Re: TotalNEWS & Derivative Works

Ivan Hoffman <ivanlove[_at_]earthlink.net> wrote:
>
> For those familiar with some of the very old newspaper cases where one
> newspaper would copy the exact stories from another newspaper and
> publish them in its own papers, the courts held that while the news is
> public domain, the manner of expressing that news is copyrightable.
>
> I am not having much difficulty in this TotalNews situation, at least
> as I understand it. It strikes me that this is merely a latter day
> version of the same thing. Whether you want to call this a derivative
> work (which of course only the copyright proprietor of the original
> news story can authorize) or some other theory such as unfair
> competition or otherwise, it strikes me that the original proprietor
> of the news story, as written and published on their site, has a
> proprietary right in their version and any use of the same (outside of
> fair use) constitutes a deprivation of their proprietary rights.

The reason that things are not so cut and dried is the same as that faced in much of this branch of the law - that who is doing what has changed.

As to your copyright theory, in the "old newspaper cases", the newspapers were creating the copies themselves, so you had clear cut copyright infringement. Here, in the Total News case, the person reading the news is the person who actually is creating the reproduction. Not the competing newspaper. So, no direct infringement by the competition. And contributory infringement is a problem since the person reading the news story is probably impliedly licensed, and thus there is no underlying direct infringement for the contributory infringement.

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The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 1997 Bruce E. Hayden,all rights reserved
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Bruce E. Hayden                      bhayden[_at_]acm.org               
Austin, Texas                        bhayden[_at_]copatlaw.com