Legal Experts on How Murdoch's Threats May Impact "Fair Use" Doctrine

Media industry titan Rupert Murdoch’s explicit threats this week to block Google from searching his content sites, and to sue the BBC for its use of content he says is “stolen” from his sites got me to wondering whether the head of News Corp. has, in fact, any basis in the law for launching these calculated attacks at this time and in this manner.

Accordingly, I sought out the opinions of two respected intellectual property (IP) lawyers this evening, and the bottom line is, they told me that Murdoch perhaps does have at least a narrow legal perch to stand on.

But, first, we have to revisit the “Fair Use” doctrine, an essential chunk of the bedrock that makes the entire universe of Internet news aggregation, blogging, and sharing of content possible. U.S.Code: Title 17, Chapter 1, Section 107 holds that there are four factors in determining whether the reproduction of any copyrighted work qualifies as Fair Use (and I quote):

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Now, it doesn’t take a lawyer to see that there is some substantial room for interpretation of these four factors, particularly in the context of a revolutionary new technology like the Internet, and the changing business models being tested by media companies, like News Corp.

But, when it comes to settling these issues, you can be assured that lawyers will be at the table, so my guests, here at Bnet Media tonight, from their base in Chicago, are David Levitt, a Partner at Hinshaw & Culbertson LLP, and Evan D. Brown, an Associate at the same firm.

Me: Thank you, gentlemen, for joining us. So, first of all, in layman’s terms, what is Fair Use, really?

DL:  It assumes infringement of a copyright. It is as if you say, “Yes I know I infringed on your work. But it’s okay because the way I used it is fair.”

Me: How do the four factors that legally constitute Fair Use affect any particular case?

DL: Every case is different, so they have to be applied on a case by case basis. Furthermore, every judge is different. (S)he may well rebalance the factors, according to the facts.

Me: Could a case brought by Murdoch actually succeed under the Fair Use doctrine, were he to sue Google?

DL: I tend to think not. But, possibly it could, because he says he is re-tuning his business model around monetizing his content. (See factor #4 above.) Google currently sends him traffic, but he is not trying to grow his audience any longer, he says. Instead, he’s trying to shrink his audience back to the people who will pay for his content. Therefore Google’s caching of his content would make it free even as he’s trying to charge for it. Whether that change in his business model will be enough to carry the day (in court)…will depend on how the judge rebalances those four factors around Fair Use.”

Me: What about the fact that Google allows Murdoch, or any publisher, to “opt out” of allowing its pages to be indexed?

EDB: That is a powerful argument against Murdoch. His people certainly know how to use the Robots Exclusion Protocol, (which prevents web spiders and other search robots from accessing the  content of any website.)

EBD: Therefore, I think Murdoch must have other reasons for these threats (than relying on the Fair Use doctrine).

DL: We know this much: Whenever the business purpose changes, claims will arise. And, whenever the money starts rolling in, people’s impressions of what is and is not Fair Use begins to change.

So, there you have it. The plusses and the negatives, from a legal perspective, on Murdoch’s claim. For my part, I agree with the theory that something else is going on here with Murdoch. Even though he may be able to make a legal case, I suspect that is not his real goal.

I think, for the record, he wants a closer relationship with Google. That may not be true with the BBC, however. There is probably some weird Australian-Brit stuff going on there…

Thank you to DRI -The Voice of the Defense Bar for helping to arrange these interviews.

Earlier related posts at Bnet Media this week:

Nov. 10 Now it’s Murdoch vs. the World as He Threatens to Sue the BBC
“Media mogul Rupert Murdoch continues to amuse even as he perplexes those of us hoping to divine where he is headed with his current round of threats…”

Nov. 9 Murdoch Plays High-Stakes Game of Chicken with Google
“Rupert Murdoch is probably the most outspoken media executive of them all in threatening to retaliate against Google for what he, and others, see as…”