A Preliminary First Amendment Analysis of Legislation Treating News Aggregation as Copyright Infringement

The newspaper industry has recently experienced economic difficulty. Profits have declined because fewer people read printed versions of newspapers, preferring instead to get their news through so-called “news aggregators” who compile newspaper headlines and provide links to storied posted on newspaper websites. This harms newspaper revenue because news aggregators collect advertising revenue that newspapers used to enjoy. Some have responded to this problem by advocating the use of copyright to give newspapers the ability to control the use of their stories and headlines by news aggregators. This proposal is controversial, for news aggregators often do not commit copyright infringement. Accordingly, the use of copyright to help the newspaper industry would likely require amendment of the existing statute. This Article analyzes the constitutionality of such potential legislation under the First Amendment. As the Article will show, legislation that treats news aggregation as copyright infringement changes the traditional contours of copyright in ways that expose copyright to serious First Amendment scrutiny. This analysis will show that Congress does not have a completely free hand in choosing how, if at all, to help the newspaper industry. In fact, Congress must be careful not to unduly restrict the practice of news aggregation