Last year, Simon Dumenco, a columnist for Advertising Age, found himself at the center of a minor media maelstrom. A blog post he had written for AdAge.com went viral, getting picked up in one form or another by several other sites, including Techmeme and the hugely popular Huffington Post. By now, the topic of his piece (Apple’s launch of iCloud getting upstaged on Twitter by the “Weinergate” scandal) is old news. What remains timely is the window the incident opened on a big question for the struggling news business. Do news aggregators—which include AOL’s Huffington Post, Techmeme, Google News, and the many other sites that profit from recycling news stories first reported by others—help or harm the news organizations whose material they use?
A Broken Market
For many news people, the answer is obvious. The Wall Street Journal’s managing editor Robert Thomson has called aggregators “tech tapeworms in the intestines of the Internet” and Bill Keller, the executive editor of The New York Times, has likened Huffington Post’s practices to Somali piracy. Whether portraying aggregators as parasites, pirates, or petty pickpockets, critics make the same basic argument: Aggregators free-ride on the efforts of others, taking readers and ad revenue that would otherwise go to the companies who financed the labor-intensive work of actually breaking the news. “When the Huffington Post reproduces much of the article, even if it gives credit to the Times and the reporter, they are undermining the market for the original product,” explains Joe Mathewson, a professor at Northwestern University’s Medill School of Journalism.
Do news aggregators help or harm the news organizations whose material they use?
Business journalist Robert Levine, the author of a book about the free-rider problem in the culture industry, puts it more bluntly. “We have a broken market,” he says. “If it’s so easy to make money aggregating, investment is going to go to aggregators.” It becomes less profitable than ever to fund investigative reporting, for example, or to send journalists overseas. Dumenco points out that because aggregation is far cheaper than original reporting, aggregators also drive down rates for advertising, traditionally a major source of newspapers’ revenue. And although some newspapers have set up paywalls to earn subscription dollars, aggregators make it more difficult to do so successfully, Levine says, since readers can now get much the same information for free elsewhere. This system seems inherently unsustainable and bound to bankrupt the very content sources on which aggregators rely.
But defenders of aggregation, most notably Arianna Huffington, do not seem to worry. They counter that what they are doing is “curation,” giving readers the most interesting stories from a broad range of news producers; and rather than stealing readers, aggregators claim they actually drive additional traffic to the originating news sites, enlarging the total readership and thus making aggregation a win-win strategy.
Which side of the aggregation debate is right is an empirical question with different answers for different cases, since aggregators are a varied lot. “Techmeme gives a headline and a couple of sentences,” says Dumenco, “and they’re doing aggregation in the purest sense—taking a bare minimum and encouraging readers to click back.” Google News is the best-known example of this species, which typically select which stories to display algorithmically, rather than through editorial decision-making. The Huffington Post, in contrast, presented far more than the opening of an article: its blogger more or less rewrote Dumenco’s entire story.
For Dumenco, that difference created a handy test: Using Google Analytics, he could compare the sites to see which one was driving traffic to his original column. Even though Huffington Post’s overall traffic is vastly greater than Techmeme’s (suggesting that more people probably saw the Huffington Post’s piece), Techmeme beat Huffington Post hands down in helping Ad Age, directing 746 page views to Dumenco’s original post, in sharp contrast to a mere 57 from Huffington Post. Dumenco knows his post-hoc analysis with a sample size of one item is far from conclusive, but his story touched many a nerve. After he wrote about the incident in a follow-up column, a Huffington Post editor publicly apologized and suspended the young blogger who’d rewritten Dumenco’s work. But so many journalists and bloggers complained about similar experiences that Dumenco helped form the Council on Ethical Blogging and Aggregation, a group that hopes to set voluntary standards for how to properly draw on other people’s content.
These days, the online arms of old-media companies do a great deal of blogging and aggregation, too, so the Council on Ethical Blogging and Aggregation includes representatives from a broad range of publications, including Huffington Post, The Atlantic, and Slate. If these members can agree on standards for their own staffs, it is uncertain how widely these will be adopted by others, especially given the culture clash between journalists and technologists. Whereas many new-media and tech companies, such as Google, view aggregation as a natural and legitimate part of the open source movement, that philosophy is at odds with journalistic culture, says University of Iowa journalism professor Jane Singer, an authority on the ethics of online journalism. Particularly in the many countries where journalism is a commercial enterprise, the ethos has been “‘I profit when I have the story, I have the story first, I have the better story, it’s my story, and you have to come to me to get that story,'” Singer says. “That’s not open source.”
Scarce Legal Remedies
Federal copyright law in the U.S., however, does not support the journalists’ proprietary view of the news, extending copyright protection only to the actual words and images used to tell a story, not to the underlying facts. This idea-expression dichotomy is deliberate, meant to safeguard the First Amendment. “We want people to be able to use facts to do new and original things with them, ensuring that news gets out there to people who need it quickly,” explains Andy Sellars, a fellow at Harvard’s Berkman Center for Internet and Society and a staff attorney with the Digital Media Law Project. But the distinction between facts and their expression creates a problem. “In a lot of these aggregation cases, companies aggregating the news are pretty carefully taking just the facts,” says legal scholar Joseph Liu, who studies intellectual property and Internet law at Boston College School of Law. That, says Liu, “leads to a certain lack of protection that can challenge the incentives for gathering the news in the first place.”
Even when aggregators routinely copy whole chunks of original news stories—displaying, for example, the headline and opening lines of a news story—U.S. copyright law is not necessarily on the side of content creators. When threatened with copyright infringement claims, aggregators typically hide behind the “fair use” defense, as Google did when Agence France-Presse (AFP) sued it for aggregating AFP’s stories on Google News without paying a licensing fee. In determining whether a particular case falls under fair use, judges examine four factors—most importantly, the purpose of the use and the effect on the market for the original work—so it is impossible to articulate a general rule about what kind of aggregation is legal, Sellars says. Moreover, most fair-use cases (including between AFP and Google) settle before reaching the bench, adding to uncertainty about how future judges are likely to rule. “The tricky thing about settlements is that it’s hard to draw inferences,” Liu says. “There can be all kinds of reasons to settle a case that don’t reflect what the underlying law might be.”
Aggregators free-ride on the efforts of others, taking away readers and ad revenue, according to their critics.
The only other legal remedy for victims of aggregation, stemming from a famous Supreme Court decision in the age of the telegraph, stands on even shakier ground. During the World War I, the Associated Press (AP) was stationed in Europe while a rival American news service, called INS, was forced for political reasons to return to the U.S. “The AP expended a great deal of energy gathering the news, telegraphing them, and posting them on the East Coast,” explains Sellars. “Because the INS couldn’t go, they would quickly read the stories and telegraph the facts to the West Coast.” As a result, and in a situation remarkably similar to today’s aggregation battles, the INS could beat the AP to the punch while incurring a fraction of the AP’s costs. When the case reached the Supreme Court in 1918, the justices reasoned that though the INS did not break copyright law, the company was violating the common-law doctrine of unfair competition, dubbing their particular offense “hot news misappropriation.” Unfortunately for future news organizations, however, a landmark 1938 case held that federal courts have no jurisdiction over common law; “hot news,” therefore, became the purview of the states, and today only five states (including New York) recognize the doctrine, which in theory gives a temporary monopoly to news creators. Even in these states, though, the hot-news doctrine may be unconstitutional if it conflicts with federal law, which trumps state law. The legal concern, Liu explains, is “Are the media companies trying to protect something with state law that federal copyright law says you can’t protect?”
Defenders of aggregation say what they are doing is “curation,” giving readers the most interesting stories from a broad range of news producers.
At least one company sees an opportunity in the midst of the crisis—and, if successful, may help fix the market for news. Newsright, a year-old start-up, aims to serve both journalists and aggregators by making it easy to use news content legally. Newsright’s interim CEO Srinandan Kasi, formerly a scientist at IBM and more recently the head of legal affairs for the AP, points out that people are consuming news differently than they used to—all day long, and away from the package in which it was released by the owner. “Given that kind of model, you need an ‘always-on’ supply chain,” he says, hinting at possible plans to offer 24/7 spot sales of individual stories. In such a supply chain, Newsright operates more like a wholesale distributor than a retailer of news, so its customers would be aggregators, rather than the ultimate consumers of news.
More than two dozen news organizations have signed on to offer content through Newsright, but attracting aggregators has been more difficult, despite the offer of analytics that reveal trending stories. Why should aggregators pay for content that they have been able to repurpose without paying? Sellars, of the Berkman Center, says if Newsright offers a quick and painless way to pay, aggregators who are risk averse might prefer that option over the chance of a legal fight. “But it all depends on what the figures are. If the money’s not right, they might pursue other options.”
Further Reading
Athey, S. and Mobius, M.
The impact of news aggregators on Internet news consumption: The case of localization. Working paper, 2012.
Bavitz, C. et al.
Saving journalism from itself? Hot news, copyright fair use and news aggregation, http://cyber.law.harvard.edu/interactive/events/2010/04/omlnpanel1, April 9, 2010.
Isbell, K. and the Citizen Media Law Project
The Rise of the News Aggregator: Legal Implications and Best Practices. Berkman Center Research Publication no. 2010-10, Aug. 30, 2010.
Levine, R.
Free Ride: How Digital Parasites Are Destroying the Culture Business, and How the Culture Business Can Fight Back. Doubleday, New York, NY, 2011.
McDonnell, J.C.
The Continuing Viability of the Hot News Misappropriation Doctrine in the Age of Internet News Aggregation. Northwestern Journal of Technology and Intellectual Property 10, 3, Winter 2012.
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