Do Ads in Google News Search Change the Fair Use Analysis?

Last Wednesday, Google began including advertisements in its Google News search results in the United States.  The next day, Zachary Rodgers at ClickZ speculated that this move might stir major media companies to sue Google for copyright infringement, and an article in yesterday's New York Times reported that "[s]ome publishers complained" when the search giant added advertising.  Google may have licensing arrangements with some of the publishers whose content it reproduces, but I imagine it would rely on fair use to excuse what might otherwise be copyright infringement in the event of a lawsuit (see, e.g., Agence France-Presse's lawsuit against Google in 2005, which ultimately settled when Google agreed to license AFP's content).  So the question arises, does including advertisements alongside Google News search results change the fair use analysis?

The addition of advertising might change the first of the four statutory fair use factors.  This first factor asks courts to consider "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes."  17 U.S.C. § 107.  I'm not familiar with any case saying directly that adding online advertising to content makes it commercial, but it probably would be under the broad reading of "commercial" laid out by the Supreme Court in Harper & Row v. Nation Enterprises:

In arguing that the purpose of news reporting is not purely commercial, The Nation misses the point entirely.  The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain, but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.

541 U.S. 539, 562 (1985).  Courts have with some frequencty held that news-related activities carried on for profit were commercial for purposes of fair use analysis.  See, e.g., L.A. News Serv. v. Reuters TV, Int'l, 149 F.3d 987, 994 (9th Cir. 1998) ("Reuters used the works for a commercial purpose, providing the works to other news reporting organizations in exchange for an annual fee."); L.A. News Serv. v. KCAL-TV Channel 9, 108 F.3d 1119, 1121 (9th Cir. 1997) (using video in TV news program was commercial use, noting that "[n]ewscasts are commercially supported by advertisers, who pass the cost of sponsorship on to those who purchase their products"); Roy Export Co. v. CBS, Inc., 503 F. Supp. 1137, 1144 (S.D.N.Y. 1980) (using clips of Charlie Chaplin films in TV retrospective at time of Chaplin's death was commercial use even though show was unsponsored; network could profit through anticipated ratings boost).

But, commercial use is not determinative under factor one or the multi-factored fair use inquiry overall.  Courts originally presumed that if a use was commercial it was an unfair exploitation. They later abandoned that assumption because many of the possible fair uses of a work listed in section 107's preamble, such as commentary, criticism, and news reporting, are conducted for profit.  The Supreme Court cemented this latter view when it held that 2 Live Crew's commercial parody of Roy Orbison's "Oh, Pretty Woman" was a protected fair use in a landmark case, Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994).  Importantly, the Court explained that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.  Id. at 579.  (For an explanation of what makes a work transformative, see our legal guide page on fair use.)

Google's use of small amounts of copyrighted content in its Google News search results is similar to its use of copyrighted content in its other search functions, which already carry advertising.  As the Ninth Circuit has recognized, Google's use of copyrighted content in search results is highly transformative because it serves the purpose of improving access to information on the Internet.  Perfect 10 v. Google, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007).  In that case, which involved a dispute over Google's image search, the court explained: 

Although an image may have been created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information. Just as a “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one,” a search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool. Indeed, a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.

Id. (citations omitted). The Ninth Circuit found that Google's transformative use of thumbnail images outweighed the use's commercial character, and ultimately that it was a fair use. See id. at 1166, 1168.  The same logic should apply to Google News search, given that it is just a specialized version of Google's other search functions.  As far as I can tell, it simply helps the news-oriented searcher by limiting the results to news articles. 

Different reasoning would apply to the aggregation of news articles you see on the Google News homepage, but Google has not added advertising to this page.  Whether reproducing titles and ledes from news articles for purposes of aggregation is fair use is a pressing question, one raised but not settled by the recent GateHouse Media v. New York Times lawsuit, which I'll have to leave for another day.  Suffice it to say, the answer to that question shouldn't depend entirely on the presence or absence of advertising either, although it might tip the scales in a close case.

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