The New News
ing back to the sites.”279 Despite some organizations’ feelings that this indexing violates copyright law, “Google has historically claimed that crawling and indexing news websites’ content and publishing linked headlines and blurbs” is fair use.280 No court has thus far ruled that Google News’s aggregation is not a fair use, so it might be difficult for many news content creators to successfully license their content for a reasonable fee.281 If most news organizations go to a paywall model where news content is no longer free and openly accessible on the Internet, licensing agreements with news aggregators and individual websites and blogs might be more prevalent. Paywalls, while once controversial, are becoming the norm. In addition to major newspapers instituting paywalls, many regional and local newspapers have also started charging for their content. Because of the possibility that many, if not most, news organizations will charge for their online content, licensing agreements between smaller content providers and aggregators like Google News will probably become more prevalent and perhaps even necessary. In addition, licenses between content creators and users such as blogs and other websites providing commentary might take the form of external agreements via an organization such as the CCC or the AP’s NewsRight, or they might be internal licensing agreements that users must agree to when they use a news organization’s website.
Nonlegal Methods
Paywalls: C harging
for
C ontent
on the
Web
Paywalls have recently become a very popular way of attempting to increase monetization of online content. Many news organizations have begun implementing paywalls or metered pay structures that require subscriptions for users to view some or all of the organization’s content. In addition to revenue brought in directly from the subscriptions, paywalls might have an indirect result on potential litigation. If a news story is locked behind a paywall, a user who directly copies all or even just a portion of that story is less likely to be considered to be using the content as a fair use under the copyright statute. In addition, if another news organization or blogger makes it a habit of reposting stories that come from behind a paywall, courts should consider that misappropriation because at that point consumers are more likely to visit the free site with the reposted story instead of paying the subscription price of the original content creator’s website. Despite the increase in popularity and use of paywalls and the potential benefits, there is little information about whether or not they are working to increase revenues. As time goes on, reports show that “[m]ost (paywalls) aren’t failures, but few can point to the significant revenue difference that The New York Times, WSJ, or Financial Times plans have made to their transitioning business.”282 This might be, in part, because there are still a great number of news sources that remain free. However, a reporter for the Nieman Journalism Lab wrote, “[w]e’ve moved – in a couple of years – from the question of whether to when.”283 Paywalls vary in the amount of content a user can access for free. The New York Times paywall currently allows a user to access 20 articles per month for free before being required to subscribe for a fee. However, in a March 20, 2012, announcement, one year after the newspaper first instituted its metered paywall, the Times decided to drop the number 279. Id. 280. Id. 281. See Fordham, supra note 124, at 988-89. 282. Doctor, supra note 393. 283. Id.
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