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Tuesday, 2 June 2009

Google's 'fair use' defense in aggregating news feeds from copyright holders such as News Ltd sites is manifestly inadequate as a defense against action from editorial owners.

Macquarie Equities media analyst Alex Pollak said Google's decision to sell ads on its Google News site in March triggered a new wave of anger from publishers, who are also aware Google paid $US125 million to settle a copyright dispute with book authors.

Journalist Jane Schulze also writes that
Google argues it does not breach copyright rules as it relies on the "fair use" principle where a small amount of original content can be reproduced without payment so long as there is attribution.

However even a cursory glance at the Wikipedia page on 'fair use' shows that Google is stretching the meaning of the term 'fair use', which is "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research", according to the Copyright Act of 1976 (US).

"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes."

Having placed ads on the news aggregator, Google is clearly in breach of this law.

But even in the absence of advertising, it may be argued that Google is extracting more value from its News site than any claim of 'fair use' can justify.

Aggregation creates value, but the burden of effort lies on the editorial side, in terms of value added. Without editorial, basically, Google News would not exist. There may be a legal argument to describe the type of thing I'm talking about, but my feeling is that Google's aggregating practice, while adding value itself, is not equal to countering the weight supplied by the other side.

Associated Press chief executive Tom Curley "wants a larger slice of the action" writes Schulze.

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