By Justin Silverman
Up until recently I subscribed to a daily email sent by Slate.com called Today’s Papers. The email contained an about 700-word synopsis on what stories the country’s major newspapers featured on that particular morning. There would be a sentence or two summarizing the respective stories and a couple dozen links to the original content. 
As of last week, Slate (owned by the Washington Post Co.) changed this service to a an email called The Slatest, which features the top 12 stories on any particular morning, afternoon or evening. The free email includes the story headline, a sentence summary and a link to the original content. This isn’t unlike many other news aggregation services. In fact, we at MCLS send a similarly formatted weekly newsletter to those interested in media law stories. The difference with Slate, however, is that its new email goes further than most other services. There is an additional layer of use that may not be considered legally fair.
The topic of news aggregators is not new. Mainstream media outlets with large investigative reporting budgets frequently bemoan the blogger who uses their content without citing the source. Even more so, some blogs repost all the content, or enough of it, so readers have no need to visit the site where the story first ran. With most sites relying on advertising for their revenue, reposting full stories or posting substantial amounts of them keeps the reader from linking to the original source. It also keeps readers from viewing the ads that financially support that source. This is where the Fair Use Doctrine is applied. Sites can generally repost information so long as they do so in a way that creates new content or does not infringe on the commercial rights of the original creator. The goal is to share information in a way that drives traffic to other sites, not grind it to a halt.
GateHouse Media made this argument last year in a case that, though ultimately settled, caught the interest of online news outlets and may even be changing the way such organizations do business. GateHouse publishes more than 375 newspapers in mainly New England and operates their associated websites. It sued the New York Times Company last year claiming copyright and trademark infringement. The New York Times owns Boston.com, a site that published headlines from and links to GateHouse content. The problem, as Northeastern University professor Dan Kennedy explained at the time is that “in many cases you don’t have to read the stories to get the gist of it.” He further explained, “By offering what copyright lawyers refer to as the ‘substantiality’ — that is, the best and most marketable part — of GateHouse’s stories, Boston.com, GateHouse charges, is not complying with the notion of ‘fair use’.”
The Associated Press recently used this argument in a case against news aggregator All Headline News. That case, like GateHouse Media v. New York Times Company, eventually settled and created no legal precedent. Still some believe these cases could be weighed in future litigation if not in the way online news sites operate altogether. According to the Nieman Journalism Lab, these cases could have “persuasive power” for both media companies and courts. The lab cited David Ardia of the Citizen Media Law Project: “Other news organizations have paid attention to this, and depending on which side they’re on in a future dispute, will look to this agreement for guidance,” he said. This means litigants could argue that because New York Times Company settled, its arguments did not have merit.
With this context, consider Slate.com’s The Slatest and the Fair Use Doctrine. To fall under Fair Use, the following elements need to be considered.
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
As described above, the email contains a dozen headlines, a one-sentence summary and a link to the original content. There is advertising, but so far everything seems to comport with Fair Use. Though the email is commercial in nature, it only uses a sentence of the copyrighted work — the news story — and doesn’t substantially use the work or take it as a whole. One sentence won’t eliminate the need of a reader interested in the topic to visit another site to view the entire story.
Where The Slatest gets dicey, however, is in its design. The link to the original story is in much smaller print below the sentence summary. The headlines use the largest size font in the email; they are afterall the selling point of The Slatest. But what caught my interest is that these headlines link to a Slate.com page with a much lengthier summary of the news story. Accustomed to clicking on headlines within similar emails to view the full story, readers instead get another Slate page with 100 more words of summary. They also get another liquor ad. Having read The Slatest for the last couple days, I’ve been content with the summaries and only once clicked through to the original story.
Although I have a preference for Irish whiskeys, the fact that I visited Slate’s advertiser, JackDaniels.com, is also significant. When considering Fair Use, the commercial nature of the content is heavily weighed. I viewed Slate’s advertisements twice to read news collected by a company other than the Washington Post Co. This may tip the Fair Use scale toward a potential plaintiff.
The nature of that work, however, is news. Facts cannot be copyrighted. From what I can tell, the Slate’s summaries are not lifted verbatim from the original stories. News is different than the know-how needed to create the next big product. It’s not intellectual property like other types of information. If Slate were reposting the news verbatim, there may be a stronger argument here. They apparently are not and I believe the dissemination of news should be encouraged, not stifled.
But what about the issue of substantiality? This was the point of concern for GateHouse and I believe it could be one here. News stories can be a few hundred words long, or a few thousand. How does 100 words stack up? The summaries in The Slatest do an excellent job briefing the reader on the news story and given my lack of need to read further in nearly all cases, they may be doing too good of a job. According to the Publishing Law Center, “One criterion that courts frequently evaluate is to make certain that the user of the copyrighted material has taken no more than was necessary to achieve the purpose for which the user copied the materials.” Slate is using the featured news stories to alert readers that they exist, to tell them that this news is occurring and they may want to be informed. This can occur in 10 words just as well as 100 because either way the reader can click through to the full text. That lengthier summary seems unnecessary.
Unlike in the GateHouse case, Slate can claim that even if it is unnecessary, the content is still transformative. Boston.com republished the ledes of GateHouse stories exactly as they were first written. Slate is writing something new and that it seems may be its best argument. It’s not ripping off stories, it’s creating something new altogether.
Still, the effect on the value of the original stories may ultimately be The Slatest’s undoing. I’d like to see how many click-throughs the email gets each day. If the average subscriber is like myself, there won’t be many. That’s harmful to the companies producing the content The Slatest features. Their stories are providing value only to others who use them for their own advertising revenue. Whether a party comes forth to argue this remains to be seen. Eventually, whether against Slate or some other similar service, I believe one will.
Until then, I’ll be enjoying The Slatest. Morning edition.
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November 18, 2009 at 9:05 pm
Justin Silverman
with more thought, discussion and an intellectual property class, i have a better understanding of copyright law and would like to clarify, if not correct, this post.
the answer to “is an infringement claim on the ‘slate’ for washington post co.?” is likely no. when i wrote this i jumped to a fair use analysis of a news story by a party whom did no reporting. fair use is a defense to infringement. infringement still occurs but it is not actionable if there is fair use. this post implies, by the discussion of fair use, that infringement actually occurs when slate rewords a published news story. this isn’t the case.
to be clear: facts are not copyrightable. the news stories from which slate summarizes are factual. to use the same facts that are in these news stories is not an infringement of copyright. there is no copyright protection here. there is protection of the way those facts are presented or worded. this was the rub in the gatehouse/new york times case: the gatehouse story ledes were being republished word-for-word. this obviously isn’t the case here as slate is re-wording the news stories to present non-copyrightable facts in an original way.
is it fair that slate can simply rehash the reporting of another new organization? that’s the question behind the hot news argument and what compelled me to write this post. but the hot news argument came from a case called ins v ap that involved the international news service republishing ap stories verbatim. that’s the distinction. verbatim. slate is doing nothing of the sort. this “sweat of the brow” product — reporting facts — has no protection under copyright law. is that fair? probably not, but considering the public policy interest of having an informed public and limits on owning the news, it’s for the best.
and it’s almost certainly legal.