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

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  1. identicon
    Bill Pickett, 8 Apr 2010 @ 6:15pm


    The internet has changed the game, what results is all that remains to be seen. Publishing costs alone are minuscule with the internet versus running a printing press and then delivering all those papers. Traditional news also costs a lot of money for overhead like editors and reporters. The internet allows anyone to be an editor or reporter cooperatively with others. The result right now may not be as polished or carry the authority of established news sites but it has a great advantage. The market can support it. When news sources were limited money was funneled into relatively few players allowing them to afford all that overhead. Now they are finding that with what the internet has done to news - devalued it - the money they take in is not enough to cover their old structures. What is happening is that the market is adjusting to the new reality of smaller funding spread over many more people. You can partner with Blogger for a cut of advertisement revenue from your page for example. News will never be the same as it was while and after the market realities adjust. Perhaps it will be worse in the future but what will remain is that it will be within what people are willing to pay for it. You don't run out and say "Pay me!" right off the bat when there are enough other players providing cheaper news, you work within the market and scale back your operations to what you can finance. If enough people miss high-priced news and the editors and reporters that it allows then you'll be able to charge for it when people see that need if ever again. Right now with the internet and this period of explosion in decentralized news all the traditional players are doing is yelling into the wind. People have to want it to make it viable and the failure of pay-walls so far indicates that people don't want it bad enough. If everyone colluded to make pay-walls standard it would be different but as long as some players as willing to make a smaller profit with smaller overhead then that is just competition and high-overhead players need to either make what they have actually more valuable or scale back their costs in any creative ways they can find.

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