It's no secret that the Associated Press is hot for the "hot news" doctrine
(even as they seem blind to how it will come back to bite them). However, most of the lawsuits involving "hot news" to date have strayed away from really testing the legal limits of, say, blogs writing about newspaper stories and quoting parts of the story in the process. That may be changing. Dean Singleton is the chair of the Associated Press, as well as the CEO of MediaNews, one of the big newspaper chains out there. Apparently he's decided to test the waters on threatening bloggers over "hot news."
alerts us to a blog post at the site ColoradoPols.com -- a blog covering Colorado Politics -- about how the site received a long cease-and-desist from MediaNews
(and a few smaller Colorado papers, demanding that it stop quoting their stories. You can read the full cease-and-desist
(pdf) if you'd like.
There are some funny bits in the letter. My favorite is the following:
Moreover, because none of the postings by Colorado Pols generated any appreciable traffic at the websites of the underlying publishers, it is beyond dispute that this copying by Colorado Pols harmed the market value and revenue-generating potential of the infringed works. Indeed, MediaNews Group has been monitoring the traffic to its sites from ColoradoPols during the listed time period, and the links inserted by Colorado Pols in the infringing excerpts of MediaNews Group's stories are generating no more than zero to five clicks to the underlying stories at The Denver Post's website.
Wait, how does that make any
sense at all? Just because the stories might not generate clicks (and ColoradoPols disputes this claim in its post) doesn't mean that harm has been done at all. If the people who are reading ColoradoPols wouldn't have read MediaNews's own site (in this case, the site for The Denver Post) anyway, then there's no harm. MediaNews seems to want to make the case that ColoradoPols is siphoning traffic away from its own sites, but fails to actually show that. The lawyers here seem to be confusing an important prong of the fair use test. They seem to be suggesting that the fourth prong means it's only fair use if the use provides greater economic value
for the original source. That's not the test at all. The test is whether or not it harms
the economic value of the original. A lack of positive benefit does not mean there is harm, even if the lawyers want to pretend that's the case.
In light of these considerations, Colorado Pols has no legal basis for invoking the Fair Use Defense, or the First Amendment, to justify its unfair competition with our clients. This kind of misappropriation simply has no defense under the law.
And then the lawyers cite the infamous FlyOnTheWall case
, ignoring (conveniently!) that an appeals court has stayed the injunction and is reviewing whether or not the original ruling made any sense whatsoever.
But I'm intrigued by the claims of MediaNews' lawyers that if your site only provides a few clicks, you have no fair use or First Amendment rights. This raises a couple of questions. First, are they really saying that free speech defenses only apply if you're popular and get a lot of traffic? That seems like a strange claim. I can't see it holding up in court. Second, is this a tacit admission from MediaNews/the AP that sites like Google News are okay because
they send a lot of traffic?
Either way, it seemed worthwhile to explore this "fair use" claim a bit deeper, so I went looking for details. From the C&D, you would believe that ColoradoPols was simply copying text from The Denver Post with nothing else. So I dug up an example. One of the examples cited involves this blog post from May
, which quotes a section of this Denver Post article
, but also adds an awful lot of commentary to the cited parts. Commentary, of course, is a key part of determining fair use.
On top of that, as someone who blogs in a similar manner, there are plenty of legitimate reasons for quoting large segments of text in order to provide commentary. Since publications like the AP and other newspapers often "disappear" their content, providing just a link is not very helpful to our readers, because those readers may go looking for the original content and find it gone. In fact, one of the reasons why we now quote the articles we comment on is because of regular complaints from readers who couldn't find the original source of what we were talking about. In fact, ColoradoPols notes that Singleton has stated that he plans to wall off much of his content. And they give a pretty good assessment of how clueless that is:
This statement is remarkable for a number of reasons, but the biggest problem with what Singleton is proposing is that it is totally counterintuitive to how marketplaces work. The market determines the clearing price of a product, not the owners of that product. Attempts to force the market to give you a bigger profit...well, they end in disaster. Every time.
The idea that the Post will suddenly become more valuable if it is not offered for free online doesn't fix the fundamental problem that the news in general is already offered online, everywhere, for free. It doesn't make the print version of a newspaper more valuable or more relevant if you have to pay to read it online; all it does is make the newspaper more complicated to read, and thus, less attractive to most potential readers (and advertisers). In going to a paid online model, what they will be doing is saying, "you can't get our version of the news for free anymore." In response, most people will just shrug and visit other websites instead, just like we are doing in response to this letter.
As noted at the end of that blurb, ColoradoPols has decided to comply with the cease-and-desist, even though they believe that there is no legal basis for it. Basically, the site's take appears to be "fine, if they don't want us to give them attention, we won't give them attention." They also point out that this may prove the lawyers' main claim false: that ColoradoPols is building its traffic off the work of other sites. They discuss their traffic in April -- when they regularly linked to the sources who sent the letter, and will not link to or quote any of those sources through July, and will compare traffic at the end of it. As they note:
One of the neat things about the Internet is that we don't have to make assumptions here - we can actually show you whether or not referencing the Post is vital to our "business model." In April 2010, the last full month that we referenced the Post or any of the outlets included in this letter, Colorado Pols generated 617,661 page views. If it were true that our very existence depended upon the Post and similar news outlets, it would stand to reason that our traffic would drop dramatically once we stopped talking about them, right?
We've told you what kind of traffic we received in April, and we'll tell you what kind of traffic we have once the month of July is completed - an entire month of no references to the Post or others listed in the letter, from either us or others posting diaries or comments. We are fully confident that our traffic won't decrease because we aren't referencing the Post, because we know that our success has absolutely nothing to do with the Post, the Lamar Ledger, or any other news site. People come to Colorado Pols to read (wait for it) Colorado Pols. It's not any more complicated than that.
Once again, we're seeing just how clueless the AP, its leadership and the top brass of some major newspapers are when it comes to how the internet works.