I. Introduction and Study History
The internet has multiplied the information sources accessible to many individuals and put those sources in the palm of their hands. A majority of Americans now get their news from digital devices, and a majority of those who do say their primary source is not a newspaper's website, but a search index, a social media feed, or a specialized service that aggregates news from other sources.[1] Digital distribution enables these "news aggregators" to provide links to and snippets of others’ published reporting at low cost and with a wide reach.
The transition to digital publishing has coincided with a marked decrease in press publisher revenues.[2] The reasons for this decrease, the role of news aggregators, and the policy issues raised, are discussed below. As a matter of current copyright law, the central questions are whether the particular material copied, notably "snippets" of text such as headlines and ledes, is protected by copyright, and if so, whether reproduction and distribution of this material is permitted by the Copyright Act's fair use exception.[3] Finally, to the extent that many acts of aggregation are not infringing, should the law be changed?
The copyright issues associated with news aggregation are part of a longer discussion about the viability of legacy press publishers and, more broadly, the survival of journalism in the internet era, dating back to the early 2000s.[4] As this discussion gained more visibility, and other
- ↑ See, e.g., Nic Newman with Richard Fletcher, Antonis Kalogeropulos, David A.L. Levy & Rasmus Kleics Nielsen, Reuters Institute Digital News Report 2018 at 14 (2018), https://www.digitalnewsreport.org/survey/2018/. In a 2020 Pew survey, respondents aged 18–29 identified social media as their main source of news. Elisa Shearer, More Than Eight-in-Ten Americans Get News From Digital Devices, Pew Rsch. Ctr. (Jan. 12, 2021),https://www.pewresearch.org/fact-tank/2021/01/12/more-than-eight-in-ten-americans-get-news-fromdigital-devices/. Many press publishers themselves have transitioned to a "digital first" or "digital only" model. See, e.g., Dan Sabbagh, Guardian and Observer to Adopt 'Digital-first' Strategy, The Guardian (June 16, 2011), https://www.theguardian.com/media/2011/jun/16/guardian-observer-digital-first-strategy; Tyler McCall, 'InStyle' to End Print, Going Digital-Only, Fashionista (Feb. 9, 2022), https://fashionista.com/2022/02/instyle-print-magazineending-digital-only (noting that the magazines InStyle, Entertainment Weekly, EatingWell, Health, Parents, and People en Español will be going digital-only in 2022).
- ↑ See Estimated Advertising and Circulation Revenue of the Newspaper Industry, Pew Rsch. Ctr. (June 29, 2021), hitps://pewresearch.org/journalism/chart/sotnm-newspapers-newspaper-industry-estimated-advertising-and- circulation-revenue/ (indicating that newspaper advertising revenue fell from a high of $49.4 million in 2005 to $9.6 million in 2020). Newsroom staff numbers have also decreased. See Mason Walker, U.S. Newsroom Employment Has Fallen 26% Since 2008, Pew Rsch. Ctr. (July 13, 2021), https //www.pewresearch.org/fact-tank/2021/07/13/u-s-newsroom-employment-has-fallen-26-since-2008/.
- ↑ See, e.g., Computer & Communications Industry Association ("CCIA") and Internet Association ("IA"), Joint Comments Submitted in Response to U.S. Copyright Office's Oct. 12, 2021, Notice of Inquiry at 4 (Nov. 24, 2021) ("CCIA-IA Joint Initial Comments") ("Even where copyrighted material has actually been copied by a news aggregator, that activity will typically constitute fair use. The four fair use factors strongly favor a finding of fair use for the ordinary operation of news aggregators.").
- ↑ See generally, Steven Waldman, Fed. Commc'ns Cmm'n, The Information Needs of Communities 116‒33 (2011), https://www.fcc.gov/sites/default/files/the-information-needs-of-communities-report-july-2011.pdf; Dana A. Scherer & Clare Y. Cho, Cong. Rsch. Serv., R47018, Stop the Presses? Newspapers in the Digital Age (2022), https://crsreports.congress.gov/product/pdf/R/R47018.
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