< Copyright Flack


Friday, July 24, 2009

Pearl Jam can't just take a Dixie Chicks song – it could happen – change the violin part to a guitar and put it out on an album without the Dixie Chicks’ permission. Tom Clancy couldn't change every fourth sentence of a John Grisham novel and sell it under his own name. But when it comes to news on the Web, this kind of thing happens all the time. There are some sites like Google News that point you to actual stories on the websites of actual newspapers, but other sites simply rip off news stories, rewrite them a little bit, maybe credit the original source, maybe not, and then they post it as their own. Lawyer David Marburger calls those sites “parasitic aggregators.” He has proposed a change in a 91-year-old law to halt this practice. Predictably, many bloggers are up in arms about the proposal, specifically the part they think would prevent them from linking to stories within 24 hours of their release. David Marburger joins me now to talk about his proposal. Welcome to the show.

DAVID MARBURGER: Hi, I'm glad to be here.

MIKE PESCA: So, to be clear, it’s not Google News, it’s not that home page on AOL which links to actual stories from newspapers, it’s not some of the more popular ways that people get to newspapers, other than actually logging onto the websites of the newspapers. That’s not what you’re talking about.

DAVID MARBURGER: It’s not Google News. Google News, on balance, we think, is probably good for newspapers. I mean, it has downsides, but on balance it’s probably good, because it’s just headlines with links.


DAVID MARBURGER: And the headlines aren't substitutes. An example that we give in our piece is when TMZ reported Michael Jackson’s death and apparently was the first to report that, the L.A. Times website then said, TMZ reports Michael Jackson’s death. Okay?


DAVID MARBURGER: That’s not free writing. We're not against that.

MIKE PESCA: Okay. Now that I understand that, what is the state of the law now with the sites that you do call parasitic aggregators?

DAVID MARBURGER: Well, the state of the law is, is troubling, because the Copyright Act, which we all think of as protecting expression, actually has a negative impact on people who invest money to originate expression. The Copyright Act says that I, the originator, must allow the aggregator to take my work for nothing, and without my consent, and to allow that aggregator to merely rewrite it a little bit, rephrase it and compete directly against me, in real time, for advertisers and readers, and on the exact same medium. MIKE PESCA: What would your change of rule be?

DAVID MARBURGER: Well, my change of rule would be simple. It’d be a single sentence: The Copyright Act does not abolish common-law or statutory unfair competition and unjust enrichment, regardless of whether the publication infringes copyright. That’s all we suggest. There’s only one business in the United States to which common-law unfair competition, and this species of it doesn't apply, only one, and that’s the daily news business.

MIKE PESCA: It’s because of the Copyright Act, not because of interpretations as the news business being one of the few that are mentioned in the Bill of Rights, their First Amendment protections?

DAVID MARBURGER: No, it’s the Copyright Act. The First Amendment would respect unfair competition and unjust enrichment of the kind that I'm describing. The First Amendment would respect what we are advocating. And I'm a First Amendment lawyer. What our problem is, is the Copyright Act.

MIKE PESCA: You’re proposing these changes as a way to help save newspapers. How big an impact will it have? Will it be a big impact to their bottom line, or is this is just a small part of what’s ailing newspapers?

DAVID MARBURGER: It’s a big part of what is ailing newspapers. It’s like a bathtub that’s draining, and if you don't plug the hole, all the water’s going to drain out. Now, if you plug the hole, are they all going to flourish and be profitable? Well, that'll depend on other things that they do or don't do. But if you don't [LAUGHS] put the plug in the drain, all the water’s going to leave.

MIKE PESCA: As I go online and see people commenting on your proposal, it seems most of the online commenters, maybe because they know where their bread is buttered, are extremely against it, and in the cases that you've engaged them, most of your content has been, you totally don't understand. So in a sentence or two, what do you need to explain to your opponents that they're not getting?

DAVID MARBURGER: What they're not getting is we're not askin’ for a statute that would put a 24-hour moratorium on rewriting original news report. We're, we’re against that. We would oppose that, just as the bloggers oppose it. We're not opposed to links. We think links, in certain circumstances, pure aggregator circumstances, are probably, on balance, good for the newspapers. I've rarely read anything that addressed what we really are advocating. I don't know if I have read anything.

MIKE PESCA: Well, I want to thank you for coming on.


MIKE PESCA: David Marburger is a partner in the law firm of Baker Hostetler, and he specializes in cases involving First Amendment and intellectual property rights.