 Hi everybody. As David said, my name is Chris Bavitz, an assistant director of the CyberLock Clinic, which is based at the Berkman Center and here at HLS. And we are a kind of traditional legal law school clinic for our students who work on a wide range of issues involving technology, intellectual property, speech, privacy, youth online safety. We have a number of our clients in the room today. So I'm thrilled they're here as well some of our students, which is great. For those who follow news about the news, you know that today's topic of this first panel is just about as hot a topic as you can get. We're going to talk about a wide range of issues relating to news aggregation websites, about websites that compile and link to news stories that are found from third party sources. The parties that engage in news aggregation really run the gamut, including everyone from pure spam blogs or splogs that people would say up to sort of citizen journalists covering hyper-local issues and bringing in third party content to supplement their own content all the way up to major news organizations. And I think our panelists today represent the sort of diverse range of views and the types of parties that are involved in these kinds of activities. We're going to talk, like I said, about the two major legal doctrines, I think, that are involved in this. One is copyright, and one is the doctrine of hot news misappropriation, as well as some of the business issues that relate to this. So I'll give a really quick introduction to our five panelists who are crammed in at a very small table. And I think after I give them a short introduction as each of them are on the line and talk for a couple of minutes just about themselves and their practice and sort of how they come out the kinds of issues we're talking about today. On my left is Mike Greigel, who's a partner at Hiscock and Barclay, and he's chair of the firm's Media and First Amendment Law Practice. He also currently serves as chair of the New York State Bar Association's Committee on Media Law. His practice covers First Amendment issues, defamation, advertising, copyright reporters, subpoena matters, and his clients include Clear Channel Communications, Bloomberg, Condé Nast, and Gatehouse Media, whom Mike represented in a case that I think a lot of people in them were probably following when it was filed at the end of 2008 against the New York Times relating to the Boston Globes use of headlines and leads from stories found on Gatehouse's wicked local series of blogs. Mike, thanks so much for joining us. Right after Mike, we have Sam Byard, Sam's a fellow at the Berkman Center and he's assistant director versus David at the Citizen Media Law Project. Sam's also a lecturer on law and the LLM program here at Harvard Law School. If you are familiar with the Citizen Media Law Project website, you know that they have a fantastic blog and Sam's a frequent blogger on media law and intellectual property issues of importance to non-traditional journalists and others. Sam was an associate at Wachtell Lipton and Clarkford Judge Kaplan in the Southern District of New York, thanks for joining us, Sam. After Sam, we have David Haas, David's a partner in Goodwin Proctors Litigation Department here in Boston and a member of its intellectual property group. David's practice focuses on trademark trade secret, copyright false advertising and licensing disputes and David represented the New York Times Company in the aforementioned case, brought by Gatehouse at the end of 2008. David, thanks for joining us. After David, we have Bruce Brown. Bruce came and joined us on about, I guess, 40 hours in those roughly. From DC, he's a partner at Baker and Hostel. I'm thrilled that he was able to make the trip. Bruce's practice covers the areas of libel and evasion of privacy defense, copyright, law of news gathering. He has a long journalism background in addition to his legal career. He's been co-chair of the Legislative Affairs Committee of the MLRC in New York and is currently an adjunct faculty member at Georgetown's master's program in professional studies and journalism. Along with some of his colleagues, including Bruce Sanford, Bruce has published a number of pieces about news aggregation and related issues, including an op-ed that appeared in the Washington Post last May entitled Laws That Could Save Journalism. Thanks again, Bruce, for coming, especially on such short notice. And finally, Joseph Liu is a professor at Boston College Law School. Joseph writes and teaches in the areas of copyright, trademark, and internet law. He's a co-author of the Copyright Law Essential Cases and Materials Textbook, published by West. And the particular focus of Professor Liu's work is how digital technology is chaining the ways in which consumers interact with copyrighted works, which I think is at the heart of a lot of what we're gonna talk about today. As I said, it's my goal to probably do as little talking as possible today. So I wonder if maybe each of you can start with a short statement about yourselves and what brings you here. Thanks so much, Mike, if you wanna start. Thank you, Chris. And I, too, would like to join in thanking Chris Babitz, Jennifer Isbell, David Ardia, and the others at the Berkman Center for organizing this event today. It certainly is going to present some cutting-edge and very interesting developing, fast-developing legal issues. Chris indicated I chair the First Amendment in Media Law Practice in my firm. These days, that means I spend an awful lot of time on airplanes. I'd like to thank much to my wife's dismay, although I'm sometimes not certain. We do a lot of work in what I call traditional, older media types of claims, defamation, although those certainly can affect internet publications as well, invasion of privacy, and other news gathering and news publication related claims. I would like to say that as somebody who has spent his entire professional career, and been privileged to do so, representing the media and the working press, I have always viewed the fair use doctrine as not some grudgingly tolerated exception, but a fundamental policy of the copyright law that is intended, it often does, stimulate creative thought and authorship for the greater good and benefit of society. Simply because I have taken the pro-rightholder view in a couple high-profile litigations, I will say for this group that my view has not changed in that regard. I'm sure we'll anticipate the substantive discussion a little bit and see if that can be squared up going forward. The last thing I should add by way of humor is when I told my children that this was going to be on a webcast, I was walking out the door, they said, well Dad, please do us a favor, just don't say anything really foolish. Unfortunately, I could not provide them that reassurance, so I'm very pleased to be here today, thank you. Thanks, Mike. Hi, I'm Sam Byrd, and I'm the Assistant Director of the Citizen Media Law Project, so I'm sort of the in-house guy from the CMLP today. And our sort of background on this and approach to it has been a concern for sort of the non-mainstream media journalists, the non-traditional journalists, the blogger, the social media user, and we've been very interested in this topic of news aggregation for a number of years, probably going back before the gatehouse case, but obviously our interest was spurred in that point to sort of really engage with it. And I think our orientation to the issue is that on the copyright issue, on the fair use issue, we want to emphasize, I think, that there are lots of different types of activities that are referred to under the label of news aggregation and that depending on what activities we're talking about, the fair use analysis certainly should come out differently and that most of the more productive aggregation practices should, under present law, enjoy the protection of fair use. Hot news is something we've become very, very interested in recently and in particular the interest in what impact the hot news doctrine, if expanded and revived and applied to the online sort of the open internet that we enjoy today in the United States, what impact the hot news doctrine might have on that sort of vibrant conversation that's going on and what the First Amendment implications are for that expansion and that's my take, we'll talk more. That's great. David? Thank you everyone for coming. Thank you to those of you who are online and thank you for the center for putting this together. This really is a lot of fun and I've been looking forward to this for a while now. In some ways, I think I may approach these issues a little bit differently than some of the other panelists and probably from some of the other folks in the room. I come to these issues not in a sense from a media or an industry perspective. I really have spent my life as an intellectual property work. As a result have been dragged into many, many different media disputes and including the New York Times case and I also represented cable vision at the trial level in the RS DVR case that they had against most of the media industry a number of years back that ultimately was decided the right way in the second circuit. And so I really sort of do come at these issues from a very traditional intellectual property bent and that's where my analysis tends to start. Obviously that analysis can be seen through the prism of various different clients that I've had and many of them are in the media industry including the New York Times and cable vision and some very interesting clients who have been involved in publishing and both as authors and as publishers I represent Hamid Karzai at one point when he got into an odd issue over a book deal. And I also in a sense come to this from a slightly different angle in the sense that when it comes to watching the media world change and content provision change I have a vested interest in it. My day job is as a lawyer I'm also a novelist and I've had four novels published around the world in nine different languages and watching the industry change and trying to figure out how content is gonna be protected and encouraged is not just a professional interest to me but a personal interest. The latest book by the way is called Among Thieves came out about a month and a half ago. We've got great reviews if you guys like thrillers please I need the money so go on, buy it. Bruce? Great, well I guess I've been looking forward to this for about 36 hours but it's great to be here and it's great to be a sub because clearly I can take a pass on the tough questions because I didn't have the chance to do any of the homework. Just to get my biases out on the table I worked in print media before I went to law school I worked for David Broder, Law Washington Post for a couple of years and then did some stringing for the economist when I was in law school and then after law school I worked at American Lawyer Media at legal times down in Washington where I wrote about the federal courts. So I have a print media background that's gonna give me a bias. My clients are in print media that's gonna give me a bias. I'm not on Facebook, I don't have a Gmail account. I've never been on Twitter. My poet is still Yates, my beta is still the Beatles. I am clearly of the old century. But saying all that, I love the internet but I love journalism and so one of the things that I've been working on over the last couple of years is trying to do some writing about what we can do in the way of public policy to help journalism survive the transition to the online world. And when it comes to hot news, my colleague Bruce Sanford and I as Chris mentioned did a piece last year where we looked at some of the different things that Congress might be able to do to give journalism a boost online. And we felt that there had been a lot of attention in the 90s to what tech needed in the way of public policy. It got the Communications Decency Act, it got the DMCA and now it was time to give some thought about what could be done for journalism. And when it comes to hot news, we would like to see an expansion of the hot news doctrine. It is a doctrine that exists in just a handful of states now and we are in favor of federalizing it. But at the same time, we believe it is a doctrine that should be used sparingly and for only those situations where there truly is a systemic free writing on the hard work that journalists do to put out the knowledge we all need on the internet and that we believe that we can federalize hot news, make it available nationwide and not just in the handful of states where it currently exists today and that we believe as First Amendment lawyers would be consistent with keeping the internet the vibrant speech community that we all very much wanted to be. Thanks for being here. Joseph? So yeah, so I'm Joe Lu. I'm a professor at Boston College Law School and I want to offer my thanks to the center for putting the other district panel. I think it's a really fascinating topic. I also want to congratulate the center on launching the initiative. I think it's a great idea and I wish you the best of success with it. So my main area of focus in research is copyright law. And in particular, I study how rapid changes in digital technology are changing the way in which consumers interact with copyright works in terms of getting even more access to them, being able to manipulate them, send them to other PB people who form them and all the rest. And in particular, how existing laws facilitate or hinder these kinds of efforts. Now, I think this is relevant to the topic for today because I think it's pretty dramatic with changing nature of patterns in which consumers consume news. I'm actually old enough to remember the days when you had to wait for the afternoon edition of the newspaper or the evening broadcast to find out what happened during the day. Things are incredibly different today. The amount of information that's available, the immediacy, the number of sources that it's coming from. And so a lot of the same questions that I look at applied to other industries are relevant here. So a lot of the same questions about what role should the intellectual property law play, copyright, hot news, disappropriation, to what extent will it facilitate changing patterns of interacting with the news, producing the news, and all the rest. As an aside, I was talking to Bruce earlier, I think it's really interesting that as a copyright scholar, so much attention's been focused on the impact on the recording industry, the movie industry, how are these industries gonna survive. And at least for copyright scholars, the impact on the newspaper industry kind of snuck up on us. We were kind of looking in one direction, and all of a sudden there's a crisis in the news. And so I think it's interesting applying a lot of the same issues to this kind of problem. So my approach, and I guess my interest in this issue will be as, I guess, kind of the designated pointy-headed academic on the panel. And so from that perspective, I think a lot of the other folks on the panel will, I think, have a lot of great things about the real world impact a lot of these rules, how to match the parties and all the rest. I guess my contribution, to the extent that I have one, will be to try and kind of offer a little bit more of a broader perspective, a little bit more of a historical perspective. And on that front, let me just kind of throw two things out here, I think one of them will probably not get a good reception on this panel, but this idea that from a broader perspective, we should rightly worry about the viability of the news and making sure that people are producing the news and all the rest, but maybe we should be less worried about the viability of newspapers in traditional media. That, and I know again, I'm not sure that this is not terribly happy to some of the other panelists on the panel, but that we should be concerned, but only to the extent that they're necessary to produce the news. In some cases, they may well be, play an important role, but in other cases, they may not. And I think it's important to be very careful about making sure that the target is the production of news and how we make sure that the news is produced. And then the second point, I guess, just to again throw out there would be, just in responding to these challenges, to be kind of appropriately cautious about the ability of legislators and courts to really craft responses that work in the way that we intend to work. I think there's a lot of history about attempts to anticipate technologies, anticipate markets. And I think we need to be very careful about that, especially in an environment that is so dynamic where things are changing a lot. Not to say that it shouldn't be done, but just that we have to have an appropriate level of care. So that's great. I mean, I have a few issues I kept throughout, but I think Joe's thrown out to begin with that. Does anyone want to respond to either of his points? If I understood it, Joe, the first question goes to the ongoing viability of the institutionalized media as a content provider. And certainly the internet has changed the environment, the news environment. There are many more sources of news information rapidly indeed, instantaneously delivered. However, the caveat, perhaps even bordering on admonition that I would make, is that to deliver the news, and by that I mean accurate, truthful, concise, insightful information that is of utility to all members of the society and would promote the values perhaps most expressly identified in First Amendment jurisprudence in some of the access cases from the early 1980s. And I'm thinking specifically of, to some degree, Chief Justice Berger's majority in the Richmond Newspapers case, certainly Justice Brennan's concurrence about the structural value of people in the news industry who present information that really makes citizens' ability to function properly in a democracy-available construct. That is a very important function and service protected under the First Amendment. My concern is that if we don't have, and I'm not looking for a special pleading for the institutionalized press, but in my experience, and I'll make somewhat of a cautious judgment, it is the working institutionalized press that still performs that function. There are some exceptions. But ad hoc, more off-the-cuff commentary is of a different order. I notice there's intrinsically a value judgment that I'm making here. I'm prepared to stand by it. And I think to get that type of news requires training, discipline, hard work, cultivation of resources, investment of time and effort. And I guess I would kind of move back to your second point and say, even if that's true, does that, do we need legislative fixes? Professor Lee was sort of cautioned. And his second point I think was about being some concern, having some concern about legislative fixes to these problems. Again, I'm thinking about these two buckets of issues, copyright and hot news. I don't want to start with copyright, but are there, does the existing set of copyright laws we have in this country not protect the kinds of industry that Mike just mentioned? Well, I mean, before we get to the legal analysis, it seems to me in terms of analyzing the business model and how we address all of that, I mean, there has been in the traditional media from my observation, somewhat of a monopoly in the sense that there was this enormous barrier to entry for other players, which was the distribution aspect. And that really has gone down. I, again, coming back to sort of the intellectual property aspect to it, look at it and wonder, okay, how is it that we do protect it and how do we monetize it to some degree because the barrier to entry is low at this point. There's a new barrier to entry, I think, though, that again, when you talk about the value of the information, the value is in the accuracy. The value is in the hard work that's done underlying the reporting itself. It seems to me that in the future you're going to see inevitably trademarks actually playing more and more of a role in terms of adding value to those who produce the news because what you're going to see is people are going to look for the sources that they actually trust. Before they had to pay for the distribution, but now what they're looking for is the name. If it's coming from the New York Times, are you more likely to trust it and therefore are you more likely to go to their website or are you more likely to trust Fox for CNN? You're also going to see a branding and you've already seen this not only online, but in terms of the network and the cable news networks, a branding in terms of ideology. You see that online, you see that on television. Again, a lot of this comes not now from the copyright aspect but from the trademark aspect and that's to some degree what's driving viewership and eyeballs. Just to pick up on a couple things. You asked about the lack of clarity in the law or do we need more protections? I do think when we get to talking about the Gatehouse Media case, that's a great example of where you looked at the situation and you thought, well is this copyright, is it hot news? We're still early enough in figuring out how these two doctrines relate to each other that there may be cases that aren't quite perfect copyright cases and maybe they might belong in hot news and then we've got feist out there and the loss of sweat on the brow and that affects the picture. I would say in response to Joe's comment that certainly there are some who think that codification of hot news brings a risk because you're locking in a test when perhaps what we want is to give courts more of a common law freedom to develop the law. My partner David Marburger in Cleveland has written about clarifying that copyright shouldn't preempt hot news in the States and then letting the hot news doctrine develop in the States. That's another way to go if you were uncomfortable with the idea of actually codifying the Motorola factors for example in a federal hot news law and I do think when the press, the institutional press pushes these issues as a legislative matter that it is important to remember that at least as a matter of constitutional law when we push the preferred position under the First Amendment in the 70s that we were unsuccessful in that area and that what we need to kind of broad in the way we think about some of these issues and really couch them as protections that would apply to any industry and it puts out information that requires resources to gather information and then publish it. In the hot news area, we'll get to it. The last big case we'll all talk about was brought by investment banks. Not exactly the lobbying colleagues we thought we might have for expanding the hot news doctrine, but there it is and the case we all look to, the Motorola case for what the factors are for hot news of course was brought by a sports franchise. So there are other industries that are interested in the protection of information. I'd just like to pick up on Joe's point a little bit about the business model stuff before we get into the doctrine and just raise the possibility or we'll first to say that I totally agree with you that as a social good that investigative journalism, that accountability journalism, these are, I don't think anyone's questioning that these are important social goods that we should figure out as a society in some way to support and sustain, right? But I do want to raise the possibility that I'm not sure that what ails the news business right now can be fixed by dealing with this problem of pre-writing or appropriation. As you say, there's an issue of the monopoly, the whole sort of business model of the 20th century that was built on extracting monopoly rents and local papers that were one paper towns and there are tons of different sort of forces at play that may be causing these problems and maybe we can raise this today and maybe you guys can point out, is there empirical evidence that's showing that what ails the news industry and what's causing the problems is news aggregation or bloggers or spam blogs. Is that really the economic problem or is there a bigger economic problem that we as a society have to face rather than trying to fix it through intellectual property? Just to chime in really quickly on that last point, I think one of the things that to me is so fascinating about this topic is that when you contrast it to other industries that are under pressure like the copyright industry, I'm sorry, the movie industry, the music industry which have kind of faced this issue maybe a couple years ahead of the newspaper industry and the broadcast media industry, that the threat there was a lot more immediate where you could kind of see what's happening is that the college student with a lot of time on his or her hands with access to like BitTorrent and Nassar, right? And it was a very easy story that people are downloading and not paying. But the newspapers I think it's much more fascinating because it's so complex. There are a lot of things happening to the newspaper industry. The impact, part of it might be the lack of intellectual property protection, but it might be other pressures that are facing it. You know, kind of the feeling away of classified advertising by Craigslist, right? Completely unrelated in some ways to copyright. And so there are a lot of things going on. So I think it's hard to diagnose what's happening and it's harder also to see the way through, right? How would the future of this industry sort of look like? I think it's quite uncertain. Well, and you can also see that in terms of the way the disputes arise because you would think that there would be an industry position and non-industry position or maybe a traditional industry position and a new media position, but that's really not the way that it breaks down. I mean, in the case that Mike and I were on opposite sides on, we represented, I represented the New York Times, which obviously is one of the sort of pillars of the old established media. And yet we were the defendants in that case because the New York Times and the Boston Globe functions both as a traditional media provider but also engages in linking, engages in news aggregation. And so you really sort of have this disconnect and this difficulty in necessarily predicting who it is that's gonna be on what side of which dispute. And the disputes end up being so factually driven that it's sometimes difficult to draw out larger principles from them. No, I agree with that. I think the lines do blur. And I think, Sam, you just, in a very comprehensive, articulate way, set forth the global problems about the industry business model. If you could answer the question, oh, you can make an awful lot of money as a consultant because a lot of people have spent a lot of time thinking about this, but I do agree with Dave. And all media companies today are not just originators of content but they are also aggregators to some considerable degree of content. So the lines do tend to blur a little bit. And just to add to that, I was mentioned to Joe before the panel started that in talking to a friend at the Washington Post over the weekend, he had said that you literally have a situation where half the newsroom wants to just turn Google off. And then on the other half of the newsroom, there are people who call Google and Yahoo every day to try to get their stories up at the top of the aggregators list. So there is this real schizophrenia in the industry. But I do think that there is a place for hot news but perhaps less in the context of media companies suing each other because I think we wouldn't see a lot of that. I thought the Gatehouse case was unusual in that way but maybe it does have a place for a company that is putting a lot of content out there going after someone who's putting no content into the system at all and is simply just scraping the content that someone else is putting on the net. And I think the fly on the wall decision is sort of interesting because one of the things the court looked at was whether fly on the wall did any kind of original information gathering and news gathering on its own. And even though it's not quite clear how that fits into the Motorola test, it was used by that court and it was a factor in its decision. And I think in any use of the journalism industry of the hot news doctrine, I think the plaintiffs would pick their cases very carefully. They'd pick the cases they would win, right? They would pick the cases mostly where they felt they were going after organizations that were just standing outside the door metaphorically here and just taking your content linking to it selling ads around it. I would just add one thing to that which is you mentioned that some news organizations will be calling Google up because they want Google to pick it up. There's also the flip side of the situation which is I think reporters are using the internet and they're using this sort of distributed news gatherings or tool that it offers as a way of also creating stories. And so I think it was Jamie Boyle who's a New York law school professor who had this example and I talked he gave the other day where he's saying, what about the New York Times writer or reporter who speaks Spanish and reads the Chilean newspapers account of some event that's going on in Chile and then rewrites it for the New York Times and publishes it. We got two productive sort of activities going on there. So sometimes it might not be as easy to say, well, one is the productive analytical investigative source and the other is the free riding does nothing spam blog. Just to respond to that quickly, I think that's just sort of a straw man he's throwing out there because no one is going to be suing over that. But I'm not sure we should feel comfortable with the promise of, well, we're going to be restrained and the news organizations aren't going to sue people but they, that's a lot of discretion. Yeah, but one, let's not forget it in motor role of the NBA lost. I mean, that, you know, but I think that when people throw out examples like that, it doesn't reflect the reality of how the doctrine would be used where I think companies would carefully look at situations where systemically over a period of time, there was a widespread pattern by an organization that probably doesn't do any newsgathering itself. And so there was an example, big outlook piece about six months ago, Washington Post reporter really upset that Gawker had taken one of his stories and had repackaged it and got a lot of attention that story did, but it was in New York, Gawker's based in New York, the Washington Post could go after Gawker in New York because it's one of the states that recognizes hot news, but of course they wouldn't do that because Gawker is not the kind of company that you're going to, this is one of the problems with the test is that you don't know who's a competitor and who's serious enough. And that to me creates at least some speech issues because you have people guessing whether they're serious enough competitor, you have people guessing whether their activity is systematic enough and is it analytic enough? Is it productive enough? It's, it also strikes me that one of the problems that you're going to face and you face this both in the copyright context and in the hot news context because ultimately when you look at fair use and hot news there is in both instances this issue of what's the real impact? What's the economic impact? And that to me, particularly in a world that's developing technology as quickly as we are evaluating what that impact is going to be is going to be very difficult on a case by case basis. I mean, take for example the news aggregation system where it really depends on what you're doing. The file on the wall case to me isn't really what I think of as a news aggregation case at all. There was no linking involved to that at all. I think of an aggregator, you know, and there are a thousand different definitions but my own personal one is an aggregator is someone who is providing a headline, a notation, something to somebody else's story but then linking back to that story. And there is this significant question of what is the value that that person is taking and what is the value that that person is providing back to the original source. And so, and you know, as technologies develop quickly linking is today's issue but there's going to be a new issue tomorrow and assessing the long-term economic impacts of that in the context of a litigation are very, very difficult to do. I think a situation where for example as in fly on the wall somebody is simply taking a piece of news and I actually don't entirely agree with the fly on the wall decision in a couple of acts but take a situation where someone is actually just taking the news and summarizing, putting it on their site without a link back to anybody else that they're taking it from. That I think is probably an easier case because you have a more clear example of competition because nothing is going back to the original creator. But there are going to be situations where the value of this is difficult to analyze. Again, both in the copyright context and in the hot news context. Thank you. Just following up on that really quickly. I guess a question for you know, Bruce, David, Mike about exactly this issue kind of the economic impact of the linking. And the reason I find that really interesting is because linking cases do seem different from your misappropriation cases or exactly the reason the data mentions. In INS versus AP, in the NBA versus Motorola, even in the fly on the wall case, you're taking someone else's information, changing it around, sending it out to the world. The linking cases though, where's the misappropriation, right? You're linking to stuff. So in some sense you're directing traffic to that site but it's not like you're taking the news and then reselling it, right? You're just linking to the original page. You might be misappropriating the headlines and I understand that, but it's a different kind of issue. But how are you misappropriating the news? Where's the misappropriation there? Well, I think it's a little harder to fit on the facts or the hot news misappropriation doctrine but I think again, context matters. And if it is something that's repeated seriatim and there is a vast panoply of another news organization's content, even if it's just a headline and a lead that is linked to, then again, I think it's a closer call on even hot news misappropriation. And it also raises some interesting fair use questions. But I think the short and the long answer to the economics that seems to me is with the linking and I don't think anybody on any side of the question really feels that there is anything inherently problematic or unlawful to linking alone. But who's making the line now? News organizations have repeatedly had difficulty monetizing their content. Google News and Google are certainly making an awful lot of money. So at least in a large level, global sense, I think that that does to some degree at least frame the economic question, if not answer it. Does it undercut the incentives though? I guess that's the question that I have which is as an economic matter, I can understand why you'd want to direct folks to your homepage because you can sell ads and they're more pricey and all the rest, right? Absolutely. But one of the issues I guess in the personal role is whether this kind of freeriding, let's assume it's freeriding, would so undercut the incentives that it would really have a material effect on the production of that information. And this is just a question I just don't know the answer to this, whether is there a business model where you could sell the ads on the individual pages for enough more to make up for the fact that you're losing hits on your homepage and the additional traffic that's being driven to those pages makes up more. I mean, this is a terrible scenario. If that proof were demonstrated in an individual case, but again, it's context specific, it's going to depend on empirical information produced in discovery in the middle of the case. If that were shown, Joe, your example, I think it would certainly be much more difficult to, you know, the person taking the content would have a much stronger argument under the fourth factor of fair use. There's no question about that. I'm not sure that it often shakes out that way though. I'm not, I'm sorry, I was just gonna say on the empirical stuff, the Marburger paper goes through this analysis of how to have new businesses that are created just to aggregate content and they're selling advertising. They can offer advertising at a better price than the newspaper companies that have a payroll and all the expenses in the newsroom to actually gather the information and put it up on the web. And therefore when the aggregator can sell the ad space at a cut rate compared to what the newspaper company can sell the ad space for, it pushes all the cost of advertising down. And if that is shown empirically, then it would cut the output. Yeah, and I think secondly on the empirical, the FTC has been doing its hearings on the journalism industry. A bunch of really smart people have put papers in their economists that have done things, Google came and did something, put it in the record. And I think, although I'm not sure my number is exactly right, I think someone said that there had been a study that had shown maybe 55 or 60% of Google news users were saying that they weren't clicking through beyond. And so that they're staying on the Google site even though the link is offered and the ads they're seeing or the ads Google is selling on its own site. And then there are people in the industry who will tell you that even when they click through, and these paper companies are having a really hard time monetizing because of all the other pressures that are keeping ad rates down. I also just wanted to briefly respond to Sam that I do understand the concern about giving a new tool to information producers and is there a fear that they would be sending demand letters to people telling them what you're doing is unlawful, we're gonna go after you when that ends up suppressing speech. And that's obviously something that all of us in the First Amendment barb would be a disaster if that's where this went. I would just mention that the media companies were in Amicus in the Motorola case, not supporting the NBA. They're on the other side. Yeah, against the NBA. And they also did an Amicus in the PGA case on the other side. So I do think it's an industry that is very sensitive to anything that would suppress. It's a fair point. But also, the fly on the wall case illustrates the potential sort of way this can veer off is it might not just be the news organizations that are asserting the claims. There could, what happens if the political activist who takes the Acorn video starts asserting that you can't report that because they originated those facts. I mean, I know it's a far-fetched thing. And again, there's a strong man aspect. I share that concern. And Bruce, you know I'm with you spiritually, certainly. I want to be with you doctrinally. But the question, which I think Sam is getting at, is if you look at the fly on the wall case, there is considerable tension with the First Amendment right of any publisher. Established news organization, Swagger and Seller and his or her underwear, to report facts. And I think that this decision, there's a lot in it. There's no question about it. To those of you who are students here, I know in April this time of year, the last thing I want to do is read another decision. Especially in 88 pages. It's very long. But the opinion really does not address in a meaningful way the First Amendment considerations and the tension that exists between accurate, truthful reporting of factual information, which is protected since I'm thinking of landmark communications, Smith, D.D. Mell, Florida Star. Even more recently, Bopper as long as it's lawfully acquired. And to the extent the hot news misappropriation doctrine presupposes an antecedent quasi property right in factual news. How is that squared with the First Amendment? I think on the fly, on the wall case, it's again, I'm not on board with the reasoning of the entire decision. I agree with some of it, but not all of it. Because again, from my perspective, the ultimate upgrading or downgrading of a stock in particular to me is in fact, independent news. Because whether or not the underlying analysis is correct, if Barclays says a stock is gonna go up, the stock's gonna go up because they have such enormous market power. So to me, I'm not entirely in agreement with the analysis on the ultimate decision of should that fact be protected. Now, the underlying analysis, I think, is a separate issue. I mean, when the firms did to come up with their recommendations, the underlying evaluative work and analysis. But copyright should go a long way to protecting it. Exactly, and they could also protect it under contract principles. I mean, one of the, and again, I think that's an important part of the opinion, but I think it is protected even under established copyright law. Look at Justice O'Connor in the Feist case. She says, this comes to the distinction between creation and discovery. And certainly where you're talking about the underlying investment analysis and the hard work done to crunch the numbers and come up with a report and recommendation, to me, that's creation. But again, that to me is an easy, in a sense is an easy case on a number of levels in the sense that you know that there is an economic impact on the producer in that case. Again, I keep coming back to, you know, for example, the case that we had. And, you know, I am a trial lawyer, you know, sort of by vocation. And the reality is there's a practical problem with a lot of these issues. And that is particularly in the context of a preliminary injunction, or as you see more and more courts doing these days, an order for trial within a month. I mean, initially when the case was filed, Judge Young, it was filed on December 22nd and Judge Young initially ordered us to be trial ready by January 5th. So we had to do all of our discovery, find our witnesses, find our experts and get it all done within a week and a half over the Christmas and New Year season. He was not. We were just trying to write a blog post about the complaint before hanging up for Christmas break as I recall. You guys have to do the work in the case. And he, you know, I mean he ultimately took pity on us and put us off to the end of January. But there is this aspect of at that speed and dealing with new technology, coming to a conclusion and actually proving whether or not there is harm or is not harm and what the economic impact of new technology is virtually impossible, even in the hearings that are going on. There's been a lot of evidence submitted on both sides and looking at it, I think there are good arguments on both sides, but I don't know that I can look at that evidence at the moment and say definitively, you can say what the economic impact is and you may have looked at it more closely than I have, but I haven't seen that yet. So I mean there is a practical problem in terms of the judicial system dealing with it under these principles. I'm sorry, I was just saying you think it's enhanced because of the injunctive remedies? Well, I mean I think it is, it's difficult because usually we do things when you assess damages. Usually you assess damages sort of throughout the, yes, absolutely, in terms of what courts are doing these days, they're moving cases, they're moving copyright and trademark cases through very, very quickly, which I think is a good thing, but it does create some practical problems. Well, on the fly on the wall there wasn't injunctive remedy. It was very narrow, it was very narrow, but there it was, two hours right after. Two hours, yeah. I think the fly on the wall case is a really interesting case and I think it's, in some ways, it highlights, I think some of the concerns about misappropriation. Misappropriation, it's just such a vague and kind of amorphous tort. And so in some ways I actually agree with Bruce in the sense of as between a vague amorphous tort and something specific, right? We had a federal statute that was narrowly tailored, targeted, I might be actually more comfortable with that because it would actually have hopefully exceptions and very narrow scope. What makes me more uncertain is really how judges have such discretion in kind of manipulating or applying the elements of misappropriation. And fly on the wall is a great example, right? Because there are a lot of kind of open questions about how it's applied. INS is very clear in saying we don't create a property right in the news, we're just creating a quasi property, right? Good as against direct competitors. Big question, right? Just fly on the wall of direct competitors. I mean, they're not a brokerage company, they are disseminating information, are they more of a downstream kind of player like Google? You know, it's kind of glossed over a little bit. Isn't that a question you raised a couple of minutes ago, Sam, with the line drawing, but to be qualified? Yeah, the line drawing, and just to add on to that and to make the point about fly on the walls, isn't, aren't the banks gonna now have to sue Bloomberg too? If you look at the injunction, it actually says you got a year to go sue everybody else that's doing this. And so it's not just fly, it's gonna be the financial news companies as well. And that's... I thought that was one of the most interesting aspects, that the injunction in the case is that fly can apply to modify or vacate the injunction in a year in the event that it can demonstrate the firm spark laser that all have not taken reasonable steps to restrain the systematic unauthorized misappropriation of their stock recommendations. And I wanna make a further point about INS, which is that there, I think there's this sort of difficulty or tension in trying to take INS as a case that was from 1918 and plug it into the world of fly on the wall, right? So much has changed the model of a top down gatekeeper. There are two competitors and we are competitors and INS competes with the AP and it's all very clear in some way. That is, to me, that's just totally dissolved now. You can't tell who's a real competitor. I think that's a really fascinating aspect of that opinion because INS versus AP is almost like the strongest example, right? They started with the strongest example of two competitors head to head, clear story about what the public goods problem is. And today, right, the rule is so much more complex. There's much more downstream abrogation, upstream abrogation. It's not clear who's a competitor. And kind of going back, anytime we can talk about a 1918 case, it makes a lot of professors hard to warm up because it's a wonderful idea. It's still relevant today. But what I really would point to would be just as Brandeis' dissent, which I think, even back in 1918, right, he's concerned about, well, how difficult it is for a judge to actually decide whether this is the right result. And that's in like the easiest case, or the clearest case, today, right? Imagine the same kind of concerns applying today, the complexity, the difficulty, 10 times more complicated. And Brandeis joined by Justice Holmes, by the way. And there was no mention of the First Amendment in that case. And if you think about it historically, the development of free speech jurisprudence, I think the first United States Supreme Court precedent to address free speech in some of the World War I protest cases was decided the same year, 1918, I think, for a long time. At any point, pretty close in time. And they shared the concern without dressing it up in the First Amendment free speech language, or giving a constitutional aspect that I think is being expressed by some of the people on the panel. I was just going to add that they did say, it's just as Brandeis did, that it's for the legislature. Yes, that's right. I mean, he didn't make that point, that it was for the legislature. Things have changed, things are the same. I know there's a law professor out there who's written a piece on the AP law in Congress for a hot news law in the 19th century, long before INS rolled along, so it is funny how some of these same issues kind of do come up when there are new technologies. I would throw out that in the Nation, Harper and Row case, the Ford memoir case, there was a First Amendment argument raised in that case. And the Supreme Court there said that the First Amendment, the right to report a truthful information would give way to copyright. Now, of course, they make the point that what's because copyright doesn't cover facts, and they say that, but I do think it, there is some appeal to this absolutist First Amendment position that in other contexts, I might be maybe more persuaded by that, it would carry the day, but I think we do have some other bodies of law to work with that would suggest that not in every case when there's another interest such as the interest in fair competition. I think what the decision ultimately points up is that copyright law and hot news misappropriation protect very different legal interests, and copyright law protects originality and creative expression. The hot news misappropriation doctrine, particularly as given expression in this decision, is intended to protect at least in substantial part the hard work and the effort that goes into gathering the valuable commercial commodity, only to have it stripped away by a competitor and handed out so that the person who did the work to get it in the first instance is meaningfully deprived of its value. And I think that's the added ingredient that you get here, that you certainly don't get in a copyright law case, and that is most clear again, I think in Justice O'Connor's decision in FICE, where she says we don't really care about sweat of the brow, that's not what copyright law's all about. It is a very big part about hot news misappropriation. I don't know, it feels like the fly on the wall case applies the hot news doctrine in a context that is so different that I wonder how far you can go with any applicability of the case in the future. I mean, it feels to me like the financial services and business model is so different from what we're talking about. And I don't know, I don't know if you guys have a view, other than upholding the notion that hot news is alive and well, I wonder how far you can really apply the case. Is that because of the type of fact we're talking about, because it's a subjective fact, as opposed to the fact about my phone number in the street I live on? Well, it's a number of different things to me. I mean, first of all, I have some questions to whether or not the hot news doctrine needs to be applied in this context to begin with, because you're talking about a financial model where they are providing service to a fairly limited number of customers. They've chosen to make that open. They could very easily have a license to use that information, to hear that information, and by contract, because they are actually dealing directly with everybody who gets that information, either it's their employees or it's their customers to whom they're actually having phone calls and there is a direct contractual relationship, you could write that into the contract that says you're not allowed to disclose this. They did, yeah. Well, no, they actually, they didn't write that into the contract, and I guess the question is then, they didn't write it into the contract with their employees. I mean, the decision says that both the employees and the clients were contractually bound not to disclose this information. I think the decision says that the employees were encouraged and told that they should not share it, but I thought it said specifically that there was no contractual barrier. But in any event, then the question becomes, let's assume for the moment that there was in fact a contract, then you have somebody else that you can go after. Well, and they'd certainly breach the duty of confidentiality out. I mean, that's sort of a fiduciary duty, even if there wasn't a contractual duty of an employee that disclosed that. That's another aspect of the First Amendment case, the fact you're talking about that too, because I think implicitly this judge was not buying the proprietor of flyingthewalls.com testimony and explanation that he was going through a lot of effort to get this information from various sources. It sounds a lot like news gathering when you read those pages of the decision, pages 33 and 34. He goes to Bloomberg, he goes to that room. Absolutely, that sounds just like a recorder now. But here I think this judge viewed this as the fellow's name who ran flying the wall had all these relationships with sources inside the brokerage houses who were illicitly giving him the information and perhaps it was happening or apparently it was happening on such a systematic, routinized basis that the news gathering was no longer lawfully acquired. And I think that's the pass it, but I think it's an important part of the case. Well, I have to confess that I have written one of these big bad demand letters in past years. Two fly on the wall. No, actually two fly on the wall. Disclosed here for the first time. We had a newsletter client, financial newsletter client, about four or five years ago, just pulling its hair out because fly on the wall within 10, 20, 30 seconds of a newsletter making a recommendation by email to its subscribers was putting the same recommendation on its own website. And particularly when the newsletter publisher was putting out recommendations in small cap stocks where there was a lot of volatility, the readers were complaining saying that by the time I got your email today was the day to go by XYZ corp, it had already bumped up. And why did it bumped up? Because fly on the wall had subscribed to the newsletter and the minute they were getting the recommendations they were putting them on their own website. So we did a hot news demand letter. Didn't take that long to do because there's not that much hot news law. What took longer was finding where to send it. This was four or five years ago, who would fly on the wall would respond. As it turned out, they never responded but they stopped doing what they were doing and we discovered that they were a subscriber. And so we did, by our subscription agreement, change the language. And so the publisher figured out what to do, fly on the wall, maybe doing the same thing or may have been doing the same thing to other newsletter publishers, but decided in this case not to. Well, you know, fly on the wall also is completely another thing. That's how it works, but they made the same argument. Another atmospheric that really impacted this decision. You're coming to me saying you didn't commit copyright infringement, but you sued someone who did the same thing to you and the same thing on the commercial hot news misappropriation of mine, that unquestionably colored the judges. Right, right, right. And hurt, fly on the wall's credibility is litigant. But again, it highlights just how malleable this doctrine is and how far away we are now from lioness versus AP, right now. We're a long way away from lioness versus AP. Well, and to that point, I guess, Bruce, what would a federal hot news statute say? In a couple of respects, what would it say is news is a fact that is covered in the second piece, thinking back to this injunction about a certain number of hours after it's published. Would a hot news statute actually say one can't publish hot news within X number of hours, minutes, seconds? Well, we had talked about just codifying the Motorola factors. And I've seen some proposals out there. There was a law review article where someone said, maybe you amend the copyright statute to get news gatherers 24 hours. So I think that really, as Joe was saying earlier, takes away from the discretion of the trial judges too much that if you have the Motorola factors, you at least have something that a court can. I mean, incidentally, the Motorola factors, they do look very specific in some way. But it's a great article, Richard Posner, of the misrepresentation of Durge. He's like, are you kidding? This doesn't tell us anything. You can fill this up with whatever you like, especially the important one, which is the fifth factor about, is this an activity that's gonna kill the incentive to engage in it? In the next, that's right. Client of the law actually applied to the hot news factors, right? Oh yeah, that's right. And I think she showed, Judge Koch showed how malleable that that fifth factor is, because I mean, is it really the case that fly on the wall is what was undermining Barclays and all these big investment banks at the same time that there was the global settlement that was separating the equity research from the other side of their businesses and then plus all the economic problems in the economy in general. There are tons of things she could have pointed to and said, this isn't the reason that they're slowing down on their equity research and then come on, give me a break. But maybe their name didn't help them too much. We're representing a newsletter publisher now called Pirate Investor. And so we're wondering about that name issue too. Well, they know that like kind of bragging, advertising on the site, you know. Yeah, same kind of, yeah, yeah. I guess a circle back to something we've talked about very a lot, I'm glad David did some sort of definitional stuff because when I was looking at the title of this panel, the word news aggregation, where's news aggregation? I mean, so many things with so many different people. I read a lot of articles about this stuff and you'll hear people talk about news aggregation and then site statistics about websites that copy whole articles and post them online, which I don't think most people would argue as a problem is pretty straightforward copyright situation obviously, that's sort of piracy. But I think that the paradigm news aggregation thing we all think about is the headline and the first couple of lines in the story. And to move from news misappropriation sort of back to copyright law, there's I guess two arguments to have about this issue. There's the fair use issue is lifting the headline and the lead, is that a fair thing to do? But before you even get to that, you have to determine is it infringing is there any argument to be made about the protectability of headlines and leads to begin with? Is there, we all have this doctrine nailed into our heads that short phrases and titles are typically not protectable. Any thoughts on that from a copyright perspective? Yeah, I think Mike is exactly right. It depends on the context a lot, right? You can imagine a range of different cases. A single headline, a single sentence from a lead, either too short to be copyrightable or not infringement or not, you know, or fair use, right? But once you start talking about aggregations, right? And the selection and the arrangement that they had in mind, a whole series of them, then I think there is, you know, quite a decent cause of action for a copyright. Yeah, I think at that point here, you can plausibly make the argument that when it's that far reaching, that you have the creative contributions that journalists and editors and newspaper writers make every day in deciding what news to cover and what to present to their readers. And I think there is a much, a collective good that endures to the benefit of society through that process. If that is somehow taken away or you surfed in a meaningful way, then you're really almost intruding on the editorial discretion function of the news organization. The closer call, and Dave, you and I have been... We spent a lot of time together. This is the time in the discussion where I should acknowledge, you know, I'm thankful we don't have to scream at each other in front of a stenographer anymore. But, you know, one headline in an accompanying lead, I still think you can credibly take the position that the answer in my mind would be, Chris, it depends. We're all aware of the titles and short phrases issue. And there is a line of cases in Cander that's problematic for copyright protectability in applying that doctrine, the merger doctrine as well. But I think the applicability of the merger doctrine depends on the specific content of the headline. To me, there's a very big difference between publishing, I guess I'll take the first game from this week, Red Sox 987, where New York City is banked up as opposed to four to city, drop dead. To me, the latter is unquestionably creative expression that merits some degree of copyright protection, along when accompanied with a lead, which any journalism professor, any working journalist is going to tell you about the hours of journalism school, learning to craft sentences that will invite the reader in, and their creative expression. I think at that point, you can make a very credible argument that they're subject to and deserving of copyright protection. I know this is gonna shock you, but I disagree. I think an argument can be made that in a perfect world that should be protectable. I think it's difficult to make the argument that under the current copyright regime that it is protectable. I mean, ultimately, I don't think that there is any dispute that there can be creativity that goes into a headline that there can be creativity that goes into a lead. I think everybody would agree that that can be the case. And there can be headlines that are, again, Red Sox, 10 Yankees, one, and that's not particularly creative. When was that? I don't know. Well, leave me alone, okay? I can dream. But in terms of the protectability of the headline, I keep coming back to what is the work? And the work is the article. And so the work is not, in essence, the headline. And there is a fairly established line of cases that says that short phrases, titles, leads, pardon me, take the headline first, that titles are not protectable. Now, maybe there is a public policy argument that should no longer be the law, but from one of you, I think it is the law. The leads, I think, is a more interesting question. And then you do get into the merger doctrine. And again, if you follow the case law that has been out there, and the Neon case out of New York, in which you had thousands of articles that had been copied or summarized and translated and largely done verbatim. And the court held that only in about 56 of them, I think, where more than half of the article was copied, could you really state a claim for copyright infringement? And there's a fairly substantial line of cases that I think it's difficult to overcome with respect to whether or not it is, in fact, a copyright violation. Now, don't get me wrong, I don't think it's been definitively decided, and it would have been hard. If you could show me a case that says definitively, headlines are not subject to copyright protection, I'd like to see it. I haven't yet. No, no, titles, titles. And I can show you lots of first circuit case law and second circuit case law that actually identifies a headline as the title of an article. And that's the language that's this used, and that's the language that... But isn't it always context, I mean, doesn't it, in some sense, it always got to be context specific? Because isn't the question, is it original enough to meet the threshold? I mean, I take your point on the infringement, if we're looking at the work at a whole, and you're just taking the title, maybe it's never gonna be infringement just to take the title, but couldn't it, in terms of protectability? Sure. No, because the argument is the next step, along with what I've already said, is that by taking the headline in accompaniment with the lead and presenting it to the reader, you are taking away what is essentially the most important two senses of the word, which is, you know, get you into the nation, the heart of the work type of argument. Now, if in a given case, I'll come back to the point that Bruce made, the empirical evidence, the information adduced in discovery, is going to show that in a given case, 65%, I think was the number you used, Bruce, of readers don't click through to the underlying article. To me, I think that is going to, in a real world litigation way, cross-pollinate the copyright protectability issue in the mind of the judge. Well, it may be, I mean, I don't know, it's having come up with, I think that there is creativity in coming up with all titles, book titles, you know, titles to articles, titles to, and yet, again, you have this very established line of case law that says titles are not protectable. So, and again, you know, the lead issue, I think, is far more fact-specific, and I think that there is a potential argument there, and obviously that's an argument that we've gone back and forth on, and it's a fascinating, no, I mean, it is a fascinating issue, because at what point do you cross that line where you're outside of the merger doctrine, and are you now arguing the fair use issues? Bruce, I'll let you finish, then actually, Amher's gonna run a microphone, or I may not go, a lot of people don't. You do agree that your dream headline is Red Sox 36, Yankee Zero? You can agree on that. Okay, one question for both of you is, hot news was not available in Massachusetts, is that right? I think that's, yeah, there's an unfair competition on Massachusetts law. Yeah, I mean, did you feel that it would have been a better fit analytically for the case, if it had been? Yeah, I mean, without going, I mean, we saw clarification on whether or not a hot news claim was being asserted, and the- Well, I think there's enough substantive overlap with the Massachusetts unfair competition law that essentially you get the same protection, the same bundle of rights. So, different denomination, I think you end up in the same place. Yeah, chapter 93A, since you can fit almost anything in there. Right, yeah, yeah, I mean, my understanding was that it was, and again, it was your claims. Was that it was 93A, but not in the hot news sense, and who knows, but yeah, no, I absolutely think, and it's interesting because, one thing that we haven't addressed at all is, we've got all of these problems, and we're just addressing this under US law, when you get into the international sphere, it becomes a nightmare, because, and the reality is all of this has an international component because the internet doesn't stop at our border. I mean, fair use is not recognized in the European system, and so copyright claims are far easier to substantiate over there. You've got one case in Japan that actually, while they didn't call it a hot news case, they actually sort of applied functionally the standards or a hybrid of the standards that are used under the hot news doctrine. So, once we resolve how we think we should treat it, then you've got the problem of, how are we gonna convince everybody else in the world to abide by the rules that we think are the right rules? Open this up to questions. Um, or if you wanna bring the microphone around, you wanna make your run all the way over here, but, or, thank God, let's start here with that. Thank you, an observation and then a question. The observation was about the empirics on the click-through rate from Google News to a website, and whatever the percentage is, I would love to see the baseline comparison to the number of people who turn the page on a newspaper to finish this story, or whatever the appropriate break points would be. In other words, we know that there's a degradation of interest in any particular story as people consume it, and therefore, we have to baseline it against behavior in other media. But the question I have, and this is really, I think, throughout the entire panel, something that we nibbled at, but I don't know that we hit the nail on the head, it's a difference between news gathering and what I call curation, or the organization of particular things that everyone else, information that's already known and available, but not organized in a particular fashion, to what extent is curation news gathering, and if it isn't the same thing, then is there a reason why we should be more or less favorable towards curation? I think that's a really interesting point, and I think, it does go to this question of, if you go to the fly-in-the-wall case, right, the judge talks about how the fly-in-the-wall is doing is adding no value, right? All they're doing is reporting these facts, gathering it, and then spitting it out, doing no work on their own, and I think your question goes to exactly that, right? Is that really true, right? Are they really doing that, right? Or are they doing a real value in collecting this information, disseminating it? In some sense, right, Google does know more than simply collect stuff, right? But they have enormous value, and so that's why I think this idea of gathering things, gathering, curating, selecting, there really is a lot more building than maybe people otherwise think about, and this just shows up in the Fair Use Contacts when you talk about copyright, right, in the First Factor, in the Perfect 10 case, in the Kelly versus Rivas case, where the courts acknowledge that there can be some value from these more literal forms of copying, and so I'd be sympathetic to that kind of argument. I would just jump on to that opinion. I think it's gonna come in the First Factor of Fair Use a lot, this issue, and my sense is it's a productive, public interest use of the information and that it should receive some recognition. Just a back-up action. I think the value-added function of what Fly on the Wall was doing to my way of looking at this was marginal. That's why I'm gonna do that. Yeah, yeah, and I totally would, I would agree on the facts of Fly on the Wall, but the way we need to think about it is there are other sites, other journalism-oriented sites, new modes of journalism that could rely on. No, if what you mean by curatorial function is what I conceive of as the typical blog model where somebody is looking at something, an article, and then says, hey, here's what so-and-so says today in such and such a place. Here's a link to the underlying article. Here's what I think, here's where I disagree, here's where I agree, here's where I think this is valuable. Is that fair use? To my mind, absolutely. And I think there's very much value added there. You could also imagine a site that's sort of a subject matter-oriented site that curates all stuff about global warming, and they aggregate it all, and they use robots. I agree. I think it's a bit of a harder call, but I think it's all likely that it's protected. But let's say, for example, if anybody watched The End of the Masters last night where during the press conference when Tiger Woods is facing the audience just like we are, he got one difficult question from a reporter who was not identified by her surname. Her first name was Christine. I think it was Christine Brennan from USA Today who brings a very unique gender perspective to a lot of her sports commentary, and I think it's tremendously valuable. What if the Huffington Post starts putting up a list of her columns, headlines, and links? Here's the last five or six from Christine Brennan. Is that fair use? I have serious misgivings about whether that example would qualify as fair use. I know that's a significant departure from what was implicit in your question, but it takes us back to the definition, the threshold definition of what is news aggregation. Well, and your second question plays back into sort of an implicit question in your first comment, which is, again, what's the value that's added back to the people whose information is sort of curated? Take, for example, a drudge report. There are, he's obviously established essentially what is a trademark-driven business where people go to him because he has a particular point of view and he gathers articles that people feel will fit their point of view or that they disagree with or that they are interested in. What's interesting to me again on the damages issue is if only, if 65% don't click through, how has the total pie grown in terms of people who are now aware of an article that they otherwise never would have come across? And so even though X percentage don't click through, the numbers are so much greater who now have been shown that that the overall traffic grows enormously for an article that's on a site that normally doesn't get that kind of traffic. That to me is why the damages issue is so tricky to deal with and the issue of what are the incentives and what is the actual impact. I'd like to get your perspective, Bruce, I know you touched on this a little bit actually in the Washington Post piece. Yeah, I was just gonna add to that just a bit that sure, the curatorial function is an incredibly important one and nobody can imagine what the internet would be like without companies that do that for us and I think what Bruce Sanford and I have tried to do is just argue that that's part of it, but it's not all of it and that we have to have some public policy that also incentivizes people to create or there won't be anything left to curate. And it's amazing how quickly, right? I mean, this is just a self-evident thing, how quickly all these changes have come upon the industry but for me, I always think back about the Unabomber that when he wanted his manifesto published the most important places in the world to get that in were the full of the New York Times and the Washington Post and 10 or 15 years later, we know he would put it someplace else on the web and it wouldn't be in those places and those spots where our cultural and political conversation used to take place have changed dramatically and we believe that we need to find a way to harness public policy to keep journalism viable as it transitions online and frankly, I think the DC circuit striking down the FCC's authority on net neutrality maybe could give a boost to all of this because now we're told that the agency we thought regulated broadband doesn't have authority for that and so we need to evaluate the infrastructure side of the internet and maybe along with it we'll think a little bit about the content side. Do you see any of the doctrines that you have been discussing this morning as providing a solid foundation for sustainable business models particularly in digital journalism? Well, I'll just throw this out from having talked to someone about it recently. Washington should be in a mode of a great newspaper war because the All-Britain family that had owned the Washington Star that closed many years ago is set to launch a new web-only site for local journalism to challenge the Washington Post and All-Britain now being run by the son of the man who challenged the grand family years ago is approaching talent from the post and gearing up for this great challenge to take the paper head on on the web and I know that some people who looked at the business model for the web-only publication that All-Britain intends to launch very soon have said that it doesn't work, that the only reason that Politico has worked was because Politico had a print newspaper still to distribute and that it was able to tap into a lucrative advertising base for companies and interest groups that wanted to have the print presence and they're still able to command higher rates in print but when you take that away and when you look at what All-Britain plans to do just on the web, just doing local news, not charging for it and hoping that advertising will support it, they say it's not a business, that there's no way it can succeed. Presumably someone thinks it's gonna succeed if they're doing it. Well, you know, right? And so you make bold statements like that and then you learn to regret them but I've talked to some people who've been closely involved in the development of the site and who are thinking about jumping over to join and have found that that model of being on the web, being for free, not having to print counterpart to help subsidize you on the advertising side is not gonna work. And is that, just to bring it back to the question, is that because, do we think if that's true of the hotness, appropriation and copyright laws as they exist today? Well, I think again, if the industry was able to collaborate in some kind of online pricing to finally be able to put up paywalls, that might help. I think, however, there are some projections that show even if you were able to charge for content at the upper end of what projections might be, it still wouldn't replace the advertising that you're losing to the search portals and other companies on the internet but that if you had some of these other tools, maybe you would finally be able to equalize the relative ability to monetize your site. Just a different observation, Clay Scherke, who's a scholar in the field that's trying to deal with what we do about journalism's future, has what I find to be just a very convincing argument about the crisis that newspapers and other news organizations are undergoing right now and whether or not you buy the specifics of his argument, he makes a proposal to sort of what the way forward could be, not necessarily for newspapers but for journalism, right? If we get back to sort of the function and the social good we're worried about and his view, again, it's not the only view, it's one view is that we need lots of experimentation and we need lots of experimentation by relatively small players rather than sort of a save of the incumbent larger players. Again, obviously people on this panel will dispute that but for the sake of argument, if the way forward is this sort of aggressive experimentation, small players, I think tightening or expanding copyright protection, expanding, extending things like hot news protection can only put a damper on that type of experimentation. This might take some time. My impression from talking to people in the industry is to some degree it's less the legal regimes that are available that are causing the problem and more figuring out really how to monetize online content. My own personal view is the tools are there, certainly if you combine all of the theories that we've talked about, all the different regimes that we've talked about today, the question is even with those, with so much free content being available out there, is it going to be, how much can you monetize it? And is it going to sustain the infrastructure that's necessary to produce good reliable news reporting? Let's try and get a couple more questions in, anyone? I wanted to go back to the fly on the wall decision for a minute. When I read the decision, it struck me as odd that the judge kept on setting to Wainwright and then decided the case on a hot news stance. And it seemed to me that one, it would have been a lot easier just to apply Wainwright to the facts of fly on the wall, especially because of the parallels to Castle Rock and maybe these facts aren't really facts, they're created by an author, and it's not a fact that the stock's gonna reach 350, it's someone's opinion. And then combined with that, I'm wondering if it's a good idea to have hot news and copyright overlap, and if copyright applies, then shouldn't that just automatically preempt hot news, especially on the last factor, because you could sue under a copyright theory, so there's really no danger to your underlying work. Say a couple things about that. I think it is interesting that the status of those particular facts, right, because there's a whole line of copyright cases that deal with these so-called created facts, so like the estimate of a car price or the estimate of what a coin should sell in the kind of collector's market. And raises all these kind of metaphysical questions about these isolated facts, is it not a fact, how do we treat it, and so there are cases out there that do provide some protection for these isolated facts. I think that they're wrongly decided, I think they're really problematic, but they're out there, and so the court could have gone that direction. It's interesting that she didn't. On the issue of the overlap between copyright and hot news, that raises the issue of preemption, and as you know, right, and preemption's a really complicated subject in copyright, it's another one of these really fuzzy areas. I think the Second Circuit in the motorola case, right, it's the most kind of thorough discussion of the interaction between those two fields, and I think they do do a pretty good job of kind of trying to carve out a narrow preemption sort of doctrine. And so if you can find something in that field, I think the preemption concerns are less, but as you start expanding on misappropriation, start applying it to things that are beyond that narrow scope, I think you do raise real issues about preemption, especially after fights. I'd like to ask as many of you who want to respond to a hypothetical. The hypothetical is you're in the office of the CEO of your client. Your client is a major news organization. Say just for example, News Corp. And the CEO says, I'm so tired of Google taking all our stuff and using it and we're not getting any money for it. I want to sue them. Do you think I should do it? Do you want to represent News Corp? Is this a bad hypothetical maybe? Am I going to get to try the case? I think, I'll take a stab at it, although I'd love to take the case. And I know that even Google News has engaged, I understand some licensing agreements with news content providers, including a pig. I think where you end up to answer that question, I really have to address in a kind of foundational way what transformative use means under fair use analysis, especially particularly in the context of the internet search function. I think if you go back and look at the perfect 10 V Google case, which is really the lynch pin that most people engaged in news aggregation in the broad sense view as giving them the ability to do that without running a file of copyright law, I think that bundles together a number of things. And I know we're running short on time, I'd have to give you a long answer. Long and short it is. And I know this is gonna be probably an unpopular view, but I think the Google case there, there was a great deal of result-oriented nature to that decision. I think that certainly at that point in time the court viewed, Google is not really a news content originator. I think that it's one thing to say the company that performs this societal indexing function contributes meaningful social value by allowing new information to be located on the internet. Okay, I get that, I can accept it within the context of that case. I think there are limits on exporting that rationale to other news aggregators. Because there, and also Google is user-generated content. Now the user is the one who initiates the search. I think it's a different thing, especially if it's a competing news organization to select information from your competitor and then present that in some sort of aggregated format. So, the long story short is I think if you're going after Google, given the perfect 10 case on transformative use as held in that case, it's probably a difficult argument. But I would say that that rationale, as I hope I make somewhat clear, doesn't necessarily translate to other news aggregation context. I'll just jump in. Sure, I'd sue them, I'd sue them. They do settle most of their cases, so. There's a reason when they've been sued, I think, that they settle, we'll see if the one in New York settles. In the end, if the consent decree is approved, you could sue them under two theories. You could sue them as an aggregator. And you could sue them as a cashier, right, because they store the full copies. And they're server, which powers their search function. So you have the aggregator theory and you have the cash theory. And, you know, as we've heard today, there are just a few cases out there and we've picked over them as best we can, but there's not a lot of precedent yet. I think that, particularly on the cash side, Google would be horrified to lose a case like that because it really powers their whole business model, right, that they can go out onto the web and copy everything and, well, you've got to put up a robots text file if you don't want to be a part of that. And when I've spoken about this issue, that's what everyone always says. Well, it's simple, Google makes it easy for you. Just put up the text file and then you're out. Okay, a company that has its own foreign policy, right, as people were saying a couple weeks ago about Google and China, is a company that even a powerful news corporation on its own really doesn't have leverage with, not even an industry has leverage with Google. And I think one of the real disconnects we have in our policy, right, is that we've passed laws to enable companies like Google to grow because they have all the safe harbors. But we really haven't given content producers the leverage to be able to bargain with Google in order to extract some kind of real revenue sharing with the money that Google makes off the advertising from the content that all of us put on the web. And pretty much have no choice but to give Google for free. And the few licensed agreements they have are with wire services that don't really have their own websites that they commercialize and they keep their content hosted on Google's website. And so that's where you've got the licensing agreements. But I think if someone fired a shot at Google, it would get all of us thinking more about how it is that we try to rebalance the playing field a little bit with that company. I have a couple of comments on that. One on the cash arguments, really interesting argument, but it would, and it would have a serious impact on what Google does. I wonder though, under the fair use analysis, whether, I don't see much effect on the market. I'm not sure how that their caching of that information affects the market negatively for the original work. In fact, it probably improves the market for the original work. And that leads to my second point, which is you spoke about this leverage that Google has. And I'm not quite sure what I understand about that, except that it seems to be an unwillingness to not use Google's services. It's not like Google is strong arming you into taking positions that you don't wanna take or robbing you in some way. It's just that it's an unwillingness to not make use of their search function, which I think cuts against. Well, I think the reality is that there is one search engine on the planet that matters, and it's Google. And even though you can opt out of Google, you could have opted out of AT&T 30 years ago and just not had telephone service. But doesn't that mean they're helping your business, not hurting it? If you can't opt out because it'd be so damaging, then they're helping you. And then, so if we can go over it, I would love to continue to have this discussion. Over a couple, two more minutes. Yeah, I mean, all I would just say is that, this is how the world developed, right? The net came along, Google in 98 starts doing what it does so well, right? That's an incredibly innovative company full of really, really smart people. And the journalism business thinks that, well, this is the way to go. You're on the web for free. Google will point readers to your site. You'll find a way to make money when all that traffic comes to your site. And that's how you'll transition to the online world. And then what's happened 10 years later, once this norm is out there, and it's the way the internet is built, and we've grown accustomed to it. It's easy to use. We can find information fabulously, quickly on the web. But at the newspaper companies and the journalism organizations have found that, well, we're really not monetizing. And 40% of all online advertising is going to Google. That's in the Canaletta book. And you really have no choice, even Mr. Murdoch may have no choice, but to leave open the door to Google because when you're 67 or 68% of the market share for search, you really have no choice. And there are hundreds of media companies trying to figure out, is there any way to get this one company to find a way to compensate for the value of the journalism that's put on the site? And I have to say, one thing to me that's so interesting about the way Google was covered as a company, right, is that there's just huge boosterism in the press for Google. I mean, the newspapers love Google. When Murdoch came out and said, well, maybe I'll close the door on Google, the New York Times had a story on the front page of the business section that read like an obituary for the internet, that Google was gonna change, that Murdoch was gonna change the way the internet works for all of us. I found interesting the other day, there was an article about Google translation services. And of course, I promise I'll wrap it up. And the article made the point that online translation is now an area that Google is going into. And that there's a paragraph that said, once Google's brain power is applied to this new problem of translation on the web, who knows what kind of products will develop from it. Well, what I wanna know is why that brain trust of Google also can't figure out a fair way to help the companies that build their cash for them and therefore build their business for them because there would be no advertising for Google if there wasn't content going into Google to find a way to share the revenue that they get from the average. Can you separate the search function from the Google news? I mean, I think of it as Google news as being a real problem. And I think of the search function as probably really actually driving traffic to sites whereas there's a better argument whether or not a sufficient argument that Google news is really more of a potential competitor. Well, I think that that's exactly right. But I do feel that even with the search function, Google is able to captivate us the way it does because we know when we sit down and type in something into the search box that we're pretty much getting the world of knowledge. And it may be that there is a challenge in figuring out how to quantify the value that journalism creates for Google in some precise, quantitative way. When Eric Schmidt wrote in the Wall Street Journal recently, he said, guys, this was after Murdoch had come out with his shot across the valley, you know, you don't really add that much to Google that most people go online to search for products. They're buying a toaster or a cleanup toaster. But I think that that's the company's answer, really, right? And I think that that same brain power, the brain trust of Google that can solve problems like online translation services, I think could also come up with some algorithms to figure out what kind of value and goodwill they get from being the repository for journalism. I think we're gonna answer to some of this. There was just a class action file against Google yesterday that did before by a group of independent photographers based on the Google library project. So we'll see if this gets negated all the way up there. I think we have to wrap it up, unfortunately, because this is great. We'll continue it over lunch. Joseph, Bruce, David, Sam, Mike, when Mike's kids watch this on the internet radio, your dad did not make a fool of himself, it was good. Thanks, everybody, for coming. We're gonna walk down that way, I assume.