We've been following (for years) this ridiculous German proposal to make sites that link to and/or excerpt tidbits from news websites to have to pay for the privilege of sending traffic to the sites. While it's a spectacularly short-sighted proposal that will lead to significant problems and costs (without much real benefit), it's no surprise that publishers in other countries are getting jealous and are seeking to get the same sort of deal. Apparently, the fact that this proposal is gaining steam in Germany has emboldened French publishers to start seeking similar rights in France with which they could demand that Google pay newspapers for linking to their stories with a snippet. In other words, these publishers see a chance at a cash cow from actual innovators, right into their pockets, if they can just convince the government that "well, Germany's doing it!!!"

Copyright maximalist operation "The Copyright Alliance," purveyors of ridiculous copyright propaganda, has really topped itself with a recent blog post. It is trying to compare Google to "pink slime." You know pink slime -- the stuff that got all sorts of attention a few months ago as being a somewhat disgusting looking output of excess beef products all mashed up together and then reused in other foodstuffs. What does one have to do with the other? Well, according to the absolute geniuses at The Copyright Alliance:

Among the reasons I believe companies like Google are so hostile not only to copyright but to other regulations, is that their revenue and aspirations are anathema to distinguishing value (prime meat) from muck (MSM). To the contrary, their business models are literally based on grinding up all content into a homogenous slurry in order to turn billions of clicks into billions of dollars. To companies like Google, torrent sites, and many aggregators, everything goes into the big, digital grinder — a John Irving novel, some bits of junk journalism, a few stupid cat videos, Lawrence of Arabia, several thousand mail-order brides, a hard-news report from Central Africa, trafficked children, an episode of Downton Abbey, counterfeit pharmaceuticals, The White Album, years of scientific research, and of course several jiggling pounds of college chicks shaking their booties at webcams. It’s all just ones and zeroes, right? It’s digital pink slime.

I've now read this paragraph a dozen times. And my only conclusion is the person who wrote it has never used Google or, perhaps, any search engine. Because it gets the story exactly, 100%, completely backwards. It's not reality. It's the opposite of reality. Up is down, black is white, day is night kind of backwards.

The whole point of any search engine is to distinguish the value from the muck. The reason Google became such a huge phenomenon when it first came out (long after people had declared the search engine wars "dead") was that Google did a much better job finding what you wanted. How does it do that? By properly finding the value and surfacing it at the top while pushing down the muck. A search engine that doesn't distinguish the value from the muck is no search engine at all. It's a random website generator.

Search engines care deeply about finding the best value. Hell, just a week or so ago, Google explained how it had made 39 changes to its search in May alone, with the goal of helping people better find value out of muck. There may be all sorts of reasons to dislike or distrust Google. The company is very big, and has lots of info on you, which raises plenty of privacy concerns. But to claim that it wants to homogenize all content and that it's against their best interest to distinguish value from muck makes zero sense. If it were true, we'd immediately see tons of other search engines and do the exact opposite: provide more value and take over the market (just like Google did a decade ago).

I'm all for discussions about copyright issues, but can we at least keep them in the realm of reality, rather than fantasyland?

There have been plenty of accusations made against AOL's the Huffington Post concerning its habit of "over aggregating" content from other sites. While, personally, I think people who accuse HuffPo of being just an aggregator are overreacting on two separate issues (one: HuffPo does a ton of actual reporting also and two: HuffPo's aggregating adds value in its own way), it would be pretty damn hypocritical for AOL to then threaten another blogger for doing exactly the same thing that HuffPo does, wouldn't it?

Enter, Maryland Juice. A local Maryland blog, which recently had a post about some happenings in Montgomery County, which included relatively large excerpts of parts of an article from Patch, another property owned by AOL. It also included an image from the article. The Maryland Juice article included a significant amount of commentary about the article and, in particular, the photo, which was used to illustrate the point (that it was not a representative sample of county residents at the local meeting). And, yet... AOL lawyers sent a cease and desist letter:

As owner of the Content, AOL has the obligation to prevent the improper use of its proprietary material. Before pursuing any additional avenues to remove the Infringing Content, we are demanding that MarylandJuice.com take immediate steps to remove Patch’s image and either 1) display no more than a 1-2 sentence snippet of this Content, with credit explicitly given as well as a link back to the full article available at http://wheatonmd. patch.com/articles/proposed-rule-change-for-accessory-apartments-meets-opposition ; or 2) remove and disable access to all Infringing Content, and agree to never repost or use the Infringing Content or any other AOL Content, absent compliance with the third-party use guidelines identified above.

David, the Maryland Juice blogger, explains how excerpting, discussing and linking is all part of being neighborly online, and tells AOL to shove off, claiming fair use. Of course, you know who should know an awful lot about this kind of thing? Yeah, AOL and HuffPo. You see, a few years ago, when HuffPo tried to do its own "hyper local site," it was accused of doing more or less the exact same thing (but with less commentary, and more copying):

And seeding HuffPo Chicago is a scheme whereby the publication takes some — in many cases all — of the content from another site, with a link back to the original.

The result is quick and easy traffic for the new Chicago edition, since the publication ends up catching some Google searches for keywords contained in the (Chicago-related) articles it takes. HuffPo already has good Google PageRank, so its own version of the content floats to the top of the results, even though it was not the original source.

HuffPo's justification, at least when the publication was pulling this crap with us, taking the entirety of our RSS feeds, was that the reprinted posts were good promotion, since they included (a totally buried) backlink to the original content on our site.

But, apparently, when someone does it to AOL, it's no longer okay? Now that's hypocritical.

We were somewhat surprised by the Associated Press' decision to sue news search engine Meltwater, because we couldn't see how the AP -- even with its absurdist interpretation of copyright law -- had any case. Meltwater works with companies to help them track news about themselves. While it's similar to a clipping service, it doesn't actually "clip" the news. Instead, just like Google News or other news search engines, it provides a headline, a snippet and a link to the full story. In other words, if the AP's argument gains traction, the AP may have effectively outlawed search engines. That's ridiculous. Among the AP's silly claims in the lawsuit (and there are many), is one that says because users can cut and paste AP stories from their original websites and "save" them in a Meltwater archive, Meltwater is guilty of violating copyright law. Under that argument, so is any email program or word processing program.

Either way, Meltwater has hit back with a response (embedded below) that pushes back on all of these points, explains pretty clearly how it doesn't actually infringe... and also claims that the AP's arguments amount to "copyright misuse":

Plaintiff’s claims are barred in whole or in part by the doctrine of copyright misuse. Through this Complaint and through other means, Plaintiff seeks to misuse its limited copyright monopoly to extend its control over the Internet search market more generally, thereby improperly expanding the protections afforded by U.S. copyright law. Among other things, AP has misused its copyright monopoly by demanding that third parties take licenses for search results, which do not require a license under U.S. copyright law, and AP has also formed a consortium (called NewsRight) with the purpose of further misusing its copyright monopoly to extract licensing fees that exceed what the law allows.

Meltwater also brings up multiple other defenses, including a bunch of defenses highlighting how the AP failed to bring its lawsuit in a timely manner. They also point out that since the AP posts these articles freely on the web, there's an implied license that you can link to it and point people to the content.

There is, of course, also the AP's attempt to bring back the bogus "hot news" doctrine, which some companies like the AP have been trying to revive after it was considered a completely dead concept. So far, the courts aren't buying these hot news claims, and hopefully they get rejected here as well. Meltwater attacks the hot news claims head on with two interesting arguments. First, it claims that Section 230 protects it from any hot news claim. That's an interesting argument, though I'm not sure it really applies here. Separately, however, they argue (correctly, in my view) that hot news doesn't exist any more, effectively, because it's really a form of a copyright claim, and all state copyright claims (hot news is a state law issue) are preempted by federal copyright law. It would be nice to have a court officially kill off hot news as a concept, so here's a chance for that to happen.

Honestly, I still can't figure out what the AP thinks its doing here, other than trying to shake money out of a search engine because its execs remain too clueless on how to run the organization in this modern era.

It's been an interesting day for Meltwater News -- a news aggregator that has been fighting in the UK over claims that it has to pay to aggregate news from the Newspaper Licensing Association. It originally lost its case last year, but successfully got the court today to slash the fees the NLA wanted to charge by 90% (showing just how much some gateekeepers overvalue their own content). Still, as Meltwater notes, the really ridiculous situation is that anyone who aggregates news and links to sources in the UK may now risk having to get a license to do so (even if the licenses won't be nearly as expensive as the NLA would like).

And... merely hours after this ruling in the UK, the Associated Press sued Meltwater over the same basic thing in the US. The AP has always been confused about aggregators and insisted they were illegal -- and has successfully pressured many other ones (including Google and Yahoo) to pay up. Now it's suing Meltwater, claiming that the site is "a parasitic distribution service" and that it "has a significant negative impact on the ability of AP to continue providing the high-quality news reports." To put it mildly, that's ridiculous. If the AP can't continue providing news because Meltwater is aggregating their stories, then the AP deserves to die.

The full lawsuit is embedded below (it's a long one). The AP insists that it's not against aggregators in general (though it suggests that it's really just not against aggregators who pay them). The lawsuit seems to want to pin the general decline of the AP's business model almost entirely on services like Meltwater. Where the AP's argument is stronger is in highlighting that Meltwater does archive full works for subscribers (not for the public). But the details aren't as crazy as the AP would like to suggest they are. It does not appear to make those archived works fully available -- but it does two things. First it just keeps an index so that if you search on terms for AP articles that are no longer online, it tells you that they once existed. That shouldn't be seen as infringement as it's an index and the full articles themselves are not being displayed.

The second archiving issue is that Meltwater lets customers, at their own discretion, archive the text of articles they find. This is no different than tons of other online archiving services like ReadItLater or Instapaper. They don't even make this that easy. A user has to literally cut and paste the content into a box to archive it -- just as they could cut and paste it into an email or a text file. It's difficult to see how that should be pinned on Meltwater, rather than its users.

On top of that, it seems like there's a reasonable fair use argument to be made here: archiving these works for research purposes, not unlike a library would. While the AP does highlight the UK ruling discussed above... it doesn't happen to mention that the UK does not have fair use, while the US does.

While many of the charges are about copyright infringement, the complaint also drags back out a "hot news" claim -- which has suddenly become popular again after years of being considered a totally dormant concept. Of course, so far, hot news claims haven't fared well in court, and I doubt this case will be any different.

For the most part, the geek community seems to like Craigslist -- and for good reason. The company is a model of how to build up a massively successful company without "being evil." Most of the postings on the site still remain free, with a few exceptions -- and in the cases of those exceptions, it seems to almost always make sense to charge there. The company always seems focused on providing a good service to its community and generally supporting that community. The company also has made a name for itself by keeping marketers out, and focusing on engineering. On top of that, having dealt with folks there, they always seem pretty straightforward and genuine. I will admit my "bias" upfront here: I like Craigslist.

But the one thing that the company has done for years that still really strikes me as odd is how they lawyer up and go after others aggressively at times. There are a few areas where they do this, but the least defensible to me is when they go after sites that aggregate their listings and point people back to them. We first noted this more than six years ago, when Craigslist threatened a site for creating a universal search. Craigslist, itself, only let you search within a certain location, rather than globally. And because someone else did it, Craigslist pressured them to shut it down. It looks like that's still happening.

timlash points us to the news that the site Jaxed recently received a cease & desist and shut down its links to Craigslist's listings. The C&D apparently claimed that listing Craigslist results in its aggregated search results was a "misuse" of Craigslist, but I don't quite see how. I know that Craigslist hates anyone scraping their site, and claims that it uses up bandwidth and resources, but there are technical means to block such things, rather than breaking out the lawyers with dubious theories about how linking to a site is misuse of that site...

A few weeks ago, when the NYTimes' Bill Keller bizarrely compared Arianna Huffington to a Somali pirate, we noted that journalism is a form of aggregation as well. After all, you're taking content from the people who actually make news, and aggregating it into a publication. It appears that others are catching on to this as well. A bunch of folks have passed along this blog post from the Zunguzungu blog, which notes that journalists are aggregating too. I don't like the use of the word "thieves" here, as I believe (yet again) that it's a misleading and wrong use of the term, but I believe the usage here is in comparing the claims of some journalists that aggregators are "thieves."

The real problem, however, is that journalists are, by their nature, thieves of words. You can call it what you like; you can say "Possibly I am old-fashioned," and talk about how "actual journalists are laboring at actual history, covering the fever of democracy in Arab capitals and the fever of austerity in American capitals" (Keller) or you can brag about the "148 full-time editors, writers, and reporters engaged in the serious, old-fashioned work of traditional journalism" (Huffington), but all this "old fashioned" stuff is just a way of covering over something really basic about what "actual" journalists "traditionally" do, all the time: write down what other people say. They can exercise editorial discretion in how they integrate and harmonize the various quotes they've aggregated. They can confirm, they can contextualize, and they can (very rarely) manage to witness something with their own two eyes. They can produce collages out of stolen scraps. And they should do these things. But at the core of the journalistic process is the act, inescapably, of taking other people’s texts, weaving them together, and then placing them under your byline (with appropriate citation) and profiting from the activity.

This kind of thing gets old fashioned journalists quite upset. When I published that last post, I had a long time journalist send me a very, very angry email, quite upset about the idea that I would diminish his profession by comparing it to aggregating. But, as the blog post notes, the definition is pretty arbitrary. The problem here is twofold. First, everyone likes to think that their particular role in something is, perhaps, the most important. In a news story, you have the folks actually involved in the story, the people who write/report on the story, the people who distribute that story, people who comment on it and more. Is one role more important than others? I think it's difficult to say definitively, but many people in each of these roles want to insist that their role is the most important. "Without us," they say, "you wouldn't have x."

The second issue is that there's been this denigration of the word "aggregator," as if aggregating is a bad thing. But, of course, it's not. Aggregators have always served an important purpose, and that's true today more than ever. In today's world, the old school journalism folks always seem to be complaining whenever anyone points out that "the news" is appearing more and more like a "commodity." It sounds insulting, but that's missing the point. It's factual that news can now be copied at a zero marginal cost, making it effectively infinite once created (and yes, creation still has a cost). But the problem that the news guys are facing is that the content is no longer scarce and a lack of scarcity makes it quite difficult to charge prices above marginal cost. That's just fundamental economics.

But you know what is scarce? Time and attention. People are inundated with abundant information these days, and what they look for are trusted aggregators, curators and filters of that information. They seek those out because it saves them time, and lets them direct their attention more efficiently. In other words, people value the aggregation, because it serves a valuable role when the content is infinitely available, but time is not.

What's problematic is that these old school journalism types don't recognize this. They're in the prime position to be the "aggregators of first resort." They're in the prime position to do what they've always done, which is act as the useful filter, but instead they talk up the importance of the content itself, rather than the aggregation function, because they have this irrational dislike of the concept of aggregation. It's really unfortunate, because getting over that hump -- as a few publications certainly have -- would make it a lot easier to embrace 21st century digital business models.

While we're wondering how the NY Times might have better spent the $40 million they dumped into the Emperor's New Paywall, when you combine that with the story of a bunch of big media companies ordering Zite to stop making their content more useful and readable, you come to the natural question of wondering why these big media companies haven't made their own Zites:

For publishers, the problem is that Zite is really, really good at personalization and filtering. In my use of the app over the past few weeks, I’ve consistently found that the app shows me headlines I want to click on – and that’s the test that really matters.

We in media should think about what led us to this place, where major news outlets are targeting a company that is creating something they should create: an innovative, personalized news source.

What efforts have major media companies made to build or enable their own innovative news consumption products?

Couldn't the NY Times or News Corp. have spent the millions they've spent on locking up their content towards something like Zite that actually makes their content more valuable and more useful? The problem seems to be that they value the content over all, and don't realize that, just as important as the content itself, is how people find and interact with it. Unfortunately, it seems unlikely that any of the big media properties recognize that yet.

We regularly see established newspaper journalists look down on the world of sites that add value to news by assuming that aggregating, commenting on and providing context for news first reported by others is somehow a "lesser" product. Of course, what they're doing in some sense is overinflating their own role in the media ecosystem. After all, they don't make the news (usually). They're really adding value to the actual events by reporting on it. The others are then adding additional value to the reporting. It's all part of the ecosystem.

The latest sad example of this overvaluing of one's own work and talking down about someone else's work comes from the NY Times' Executive Editor Bill Keller (also a driving force behind the NYT's plan for a paywall). In a weird and somewhat rambling discussion, which eventually gets around to the future of news, Keller decides to attack the Huffington Post as a bunch of sniveling copyists, compared to his high minded version of journalism:

"Aggregation" can mean smart people sharing their reading lists, plugging one another into the bounty of the information universe. It kind of describes what I do as an editor. But too often it amounts to taking words written by other people, packaging them on your own Web site and harvesting revenue that might otherwise be directed to the originators of the material. In Somalia this would be called piracy. In the mediasphere, it is a respected business model.

But wait. Aggregation is exactly the work that Keller does as an editor. And his sneering complaints about "taking words" from other people, packaging them on your own website and harvesting the revenue describes the NY Times too. After all, the news was actually initiated by the people his reporters are covering. They're the ones who provide the actual story and the quotes and information needed. Does the NY Times direct any of its revenue to the real originators of the material? The people the news actually happened to and the sources of their stories? Of course not. The very thought would certainly horrify Keller. "Real" news organizations like the NY Times never pay sources. It goes against their very moral core.

But there's massive cognitive dissonance at work here. Keller and the NY Times are aggregators. They're aggregating stories that happen to other people. They then add value (often tremendous value) to it in how they report on it. But other forms of aggregators also add value by doing more with those stories: adding commentary, details, criticism, promotion and many other things. The problem is that Keller, in a fit of pure ego, seems to think the chain of news stops with the reporter, rather than the sources and the actual newsmakers. As Mathew Ingram notes, Keller appears to be saying: "when we do it, it's journalism; when the Huffington Post does it, it's piracy."

Keller, of course, is also being incredibly misleading, if not downright dishonest, in how he portrays the Huffington Post. The site certainly does plenty of aggregating of content from other sites. Though, I will say as the recipient of just a few experiences where HuffPo has chosen to "aggregate" content from Techdirt, that it is an amazing driver of traffic. Frankly, I wish HuffPo would "aggregate" more of our stories because it is the single biggest driver of traffic we've ever seen. It beats every other big driver of traffic by many multiples.

But, more importantly, Keller is being misleading in pretending that HuffPo has always just been focused on reposting content from elsewhere. From its very beginnings, it has always produced tons of new content. Some of it may be more high quality than others, but the site has always produced unique content, which Keller pretends is some "recent" change in how HuffPo does business.

In the latest example of copyright law gone mad, it appears that Twentieth Century Fox is suing a woman for $15 million, because she aggregated various scripts she found online as a resource for screenwriters (like herself) to learn from. The key issue is that apparently one of the many, many scripts she had put together was of a movie that is still in production, and Fox doesn't want anyone to see it. Apparently she was told of the lawsuit by "private investigators," who questioned her for two hours (it's not clear why she didn't throw them out or refuse to answer their questions).

Of course, those who support the current copyright regime will note that these scripts are, in fact, covered by copyright. However, it's difficult to claim that these scripts are somehow likely to act as a substitute for the actual movie for anyone. It's hard to see any losses from such a collection, frankly, but thanks to the fun of copyright law and statutory damages, actual harm doesn't much matter. All that matters is a giant Hollywood corporation has sued a struggling screenwriter for $15 million because she thought she was helping other screenwriters by aggregating example scripts she found elsewhere online for them all to learn from.