News Corp Lawyer: Aggregators Steal From Us! News Corp: Hey Check Out Our Aggregator!

from the hypocrisy-in-action dept

Thu, Oct 15th 2009 8:51am — Mike Masnick

We've already covered how Rupert Murdoch has flip flopped his position on free online news, but his recent foray into blaming search engines and aggregators is really reaching the height of hypocrisy. We've already looked into the issue of aggregators and found there's no problem there at all. Most aggregators either direct traffic to the original sites or are too small to matter. There's no evidence they actually siphon any traffic away at all... but it seems that the old newspaper guys need an enemy, and these days it's those evil "aggregators."

Following on the lead of his boss, News Corp. General Counsel Lawrence Jacobs made some interesting statements, claiming that aggregators are a big problem:

"Aggregators and Google News are, to us, the worst offenders," general counsel Lawrence Jacobs said today at a luncheon talk at Brooklyn Law School. "They make money by living off the sweat of our brow."

This isn't just ridiculous and wrong, it's hypocrisy of the worst kind. As Gabe Rivera points out, just a few years ago, News Corp was happily hyping up its own aggregator, and even today it appears to run a number of different aggregators, with a Wall Street Journal editor proudly talking about how useful the aggregator is. Fox News has its own news aggregator, the WSJ's tech page has Popular Technology Stories from Around the Web and AllThingsD has its "Voices" section -- all of which aggregate content from elsewhere with no payment.

So, according to News Corp., News Corp., is one of the worst offenders, right?

And, of course, things get even worse, the more you look at what Jacobs has to say. As one of our readers pointed out earlier this week, not only doesn't Fox News use robots.txt to block Google and other aggregators, it specifically tells Google News where to find its news. So as its execs and lawyers are whining about how evil Google News is to index its site, its tech people are putting up a big glowing sign that says "Hey! Google News! Over here! Come and get it!" Hypocrites. By the way, Weston Kosova, over at Newsweek even wrote up a nice little column based on our reader's comment. According to News Corp. and Jacobs, Newsweek just made money "off the sweat of our brow" (or technically, our readers). But, frankly, I think it's pretty awesome that someone from Newsweek isn't just reading Techdirt, but getting value out of our community as well.

Oh, and why stop there? Seeing as Lawrence Jacobs is general counsel of News Corp., one has to assume that he's a lawyer with a real law degree and such. And thus, you would think that he was familiar with copyright doctrines in the US, and would choose his language carefully. It's then especially odd that he chose the phrase "sweat of our brow" in describing his complaint, given that in Feist, the US explicitly rejected "sweat of the brow" as a reason to grant copyright. Since Jacobs appears unfamiliar with the ruling in Feist, here's a quote for him:

It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme." Harper & Row, 471 U.S., at 589 (dissenting opinion). It is, rather, "the essence of copyright," ibid., and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts.... The "sweat of the brow" doctrine had numerous flaws....

So, let's sum up. While Murdoch and Jacobs are out trashing aggregators for making money based on the sweat of their brow, News. Corp. itself gleefully offers up at least three aggregators itself, which its writers and editors happily promote. The tech staff uses its robots.txt file to point aggregators to exactly where they should go, explicitly calling out some aggregators (the "worst" according to Jacobs) by name. And, oh yeah, the Supreme Court has already ruled that the "sweat of the brow" argument is meaningless when it comes to copyright law.

Time for a rethink, perhaps?

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Filed Under: aggregators, hypocrisy, journalism, lawrence jacobs, rupert murdoch

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Anonymous Coward, 15 Oct 2009 @ 9:02am

""Aggregators and Google News are, to us, the worst offenders," general counsel Lawrence Jacobs said today at a luncheon talk at Brooklyn Law School. "They make money by living off the sweat of our brow." "

Then just remove yourself from their listing, it's very simple. But you'd rather resort to extortion I suppose because it's more profitable. Force them to list you and force them to pay.
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Anonymous Coward, 15 Oct 2009 @ 9:17am

A lot of people work very hard and yet are never rewarded. Sometimes their hard work allows someone else to succeed. That's part of capitalism. To disconnect that and try and make everyone who works hard get that reward would feed back upon itself and cause people to work less hard. And of course, that's what we see anytime companies do not have significant competetion.
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John Doe, 15 Oct 2009 @ 9:18am

Worst Offenders
Can we lump lawyers with aggregators making money off of other people's sweat?
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C.T., 15 Oct 2009 @ 9:33am

How is Feist relevant?
I am familiar with the legal import of the Supreme Court's decision in Feist. However, for the life of me, I cannot figure out hot it is relevant to this issue. Are you referring to it simply because he used the phrase "sweat of the brow"? That seems petty.

I am not sure your reference provides any more insight than that, though. Unlike Feist, there is no issue of copyrightability here - the excerpts being used are clearly copyrightable. The question at issue here is not one of copyrightability, but one of infringement/fair use.
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deadzone (profile), 15 Oct 2009 @ 9:42am

Go Nuclear!
PLEASE! Just do it.

Rather than wasting time trying to work out something reasonable with these assclowns just go nuclear and completely remove any reference to them from your search results and be done with it. Let them go at it alone and they can live or die by the sword.

It shocks me that they appear to either not see or completely ignore the benefits.
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Anonymous Coward, 15 Oct 2009 @ 9:46am

Re: Go Nuclear!
They're not happy until they've exploited the public out of every last dollar and turned every last ounce of consumer surplus into producer surplus. Cable television and pharmaceutical corporations have already accomplished this.
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Anonymous Coward, 15 Oct 2009 @ 10:07am

remove the sources
I love the Google News gadget on my google homepage, it sends you directly to the source's page (where I would never go otherwise). I wish I could select/remove the sources for the gadget...Fox News would be the first to go, followed by CNN.
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Dark Helmet (profile), 15 Oct 2009 @ 10:07am

Mr. Kosova, I'm ready for my closeup...
"By the way, Weston Kosova, over at Newsweek even wrote up a nice little column based on our reader's comment. According to News Corp. and Jacobs, Newsweek just made money "off the sweat of our brow" (or technically, our readers). But, frankly, I think it's pretty awesome that someone from Newsweek isn't just reading Techdirt, but getting value out of our community as well."

Ok, in all seriousness, how does this one subsection of the story not ALSO offer some vindication for the position Mike has stated, and I/others have agreed with, that THE COMMUNITY has become an uber-important factor in the realm of new news media. M&M didn't touch upon this much in this article, but this is yet ANOTHER lesson Murdoch and other major news outlets could learn from this situation: open your sites up and allow for participation. For every assclown commentor you end up with (hell, I'm probably in that category most of the time), you're going to get vastly more beneficial participation like in this case, and your sites will be the better for it.

Speaking of which, I'd be happy to grant Mr. Kosova an indepth interview on my helmety habits at any time....
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Hulser (profile), 15 Oct 2009 @ 10:20am

Re: How is Feist relevant?
Are you referring to it simply because he used the phrase "sweat of the brow"?
Yes. Next question.

That seems petty.
Not at all. Mike was just pointing out that it was odd to for someone who appears to be on the make-IP-stronger side of the spectrum to use a specific expression from a case that was on the other side of the spectrum. I actually thought the same thing when I read the "sweat of the brow" quote.
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william, 15 Oct 2009 @ 10:43am

Just do what they want.
Since they complain so much, Google News should just block out their articles/sites for now and see how they like it. It's not hard to do.

For people you can reason with, the quickest way is to show them what would happen. Think Youtube awhile ago...

Once Google News block out all their stories and sites for a few months then we'll know how it will end.

(*spoiler* Google wins and they come crawling back.)
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ChurchHatesTucker (profile), 15 Oct 2009 @ 10:58am

Re: Just do what they want.
"Since they complain so much, Google News should just block out their articles/sites for now and see how they like it. It's not hard to do."

You'd think, but Google caves all the gorram time. It's like they don't have huge resources to draw upon or something.
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Michelle Potter, 15 Oct 2009 @ 10:59am

Re: How is Feist relevant?
I think the relevance is this. Murdoch is claiming that news aggregators are unfair and violating copyright because they benefit from his hard work without compensation. However, in Feist, even though they were talking about copyrightability and not fair use, the court clearly stated that the whole PURPOSE of copyright is to benefit the public, not to "reward the labor of authors." Yes, the excerpts being used are clearly copyrightable, but they are also clearly fair use. To claim that they are NOT fair use simply because the public is benefiting, and not because of any actual violation of copyright law, shows a complete and total failure to understand what copyright is all about.
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kingstu, 15 Oct 2009 @ 11:14am

Wall Street Journal Online FREE

In case you run into "subscription required" to continue reading a WSJ article try this:

1. Copy article title
2. Paste into Google News
3. Click on result, read full article.

Nice of Murdoch to hate Google News yet allow readers to access full articles through it.
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John Fenderson (profile), 15 Oct 2009 @ 12:26pm

Re: Re: How is Feist relevant?
"shows a complete and total failure to understand what copyright is all about"

Yes, but not on their part. This is nothing but an intentional attempt to expand the purpose of copyright itself beyond what it ever intended. They (meaning major media companies) know full well what the intent of copyright is. On the other hand, they really are having trouble adapting to changing times and are desperately looking for any way, by hook and by crook, to be able to conduct business as they're used to. They are trying to steal from the commons.

What they're counting on is that most people, particularly people in power, do in in fact completely fail to understand copyright. They are actively trying to get people to misunderstand copyright as much as possible too, for obvious reasons, and say all kinds of crazy thing publicly as part of that effort.
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John Fenderson (profile), 15 Oct 2009 @ 12:28pm

Re: Re: Just do what they want.
The odds are overwhelming that there are some bean-counters and lawyers within Google laying out a cold cost/benefit analysis on this stuff, and Google is doing the least expensive thing. But, as an wise man once told me, costs are not constants.
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Overcast (profile), 15 Oct 2009 @ 12:59pm

"Aggregators and Google News are, to us, the worst offenders," general counsel Lawrence Jacobs said today at a luncheon talk at Brooklyn Law School. "They make money by living off the sweat of our brow."

Might I propose a simple fix to Google...

Using our iGoogle accounts - we should be able to set a 'permanent' block vs. various domains on searches.

So that anytime I search for anything it can exclude domains such as "foxnews.com" or "ap.org" - that would make my life better.
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Anonymous Coward, 15 Oct 2009 @ 1:06pm

Are not the Newspapers and reports themselves making money from the "sweat" of the people actually "making" the news they are reporting. I say we starting charging the newspapers and reporters for every interview they want and for every picture they take of my accident or crime scene. I mean why should reporters get free news if the "Aggregators" can't.
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Old Man, 15 Oct 2009 @ 2:31pm

Google & Yahoo could fix this
All we need to stop this nonsense is for Google and Yahoo to stop indexing the sites that whine like this. The page hits would take a nose dive, and News Corp and the like would be BEGGING Google and Yahoo to index them.
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Anonymous Coward, 15 Oct 2009 @ 2:48pm

Mike, I wish I could print this in bold letters and attach it to your computer screen, so you would let this nonsense go already. Please read this carefully (right off of the Wikipedia link you provided):

The court ruled that Rural's directory was nothing more than an alphabetic list of all subscribers to its service, which it was required to compile under law, and that no creative expression was involved. The fact that Rural spent considerable time and money collecting the data was irrelevant to copyright law, and Rural's copyright claim was dismissed.

The list was requred by law. There was NO created expression involved.

It does not compare well to written news stories, to stories, or any other matter.

Would this once again be the dreaded "techdirt effect", where new facts are created out of almost nothing?
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Anonymous Coward, 15 Oct 2009 @ 3:48pm

Re:
Since he didn't claim that it applied to news stories, I'll say your post demonstrates the "reading comprehension is dead" effect.
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Anonymous Coward, 15 Oct 2009 @ 3:59pm

What I don't get is how the media see aggrgators stealing revenue. I use google reader and igoogle, neither of which which show any ads. The only ads I see are the ones on the original web site if I chose to click through to th rest of the article.
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Anonymous Coward, 15 Oct 2009 @ 4:02pm

Re: Re:
Sorry, read Mike's summary dismissal:

"oh yeah, the Supreme Court has already ruled that the "sweat of the brow" argument is meaningless when it comes to copyright law. "

See? That's called creating a big fact where only a small fact exists. The Supreme Court ruled that ONLY on material where there was no creative work done. It doesn't apply to news articles, even though Mike would like to think it does.
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Mike Masnick (profile), 15 Oct 2009 @ 4:08pm

Re: How is Feist relevant?
I am familiar with the legal import of the Supreme Court's decision in Feist. However, for the life of me, I cannot figure out hot it is relevant to this issue. Are you referring to it simply because he used the phrase "sweat of the brow"? That seems petty.

The point is that US law has rejected "sweat of the brow" as a reason to grant copyright. The fact that he's complaining about "sweat of the brow" efforts is meaningless. The only question is whether or not actual copyright was violated.

Why is it petty since it's entirely accurate? I wasn't saying that the overall Feist ruling is relevant here, but the point that US courts do not accept "sweat of the brow" arguments for such things.
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Mike Masnick (profile), 15 Oct 2009 @ 4:09pm

Re: Re: Re:
See? That's called creating a big fact where only a small fact exists. The Supreme Court ruled that ONLY on material where there was no creative work done. It doesn't apply to news articles, even though Mike would like to think it does.

This is incorrect. I did not say that the Feist ruling meant there was no copyright issue here, but that you do not get copyright for "sweat of the brow efforts." That is entirely accurate and correct, despite your misreading of the law.
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Anonymous Coward, 15 Oct 2009 @ 4:10pm

Re: Re: Re:
Umm, yeah, that's the entire point. If there's no creative work done, no amount of "sweat of the brow" can make the work copyrightable which...

...wait for it...

...is exactly what the sentence you quoted said.

Good effort, go back to elementary school now.
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Anonymous Coward, 15 Oct 2009 @ 6:16pm

Re: Re: Re: Re:
Again, I go with the other poster, you are taking "sweat of the brow" in one way, when I think the intention is very different. There is actual work in the process of writing news, it isn't just a list of names, like Feist. So while the term "sweat of the brow" may or may not be the right way to explain it, Feist is not relevant because the material is neither government mandated or without additional work.

Again, you are looking at it using a VERY narrow point of view, when in fact you and I both know that that news reports are a unique work, even if the facts inside are not.
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Anonymous Coward, 15 Oct 2009 @ 6:38pm

Re: Re: Re: Re: Re:
Reading comprehension continues to die a slow, painful death.
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Mike Masnick (profile), 15 Oct 2009 @ 6:40pm

Re: Re: Re: Re: Re:
Again, I go with the other poster

Who is wrong.

you are taking "sweat of the brow" in one way

No, I am pointing out -- accurately and correctly -- that the US courts have stated that sweat of the brow is not a viable reason for copyright. I did not say that News Corp. does not have a copyright on its works, I merely pointed out that the "sweat of the brow" argument that Jacobs makes is meaningless.

If you look up any analysis of "sweat of the brow" reasoning, Feist is the first discussion. It was entirely accurate to bring it up, no matter how much you seem to want to misunderstand the point.
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Anonymous Coward, 15 Oct 2009 @ 7:10pm

Re: Re: Re: Re: Re: Re:
Sorry Mike, but you are barking up the wrong tree.

Even a layman like yourself should be able to look at Feist and see it isn't relevant, except perhaps on a term used (not matching) "sweat of our brow" not "sweat of the brow".

Feist also applies only to lists of data, not creative writing. The subject was phone book listings, not editorial material.

There are other cases cited on that page that are much more in line with the reality here:

For example, a recipe is a process, and not copyrightable, but the words used to describe it are; see Publications International v Meredith Corp. (1996).[2] Therefore, you can rewrite a recipe in your own words and publish it without infringing copyrights. But if you rewrote every recipe from a particular cookbook, you might still be found to have infringed the author's copyright in the choice of recipes and their "coordination" and "presentation", even if you used different words, though the West decisions below suggest that this is unlikely unless there is some significant creativity in the presentation.

Looked at as news, it might start by reading:

For example, news is a collection of facts, and not copyrightable, but the words used to describe it are

You see? There are much more relevant cases to cite, but they wouldn't come down on your (narrow) side of the argument.

We all make mistakes Mike, your turn to be a man and admit it.
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stella, 15 Oct 2009 @ 8:10pm

ugh....
wish Jacobs would have said sweat of the ass because then Mike wouldn't have had to beat a dead horse with his foolish analogy. Mike, how do you spell boring????
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Mike Masnick (profile), 15 Oct 2009 @ 10:51pm

Re: Re: Re: Re: Re: Re: Re:
Sorry Mike, but you are barking up the wrong tree.

Except, again, I am 100% correct here. I have no problem admitting when I am wrong. In this case, I am not.

Please, go look at any text on "sweat of the brow" defenses of copyright. They will discuss Feist (assuming the discussion is about US copyright law).

Feist also applies only to lists of data, not creative writing. The subject was phone book listings, not editorial material.

Ok, one more time, even though I explained this already: I wasn't saying that news is not copyrightable. I was saying that the "sweat of the brow" argument is a legal nonstarter. That's accurate. 100% accurate.
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Anonymous Coward, 16 Oct 2009 @ 5:17am

Re: Re: Re: Re: Re: Re: Re: Re:
See Mike, this is why you lose so many people's respect.

He used a phrase (not the exact legal one), and off you go, ignoring context, ignoring situation, and ignoring everything else to stand on the head of a pin to say you are right.

"I was saying that the "sweat of the brow" argument is a legal nonstarter. "

...and it is clear from the rest of the story that this isn't even the road they are going down, and that legally, that judgement doesn't apply.

Except, again, I am 100% correct here. I have no problem admitting when I am wrong. In this case, I am not.

All I say say is "wow".
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chris, 16 Oct 2009 @ 8:10am

content
So is the position here that any and all content is free and no one (not even the creators and owners) have a right to charge for it?

Sounds utopian to me. Also seems to ignore/dismiss basic rules of economics.
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Albin, 16 Oct 2009 @ 8:37am

Not offense, but sense
It's wrong of Murdoch etc. to blame aggregators, but it's sensible to consider that news journalism has always been a "loss leader" and also a public service for newspapers and broadcast networks, far more expensive than any direct revenues it brings in. Now nearly all the "collateral" revenue streams - major brand advertising, classifieds and personal subscriptions - that supported news journalism have been appropriated by the internet (broadly considered) and it looks sensible to me to consider having the slack for news journalism taken up by 1) the ISPs and 2) the big Aggregators, who are now the major beneficiaries for offering news journalism searches, and are free-riding.
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Bill, 16 Oct 2009 @ 8:57am

They use Google for free...
The other irony here is that I'll bet there's not one News Corp. reporter who doesn't use Google to conduct research for his/her articles. Essentially saying to Google "you can't use my articles even though I used your services to create them."
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Mike Masnick (profile), 16 Oct 2009 @ 12:05pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:

He used a phrase (not the exact legal one), and off you go, ignoring context, ignoring situation, and ignoring everything else to stand on the head of a pin to say you are right.

Heh. No, he used the specific phrase, and I pointed out that he's barking up the wrong tree -- correctly. I've already heard from 3 separate copyright lawyers who agree that my use of Feist made perfect sense here.

Who are you again?
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Eli Bensky (profile), 17 Oct 2009 @ 1:11pm

Poor Murdoch
If Murdoch owned a restaurant http://eli77025.wordpress.com/
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Hephaestus (profile), 19 Oct 2009 @ 11:30am

Re:
Is there any way we can create a subscription service for this on google ???? Ie one person maintains the list and other people use it
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blog Aggregators, 22 Oct 2009 @ 5:34am

"
Following on the lead of his boss, News Corp. General Counsel Lawrence Jacobs made some interesting statements, claiming that aggregators are a big problem:

"Aggregators and Google News are, to us, the worst offenders," general counsel Lawrence Jacobs said today at a luncheon talk at Brooklyn Law School. "They make money by living off the sweat of our brow."
...
"
interestingly it seems these very same mega corps are using direct lead blog posts about breaking news AND so "They make money by living off the sweat of our VAST qorld bloggers and tweeters brow."
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Freelancealot, 12 Nov 2009 @ 7:10am

NLA and Client Confidentiality
I've just been reading the NLA's Q&A document about the introduction of new licensing fees to cover newspaper website content. I wondered what the issues were around privacy and client confidentiality when it comes to Q13 on this document:

'Question 13. What are the reporting requirements? Web aggregators will be required under licence to report monthly which clients they are supplying with web monitoring services and what volume of links they are supplying to each client.'

I'm presuming also that the NLA will be paying themselves for a licence to provide their own eClips Web service. Or am I misunderstanding; a licensing organisation that is also providing a service that is in competition with the media aggregators/monitoring companies it's licensing (and also getting a copy of their client list)?

I don't know, I'm no lawyer, or anti-competition expert, so these are just ponderings...

And finally, I quote from Tim Berners-Lee's Weaving The Web: The Past, Present and Future of the World Wide Web by its Inventor (Orion Business Books) after writing about the 'three myths of hypertext protocols':

'These are my personal feelings about how hypertext should be interpreted, and my intent. I am not an expert on the legalities in each country. However, if the general right to link is not upheld for any reason, then fundamental principles of free speech are at stake, and something had better be changed.'

I realise that these new fees are for the systematic commercial use of news web content such as news aggregators who post countless links to news articles, thus providing newspapers sites with visitors (something every business website is striving to get), but what happens when Joe's blog becomes extremely popular and ranked highly on Alexa, will the NLA start charging Joe for any links to interesting newspaper articles he includes in his posts? Who decides who should pay for a licence and who doesn't need to? Would that be the NLA again?

Interesting stuff, and looking forward to the NLA taking on Google and the news aggregators outside of the UK.

Cheers, Tracy
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