Comments on: Critics of HuffPo news “theft” are missing the point

By: AnnB

AnnB — Fri, 23 Dec 2011 19:39:25 +0000

Re Holmes dissenting opinion, Posner says that may have been a workable way to decide the INS/AP case without going the misappropriation route. That’s it. That’s all. He does not say that, in all cases, a simple attribution is all that is needed. This is very clear if you read the entire article. You are taking his opinion way out of context.

Furthermore, I did some more research beyond the links you offered. The article we’ve been discussing was written in 2003.

In 2009, Posner wrote a highly controversial blog post in which he wrote: “Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.”

http://www.becker-posner-blog.com/2009/06/the-future-of-newspapers–posner/comments/page/2/#comments

I personally think that’s a terrible idea, but it doesn’t sound like the mark of a guy who’s going to agree with your HuffPo opinion.

And it also supports my earlier point that

By: Mathew Ingram

Mathew Ingram — Fri, 23 Dec 2011 18:34:24 +0000

I may be inferring, but I am hardly “making shit up.” Posner describes the dissenting opinion of Justice Holmes in the Associated Press case as being one he agrees with, and that opinion was that the INS use of AP facts would not have been a problem if credit was given.

By: AnnB

AnnB — Fri, 23 Dec 2011 16:53:58 +0000

Again, you are, to put it kindly, stretching. Or, to put it less kindly, making shit up.

Yes, Posner does not believe the misappropriation doctrine is the way to go. And, yes, he has problems with the INS ruling, but he does not, as you maintain, say that “attribution (or credit) should be the primary factor that determines whether misappropriation or ‘free riding’ has occurred.” I challenge you to provide a citation that backs up your claim.

Here are some of the relevant things Posner does say and they don’t in any way lead me to believe that he would necessarily agree with your position that Huffington Post’s behaviour is okay.

“What the court instead might have said was that Congress probably didn’t mean by the limitations that it imposed on copyright to forbid states to punish the copying of facts in situations in which unlimited free copying would eliminate the incentive to create the facts in the first place. For in such a case the policy of assuring that facts remain in the public domain available for use by all without fee would be defeated; there would be no facts of the type involved in the case
in the public domain.”

“We could think of liability in such a case as based on a ‘reverse fair use’ doctrine. Fair use shrinks liability in some cases of copying; the reverse doctrine would expand liability when the rationale for copyright protection was present but a possible loophole in the copyright statute threatened to allow the defendant to avoid liability.”

Once again, this is a complicated issue. And it’s not enough to say that because we have new technology, HuffPo must be right.

By: Mathew Ingram

Mathew Ingram — Fri, 23 Dec 2011 14:27:08 +0000

Thanks, Steffen — instead of arguing about what “over-aggregation” is, maybe we should talk about how newspapers combat such a thing. Do they do it by suing and trying to claim misappropriation of “hot news?” I don’t think that makes any sense — it’s a little like what the music and movie industries have done, and we have seen how well that worked for them. Content creators have to find ways of adding more value — value that extends beyond facts and into things that can’t be easily replicated.

By: Mathew Ingram

Mathew Ingram — Fri, 23 Dec 2011 14:24:31 +0000

We would love it if you clicked on some ads — but we also value other things the Huffington Post and other aggregators can’t offer, like what you and I are doing right now :-)

By: gregorylent

gregorylent — Fri, 23 Dec 2011 14:02:09 +0000

huffpo has other sins … dumbing-down its readers, pandering to the lowest-common denominator interests, palpable manipulation for page-views, an old-paradigm mindset … part of the problem, not the solution

By: Mathew Ingram

Mathew Ingram — Fri, 23 Dec 2011 13:48:44 +0000

Thanks, Ann. Perhaps I am stretching things when I say Posner thinks Huffington Post would be found innocent, since you are right that he never specifically mentions them. But the point of his article is clear: he believes the misappropriation doctrine (as a specific thing outside of copyright law) should not exist and that the “hot news” decision was wrong. He also argues that attribution (or credit) should be the primary factor that determines whether misappropriation or “free riding” has occurred. So I think it’s fair to say that he would likely agree with me on Huffington Post’s behavior.

By: Will

Will — Fri, 23 Dec 2011 13:29:44 +0000

I landed here after clicking on a link from a news aggregated daily email I receive every morning. I “think” it’s the first time I’ve been on Gigaom. Want me to click on a few ads while I’m here? Get my point?

By: ben knight

ben knight — Fri, 23 Dec 2011 12:19:47 +0000

Consider this fact: The New York Times newsroom budget exceeds $200 million a year.

By: Steffen Konrath

Steffen Konrath — Fri, 23 Dec 2011 10:30:13 +0000

Mathew, I do not agree regarding most of your arguments, but as you mentioned, yes “theft” is the wrong word in that context. Let’s quickly walk through your arguments:

(1) Over-aggregation, definition:
I think the definition is clear. If you take all of the facts and research of someone’s original work, use it on your site, which benefits from the traffic (in terms of advertising money), so that there is no reason to click the link to the original piece, there is no doubt that this can be called over-aggregated. To reference the source, while taking all of its content, doesn’t pay off for the author of the piece: to include “as x reports …” is not worth a cent.

(2) “are missing the point about how news works now”
How does news work today?

(3) HuffPo adds value:
“For one thing, it includes dozens of links to more information about texting and driving laws, similar accidents, and other news that might be relevant, which the Herald story doesn’t.”
There are good reasons to include links (SEO). The higher the density of topic related links the better your article ranks regarding SERP (search engine result pages). There is no reason to conclude that this is done to provide more value for the readers. Second: at least from my perspective “links” are not sufficient to claim copyright or “original work”.

(4) “add more value than an aggregator can”
Do you think that additional content will be more protected?

You write in your closing statement: “so the challenge is to add more value than sites like the Huffington Post do. Publishers like the Herald might want to start with links” – I’m sure that won’t work either. The only value I can see, which can’t be copied is your expertise, opinion and interpretation of the pure facts and to write about the facts only that indeed makes news sites vulnerable.