We're still confused by some news publications' war against those who send them traffic. We've already covered some newspapers choosing technical means of blocking aggregators, which is effective cutting off your nose to spite your face, but what about just claiming that it's illegal? That seems to be the plan of a major Icelandic newspaper, who has put up a new policy that bans " repeated and systematic" linking to the website (Boing Boing's coverage implies it bans all deep linking, but that does not appear to be the case). This definitely seems targeted at aggregators, but I'm really not sure how that makes much of a difference anyway. First off, blocking links seems like a silly way to go about running a media publication, but second, just declaring that it's not allowed doesn't make much sense. If you really don't know how to capitalize on incoming traffic, then just use technical means. Insisting "it's not allowed" when your webserver says "yes, it's allowed!" doesn't make much sense.
We've already described how ridiculously hypocritical it is for various newspapers to block UK aggregator service NewsNow from linking to their articles in its paid subscription service, but apparently it's a difficult concept for some to grasp. The UK's Daily Mirror has now started blocking access to NewsNow's crawlers, claiming that its only problem is the fact that NewsNow makes money off subscriptions. If it wasn't making any money, the paper wouldn't have a problem.
Ok, quick question time. Does the Daily Mirror make money off of subscriptions? Oh, they do? And do they pay their sources on which they build their articles? No? Then doesn't that make the Daily Mirror a huge hypocrite? Why, yes, it does.
NewsNow makes money selling a subscription service, absolutely. But it's not doing it by misusing anyone's content. It's pointing subscribers to where they can go directly to the source. It's providing a service to give The Daily Mirror more relevant traffic. At no cost to The Daily Mirror. And they want to block that? Meanwhile, The Daily Mirror makes its money by writing about individuals and companies and the news they create. And it doesn't pay them anything either. In fact, many companies are happy to be written up (it's called PR). In the case of NewsNow, it's effectively providing PR for The Daily Mirror, and The Daily Mirror's management appears too incompetent to realize this.
You may recall that over in the UK there has been a bit of a battle between online news aggregator NewsNow (which, again, in my experience is one of the best aggregators out there) and various newspapers who are demanding payment from the company. The issue is not NewsNow's "free" aggregator, but the fact that NewsNow makes most of its money from offering businesses custom, private aggregation of links. NewsNow isn't providing full content at all -- just links and headlines. But the complaint from newspapers is that NewsNow is selling this service to companies and making money from it -- and thus, they deserve a cut.
Now, as the battle has escalated, it appears that Rupert Murdoch's News Corp. has taken the next step and blocked links coming from NewsNow. It's not clear what happens to NewsNow users who click on News Corp. stories, but apparently they don't get the story. The link above goes through all of the many, many reasons that it is absolutely a bad idea, and extremely "anti-internet" to block links from anywhere, but this whole thing got me thinking.
Based on Murdoch and News Corp's reasoning here, I believe Murdoch owes me money.
After all, News Corp. is most certainly a commercial enterprise. And, as we all know, the Wall Street Journal charges many people money in the form of subscription fees (just like NewsNow does) for access to the information it provides. Now, over the past couple of years, the Wall Street Journal online has linked to Techdirt more than a couple of times. A quick search of their archives shows at least nine stories over the past two years. So, if Murdoch is saying that NewsNow can't charge a subscription and link to him, why is it okay for him to charge a subscription and link to me?
Clearly, the answer is that Rupert Murdoch owes me money. Consider my invoice on the way... Of course, the alternative answer is that Murdoch doesn't owe me a dime... and NewsNow doesn't owe Murdoch either. But how can that be? It isn't like we've seen Rupert Murdoch suggest that rules that apply to others don't apply to him. Oh wait....
Post updated to clarify that it was an editorial aide, rather than an editor who witnessed things
Via Jay Rosen we learn of the absolutely bizarre story of how a Washington Post editorial aide witnessed an altercation involving an off-duty police officer who pulled his gun on people in a snowball fight -- and the eventual Washington Post writeup on the story which completely ignored the eyewitness account of its editorial aide in favor of the claim by the police that the gun wasn't drawn. Yes, a Washington Post staffer happened to have been on the scene and witnessed the whole thing. He called it in and told a reporter about it -- but the reporter simply ignored the guy's account. As Jay Rosen notes: "Who you gonna believe? The police department or your own staffer's lying eyes?" Even worse, by the time the Washington Post put out its report, there was already photographic evidence of the drawn gun posted online, along with a video where the cop admits to pulling the gun.
Later on, the Washington Post did "update" its report, mentioning the online evidence, but waited for quite some time before finally linking to the video (and never linked to the photos). As the Washington City Paper notes about this, it's in part due to very old school media thinking:
Yet the reason why the Post screwed this up is that they all have linkophobia. If you link to an outlet---such as, God forbid, the Washington City Paper---you've lost. You got scooped and all your colleagues are going to look down on you. Linking is a huge sign of weakness---you just can't do it. Far better to, like, call a top police official, buy his version of events, and just place it in a post, regardless of the contradicting evidence that's already posted elsewhere.
Take a close look at that 10:20 update on the maybe-gun-pulling cop: "The plainclothes D.C. police detective may have unholstered his pistol during the confrontation with participants in the huge snowball fight, based on video and photos posted on the Internet."
Bold and italics are mine. They're mine because this is the most cowardly, selfish, arrogant news conduct out there today. What the fuck is "video and photos posted on the Internet"? How does that help readers? It's as if I can go to www.internet.com, and there, on the first screen, will be the video and photos of the snowball fight and the maybe-gun-wielding cop. "Posted on the Internet" would be acceptable if this were 1997.
The reporters used this hazy phrasing because they were too chicken-shit to do something that we all have learned to do over the past, say, decade or more. And that's to link to competitors and acknowledge their contributions to stories.
Remember, this is the Washington Post, that recently had a column claiming that a blog linking to a Washington Post story (multiple times) had ripped off the Washington Post. So, perhaps that explains why the Washington Post refused to link to others who had more accurate takes on the story. It didn't want to "rip them off," and preferred to get the story wrong, even though it employed an eye witness.
So where are all those reporters who insist that the professional press is needed because they get this stuff right, while it's the upstarts that rush to post false claims?
Well, people have asked in the past how Google and Microsoft's search engines are really all that different from some of the file sharing search engines, and now we've finally got a lawsuit to at least explore some of that. It's not a major label, but a small indie blues label called Blues Destiny is suing Google and Microsoft along with RapidShare. At issue, of course, is that people are uploading Blues Destiny music to RapidShare, and searches via Google and Microsoft can find them. As Eric Goldman notes in the writeup linked above, the label isn't particularly clear in what it's upset about, so he believes the real issue isn't even that Google and Microsoft link people to RapidShare, but that it finds other sites that then link to RapidShare. That seems like many degrees removed from actually infringing -- and it's difficult to even see a clear claim for "inducing" infringement. Goldman also notes that the lawsuit is complicated by Blues Destiny's imprecision and vagueness in a series of (increasingly exasperated) takedown notices, which is coupled with Google not complying -- but potentially that is due to the failure of Blue Destiny to properly state what needed to be taken down. Either way, it's difficult to see how either Google or Microsoft is going to be found liable here, but the lawsuit is still worth watching, given the questions about where the fine line is drawn between just being a search engine and being a contributory infringer.
Way back in 2007, we wrote about a Canadian business man/politician, Wayne Crookes, who was suing a bunch of websites, including Google, Yahoo, MySpace and Wikipedia, because he was upset about what some people had posted about him on those sites, claiming it was defamatory. We found it odd that he was suing these companies, rather than the individuals who supposedly posted defamatory material (oddly, many of the stories that he claimed were defamatory were about him supposedly filing defamation lawsuits!). In some cases, it reached ridiculous levels, such as the fact that the same guy also sued Jon Newton, the operator of P2Pnet.net for merely linking to text that Crookes considered defamatory.
It was troubling enough to sue a company that was hosting a conversation where someone may have said something defamatory, but to take it to another level, where someone merely linking to the actual text as a part of reporting on it was also accused of defamation could have a serious chilling effect on free speech and open communications in Canada. Luckily, last year, a Canadian court found that merely linking to potentially defamatory content is not defamatory. Apparently that ruling was appealed... and the appeals court has agreed that linking to defamatory content is not, itself, defamatory. This is a big win for free expression in Canada. The case could still be appealed, and some are noting that the appeals court ruling still had some problems. There was a dissenting judge who seemed to think that because people may have clicked on the link, just putting up a link was the equivalent of publishing the content on the other side of the link (yikes!). That last link also discusses some other serious problems with libel law in Canada (similar in some ways to the problems in the UK), which is in desperate need of a modern update.
A few weeks ago, after the AP announced its plans to crack down on people who it felt were linking/excerpting too much, we suggested that Reuters should speak up and respond to the AP's position by encouraging linking and sharing of news. It appears that Chris Ahearn, President, Media at Thomson Reuters, has taken us up on the offer, writing a nice little manifesto: Why I believe in the link economy. And, of course, helping to prove that, he linked to a bunch of other sites -- including our original blog post asking him to make a statement just like this (in contrast, by the way, while I've been quoted multiple times by the AP, I'm pretty sure they've never linked to Techdirt in an article). His post is pretty much exactly what I'd hoped Reuters (or others) would say (though, Ahearn is better at being diplomatic about the AP). Here are some key excerpts:
The Internet isn't killing the news business any more than TV killed radio or radio killed the newspaper. Incumbent business leaders in news haven't been keeping up. Many leaders continue to help push the business into the ditch by wasting "resources" (management speak for talented people) on recycling commodity news. Reader habits are changing and vertically curated views need to be meshed with horizontal read-around ones.
Blaming the new leaders or aggregators for disrupting the business of the old leaders, or saber-rattling and threatening to sue are not business strategies -- they are personal therapy sessions. Go ask a music executive how well it works.
Exactly. There's been too much misdirected blame placed on the internet, even though the internet has never been the problem. Not keeping up with what readers want is where the mistakes have been made.
I believe in the link economy. Please feel free to link to our stories -- it adds value to all producers of content. I believe you should play fair and encourage your readers to read-around to what others are producing if you use it and find it interesting.
I don't believe you could or should charge others for simply linking to your content. Appropriate excerpting and referencing are not only acceptable, but encouraged.
That's basically exactly what I had suggested Reuters say... so that's great. Once again, this makes me want to look for Reuters alternatives to any AP story I happen to come across.
Of course, I don't agree with everything Ahearn has to say, though I do agree with the overall spirit of what he's saying. He talks about the need to agree "on a code of conduct and ethics." I'm not against the concept, I just don't see how it's possible or even necessary. These things tend to sort themselves out. Players who are "bad actors" become obvious over time. Good players get rewarded for it, and you deal with some questionable players on the margin. Rather than worrying about what everyone else is doing, why not just focus on providing more value yourself?
Then there's this:
Let's identify how we can birth it and agree what is "fair use" or "fair compensation" and have a conversation about how we can work together to fuel a vibrant, productive and trusted digital news industry. Let's identify business models that are inclusive and that create a win-win relationship for all parties.
The thing is, the law says what's fair use, not any voluntary agreement. And "fair compensation" isn't determined by everyone chatting (that could be seen as collusion, actually), but in the market actually doing deals. I'm all for discussions on positive business models that are inclusive and create win-win relationships. That's why we highlight examples of that all the time around here. But I don't think discussing good business models means getting an entire industry to agree to use them ahead of time. For better or for worse (well, I'd argue for better), the world just doesn't work that way. The win-win business models are being developed already -- and that's great. Let's keep looking at those success stories, and pull out the important lessons from them -- but that doesn't mean everyone "agreeing" to things beforehand. Unfortunately, that's just not going to happen. There are too many vested interests to make it work. But the nice thing is that those who don't figure it out get swept out with the tide.
Somehow we missed this news last week, but Consumerist alerts us to the very upsetting news that BlockShopper was forced to cave in and settle the absolutely ridiculous lawsuit filed against it by Jones Day. The lawsuit was a clear abuse of trademark law designed to silence a small company, and it looks like the judge did everything possible to help Jones Day achieve its goal. I've spoken with a few Jones Day lawyers who have admitted (quietly, of course) that they're embarrassed their firm did this, but the details of the story seem to get worse with each new step. One thing that seems clear, based on this: Jones Day is not a firm worth working with.
If you don't recall the details, Blockshopper is a pretty basic site. It would post news about people who had bought property in certain cities, including Chicago. All it was doing was publishing public information, based on government records, about who was buying property in certain neighborhoods. Apparently, two Jones Day lawyers purchased homes in a part of Chicago covered by Blockshopper. So it wrote about them, and included links to the Jones Day website, indicating that's where they worked. This was accurate, factual information found through public sources. It was not a violation of anyone's privacy, nor was it a violation of trademark law.
However, Jones Day, as a big bad law firm, apparently had no problem suing Blockshopper claiming that it was trademark infringement to link to the Jones Day website, in part because Blockshopper deep-linked the individual's names in the post to their profile pages on the Jones Day website. That is ridiculous by any standard, and an obvious abuse of trademark law. It is simply not a trademark violation to link to a company's website using its name or the name of an employee at the firm -- and the folks at Jones Day obviously know this. But since they are a huge law firm, they can pressure tiny websites to obey. Even worse... the judge in the case helped out. Rather than tossing out the case immediately and reprimanding Jones Day, the judge supposedly told the operator of Blockshopper:
"Do you know, young man, how much money it's going to cost you to defend yourselves against Jones Day?"
In other words, the judge wanted Blockshopper to cave. The case started to get some public attention, and a bunch of public interest groups, including Public Knowledge and the EFF filed briefs with the court. At this point Jones Day should have backed down and perhaps issued an apology for abusing trademark law to shut up Blockshopper. Instead, it asked the judge to not even allow the briefs from those groups, saying that because those briefs sided with one party, they were not legit. Apparently Jones Day is unaware that most amici briefs are favoring one side or the other. Stunningly, the judge agreed with Jones Day and refused to even look at the submitted briefs, and also refused to dismiss the case.
As we noted at the time, this would significantly increase the likelihood of Blockshopper settling, because it would (as the judge had noted originally) get expensive quickly. And, indeed, that's exactly what appears to have happened. Blockshopper has agreed to change the way it links to Jones Day, no longer using any anchor text other than the URL itself. As Slate explains:
There is simply no legal rationale for Blockshopper to agree to this. There is only the fact that it was going to get expensive to fight such a lawsuit and the judge seemed to clearly favor Jones Day, based on the events so far. Illinois does have a (relatively new) anti-SLAPP law, but it seems like we could definitely use stronger anti-SLAPP rules to stop this sort of abuse of the law to bully small websites. Anyway, you can see the "agreement" below, where Blockshopper agrees that it will not embed deep links to Jones Day's website:
It appears that GateHouse Media and the NY Times have settled their dispute over the NYT's Boston Globe linking to GateHouse's local events site with a snippet of the text (something GateHouse's own sites did as well). GateHouse had little to no chance of winning in court, but it looks like the NY Times totally caved in to avoid having to deal with a long and costly lawsuit. The result is pretty much bad for everyone.
It's bad for the NY Times, because in settling they've almost guaranteed that plenty of other companies will now come seeking similar "settlements." It's bad for GateHouse Media because in winning "the battle" they're losing the war. The NY Times/Boston Globe will no longer be sending them the traffic they were getting in the past. It's hard to describe the level of pure cluelessness that goes into actively turning away the kind of traffic a major media publication can provide. It's bad for readers of both sites, because it limits the usefulness of the content they get. And... most importantly, it's bad for everyone in failing to have a hard and fast precedent set that linking to such sites and including the headline and a snippet are clearly fair use. What a shame.
One of the more ridiculous lawsuits we saw last year was smaller newspaper chain GateHouse suing the NY Times for linking to its site with a headline and brief excerpt on the Boston Globe website. Romenesko points us to news of the NY Times response, which seems pretty damning for GateHouse. Specifically, they show emails from GateHouse officials pointing out that identical activities are clearly fair use, and another email where GateHouse tells one of its own sites to immediately stop doing the exact same thing that it's accusing the NYT of doing. In other words, GateHouse pretty clearly knows that an excerpt, a headline and a link are fair use -- but still went after the NY Times for doing the same thing it did.
