News aggregators, however, argue that their services benefit newspapers by
exposing new consumers to their content and driving traffic to their websites
by linking to them.242 Aggregators also argue that consumers who only skim
the headlines and article excerpts on a news aggregators’s website are not
likely to visit individual news websites and read full articles on their own.243
Thus, if news aggregators did not exist, the customers would not likely be a
source of traffic for the newspapers’ websites.244 While some courts agreed
with traditional news media and found this factor to cut against fair use
because news abstracts “compete with and supersede” the original article,245
analysis of this final factor remains fact-specific in each case. Because
application of the fair use test varies by judge, the courts’ rulings are
unpredictable, especially with an emerging area of law such as news
aggregators.246 Recent lawsuits may show the direction courts are heading
concerning the fair use defense.