Stanford Center for Internet and Society

There is a fascinating debate raging about who owns the news -- or more precisely, who owns which parts of a news story. The AP kicked it off in earnest last April when Chairman Dean Singleton channeled his inner Howard Beale and announced the AP would no longer "stand by and watch others walk off with our work . . . . We are mad as hell, and we are not going to take it any more." Just a few days ago, the Nieman Journalism Lab at Harvard posted a confidential AP document outlining an aggressive online strategy, which led Reuters blogger Felix Salmon to rail against the AP's "be-evil" policy. The AP and other traditional news organizations, on the other hand, have suggested that nothing less than the future of journalism is at stake here, because journalism can't survive if everyone is free to "steal" content.

So far this debate has played out largely in generalities and hypotheticals, but a recent complaint from Washington Post writer Ian Shapira helps focus us on some of the specifics. Last month, Shapira wrote an article about business coach Anne Loehr, who charges clients big bucks to help them understand the "millennial generation." The same day, Gawker ran its own take on Loehr's business. The headline: "'Generational Consultant' Holds America's Fakest Job." Gawker went on to use lots of quotes from Loehr that ran in Shapira's article to skewer her in precisely the way the headline suggests, but used little else from Shapira's article.

Shapira was "flattered." Then his editor wrote him back and said: "They stole your story. Where's your outrage, man?"

Flattery quickly turned into disenchantment and a long complaint from Shapira that ran in the Post under the headline "The Death of Journalism (Gawker Edition)." In it, Shapira worried about the profitability of newspapers, the future of journalism and other issues of legitimate concern. His basic complaint was simple: he busted his hump to interview Loehr and get the quotes Gawker used for free.

And that's the interesting part. What Gawker took were for the most part Loehr's words, not Shapira's. Gawker found a news story, and decided it had something to say about it, humorous as it was. It used Loehr's quotes to mock her. Shapira worked hard to chase down the facts he reported. But they were just facts.

So who owns those facts? That's the real question raised by Shapira's complaint, and by the repeated demands by the AP and others to extend legal protection for news stories, whether through expanded copyright protection or reinvigorated unfair competition rules.

When you hear these demands, it's important to remember news stories are already protected by copyright, which protects all of the story's original expression -- the way it reports the facts. But copyright does not give reporters or news organizations any rights in the facts themselves, no matter how hard they work to uncover those facts. So as news organizations like the AP demand greater and greater legal protection, it's the facts they're going after. It has to be. They own the expression. The facts are really all that's left.

This is where the alarm bells should go off. Journalists and news organizations do play a critical role in building an informed and democratic society. They are entitled to protect the product of their hard work. But the facts they report are not theirs. They are the product of human activity. They represent knowledge itself. They don't belong to anybody, and shouldn't.

In the rush to save newspapers, we can't give away the news itself. If that's what Shapira, the AP, or anyone else wants, then then they're stealing from all of us. So where's the outrage, man?

About a month ago, a New York District Court issued an order prohibiting the U.S. publication of 60 Years Later - Coming Through The Rye on the ground it represented a likely infringement of JD Salinger's copyrights in Catcher In The Rye. That decision has been appealed to the Second Circuit Court of Appeals, which is reviewing the case on an expedited basis.

An injunction banning a book is a big deal. It's usually called a prior restraint, and it's usually highly suspect; the U.S. Supreme Court held publication of the Pentagon Papers could not be restrained despite the government's claim that national security would be jeopardized.

In 60YL, it's Holden Caulfield who's in jeopardy. An aged Caulfield has escaped from a retirement home instead of a prep school, and faces an unlikely threat: Salinger himself. The conceit of 60YL is clever. It's written as if Salinger himself has ended his decades of seclusion to "finish what [he] started." Salinger is trying to kill Caulfield -- his "monster" -- "bringing him back just so [he] can kill him." But the plan goes awry, and Caulfield won't die. As Salinger and Caulfield play out their game of cat and mouse through a second adventure in New York, they urge us to ponder the relationship between an author and his work.

The District Court's decision to enjoin publication of 60YL puts way more than just poor Holden in jeopardy. There are profoundly important free speech rights at stake any time a court bans publication of a book, and they include those of the public as well as the author and publisher. Those interests were simply ignored in the Court's analysis.

This case does raise some difficult copyright issues. But whether the book is likely to be held an infringement at the conclusion of the case or not, courts have to consider and balance all of the important interests at stake before banning publication of a book -- or any expressive work. This Court just didn't do that.

Part of the problem is the law about when courts may enjoin books and other expressive works has become confused. So today, we and our colleagues at Georgetown and the University of California filed an amicus brief on behalf of the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, The Organization for Transformative Works and the Right to Write Fund.

Our brief explains the errors we believe the District Court made in issuing this injunction, and what we believe the proper standard should be. It urges the Second Circuit to adopt a more stringent test for issuing preliminary injunctions against books and other expressive works, and to reject the narrow interpretation of the fair use doctrine applied by the District Court.

Read the brief here.

UPDATE: Apparently, we are not alone in our concern. The New York Times and other press organizations have also submitted an amicus brief, which you can read here. Public Citizen has also submitted its own amicus brief, which is available here.