By Anthony Falzone

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?

http://cyberlaw.stanford.edu/node/6237