Newser May Be Obnoxious, But That Doesn't Mean It's Illegal

from the why-can't-we-all-just-get-along dept

There's been a bit of a kerfuffle going on between the news aggregator Newser and entertainment news site TheWrap. Newser summarizes news that it aggregates, and apparently, TheWrap was not happy with this practice. TheWrap's Sharon Waxman posted a biting criticism of Newser, to which Newser's Michael Wolff replied with his own volley filled with barbed snark. This then kicked off a vicious fight over Twitter, which was joined by folks from all over the media industry. Finally, TheWrap took it up a notch and sent Newser a formal Cease & Desist, requesting that Newser stop using TheWrap as a source (via Mediagazer). The C&D letter claims:
Newser's conduct violates The Wrap's rights because: (1) The Wrap generates and gathers time-sensitive information at a cost, including, without limitation, original stories ferreted out and reported by The Wrap's full-time employees and paid contributors; (2) Newser free-rides on The Wrap's sweat of the brow by publishing summaries of these stories without affording The Wrap appropriate credit and a prominent link; and (3) Newser is in direct competition with The Wrap. Thus, Newser's conduct, in addition to amounting to garden variety plagiarism, constitutes unfair competition and violates certain deceptive trade practices statutes.
There are a few major problems with this -- in that of the three rights that TheWrap claims Newser violates, it's not clear that any are actually rights that TheWrap has! The first one is basically an attempt to bring back the hot news doctrine, which is hotly contested these days -- but would be a huge mistake for news publications. Right now, it's still a pretty big question though as to whether or not hot news actually can be applied in this way. Just because TheWrap generates time-sensitive info, it doesn't mean that others can't do anything with it. And that's because the second "right" has been totally rejected by the courts. The claim that this is free riding on The Wrap's "sweat of the brow" is meaningless, because as the courts decided in the Feist case, there is no protection for "sweat of the brow" works. Bringing it up makes no sense, and suggests someone's making a legal argument that has long since been debunked. Finally, the fact that the two sites are in competition is meaningless. Competition is allowed. It's called capitalism. And TheWrap is exaggerating and wrong to call this plagiarism. Rewriting something may be obnoxious, but it's not plagiarism, nor is it a deceptive trade practice.

So, while Newser might be doing something that many consider slimy or tacky, it's not technically doing anything illegal. That said, the fact that TheWrap thought it was necessary to draft a formal C&D seems a tad excessive, although I'm sure the lawyers involved were more than happy to help -- even if the legal arguments appear weak. However, if Newser were to comply (and it doesn't have to), TheWrap really hurts itself more than anything. Sure, Waxman claims that in the 14 months that TheWrap has been around, Newser has sent it only 1,600 users. But, that's 1,600 more users than it would have sent had it not used TheWrap as a source. And yes, while it's true that Newser does not seem to add its own spin to the articles it summarizes, perhaps that is all that the Newser user wants. After all, the experience on Newser is very different from the one on TheWrap, so each site most likely appeals to a different type of audience. If anything, Newser exposes TheWrap content to a user segment that would not have seen TheWrap otherwise.

That said, I personally find the Newser user experience annoying and obnoxious -- the site design and link practices don't make for a good news consuming experience -- and certainly don't make for a very friendly neighbor online. Despite Newser's claims that it links to its sources, it does so in a very unfriendly way (hard to find, forcing you to visit ads to leave the page). This sort of practice, even if legal, may lead to two results, neither of which are good for Newser: (1) Annoying its readers, leaving them to go elsewhere and (2) Annoying everyone else online, keeping them out of wider social media circles. They might not think this is a big deal, but if no one else is ever linking to Newser, it's not likely that Newser stays in business. Rather than complaining, perhaps TheWrap should have just watched as Newser crumbled.

Either way, we're likely to see more fights like this one, as newspaper publishers who overvalue their own work continue with their misguided clamoring for the "hot news" doctrine, which would treat "hot news" as protected property. Not only is this a bad idea for all of society, this would ultimately spell doom for the publishers themselves, who would undoubtedly be mired in trying to figure out who owned what news rather than focusing on reporting and analyzing and figuring out how to give their customers a true reason to buy.

On that note, it's worth noting (with amusement) that the news story that kicked off this whole brouhaha was the story about how Beyonce's Label was blocking her YouTube channel. Which, of course, we here at Techdirt had written about two days before either Waxman or Newser posted on it.

But you don't see us complaining... even as we wipe the sweat off our brow.

Filed Under: c&d, fights, plagiarism
Companies: newser, thewrap

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  1. identicon
    Bill Pickett, 8 Apr 2010 @ 2:38pm

    I'm going to drop two links here for aggregators that work cooperatively with content providers. Just to make you aware of them. Both work through RSS feeds so there is an implicit permission for both to operate - the content originators provided the feed so they provide permission for it to be consumed. The two sites are: Feedly and Lazyfeed. Feedly is integrated with Google Reader so any feeds you place into reader are automatically collated and translated into a magazine like format on the Feedly web-site. Lazyfeed is run by keyword and scans other aggregators such as feedburner for those keywords and then displays the results by your keywords. Feedly being composed of your hand-picked sources is much more signal than Lazyfeed. Lazyfeed contains some noise (spam) but overall has quite a bit of signal too. I lied, heres a third link: NewsMap. The interesting thing about NewsMap is that it collates how often a story is mentioned in sources and the more often something is mentioned the larger screen area it is given. That is another aggregator function that provides value above the individual sources.
    These three aggregators show that there is value to be provided above what individual sources provide: that is why aggregation is not automatically evil.

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