Short Sighted Newspaper Association Asks Trump To Whittle Down Fair Use, Because It Hates Google

from the this-is-really-dumb dept

Thu, Dec 8th 2016 9:36am — Mike Masnick

Sometimes you wonder just how ridiculous some legacy industries can be. The latest is the News Media Alliance, which is apparently the new name of what was the Newspaper Association of America. Just a few months ago, we were mocking that organization's ridiculous proposal that readers of newspaper websites should be forced to allow invasive ad trackers, and that adblockers shouldn't be allowed. And believe it or not, now the group has even worse suggestions. It has sent a "white paper" to Donald Trump with the types of things it's looking for from a Trump administration. The white paper is really just a 3 page memo dressed up slightly with the term "white paper" at the top -- as opposed to a carefully developed plan.

But the really ridiculous bit is that these media publications -- who regularly rely on fair use, are asking Trump to dump fair use:

Strong copyright protection is needed. Newspaper content makes up approximately two-thirds of the content on news aggregation platforms such as Google News, but many of these relatively new players in the digital ecosystem build audiences and generate revenue from newspaper content with little if any revenue coming back to those who have invested in creating the original content. Today, the news media industry invests roughly $5 billion each year in long-form investigative journalism. Our nation’s copyright laws must be structured and implemented in a way that allows for a return on this massive investment. Today, outdated interpretations of copyright laws mean that the industry is currently forced to give away much of its product for free. The government needs to put in place copyright protections that allow news organizations and other content creators to fairly benefit from their critical efforts and investments.

“Fair use” should be reoriented toward its original meaning. Under current copyright law, a person that does not own a copyright may still use a copyrighted work if it is consistent with the “fair use” factors, which assess: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect upon the potential market. The courts, unfortunately, have dramatically weakened this test by finding a fair use any time a new use could be seen as “transformative.” This test has undermined the integrity of the long-established fair use factors. As part of any Copyright Act rewrite, we support refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution’s encouragement of compensation to entities that generate creativity and productivity.

This is dumb on so many levels. First, the claim that newspapers don't get any revenue from the likes of Google is ridiculous, when you consider how much they whine and freak out if Google removes them from search. They get revenue in the form of traffic from aggregators. If they're bad at monetizing it, that's one thing, but that's not the aggregators' fault.

Second, copyright laws should never be designed with the idea of making sure it enables recouping an investment. Because copyright is not the business model. Copyright is a mechanism that creates a business model, and that business model may or may not be successful. Just saying you invest $5 billion and therefore copyright needs to cover that nut makes no sense. I could just as easily claim that I'm going to invest $5 billion in improving Techdirt -- and therefore Trump needs to make sure that there's a business model to allow me to recoup that? No, that's crazy. It's not the government's job to make sure your own bad business decisions still pay off.

Third: the media attacking fair use is insane. Newspapers regularly rely on fair use in their reporting, and the group is shooting itself in the foot in asking Trump to take away that tool. This is especially true given that Trump himself has insisted he wants to "open up our libel laws" with the specific aim of harming newspapers. Remember, this is the context in which he said he was going to open up such laws:

If I become President, oh, are they going to have problems. They're going to have such problems.

... One of the things I'm going to do if I win, and I hope we do and we're certainly leading. I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected.

.... So we're going to open up those libel laws, folks, and we're going to have people sue you like you've never got sued before...

While he was specifically talking about libel laws, as we've seen over and over again, copyright is an amazing tool for censorship as well. In fact, the Supreme Court itself has noted that fair use is the necessary "safety valve" on copyright's free speech stifling powers. So for newspapers to basically gift wrap to Trump a way in which he can pull back a tool that protects their free speech -- just as he's been promising to attack their free speech -- is ludicrous.

About the only saving grace in all of this is that Trump acts as if he hates the big newspapers so much, that perhaps he'll have no desire to make them happy by following through on this idiotic suggestion.

In the meantime, if you work for a news organization that is a member of the News Media Alliance, maybe ask them why they're undermining a core principle of free speech in asking for fair use to be limited?

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Filed Under: aggregation, business models, copyright, donald trump, fair use, free speech, news, newspapers
Companies: google, news media alliance, newspaper association of america

59 Comments

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Anonymous Coward, 8 Dec 2016 @ 9:43am

They think he is a dictator
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Oninoshiko (profile), 8 Dec 2016 @ 9:52am

Simple solution for Google: "We delist you unless you sign this contract giving us the right to use your headline and a short blurb from every article you post"

Actually, now that I'm thinking about that, Google's name should be the first behind this because it creates such an insane barrier to entry noone would ever be able to compete with them.
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Anonymous Coward, 8 Dec 2016 @ 10:07am

They have one objective, which is to have the law force Google to show their headlines, and pay them for the privalege. If such a law is ever passed, then they will have successfully turned Google into their serfs.
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Anonymous Coward, 8 Dec 2016 @ 10:08am

Re:
Do you think Trump would resist the temptation if we allowed him to act like one?

We really didn't resist Obama much...
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Anonymous Coward, 8 Dec 2016 @ 10:11am

Re: Re:
The Do Nothing Congress went along with every Obama request?
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Anonymous Coward, 8 Dec 2016 @ 10:11am

I believe Trump walked back that libel law statement when someone mentioned that it could be more easily used against him (Trump) for the awful things he's on record as saying and still says and will likely say, and Trump remarked that he "hadn't thought of that"...he hadn't thought of that...HE HADN'T THOUGHT OF THAT!

*struck dumb...a really, deep seam of dumb...*
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Anonymous Coward, 8 Dec 2016 @ 10:11am

From Their Lips to God's Ear
Four years of Google not "infringing," i.e., aggregating, spidering, listing, etc., newspaper content should be just about right to drive the final nails in the coffins of most newsPAPERs. Any survivors will likely understand the value of free publicity.
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Paul Clark, 8 Dec 2016 @ 10:26am

Easy solution for Google
Google just needs to setup an opt out page so that newspapers can exclude themselves from Google search results. This way, any claims by the newspapers can be met with .. It is your choice to remain in the search results.
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Paul Clark, 8 Dec 2016 @ 10:28am

Trump Land Sky Color
Sometimes I wonder what color the sky is in Trumpland?
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Anonymous Coward, 8 Dec 2016 @ 10:28am

“Fair use” should be reoriented toward its original meaning.

Ok. Just as soon as "Copyright" is reoriented towards it's original meaning. Stowe vs. Thomas seems like a good starting point.
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Michael, 8 Dec 2016 @ 10:29am

Re: Trump Land Sky Color
Green.
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Michael, 8 Dec 2016 @ 10:30am

Re: Easy solution for Google
It's called: robots.txt
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Roger Strong (profile), 8 Dec 2016 @ 10:33am

Re: Re: Re:
Setting aside the fact that Obama has signed fewer executive orders than any President in over 100 years, I'm sure that Anonymous Coward would like to remind you that Obama signed some executive orders.
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Anonymous Coward, 8 Dec 2016 @ 10:54am

Newspaper content makes up approximately two-thirds of the content on news aggregation platforms such as Google News, but many of these relatively new players in the digital ecosystem build audiences and generate revenue from newspaper content with little if any revenue coming back to those who have invested in creating the original content.

I'm really not sure what he's actually complaining about here. If I go to Google News and click on an article from NPR, for example, I'm taken to the NPR website. So I'm being taken to the site where the content was created, not Google, not Google's rendition of it.

Is he really complaining that their sites don't have paywalls, and that's somehow Google's fault?

If so, he should really look into a paywall system - and see how well it works for him. If other sites can do it (with "it" being either give it away for free, or charge for access) and generate revenue (assuming that some of them must be making money, otherwise, why bother), I fail to see what Google has to do with any of his problems, other than giving him free advertising.
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hij (profile), 8 Dec 2016 @ 11:02am

How to keep google away
If only there was not some way to keep google from linking to ones precious website. Those Californicaters over in Smart Nerdlandia should be able to figure out a way for a news orgnization to protect its precious bodily fluids, errr I mean important, curated newsy bits.
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That One Guy (profile), 8 Dec 2016 @ 11:08am

Having their traffic and getting paid for it too
As noted by Michael that already exists, however despite their whining it's not actually what they want.

They don't want to not show up on search results, rather what they actually want it to be paid for showing up in them, despite the fact that they currently pay nothing for the free traffic Google sends their way.
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Anonymous Coward, 8 Dec 2016 @ 11:09am

Re: Re: Re: Re:
Red Herring and a Straw Man all at once... well done! It's not the number that is important but the content.

If a President does an EO every day for little things like, adjust the number of staff at this park over here, or here is a new policy regarding my staff and foreign dignitary movements its no big deal... but if he goes against his oath of office to uphold the constitution and tells members of law enforcement to stop enforcing law then well fuck... just the one of those is too many.
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Anonymous Coward, 8 Dec 2016 @ 11:10am

Re: Re: Trump Land Sky Color
Slimy Green!
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Anonymous Coward, 8 Dec 2016 @ 11:48am

Re: Re: Re: Re: Re:
... and what were "we" supposed to do about these nebulous executive orders to which you refer? "We" are soooo irresponsible, it really is disgusting what "we" do not do, how can "we" ever live with "ourselves".
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Anonymous Coward, 8 Dec 2016 @ 11:51am

Google will be in bed with the Trump administration before you know it, and probably already has lobbyists working on it as we speak.

After all, mass surveillance is a goal they both share.
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crade (profile), 8 Dec 2016 @ 12:00pm

“Fair use” should be reoriented toward its original meaning.

Agreed! Bring back fair use! People are still getting roped into paying for copying stuff for Educational Purposes... Education Purposes for goodness sake! Transformative is hardly supposed to be the *only* way something can be fair use! It is very clear from the text that being transformative was only supposed to be one of many super vague, highly subjective and most importantly un-restrictive ways something can be considered fair use.
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Roger Strong (profile), 8 Dec 2016 @ 12:22pm

Re: Re: Re: Re: Re:

It's not the number that is important but the content.

Nice flimsy rationalization. (And yes, I know that InfoWars claims that it's more than that.)

and tells members of law enforcement to stop enforcing law

Deferred action. How dare Obama do what Reagan and Bush I had previously done, and what Bush II had called for.

Not to be confused with full immigration amnesty, which Reagan did for 3.2 million illegal immigrants. (Remember his "Shining House on the Hill" speech about opening the borders to all?) And which the Republican platform committee made part of the Republican platform in 2004. Or which GOP conservatives pushed for around the same time (via the AgJOBS bill).

Heck, even more recent Republicans like Ted Cruz, Newt Gingrich, Sarah Palin and Rick Perry are on record calling for deferments and amnesties.

As always, IOKIYAR. (It's OK If You're A Republican)
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crade (profile), 8 Dec 2016 @ 12:51pm

Re:
Because we live in some alternate universe where the government has passed a law in the past quarter century that doesn't harm google
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Whoever, 8 Dec 2016 @ 12:54pm

How they would like it to be.
They want news websites to be like physical newspapers.

They want people to have to buy access to news websites like people buy newspapers.

Because of the costs, most people will select only one or perhaps two newspapers and read that exclusively.

The hatred for google news is not that it brings readers, but that it takes readers away to the competition. Newspapers would prefer not to compete story by story.

How they haven't through this through: forward-thinking news websites can explicitly give permission to Google news for snippets to be displayed. These websites will be the only news websites that people will discover from Google, so the "no-snippets, subscription only" websites will die even faster.

So the real problem for traditional news websites is how to make it illegal for other websites to give permission to Google to display snippets?
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Anonymous Coward, 8 Dec 2016 @ 1:06pm

Hot News
I'm surprised they aren't screaming for a "hot news" addition to copyright.
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bikey (profile), 8 Dec 2016 @ 1:20pm

Google news
This is exactly what the EU has just done with its latest proposed Directive. See 14.9.2016 COM(2016) 593 final 2016/0280 (COD)
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Anonymous Coward, 8 Dec 2016 @ 1:44pm

Re: Re: Re:
It's only a do nothing congress when the Democrats don't get their way. It's Government in action when the Republican's get stopped in their tracks.
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Anonymous Coward, 8 Dec 2016 @ 1:46pm

Re: Re: Re: Re: Re: Re:
No, it's not flimsy, it was just as wrong then as it is now. Don't assume that I agree with what Reagan or Bush did just because I did not agree with Obama's. I hold Bush with a great deal of contempt... with the creation of DHS and the Patriot Act Bush spat in the face of every American Soldier standing or fallen. The American Military's sycophantic hard on for the Bush administration is very frightening. What are they fighting for if they support a man that created the very thing they 'claim' to have fought against?

It is my opinion that all EO's should be null the moment a President that created them leaves office and any EO that runs afoul of an established law should be censured by Congress.

Yes, I know there are a lot of traitors up in Washington, I am at the point where I do not know which Party is the worst at this time. They both clearly have unconstitutional plans and despite all of the blabber that they are "constitutional scholars" they have no intention of being the least bit respectable to them.

Not sure why you brought up Info Wars, my opinion here is based on nothing but reading the Constitution. I don't need CNN, TD, InfoWars, Fox, or CBS to tell me what things mean.
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Thad, 8 Dec 2016 @ 2:00pm

Re: Re: Re: Re:
Yeah, remember all those times the Democrats obstructed Bush from doing whatever the hell he wanted?

Yeah, me neither.
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Thad, 8 Dec 2016 @ 2:02pm

Re:

I'm really not sure what he's actually complaining about here. If I go to Google News and click on an article from NPR, for example, I'm taken to the NPR website.

Well, not if you're browsing on your phone, you're not.
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Roger Strong (profile), 8 Dec 2016 @ 2:32pm

Re: Re: Re: Re: Re: Re: Re:
There's nothing inherently unconstitutional about executive orders. There are limits on what a President can use them for. Obama and other Presidents have discovered this in court.

An important use - where a President can block enforcement of a law altogether - is when he determines it to be in violation of the Constitution.
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nasch (profile), 8 Dec 2016 @ 2:33pm

Re: Re: Trump Land Sky Color
Gold. Everything is gold.
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nasch (profile), 8 Dec 2016 @ 2:37pm

Re: Re:

Well, not if you're browsing on your phone, you're not.

I guess it depends on the app? From Feedly if I tap on a story it goes directly to the news web site. I searched for "google news" thinking that might be a site. I was presented with a list of stories and when I tapped one again I was taken to that web site. Not sure where you're seeing other behavior, maybe iOS? I would try it with Google Reader but... RIP Google Reader.
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Roger Strong (profile), 8 Dec 2016 @ 2:40pm

Re: Re: Re: Re: Re:
Democrats certainly did abuse the filibuster rules on a grand scale to obstruct Bush II.

But still, not on the scale that Republicans then used it to block Obama. Obstructing EVERYTHING the other party tried - as stated policy - was new. Blocking Democrats from passing even what were Republican policies - was new. They EARNED the "do-nothing congress" label.
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Thad, 8 Dec 2016 @ 3:01pm

Re: Re: Re:
In my browser. I go to Google News, I tap a story, and it opens on the same page. Maybe it's only the top stories; I don't remember.
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Thad, 8 Dec 2016 @ 3:06pm

Re: Re: Re: Re: Re: Re:
I don't remember much obstruction in his first term. He got the PATRIOT Act with near-unanimous support, he got the Iraq war with Democratic support, he got his tax cuts, etc.

I'll grant that in his second term they filibustered a whole lot of his nominees, but they allowed some of his more controversial picks through, including Gonzales. They also allowed two out of his three Supreme Court nominees (and Miers was scuttled by bipartisan consensus, not just by Democrats), and that was after getting the majority in '06.
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nasch (profile), 8 Dec 2016 @ 3:22pm

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

PATRIOT Act... Iraq war... tax cuts... Gonzales...

You're making me wish the Democrats had filibustered more.
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Anonymous Coward, 8 Dec 2016 @ 3:32pm

Re: Re: Re: Re: Re: Re: Re: Re:
> There are limits on what a President can use them for.

Just exactly what are those limits?
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Thad, 8 Dec 2016 @ 3:56pm

Re: Re: Re: Re: Re: Re: Re: Re:
I still favor filibuster reform, even as somebody who's very concerned about what the Senate's likely to get up to in the next 2-4 years.

At the very least, if we're going to keep the filibuster it should go back to the old stand-there-for-days-and-read-the-phone-book rules. Not a fan of the automatic filibuster, at all.
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Anonymous Coward, 8 Dec 2016 @ 3:58pm

Maybe Google should be charging them for directing traffic to their news sites. I could be a two way street, if they want traffic they can pay for it.

Lets burn the internet while we are at it. Isn't that what the papers want to protect their buggy whip subsidiaries? (I think the neurons are misfiring...)
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Mike Masnick (profile), 8 Dec 2016 @ 4:18pm

Re: Re: Re: Re:
In my browser. I go to Google News, I tap a story, and it opens on the same page. Maybe it's only the top stories; I don't remember.

It sounds like you're talking about publishers that use AMP, which is Google's (open source) standard for fast loading stories. But publishers have to choose to use AMP. https://www.ampproject.org/ So, if you're clicking on AMP'd stories it may seem like they're still in the same window, but the publishers are still making that choice and setting up to use AMP. Otherwise, you're still going all the way to the publisher's original site.
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Anonymous Coward, 8 Dec 2016 @ 4:57pm

Spain, Germany... what's with newspapers having such a hard-on for dogpiling Google that they'd rally around behind Pizzagate?
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Roger Strong (profile), 8 Dec 2016 @ 5:57pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
The Atlantic gives a nice overview, regarding another order where Republicans suddenly decided that such orders were unconstitutional.
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jupiterkansas (profile), 8 Dec 2016 @ 9:32pm

Of course Trump is going to have to change the laws so newspapers make lots of money if he's going to sue them all for lots of money.
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PaulT (profile), 9 Dec 2016 @ 12:44am

Re: Having their traffic and getting paid for it too
More specifically - they don't want to use robots.txt because that would be a) admitting that Google have been giving them the ability all along and b) they would need to take responsibility.

I agree that what they really want is to be paid either way. But, the real issue is they need to have someone else take the blame when they fail. Use existing tools to block traffic, and they take the blame when their revenue drops. Work with Google but fail to sufficiently monetise traffic, it's their fault. But, whine that Google are taking away their revenue and force Google to do something about it? No matter how Google react, they can blame them for their failure.
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PaulT (profile), 9 Dec 2016 @ 12:49am

Re:
"I'm really not sure what he's actually complaining about here. If I go to Google News and click on an article from NPR, for example, I'm taken to the NPR website"

Judging by previous stories, they seem to be complaining that people will go to Google News and read the headlines/small snippets of the stories and not click through to the originating site.

I'd say that says more about the modern state of journalism and how little value the body of the story tends to have than anything on Google's part. But, however realistic, that seems to be the only complaint any of these stories have. Otherwise, they are literally complaining that the people sending them free traffic and advertising might also make money.
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Anonymous Coward, 9 Dec 2016 @ 2:28am

Re: Re: Re: Trump Land Sky Color
Bigly gold.
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Anonymous Coward, 9 Dec 2016 @ 5:58am

Re: Re:
Just for clarification - I'd go to news.google.com and navigate from there.
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Anonymous Coward, 9 Dec 2016 @ 6:00am

Re: Re:
I'd say that says more about the modern state of journalism and how little value the body of the story tends to have than anything on Google's part.

Great point I hadn't thought of. I think I'd take this one step further Paul and say perhaps the reader also doesn't care about much more than the headline (assuming there's anything significant to glean from the article).
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PaulT (profile), 9 Dec 2016 @ 6:14am

Re: Re: Re:
Both may be true. Many newspapers have built their brand on sensationalistic headlines that may or may not even be true, let alone accurately reflect on the contents of the article. So, seasoned readers can tell from the tone that nothing of value will be there and don't click.

On the other hand, you can argue that if actual journalism inside doesn't interest the average reader, then all they have is the small details in the excerpts shown by aggregators to begin with. Given how little real investigative journalism is performed nowadays, that leaves a different problem (how to compete when all newspapers are essentially repeating the same stories), but that's a different subject.

I'd say that it's more likely that the newspapers are simply not monetising the free advertising and clickthroughs correctly and just want more of a free lunch. But you have to consider that the reason why some people might not read anything more than the preview is because nothing of value is being offered.
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Anonymous Coward, 9 Dec 2016 @ 6:58am

Re: Re: Re: Re: Re:
Guess that shut 'em up.
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Anonymous Coward, 9 Dec 2016 @ 7:00am

Re:
He's mostly hot air, lots of accusations and threats - little to no action on same.
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That One Guy (profile), 9 Dec 2016 @ 11:09am

Re:
Google has money. Lots of money. They want that money, and since Google is 'using' their stuff by sending them traffic for free they feel that they are owed money from Google.

It's blatant, short-sighted greed at it's finest.
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Anonymous Coward, 9 Dec 2016 @ 1:42pm

Re: Re:
Yeah, poor poor little Google - always getting picked on by the big bad government.

https://theintercept.com/2016/04/22/googles-remarkably-close-relationship-with-the-obama- white-house-in-two-charts/

https://www.salon.com/2015/11/24/googles_insidious_shadow_lobbying_how_the _internet_giant_is_bankrolling_friendly_academics_and_skirting_federal_investigations/
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That One Guy (profile), 9 Dec 2016 @ 6:23pm

Re: Re: Having their traffic and getting paid for it too
That is a very good point, one I hadn't considered.

If they simply opt out, as they can easily do, then when that results in a nose-dive in traffic and even less money coming their way they'd have no-one to blame but themselves. But if they insist that Google do something, when it doesn't turn into piles of money they can blame Google for doing it 'wrong', or being greedy and not handing over all the money they're 'owed'.
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Anonymous Coward, 10 Dec 2016 @ 9:08am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Funny how you avoided exactly answering the question.
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Anonymous Coward, 10 Dec 2016 @ 11:05am

Trump (and Clinton) + NSA (Google, Facebook, etc) = disaster
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Wyrm (profile), 10 Dec 2016 @ 5:36pm

Re: Having their traffic and getting paid for it too
It gets even better: robots.txt can be used to block Google and Google news separately. No excuse like "we want out of Google news, but still show up on Google."
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Roger Strong (profile), 10 Dec 2016 @ 9:11pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
If I had posted my own answer, we both know full well you'd casually dismiss it or ask for a citation. Instead I posted article from a highly credible source, written by an expert on constitutional law, which answers your question far better than I could. The quick summary:

- The President CAN'T refuse to enforce a law because of policy opposition.

- The President CAN refuse to enforce it if it's unconstitutional or breaks other laws.

- The President CAN delay it in whole or in part or make minor corrections in order to better execute it. This is common, and usually upheld by the courts.

Beyond that...

- If the President refuses to enforce a law because of policy opposition, the courts can overturn the executive order. This too is common, and happened to Obama on immigration.

- Congress can overturn an executive order by passing legislation in conflict with it. The president has the power to veto that decision, but Congress can override the veto with a two-thirds majority.

- Congress can refuse to provide funding necessary to carry out the order. The president can't veto this.
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