Newspapers Pushing For Hot News Doctrine May Find It Comes Back To Bite Them

from the think-this-through-for-a-second dept

It’s no secret that newspapers have been struggling, and many are out to blame the internet, even as the evidence suggests their troubles began long before the internet became popular. However, a really troubling aspect of all of this is that some newspaper industry lawyers have been pushing for massive changes to copyright law on the false belief that stricter copyright law for newspapers will somehow magically save them. One (but certainly not the only) aspect of this is an attempt to bring back the “hot news” doctrine, a concept that had been mostly considered dead. However, with some recent lawsuits, “hot news” is suddenly making a troubling comeback, much to the delight of some very short-sighted newspaper industry lawyers.

James Boyle recently wrote a column pointing out that the newspaper lawyers pushing for the return of hot news, or for other forms of copyright to protect news, may end up regretting that before too long. Beyond the fact that full copying is already illegal under copyright law and the lack of any evidence that aggregators or copying sites actually take away any real traffic from the original sources, “hot news” will be turned back upon these news organizations in ways they absolutely will not like:

So the new right would have no effect on the real problem newspapers face. And it would give them almost no protection that they do not already have either through law or technology. What would it do? It would cast a pall of fear over free speech. Is my blog or twitter feed allowed to say that there has been an earthquake or that some political scandal has erupted? Or must I buy a license to say so? After all, in the new world bloggers are “competitors” as news sources.

In fact, the right would produce all kinds of effects the newspapers have not thought about. They are assuming that this new right will only be wielded by them. Not so. Think of political activists who break a story — for example the young conservative filmmakers who produced devastating information on the operation of the organization ACORN. They are a news source. They might think it was a great idea selectively to decide which news organizations got to report that story, at least as long as it was “hot.” Does that sound attractive? I think not. And then think of the difficulties of proof, the possibility of chilling of speech by wrongly claiming to be its source. Implementation would be a nightmare.

The column itself was actually in response to a recent FTC-organized panel discussion about the journalism industry, that effectively pitted Boyle along with Yochai Benkler, against a team of newspaper industry lawyers. The full transcript (pdf) is entertaining at parts, as the industry lawyers admit that copyright law today is not the problem, but they still all seem to see it as the solution. But they all keep making questionable assumptions or downright bizarre statements. For example, the AP’s Laura Malone seems to think that people won’t click through to AP stories, because the AP reporters are so good that they explain all that’s needed in the first paragraph and the headline:

What we’re talking about is news-aggregation sites where they take headline and lead, which can be, if it’s a well-written lead and a well-written headline, the way they teach in “J” schools and the way most news organizations teach their reporters, that’s the heart of the story, and the way people consume their news is to look at the top two or three things, read real quickly, move on to the next article. They’re not going — They’re not clicking through — To Ken’s point, not clicking through to the original source to read the entire detailed ‘graph 4, ‘graph 5, ‘graph 6. They’ve got what they need in the headline and the lead, which can be one or two ‘graphs. And that is supplanting what’s happening out there with people not going to “The New York Times” because they’re reading it on Google News or they’re not going to “The Washington Post” ’cause they’re reading it aggregated somewhere else. And I think that there is a problem with that. We do need to be able to say that we, the content owners, we, the copyright owners, get to set the parameters by which people can republish our stuff.

But I read that, and all I think is that if someone copying your headline and your lead is enough to make people not click through, then it’s your fault for not providing any more value in the rest of your article. Sure, the journalism schools teach you to put the who, what, where, when and why in the opening, but the fact that the AP is now admitting that the rest of the article is worthless is incredibly telling. It means that the AP isn’t doing a very good job. If the AP reporters provided real insight and analysis in the rest of their articles, then maybe people would click through. The problem here isn’t that people are copying the opening of an article in an aggregator — it’s that the AP itself is failing to give people any reason to click through. They’re failing to provide the insight and value that will draw people in. Don’t blame the aggregators for that. Improve your reporting skills.

The discussion itself goes along the usual path, starting with copyright in general, moving on to fair use, then to the issue of aggregation, and then jumps to hot news. From there, it begins to get scary again, as the newspaper lawyers (with a slight exception of the guy from the NY Times) start talking about the need to create a permission-based reporting system, whereby anyone should have to get permission to link to a story. News Corps’ Jim Marcovitz summarized it thusly:

It’s only opt-out now because there’s nothing that says to someone that you have to abide by these instructions, and I think you have to shift that paradigm to one that is permission-based as opposed to opt-out-based.

Benkler then demolishes this point by highlighting how ridiculous this concept would be, and how much damage it would do:

This beguiling idea of permissions everywhere — permissions for whom? When a “New York Times” reporter who knows Spanish reads three newspapers from Chile and puts together insight about what is going on in the earthquake and how people think — permissions? When any reporter sits, combines what they hear with seven other reports they’ve listened to — permissions? You want to live in a permissions system that facts are permitted? It is — that is exactly the point about the fact-expression dichotomy. We exist in a world where facts are, as Justice Brandeis put it, in the same case…. Facts, as Louis Brandeis said, should be free as the air to common use. We do not have a permissions system for breathing.

From there, Malone (from the AP) pulls out the old argument that basically says (paraphrasing a bit, but not much), “but if we don’t get to protect our content, we have no business model and reporting disappears,” to which Boyle effectively responds by pointing out that technology and markets evolve:

One thing that I like to do is just reflect how wrong I have been about my confident projections about technology and war in the past, because I find it a useful corrective. Like, if someone told me in 1990, like, “What would the model be for putting together an encyclopedia?” You know, one person has this sort of Encyclopaedia Britannica model, lots of copyright, lots of trademarks, highly paid editors, whatever, and another guy goes, “I’ll have, like, a website, and people can, like, put stuff up,” I wouldn’t have thought that the latter was a workable business model. I would have been wrong. I wouldn’t have thought that Linux open source was a viable generation model. I would have been wrong. And I think that the key here is permissions-based, and I would separate James and Ken’s different solutions slightly. At the beginning of the Net, it was an open question whether linking would be permissions-based or not. Right? Beginning of the Web, I should say, not the Net. There were people who thought, wrongly, I think, under American law, but who thought that there ought to be permissions every time there was any link to anyone. And you still have people, mainly school districts, who write to you, saying, “May I link to your website?” Right?…

But, anyway, at the beginning of the Internet, if we had been debating in this room, “Hey, there’s this new world wide web thingy, right? So, should we be permissions-based, or should we be kind of opt-out, right? Opt-in or opt-out?” We could have come up with great reasons why everyone should have permission. And it’s like, “It’s not that hard. You just have to write to the person and get permission to link. It’s not that hard. You know, if you want to create a mash-up on Google Maps, you know, you just have to write to all the data sources that you’re gonna get, all million of them, and, you know, just get permission. It’s not that hard.” And all that would have prevented is the world wide web, right? But, of course, the people in this room wouldn’t have cared because they didn’t know what the world wide web was and couldn’t have imagined either its horrific site — child porn, piracy, which appears more often than child porn. That’s one of its horrific sides. Child porn, you know, spam, strangely articulate Nigerian oil ministers who happen to write to me personally. Okay, so there’s all the bad stuff, but there’s also this amazing world that is being built, and the point is we would have got it wrong, dramatically wrong, if we’d gone permissions-based, okay? Now, the good thing that we would have foregone, we wouldn’t have cared about because we couldn’t have imagined it, right? This, for me, suggests humility as the guiding principle of intervention. Right? And so major changes, like going permissions-based — I would say — I just think that that’s — that is going to be so wrong in so many cases with such tragic results that I would really push against it.

The real point comes out a bit later in the discussion, as Boyle highlights what this is really all about: it’s about one industry trying to use laws to prevent competition:

But, you know, there really is — the sort of Boyle’s Law of Technology government regulation is that there’s a pervasive problem which is mistaking the current parties who deliver a particularly useful social service or the social service itself. Right? You know, the people who — who sold whale oil — whale oil for lamps — you know, could well have come to Congress and say, “Illumination for reading is a valuable thing. These newfangled electric light companies need to be put out of business,” and that would have been the wrong move. I think that the “hot news” doctrine has real negative consequences. Right now it operates as a kind of insider’s club. Much of what is done by newspapers with each other is actually problematic under existing “hot news” doctrine but would never for a moment be considered litigant….

And that really is the key point in all of this. The newspapers think that “the news” originates with them, and they want to make sure that no one else can re-report the facts they’re reporting, as if they own them. But they’re going to discover quickly that the news does not originate with them, and quite often will originate with other parties — parties who might not want the AP or the NY Times to report that news. And then the newspapers and their lawyers who pushed so hard for this hot news doctrine will be in serious trouble — perhaps even more trouble than they are in today.

So the newspapers are going to keep pushing for new protectionist laws that are not about saving reporting at all. They’re about saving their existing infrastructure and their existing companies — because that’s all they know. But they don’t recognize the unintended consequences of all this, and how much harm it will do to reporting itself — including their own reporting. And they’ll discover soon enough that when an upstart reports on something, and suddenly the NY Times or the AP or News Corp. can’t report on the same thing themselves, that perhaps they made a pretty big mistake.

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Comments on “Newspapers Pushing For Hot News Doctrine May Find It Comes Back To Bite Them”

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Anonymous Coward says:

Big Media loves news aggregators and blogger. Regardless of what they say, the aggregagtors drive traffic to their sites. And bloggers almost always link to the story in question. But Big Media also loves money. And that’s all this is about. They don’t want new aggregators to stop. The don’t want bloggers to stop linking. They just want them to pay. And their payment model will be so ridiculous (just like the web radio one is) that it would drive the vast majority of bloggers and small aggregators out of business. It’ll be a pay-per-page view modal. Someone looks at your commentary on our story? Pay us .05 cents. Oh they clicked on the story, that’s .15 cents. You get 100,000 views a day and 5,000 clicks, that $51.50. Mutliply that by the number of stories on your main page * 30, and you’re paying thousands of dollars month.

Ima Fish (profile) says:

The Hot News Doctrine might have made sense back 100 years ago. Back then it took about a day to print a newspaper. Thus, waiting a day to report something was a common occurrence. It’s not like the newspaper could instantly spit out and publish an article about an earth quake currently happening.

However, nowadays with instant communications and the ability to instantly broadcast news, arguing that you cannot report on an earthquake currently happening is simply asinine. There is simply no basis to bar such facts from being reported.

sum guy says:


I don’t necessarily agree that their problem is they are doing such a “great” job or a poor job. In my own experience, the reason I don’t click through is that the topic just doesn’t interest me. What should be scaring the crap out of them (but I don’t think they understand it)is , I have a few blogs that I read through every day, but other than that I don’t care where my news comes from. Looking through an aggregator site like Google, I’ll click through on the topics that interest me, ignore the others, and if I’m real interested, expand the collection. But I can’t think of a single time, Ever, that I looked at the web address to see where that link went. Truth is, I care so little if it is the WSJ or podunk local newspaper that even after leaving the site I probably couldn’t tell you whos it was. I don’t think that I am atypical in this, but I doubt if big media is even aware of it, but, in my opinion That is what will be what kills them.

Freedom says:

Distribution is now global...

Local newspapers have always been a sort of middle man for getting the news out. They existed because it made sense to have a local distribution ‘hub’. With the Internet, that local distribution hub is no longer needed and is a waste of capital resources.

So yes, the number of newspaper/news organizations is going to decline. Those that can compete on a global or national level will still exist in some modified form for the foreseeable future.

The big point is that you can’t escape that the middle man isn’t needed any longer.

It also highlights why they think ‘hot news’ will work because they have always just been the middle-man/gate keeper to the local community for news. They figure that AP Wire and so on will just be a license deal like they currently have and they can go back to the old ways except now they can charge Google for linking to them to avoid being sued.

As Mike points out, be careful what you wish for…

What I don’t understand is why this industry doesn’t step back and figure out what people want and give it to them. I am then reminded about how difficult it is for a large company or business model to shift in any drastic way. It just isn’t in their DNA to change without a ‘re-birth’.

So until the old people die (and I’m one of them), the newspaper’s will continue to have their niche market. As I’m sadly reminded of as my 60+ year father-in-law proudly claimed that newspapers are the only ones that do real reporting and fact checking and the eBooks were for the birds.

One of the more interesting parts of the comments was how we couldn’t have known what the Internet would be and a restrictive structure would have prevented a lot of what we cherish today. I frankly have fallen into the old paradigm well many times – you have to pay something to get something of value, blogs are nothing but 14 year kids or hacks, and so on. It is only once you start using these resources on the Internet do you start to have a real paradigm shift. I for one laughed at Wiki as a real resource until I started using it. Now I find it one of the best places to get a quick and concise technical executive summary on just about anything. For me, it is like in the movie Matrix where you just download the skill set needed to your brain by plugging in a memory module, for me, most Wiki pages are like downloading a ton of concise focused content on any subject within a quick couple minute read.


Lowell Goss (user link) says:

New model journalism

The “news” industry has always been about aggregation and POV. Somewhere along the line that seems to have been forgotten. A news story aggregates facts, witness statements and research in an attempt to tease out an accurate description of an event. If that event can be described by the headline and lead alone, then the remainder of the piece was pretty much a waste of everyone’s time.

Discovery, Filtering, Commentary, Fact Checking and Distribution
I think these are are the five pillars of 21st century journalism. No single player in the market really has all four nailed at this point-in-time.

Discovery requires significant technology resources. Ideally a publication would use a system to “listen” for new opportunities. This is not the same as following a few Google Alerts or Twitter streams. It means a real investment in aggregating the flow of the real-time web.

Filtering (and de-duplicating) reveal that there’s not actually that much news in the world. Within the massive flow of data, how many unique “posts” happen in a given day? Most are reposts or other forms of sharing. More importantly is using filtering to understand the “sense” of what’s happening. What’s new? What’s trending? What’s being discussed? What’s relevant?

Commentary is a key area where bloggers have the mainstream media beat. The value for the reader has to extend beyond the headline and lead. J school practices may place journalists at a huge disadvantage online. The reader places value in more than just facts. News needs to acknowledge POV. Fox News seems to have figured this out for cable news.

Fact checking plays directly into the existing strengths of traditional publishers, but no one seems to really be grabbing this opportunity. Publications should use their resources to tell the reader what is true. A story endorsed as “correct” by the NYT or Washington Post has real weight and value. They don’t have to write it. Just tell us what’s factual. NPR seems to do a pretty good job of this. As an instrument for democracy this is the most significant contribution journalists can make.

Distribution roughly lines up with monetization. Paper was a very efective monetizable medium for decades. The product is easily distributable, but hard to share and very hard to copy. The trend away from this pre-dates the explosion of the internet. Technology makes creating perfect copies, sharing copies trivial. From an economics perspective this means that supply has gone to infinity. Despite a significant rise in demand, (Newspaper websites have MUCH larger audiences than print ever did.), the equation is now permanently broken.

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