I. Introduction
We are submitting this filing in response to the FTC’s August 17th, 2010 notice of public workshop and request for comments on the future of journalism, News Media Workshop – Comment, Project No. P091200 (the “Request”).1 We appreciate the opportunity to respond to
the FTC Discussion Draft published on the FTC website prior to the June 15th 2010 workshop and specifically to Section I.A, “Additional Intellectual Property Rights to Support Claims against News Aggregators.”
In the framework of an open Internet architecture, we address two issues of potential concern for those gathering and disseminating community news and information: (1) proposed changes to the Copyright Act (17 U.S.C. §101 et seq.) to codify a version of state law “hot news misappropriation” doctrine into federal copyright law; and (2) restrictions in existing copyright law that inadvertently impede emerging forms of online journalism and social media and exemplify the problems of hasty copyright expansion. As the FTC Discussion Draft recognizes, “expanded IP rights could restrict the current practices of the same news entities that seek to remedy free riding by aggregators [and] could restrict citizens’ access to this news, inhibit public discourse, and impinge upon free speech rights.” We believe that balanced IP is essential to the future of journalism. The FTC can help news producers and consumers by reaffirming that balance.
II. We urge the FTC to exercise caution and reject an expansion of the Hot News Misappropriation Doctrine.
The “hot news misappropriation” doctrine has seen a recent resurgence, with well-known figures in the media and legal sectors calling for its codification as part of the Copyright Act (17 U.S.C. §101 et seq.), as well as a high-profile decision out of the Southern District of New York applying the doctrine to embargo the republication of factual information about stock recommendations issued by three large Wall Street firms. As the FTC Discussion Draft notes, some stakeholders suggest that expansion of that doctrine and establishment of broad, federal rights in so-called hot news will help stem losses currently being experienced by traditional media sources. For a variety of legal and policy reasons, we urge the FTC to exercise caution and reject such a radical change in copyright law and policy.
III. Aspects of existing copyright law threaten the growth of media.
In addition to “hot news,” several aspects of current copyright law raise concern for those gathering and disseminating news and information: First, restrictive interpretations of copyright fair use combined with misuse of the DMCA’s notice-and-takedown process against noninfringing works threaten both the availability of source material and the persistent availability of news and the viability of non-profit media (the problem is less acute, but not absent for commercial media players). Second, the anti-circumvention provisions of the DMCA give legal force to technical measures that impede fair use of media content and innovation in technologies of media distribution. Recent past experiences with the 1998 Digital Millennium Copyright Act show the hazards of copyright expansion.
For a copy of the full comments click here or see the pdf on the right hand side of the page.
