” This conclusion captures the essence of the Alliance’s fair use argument and provides an important marker for courts analyzing cases involving systemic aggregation of news content.

In addition to its fair use and bargaining power discussions, the report also addresses the inability of news publishers to register dynamic web content – a major impediment to effective protection and an issue highlighted by the Alliance in our comments. The Office recognizes the importance of the issue and notes that it is actively considering ways to address it during the ongoing Copyright Office modernization efforts. The Alliance will continue working with the Office to ensure that these changes get implemented expeditiously in order to allow publishers to register and better protect their content online.

Despite arguments by some detractors to the contrary, the Alliance has never requested the Copyright Office to recommend the creation of additional ancillary copyright protections for publishers. Our members already have the tools to protect their content. However, the abusive practices of the dominant online platforms, together with the disparate bargaining power between them and news publishers, make enforcing those rights effectively next to impossible. By providing a time-limited period during which publishers could come together to negotiate with the large platforms for fair compensation, the JCPA would help balance the playing field and provide a lifeline for high-quality journalism in America. The Copyright Office’s report closely follows the Alliance’s comments and amounts to an important acknowledgment of the issues faced by news publishers. We look forward to working together with the Office to ensure that news publishers are well-positioned to utilize their existing rights to protect news content online, while continuing to push Congress to act on the anticompetitive practices of the dominant online platforms.

The post New Copyright Office Report Correctly Concludes News Publishers Enjoy Copyright Protections Similar to the EU, Acknowledges Bargaining Power Disparities as Major Obstacle for Publishers in Protecting News Content Online appeared first on News/Media Alliance.

On June 17, the News Media Alliance, together with the Authors Guild and others, submitted an amicus brief with the Supreme Court in the case of Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith. The case concerns a photograph of the singer/songwriter Prince, taken by Goldsmith in 1981, that was later used by Warhol to create a series of unauthorized artworks. Goldsmith found out about the works following Prince’s death in 2016. The Andy Warhol Foundation subsequently filed a suit for declaratory judgment that the works were not infringing, while Goldsmith filed a counterclaim for infringement. Earlier, the U.S. Court of Appeals for the Second Circuit found for Goldsmith, holding that Warhol’s works were not fair use. The Warhol Foundation appealed to the Supreme Court, which granted certiorari with regards to the “transformative use” test under the first fair use factor. In its brief, filed in support of neither party, the Alliance notes the delicate balance between authors’ right to create derivative works and the fair use doctrine, noting that publishers often rely on both. Arguing that the Second Circuit analyzed the issue largely correctly, the brief discusses how an overly broad definition of “transformative” could threaten the derivative work right and notes the importance of considering how much the secondary work’s value derives from the entertainment or aesthetic value of the original work in certain cases. The brief also emphasizes the importance of analyzing all fair use factors together, instead of overly relying on part of one factor. Read the Alliance’s amicus brief here.

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FOR IMMEDIATE RELEASE

Arlington, VA – The News Media Alliance today filed an amicus brief with the Supreme Court in support of Oracle in the Google v. Oracle (docket no. 18-956) case concerning Google’s unauthorized copying of parts of Oracle’s computer code when developing applications for the Android operating system. The Alliance brief rebuts Google’s argument that its use of Oracle’s code was justified under the four-part fair use test used by U.S. courts, drawing comparisons to Google’s widespread and unauthorized use of news media content and its effect on the news media industry.

Alliance Senior Vice President and General Counsel Danielle Coffey stated, “There have to be limits to fair use, otherwise it will eat the world. For the last decade, sweeping exemptions have allowed Google to defend against almost any reproduction of quality content, including journalism, which requires tremendous investment that goes unrecovered when misappropriated. Like news publishers, companies like Oracle depend on robust copyright protections that promote innovation and creativity in the online ecosystem, and we must stand together against such blatant misrepresentations of law and abuses of market power.”

The Supreme Court is asking the parties to address two questions: 1) whether copyright protection extends to a software interface and 2) whether Google’s use constituted fair use. The Alliance brief focuses solely on the second question. The fair use test requires courts to consider the purpose and character of the use, nature of the copyrighted work, the amount and substantiality of the portion copied, and the market effect on the original work.

The Alliance establishes in its brief that Google’s use is not fair use, pointing out that Google’s use of the code is not transformative, but merely copying that allows Google to avoid acquiring a license or doing the hard work itself, similar to the way in which it uses original news content. The brief goes on to counter Google’s other fair use claims, including that its use was “non-commercial”; that the code would be entitled to minimum copyright protection; that the copying was insignificant as Google only copied a “small percentage” of the code; and that the Supreme Court should focus only on direct competition, showing how all of these arguments are fundamentally flawed. (See detailed key points below.)

Coffey continued, “The fair use defense was intended to outline exceptions to the paramount copyright protections afforded by our Constitution, but a constant stream of court decisions have allowed the exceptions to swallow the rule. There must be a limit to Google’s reproduction and monetization of quality content. Courts should ensure compensation to the creator; in our case, producers of local news coverage that is necessary to an informed society and functional democracy. Google should be required to do the hard work, just like everyone else in the marketplace, and when it does not, the courts should hold it responsible. We hope that this case is the first step in that process.”

Google appealed the case to the Supreme Court in January 2019 after two decisions by the U.S. Court for the Federal Circuit held that Oracle’s code was copyrightable and that Google’s use was not fair use under the Copyright Act. The Supreme Court accepted the case in November 2019, despite the federal government’s recommendation that the Court should decline to hear the case.

The Alliance asks that the Supreme Court affirm the Federal Circuit’s decisions.

The case is currently scheduled for a hearing on March 24, 2020.

Below are key points from the Alliance’s amicus brief, which can be viewed in full here. 

Key Points from the Alliance’s Amicus Brief:

1. The Alliance argues that Google’s use of the code was not “transformative,” as it merely incorporated and integrated Oracle’s code into Android while adding some material to it, allowing Google to avoid doing the hard work itself. Drawing attention to Google’s use of protected news content to feed its news aggregation and machine learning efforts, the Alliance’s brief notes that Google could create or license such content itself and “the fact that this might be difficult, time-consuming, and expensive for Google to do only serves to illustrate the value of what is being expropriated for free.” The consequences of determining such use as “transformative,” and thereby fair use, would be immense, diminishing the value of original content.

2. The brief also notes that Google’s claim that its use was “non-commercial” does not hold water. The existence of some non-commercial use cases and the fact that the code was open source in certain circumstances does not render Google’s use non-commercial.

3. Meanwhile, with regards to the second factor, Google’s argument that the code would be entitled to, at best, minimal copyright protection disregards legislative history and would create an unequal playing field by elevating “works with ‘aesthetic appeal’ to the highest level of protection,” while demoting other works “to second-class copyright citizenship.”

4. Google’s argument that it copied only a small percentage of the code is misleading in the digital environment. The third fair use factor requires analyzing not only quantitative values, but also qualitative factors and focusing solely on the percentage of the whole work copied can be misleading. As the brief notes, in the digital ecosystem, even small nuggets can be valuable, as exemplified by the role of snippets in news consumption.

5. Lastly, the Alliance argues that the potential market effect should be analyzed broadly. Google would like the Supreme Court to simply focus on direct competition, while precedent and the intent behind the Copyright Act demand that courts also consider vertical competition and the effects on potential markets. Not analyzing vertical competition can deprive copyright owners of licensing markets, similar to those that both Oracle and so many news publishers already rely on. Google’s argument also disregards the fact that technological change “can uncover new uses and additional value for copyrighted works, and companies should retain the right to license into markets created by new technologies.” Drawing attention to Google’s use of news content on a massive scale to train its own services, the Alliance notes that if such use is considered fair because it is not the original or principal market for which the content was produced, then “copyright would be turned on its head, and incentives to originate content would evaporate.”

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Media Contact:
Lindsey Loving
Director, Communications
571.366.1009
lindsey@newsmediaalliance.org

The News Media Alliance is a nonprofit organization representing more than 2,000 news organizations and their multiplatform businesses in the United States and globally. Alliance members include print, digital and mobile publishers of original news content. Headquartered near Washington, D.C., in Arlington, Va., the association focuses on ensuring the future of news media through communication, research, advocacy and innovation. Information about the News Media Alliance (formerly NAA) can be found at www.newsmediaalliance.org.

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“Fair use” is one of the best-known copyright terms outside the legal community. Fair use is the ability to freely use another person’s content that would otherwise be copyright-protected. Most people may not know how to determine whether their use of someone’s work constitutes a fair use, but they know that copyrighted content can sometimes be used without getting a license (permission) to use the author’s work. After all, how else would we have parodies of well-known songs, YouTube reviews of games and movies, and quotes from news articles in books and academic articles?

Fair use is an integral part of the copyright system. Most producers of original content, including journalists, rely on it at some point in their careers to produce new creative works or to inform the public about current events. Whether it’s a review of the latest novel or an article about a recent report on global warming, journalism depends on the right to quote and refer back to other creative works. These are exactly the kind of uses the fair use doctrine, as established in the Copyright Act, aims to protect. However, as most good things, fair use comes with a flip side.

News publishers invest considerable resources to produce high-quality journalism that supports a healthy, informed society. The articles these publishers produce on a daily basis inform citizens and decision makers about issues of national importance. And they do this in an increasingly digital ecosystem largely dominated by a few big online platforms that results in decreased advertising and subscription revenues for the publishers. Ensuring sustainable revenues is vital for the preservation of high-quality journalism. The judicial expansion of the fair use doctrine beyond its reasonable bounds has largely decimated the copyright protections for news publishers, exacerbating the already dire situation many news publishers find themselves in.

Despite Congress’s best efforts, the Copyright Act does not provide a clear-cut standard for deciding what is fair use. Instead, the courts are required to evaluate and balance four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the market effect of the allegedly infringing use. So far, so good – judges have to balance similar factors every day. However, the Supreme Court’s decision in Campbell v. Acuff-Rose Music in 1994 led courts to increasingly analyze fair use using a so-called “transformative use” test, which has greatly expanded the scope of the fair use doctrine.

Utilizing the transformative use test, courts have found everything from Google Books to services that record and provide access to television and radio content for profit to be fair use. While some of these decisions have been reversed upon appeal, the expansion of the fair use doctrine has effectively rendered many of the copyright protections unavailable for news publishers.

Unfortunately, many of the services benefiting most from the expansion of the fair use doctrine are those already dominating the online ecosystem. Google, Facebook and others not only regulate which news articles and outlets are uplifted or featured in search results so that users can easily access them, and what content is acceptable on the platforms, but they do so while using news content for free to generate even more revenue and entice users to stay on their platforms. In effect, the dominant online platforms are making money off the backs of newspapers, while also deciding how these publishers can engage with the readers.

Meanwhile, publishers are left without recourse, and finding a solution to this systemic problem is becoming increasingly important. News deserts in the United States are spreading at an unprecedented rate, and while the online audience for newspapers has increased rapidly, too many news publishers have had to cut costs because of revenue lost to the digital giants, jeopardizing the sustainability of high-quality journalism in the United States. In order to preserve a vibrant and inclusive news media, news content needs to enjoy the full protection of our copyright laws, both online and offline. Across the pond, the European Union is about to adopt a Publishers’ Right that will grant news publishers an effective and enforceable right to protect their content online against the online platforms. In the U.S., the over-extension of fair use still stands as a challenge. While some recent court decisions have started to recognize the need to rein in the fair use doctrine, there’s still a long way to go.

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