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Critics of HuffPo news “theft” are missing the point

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The Huffington Post (s aol) is routinely accused by other media outlets of engaging in what some call “over-aggregation”: excerpting stories from newspapers and other sources without enough attribution or original content. The latest charge in Miami is that the local HuffPo site is guilty of actual theft, for lifting details from two Miami Herald news stories. But these accusations are nonsense, for a number of reasons, including that the HuffPo stories contains plenty of attribution, a link, and additional information the original stories don’t. But even apart from that, media outlets that complain about “over-aggregation” are missing the point about how news works now.

The site that started waving the “theft” flag — a blog called Random Pixels, run by Miami-based photojournalist and writer Bill Cooke — spends a lot of time castigating The Huffington Post for not paying the bloggers who provide content for the site (another charge that comes up often), then describes what the writer sees as the modus operandi of the empire Arianna Huffington created and sold to AOL earlier this year for $315 million:

Here’s how it works: A newspaper pays a reporter to write a story. The reporter’s story appears on the paper’s website. Huffington Post then comes along and rewrites the story — adding no original reporting of its own — and posts the story on its site with a link to the original newspaper story.

What does “over-aggregation” consist of?

This is the core of the over-aggregation charge that some — including Boston Globe(s nyt) editor Marty Baron — like to describe as “theft,” or at the very least plagiarism. But is it? In the specific case of the Miami Herald stories, it’s hard to see how. While the Huffington Post versions repeat many of the basic facts that appear in the original articles (including details about the driver of a vehicle who was apparently texting before a fatal accident), even the supposedly incriminating excerpts Cooke includes in his critical post contain repeated phrases attributing the news to the Herald. For example:

Not only was Cruz-Govin speeding, according to the Herald, he was a habitual texter. On the day of the accident, records show he sent 127 texts, the Herald reports.

Not only do the Huffington Post versions of these stories contain repeated references to the Herald, as well as multiple — and prominent — links to the original story (although it’s impossible to tell whether these were added before or after the critical blog post was published), but the texting-accident story is arguably better than the original. Why? 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. The Herald story doesn’t contain a single link of any kind.

Solution: add more value than an aggregator can

There have been plenty of accusations in the past year about the Huffington Post “over-aggregating” stories from other news outlets, including a case involving the Chicago Reader. But one of the problems with those kinds of charges is that no one can agree on what over-aggregation is, or whether it even exists. If an outlet — or even another newspaper — quotes facts and includes attribution and a link, as well as more information on the topic, how is that an offense? The short answer is that there is no offense, except to the pride of the original outlet, and possibly to their view of how the world should work.

As far as accusing the Huffington Post of theft, the law around this kind of thing is unclear at best: A famous court case in 1918 involving the Associated Press newswire upheld what has become known as the “hot news” doctrine, which makes it an offense to misappropriate breaking news for the purposes of financial gain. But in subsequent decisions, the courts have said entities which engage in the same kind of aggregation the Huffington Post does — such as the financial-news service TheFlyonthewall — can to some extent escape this charge by including attribution. Whether that would help the Huffington Post remains to be seen.

But apart from the law, which is always several decades behind reality when it comes to technology, the fact remains that aggregation of the kind the Huffington Post does is the way things work now, and complaining about it (or trying to sue over it, as the Hollywood gossip blogger Nikki Finke did earlier this year) is like complaining that since the car was invented, it has become really hard to find a good buggy whip. Your content will be aggregated, 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.

Post and thumbnail photos courtesy of Flickr users Denise Chan and World Economic Forum

35 Responses to “Critics of HuffPo news “theft” are missing the point”

  1. gregorylent

    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

  2. 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?

  3. Steffen Konrath

    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.

    • 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.

  4. Just because new technology is invented doesn’t mean past laws and legal thinking are invalidated. In the Fly on the Wall case, the following criteria for misappropriation out in the NBA case were referenced

    (i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant’s use of the information constitutes free-riding on the plaintiff’s efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

    I think it would be quite successfully argued that, according to these criteria, what the HuffPost is doing with its so called aggregation is indeed misappropriation.

    • Lots of things could be argued, and probably will –but it’s interesting that many legal experts don’t believe the “hot news” doctrine is constitutional, since it is an abridgement of freedom of speech for purely commercial concerns. In addition, the legal expert and judge referred to here thinks Huffington Post would likely be found innocent in such a case: Thanks for the comment.

      • A few points.

        Those five criteria do not come from the NBA/SportsTrax case.

        Daniel Diskin, the guy who writes the Copymark blog, is just a lawyer not a judge. He refers to an article by Judge Richard Posner and says this article “argues that proper attribution should be the main focus of misappropriation law.”

        This is a far cry from your claim that “the legal expert and judge referred to here thinks Huffington Post would likely be found innocent in such a case.” In fact, the Posner article in question contains not one reference to the Huffington Post. And I would also quarrel with Diskin’s characterization of Posner’s views on attribution and misappropriation law given that the term attribution does not even appear in the Posner article.

        The legal issues around aggregators are far from settled and, as you point, out there are many different opinions on the matter.

        As a journalist, I don’t want to see reporting of factual information suppressed. However, I am also very troubled by what the Huffington Post does. It is free riding and reaping commercial benefits for doing so while there are no proven benefits to those it is free riding on.

      • 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.

      • 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.

      • 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.

      • 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.”–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

  5. One thing no one has mentioned is where the readership is for the two sites. If readership for the Miami Herald site is mostly in South Florida with a few scattered readers throughout the country, and the readership for the Huffington Post is mostly elsewhere in the country, then how exactly is the Herald being harmed?

  6. stefano m

    The fact that we are even discussing this makes the Huffington Post suspect. The Chicago Reader story was blatant. Arianna is certainly a very shrewd businesswoman who had the foresight for her site. But I don’t give her a pass or her site for this tackiness. I’m not sure why you do. If the Miami Herald doesn’t exist the Huffington Post
    has less to aggregate. Simple. Do you think after the failure of the Miami Herald because of its “poor business model”, that the Huffington Post will send out “reporters” to Miami to suss out the news on South Beach !
    I don’t think so. It will then become one more under-served community done in by the glorious internet and its all powerful ways.
    What they do certainly isn’t “against the law” but its tacky, uncouth, and in poor taste.
    I guess there is nothing wrong with that these days …..
    Matt call a spade a spade and you might yet get some credibility.
    Oh and stop calling it HuffPo !! What is that !?
    Are we that lazy !? Apparently.

  7. Francisco Alvarado

    Your argument that the HuffPost shouldn’t be accused of stealing because the editors and writers over-attribute the sources they are copying from and add links to other sources of information that may be relevant to the story they are high jacking doesn’t hold water. If a thief breaks into your house, steals all your stuff because it will look better in their living room, and then mops the floor before leaving, still doesn’t excuse them from committing the crime of burglary.

    • Francisco, your analogy doesn’t hold water either, I’m afraid. Not only has the Huffington Post not stolen anything — since the original source still has it — but even the courts disagree about whether that kind of aggregation constitutes misappropriation if credit is given.

  8. Craig Kanalley

    Well said, Mathew. The blog post in question on Random Pixels was posted at 9:58 p.m. per timestamp at the bottom, and HuffPost article in question was last updated at 4:30 p.m. on the day it was posted. Therefore, it is possible to tell that the HuffPost article was unaltered after the blog post about it, and additional links were not added. Just wanted to point that out.

    • Random Pixels blog

      Actually, I can shed some light on this.

      I talked with Janie Campbell yesterday. I spent a lot of time talking with her about HuffPost picking up stories from Miami New Times. I mentioned in passing that the texting story had a lot of quotes from the Herald. She said she hadn’t looked at it.

      Later as I was writing my blog post, I noticed that some quotes from the Herald that were included in the earlier HuffPost story were missing. It appears that Campbell went back and deleted some of them.

      For instance, the HuffPost story contained a graphic description of the injuries the crash victim suffered taken verbatim from the Herald story. In the edited version it was deleted.

      Draw your own conclusions.

      Bill Cooke
      Random Pixels

      • Thanks, Bill — that’s hard to confirm without seeing the earlier version of the story. But in any case, the version that was up when you wrote your post doesn’t fit the criteria for theft or plagiarism as far as I’m concerned, and even a charge of “over-aggregation” seems like a stretch.

      • Craig Kanalley

        All I can say for sure, Bill – having worked at The Huffington Post as a senior editor and fully understanding how the CMS works – no changes were made to the HuffPost article after your blog post was published. That’s all I’m saying.

  9. I’m not as concerned about where HuffPo gets its “news” as much as the quality of its “journalism”. Read this excerpt from Skeptoid (

    ‘The Huffington Post is arguably one of the heaviest trafficked news, opinion, and information sources on the Internet. Its many editors and 9,000 contributors produce content that runs the gamut and is generally decent, with one exception: medicine. HuffPo aggressively promotes worthless alternative medicine such as homeopathy, detoxification, and the thoroughly debunked vaccine-autism link. In 2009, published a lengthy critique of HuffPo’s unscientific (and often exactly wrong) health advice, subtitled Why bogus treatments and crackpot medical theories dominate “The Internet Newspaper”. HuffPo’s tradition is neither new nor just a once-in-a-while thing.

    Science journalists have repeatedly taken HuffPo to task for this, and repeatedly been rebuffed or not allowed to submit fact-based rebuttals. HuffPo’s anti-science stance on health and medicine appears to be deliberately systematic and is unquestionably pervasive.’

    • Michael Durwin

      There is an easy fix for this that is automatic. As people realize that the curator or aggregator is untrustworthy, fewer people will trust it. That being said, it will likely become more popular among those that WANT to believe what is published regardless of it’s factual content. See: FOX News.

  10. What I want to know is, as the Huffington Post and other aggregators gain traction while traditional news outlets that actually send reporters to the courtroom to cover such verdicts struggle and go bankrupt, what will the HuffPo do when there’s nothing left to aggregate?

    Sure, they can make a lot of money now thanks to an army of unpaid bloggers and having a small number of employees who don’t have to go outside to report the news via aggregation, but that can only last so long.

    • That’s one of the most common arguments about why aggregators are bad, but I think it’s a false choice — I don’t think important news will go uncovered or unreported if newspapers die, it will just be done by someone else with a more efficient business model. That’s called evolution.

      • And that’s one of the most common rebuttals to that argument, but what ARE these more efficient business models? The best one anyone seems to have is unpaid bloggers and summarizing work done by organizations that do spend money on coverage.

      • And that’s one of the most common rebuttals to that argument, but what ARE these more efficient business models? The only one I’ve seen consists of unpaid bloggers and/or summarizing work done by organizations that do spend money on coverage.

      • Craig Silverman

        The Huffington Post has been investing a lot of money in hiring reporters to produce original, reported content. The very sort of content they aggregate. I think HuffPost people have decided that strategy is at least part of the answer to the “What HuffPost will when there’s nothing left to aggregate?” question. It also fits with the kind of evolution Mathew is talking about.