Newser May Be Obnoxious, But That Doesn't Mean It's Illegal

from the why-can't-we-all-just-get-along dept

Thu, Apr 8th 2010 1:23pm — Dennis Yang

There's been a bit of a kerfuffle going on between the news aggregator Newser and entertainment news site TheWrap. Newser summarizes news that it aggregates, and apparently, TheWrap was not happy with this practice. TheWrap's Sharon Waxman posted a biting criticism of Newser, to which Newser's Michael Wolff replied with his own volley filled with barbed snark. This then kicked off a vicious fight over Twitter, which was joined by folks from all over the media industry. Finally, TheWrap took it up a notch and sent Newser a formal Cease & Desist, requesting that Newser stop using TheWrap as a source (via Mediagazer). The C&D letter claims:

Newser's conduct violates The Wrap's rights because: (1) The Wrap generates and gathers time-sensitive information at a cost, including, without limitation, original stories ferreted out and reported by The Wrap's full-time employees and paid contributors; (2) Newser free-rides on The Wrap's sweat of the brow by publishing summaries of these stories without affording The Wrap appropriate credit and a prominent link; and (3) Newser is in direct competition with The Wrap. Thus, Newser's conduct, in addition to amounting to garden variety plagiarism, constitutes unfair competition and violates certain deceptive trade practices statutes.

There are a few major problems with this -- in that of the three rights that TheWrap claims Newser violates, it's not clear that any are actually rights that TheWrap has! The first one is basically an attempt to bring back the hot news doctrine, which is hotly contested these days -- but would be a huge mistake for news publications. Right now, it's still a pretty big question though as to whether or not hot news actually can be applied in this way. Just because TheWrap generates time-sensitive info, it doesn't mean that others can't do anything with it. And that's because the second "right" has been totally rejected by the courts. The claim that this is free riding on The Wrap's "sweat of the brow" is meaningless, because as the courts decided in the Feist case, there is no protection for "sweat of the brow" works. Bringing it up makes no sense, and suggests someone's making a legal argument that has long since been debunked. Finally, the fact that the two sites are in competition is meaningless. Competition is allowed. It's called capitalism. And TheWrap is exaggerating and wrong to call this plagiarism. Rewriting something may be obnoxious, but it's not plagiarism, nor is it a deceptive trade practice.

So, while Newser might be doing something that many consider slimy or tacky, it's not technically doing anything illegal. That said, the fact that TheWrap thought it was necessary to draft a formal C&D seems a tad excessive, although I'm sure the lawyers involved were more than happy to help -- even if the legal arguments appear weak. However, if Newser were to comply (and it doesn't have to), TheWrap really hurts itself more than anything. Sure, Waxman claims that in the 14 months that TheWrap has been around, Newser has sent it only 1,600 users. But, that's 1,600 more users than it would have sent had it not used TheWrap as a source. And yes, while it's true that Newser does not seem to add its own spin to the articles it summarizes, perhaps that is all that the Newser user wants. After all, the experience on Newser is very different from the one on TheWrap, so each site most likely appeals to a different type of audience. If anything, Newser exposes TheWrap content to a user segment that would not have seen TheWrap otherwise.

That said, I personally find the Newser user experience annoying and obnoxious -- the site design and link practices don't make for a good news consuming experience -- and certainly don't make for a very friendly neighbor online. Despite Newser's claims that it links to its sources, it does so in a very unfriendly way (hard to find, forcing you to visit ads to leave the page). This sort of practice, even if legal, may lead to two results, neither of which are good for Newser: (1) Annoying its readers, leaving them to go elsewhere and (2) Annoying everyone else online, keeping them out of wider social media circles. They might not think this is a big deal, but if no one else is ever linking to Newser, it's not likely that Newser stays in business. Rather than complaining, perhaps TheWrap should have just watched as Newser crumbled.

Either way, we're likely to see more fights like this one, as newspaper publishers who overvalue their own work continue with their misguided clamoring for the "hot news" doctrine, which would treat "hot news" as protected property. Not only is this a bad idea for all of society, this would ultimately spell doom for the publishers themselves, who would undoubtedly be mired in trying to figure out who owned what news rather than focusing on reporting and analyzing and figuring out how to give their customers a true reason to buy.

On that note, it's worth noting (with amusement) that the news story that kicked off this whole brouhaha was the story about how Beyonce's Label was blocking her YouTube channel. Which, of course, we here at Techdirt had written about two days before either Waxman or Newser posted on it.

But you don't see us complaining... even as we wipe the sweat off our brow.

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Filed Under: c&d, fights, plagiarism
Companies: newser, thewrap

16 Comments

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Big_Mike (profile), 8 Apr 2010 @ 12:32pm

Nice Dig at the end
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Dan J. (profile), 8 Apr 2010 @ 1:49pm

Links
I've never been to Newser before (and, after seeing their hideous front page, won't go back again) so I'm not sure if it's a new practice or not, but I clicked on a couple of stories and they all had direct links back to the source. Something like "blah blah blah," SourceWebsite said, where SourceWebsite is the name of the actual site and a direct link back to the original article.
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Brittany Machion, 8 Apr 2010 @ 2:03pm

Newser links in every story
I'm the marketing manager at Newser and I wanted to clarify your point that our source links are hard to find. We actually link to the source several times, giving multiple opportunities to our readers to visit the original source. We have the source link in our rollover (if you access the story via the grid), in the story text, and on the right under SOURCES, highlighted in red. The Beyonce story did omit the inline link, and that was a mistake (which we would have gladly corrected if Ms. Waxman had sent us a friendly email). But we're not trying to hide the original source.
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Lowell Goss, 8 Apr 2010 @ 2:32pm

The future of news
The Newser product is obnoxious, but the future of news is in a combo of aggregation and commentary with a frosting of original reporting. Blogs, Twitter and competing news publications are going to provide the majority of content for most publications that survive the transition into the online world. Newser could do a better job of linking and attribution, but Ms Waxman needs to come to terms with reality. It's not just Newser, but every publication that's going to be aggregating content at scale.

This is a REALLY positive change for the world of indie content creators. In the bad old days a publication would read your piece and simply write their own version of the story. The originator of the story would likely be uncredited. Today it's cheaper, easier and more honest to simply abstract and link.
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Bill Pickett, 8 Apr 2010 @ 2:38pm

I'm going to drop two links here for aggregators that work cooperatively with content providers. Just to make you aware of them. Both work through RSS feeds so there is an implicit permission for both to operate - the content originators provided the feed so they provide permission for it to be consumed. The two sites are: Feedly and Lazyfeed. Feedly is integrated with Google Reader so any feeds you place into reader are automatically collated and translated into a magazine like format on the Feedly web-site. Lazyfeed is run by keyword and scans other aggregators such as feedburner for those keywords and then displays the results by your keywords. Feedly being composed of your hand-picked sources is much more signal than Lazyfeed. Lazyfeed contains some noise (spam) but overall has quite a bit of signal too. I lied, heres a third link: NewsMap. The interesting thing about NewsMap is that it collates how often a story is mentioned in sources and the more often something is mentioned the larger screen area it is given. That is another aggregator function that provides value above the individual sources.
These three aggregators show that there is value to be provided above what individual sources provide: that is why aggregation is not automatically evil.
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- Anonymous Coward, 8 Apr 2010 @ 3:25pm
  
  Re:
  I don't see where anyone says aggregation is evil (other than TheWrap and their ilk). I just don't find them particularly useful to me.
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- Hephaestus (profile), 8 Apr 2010 @ 4:02pm
  
  Re:
  Thanks for the links ... They are what I see as the starting point for what news distribution will become. More personalized, less corporate press releases rehashed as news, less politically biased, more targeted towards the individual users interests. With the individual news feeds becoming more specialized and expert-guru over time. Where the individual expert is followed not the corporation.
  
  JMHO
  
  David
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  - Bill Pickett, 8 Apr 2010 @ 5:16pm
    
    Re: Re:
    You're welcome, I was worried I was bordering on spam with posting the links but eventually decided to post them as they are real world examples of what people are doing within this topic. All too often it seems people rush to judge before all the evidence is in. These services are evidence by their very existence, you as an individual judge can try them out and see if they actually provide something of value that you could not get from individual sources. Trying these services refines opinions of their value beyond simple black-and-white attitudes. With the theory that more refined experience leads to better arguments within discussion.
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Anonymous Coward, 8 Apr 2010 @ 5:33pm

mr wolff more than anyone knows the cost of creating content and the real sweat required to produce it. he lost millions making content in the past. he has little reason to deny that content costs money to produce.
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- Bill Pickett, 8 Apr 2010 @ 6:15pm
  
  Re:
  The internet has changed the game, what results is all that remains to be seen. Publishing costs alone are minuscule with the internet versus running a printing press and then delivering all those papers. Traditional news also costs a lot of money for overhead like editors and reporters. The internet allows anyone to be an editor or reporter cooperatively with others. The result right now may not be as polished or carry the authority of established news sites but it has a great advantage. The market can support it. When news sources were limited money was funneled into relatively few players allowing them to afford all that overhead. Now they are finding that with what the internet has done to news - devalued it - the money they take in is not enough to cover their old structures. What is happening is that the market is adjusting to the new reality of smaller funding spread over many more people. You can partner with Blogger for a cut of advertisement revenue from your page for example. News will never be the same as it was while and after the market realities adjust. Perhaps it will be worse in the future but what will remain is that it will be within what people are willing to pay for it. You don't run out and say "Pay me!" right off the bat when there are enough other players providing cheaper news, you work within the market and scale back your operations to what you can finance. If enough people miss high-priced news and the editors and reporters that it allows then you'll be able to charge for it when people see that need if ever again. Right now with the internet and this period of explosion in decentralized news all the traditional players are doing is yelling into the wind. People have to want it to make it viable and the failure of pay-walls so far indicates that people don't want it bad enough. If everyone colluded to make pay-walls standard it would be different but as long as some players as willing to make a smaller profit with smaller overhead then that is just competition and high-overhead players need to either make what they have actually more valuable or scale back their costs in any creative ways they can find.
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Anonymous Coward, 9 Apr 2010 @ 1:26pm

Slashdot
I've always wondered how aggregators I've never heard of get all this flak, but Slashdot never does. Is it because Slashdot is primarily technology oriented or what?
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Ernie Smith, 11 Apr 2010 @ 11:13am

Newser does it all wrong
Hey, Ernie Smith from ShortFormBlog here. I run a short-news aggregator like Newser, and while it's definitely not on the scale of what they do, it's a bit more ethically sound. We link to everything and do it in such a way that you're actually encouraged to follow the link. Personal feeling on Yang's take of the issue: Dead on. Wolff's not being illegal, just immoral. For his own reputation, he should consider making Newser more open, and linking within the articles in such a way that it's easy to read. Maybe he can do a red "source" thing at the end like I do, rather than off to the side where nobody sees it. Oh, and do something about that front page, bro. What are you? A tabloid?
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joseph prischak, 18 May 2010 @ 5:40pm

false story
You wrongly stayted in a story about Jeremiah Wright writing me a letter and you falsely wrote about me as "the imprisoned president of africa 6000 International" I wish to inform you I am not a prisoner in any jail and never have been.You have attacked my integrity and seriously stained my reputation. What should be our next step in dealing with this liabelous statement? Please kindly respond.
Respectfully,
Joseph J. Prischak
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TJ, 23 Jun 2010 @ 5:25am

Newser layout is great, its the users that browse and comment there that are obnoxious. Cesspool of retards.
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Wehelpu, 2 Nov 2010 @ 7:42pm

The News industry must as innovative in media as porn...
The news and media industry must become as innovative as the porn industry and close to par with the hi-tech/IT firms.

So BIG NEWS COMPANIES...
1. Hire web Programmers...
2.Build Perfect Powerful Web/Mobile News/ Media Applications (that people will want to use to read/listen/view WITHOUT PAYING!)
3. Create an allegeance of readers. And publish the stuff of your competitors as well. While making hits and advertising revenue
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- Wehelpu, 2 Nov 2010 @ 7:47pm
  
  Re: The News industry must as innovative in media as porn...
  http://www.newser.com/off-the-grid/post/435/the-new-news-i-can-say-anything-you-can-say-shorter.html
  
  The facts are the facts�resorted, rewritten, republished as soon as they are known. The value is the style and efficiency with which they are presented.
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