As Righthaven continues to file lawsuits, it seems that various lawyers who are concerned about copyright, free speech and chilling effects online have been rushing to help defend some of those sued. I can't recall a situation (even with US Copyright Group) where lawyers have been so eager to take on a company filing copyright infringement claims. Of course, the really interesting part is how some of the lawyers are testing out a variety of defenses to the lawsuits, some which seem to have a much better chance of passing judicial muster than others.
For example, some are claiming that Righthaven has no standing to sue, since it waits until after it's found the infringement to "buy" the copyright to the article in question from Stephens Media/Las Vegas Review-Journal. Others have argued that the lack of any actual damages should get the lawsuits dismissed. Still others have challenged the jurisdiction.
One interesting argument, based on an earlier ruling on the legality of Google's cache, makes the reposting of these articles "fair use." Unfortunately, the fact pattern in that case does appear to be a bit different. It not only involved a guy suing over the Google cache, but that guy also first requested that Google scan his pages, then made the request to visit the cache himself. Still, in that case, Google argued that without a robots.txt blocking them from caching the article, the guy had given implicit permission:
"Even if Google could be viewed as having made or distributed these copies of Field's works, Field impliedly granted Google permission to do so. Field displayed his site on the Internet without including any label, including those that are industry standard, to instruct Google not to present 'cached' links to the pages containing his works," Google attorneys argued.
And, in that case, the judge agreed. So, with Righthaven, these lawyers are claiming the same basic thing. They're saying that the LVRJ gave an implicit license for a similar cache-with-link by putting the content up for free and by failing to limit the ability to copy & paste the text via technical means. On top of that, they point out that the LVRJ explicitly encourages people to "share" the articles on its site (something the LVRJ still does -- including quick links to share it with 19 different services).
This does raise some tricky issues. If Google's cache is, in fact, legal and not infringement, then how is just reposting a story with a link back infringing? But, if reposting a story is found to be fair use, you're about to hear a collective gasp of horror from some online content producers who don't want people copying their stuff. Because of that general conflict, I'm beginning to wonder if some of the Righthaven lawsuits are about to become a lot more important than we initially expected -- and whether or not Google might have a very strong interest in supporting some of the cases against Righthaven.
Digging down to facts tends to be what crowdsourcing is good at. The problem, of course, is that there often are some blurry lines around what is actually a "fact" and what is not. But, given the (some would say excessive) cultural focus at Wikipedia on forcing a "neutral point of view," I could see how a similar group of people could somewhat vehemently focus in on specific facts that can be proven true or false, rather than getting too bogged down in opinion vs. facts debates.
One of the key points we tried to hammer home at our Techdirt Saves* Journalism event in June was the importance of realizing that news organizations are really in the business of building community. So many in the news business focus on the belief that they're in the "news" business, but that's never really been the case. The news has always been the piece that brings together a community (and the business of a news organization has usually been to then sell that community's attention to advertisers). The biggest problem that news organizations face these days isn't scary "news aggregators," but that there are now many, many, many other communities that people can join, and most of them treat their members a lot better. Many traditional news organizations, in contrast, seem to have a rather condescending view on "community." They lock up comments, they complain about readers, and they focus on just delivering the news, not engaging with their community or enabling their community to do anything useful.
As I've reported in this blog before I have had a very long one-sided relationship with the people who watch my newscasts. I talk, they listen. If they had something to say to me they yelled it at the TV screen like Don Quixote tilting at windmills. Twitter changed all that. I can now hear you and I can now answer you...
I can't speak for the dozens of people who check in regularly every night... sometimes at 6 or 7:00.. but mostly 11:00. I don't know exactly what they get out of it except a kind of cool experience of actually conversing in real time with the guy on TV. But I can tell you what I get out of it. For the first time in years I actually feel like I'm talking to someone rather than at them. Frankly it's energizing!
Of course, the next step is to go beyond just talking "to" them and to talking "with" them. But that will come. In fact, getting to that point, Clark explains an amusing way that the community tried to connect with him, picking up on the recent Old Spice commercial meme of "Silverfish Hand Catch!", where some of his viewers started saying that if 100 people retweeted the request, Clark would close the broadcast by saying the line on TV. He didn't get the 100 retweets, and admits that he wouldn't have said it anyways (noting he probably would have lost his job), but he did do an "air" silverfish hand catch surreptitiously, to let folks know he was paying attention.
But, much more interesting was the realization he had while all of this was happening:
It was all a bit silly sure, but I realized something else was going on. The audience of our 11:00 newscast wasn't just talking to me... they were talking to each other! I felt like Alexander Graham Bell when he made his first call to Watson. The backchannel worked!
I know that many folks around here still like to mock and dismiss communications tools like Twitter, but many people are realizing what powerful tools they are for conversations and for building communities where none really existed before. And, in businesses where community and relationships are everything, that's quite powerful for those who figure it out.
We've spent a long time detailing the massive problems that come up when you build up an unnecessary collection society bureaucracy for something like music. Operations like ASCAP lead to massive inefficiencies in the market, greater protectionism and a never-ending quest for more control over perfectly reasonable free uses. And, worst of all, they tend to distort markets in such ways that it harms up-and-coming creators by pricing the venues they rely on to establish themselves right out of the market. So, I have to admit that I'm somewhat horrified to hear that some are now seriously proposing an ASCAP-like offering for the non-problem of online news.
There are so many problems with this suggestion it's difficult to know where to start. The biggest of all, however, is that the "problem" this is seeking to solve hasn't been shown to have been a problem at all. Newspapers and the AP keep claiming that there's an "aggregator problem," but we went looking for it and we can't find it. The problem is that the AP and others change the definition of who's a problem depending on what they're talking about. Sometimes its sites like Google. But Google isn't really a problem because Google shows headlines and barely a snippet. That's clearly fair use and drives traffic (hell, the entire SEO industry depends on that). So, it's not Google that's the problem. At the other end of the spectrum you have scraper spam sites, but those are fly-by-night, get no traffic and aren't "taking" any real ad revenue away from the original content creators at all. Also, they're certainly not going to pay into any ASCAP-like scheme. Who's left? In the middle you have a few smaller players, like Newser, who basically rewrite some stories, but they're tiny.
So what problem is this bureaucratic mess trying to actually solve? I can't figure it out, but putting together a giant bureaucracy will require a ton of overhead, and all that money is pure waste from an economic standpoint. So, before we start talking about an ASCAP for news, can someone please define what the actual problem is? Because it's certainly not this general "aggregator" menace that we keep hearing about.
Someone who prefers to remain anonymous sent over this story about how Associated Press stories hosted on Yahoo News appear to have tons of comments from old stories. It's not entirely clear what's happening, though I have my suspicions (explained further down), but it appears that when new stories are showing up on certain topics, Yahoo is simply copying over older comments from previous stories on similar or related topics. The comments look as if they're about the story posted -- and the only way you can tell they're not is if you notice the date:
I'd go from one Yahoo article to another and notice that regardless of the subject matter, the first user comment was always the same -- at least on AP articles covering the Israeli/Palestinian conflict. The comment that kept reappearing was posted by "Robert" and it was a one liner. "Hamas is now in control of the Gaza Strip after winning an election there against Abbas Palestinian Authority." That was it. Fair enough -- I've got no quarrel with the messenger or the message. But somehow that one comment generated an incredible 184 responses and, last I checked, readers had given it 3212 thumbs up and 2525 thumbs down.
I got a little curious about why Robert's one liner had generated so much controversy. I've written hundreds of articles and never got anywhere near that kind of attention. Frankly, I was full of envy. How did 'Robert' pull this off with one miserly line? Then I noticed the strangest thing: it was dated March 09, 2010. The comment was two months old and was the lead comment of 40,000 responses. That seemed a little high considering the fact that the AP article I was reading had only been posted for thirty minutes.
What were Yahoo and AP up to? The answer is simple; they were porting comments from one article to another and, in this particular case, they've been doing it for two months.
Oddly (and inexplicably) the author of that post, Ahmed Amr, does not link to Yahoo to show this, but it's not hard to find. Here's a story published on June 3rd, 2010 at 9:19pm. Yet, there's that same first comment, from March 9th, at 12:47am. And here's a story published on May 6th at 1:09 pm with the identical comments, also beginning with the March 9th comment. To let you see what they both look like before they change (and I'll explain in a second why I think they'll change) I've turned both of those pages into PDFs, which you can see below (you may have to either download or view at full screen and scroll to see the "comments" at the bottom):
I've also looked around and found really similar things on other stories. While Amr is suggesting there's something nefarious going on with the AP "manipulating" comments (and he specifically calls out the reporters from the AP who he believes are a part of this), I'm going to guess that this is more typical (embarrassing) incompetence on the part of Yahoo, rather than malice.
Take a look at the two links I put above to the Yahoo stories. The URLs (as found by a quick search for the comment string Amr mentioned in his post) are as follows:
Notice something similar? The last bit of the URL string is identical "/ml_israel_palestinian". The only difference is that the second URL, the story from May 6th, inserts two additional directories, with the top one being the date of publication. We already know that, due to a total disregard for the basic principles of the way the internet can and does work, that the AP limits its partners from hosting AP articles for very long. I believe on most sites you can host the articles for a month and then you need to take them down completely. With most sites, what happens is you get a 404 error or page not found (to this day, I can't figure out why they don't at least point you to a place where you can find the missing article). However, it appears that Yahoo decides to recycle the URLs in an attempt to make the URLs simple and understandable. So, any basic story about the Israeli Palestinian conflict might appear under that first URL. For all I know, by the time you're reading this, it's an entirely different story than the one that was published on June 3rd.
After the date of publication, breaking the basic principle of a link to a news story being a link to that news story alone, Yahoo moves the story to a new date-defined directory, and the original URL is freed up for the next story on that particular topic. If this seems stupid and confusing to users and destructive to the very idea of the "link economy" or valuing earned or passed links, you're right. But take that up with Yahoo and the Associated Press.
Of course, here's where the real level of tech incompetence comes in: It appears that Yahoo News' comment system doesn't understand that Yahoo does this. So, it associates the comments to that last bit of the URL string "/ml_israel_palestinian" and the same comments will appear every time that string is used as the final part of a URL string. It's bizarre that Yahoo would do this, but apparently, that's how Yahoo rolls.
Amr suggests that this is part of a planned bit of "corporate fraud" by Yahoo and the AP, perhaps to make it look like certain stories are getting a hell of a lot more comments than they are. He also suggests other conspiracy theories involving pro-Israeli operatives, saying that as far as he can tell, this only happens on AP stories concerning the Israeli/Palestinian crisis. I believe Amr didn't try very hard to find alternatives. On my very first attempt to find an example related to something entirely different, I found the identical behavior. I just picked a popular story that likely would have multiple stories over multiple days: the BP oil spill in the Gulf. Then I looked for an AP story hosted by Yahoo News... Bingo.
The first news story I found was published on June 3rd at 2:28 pm, but the first comment on the story? Why it's from May 1st at 2:06am. And the URL? The string ends with "us_gulf_oil_spill_947." You can find the identical comments on this story which was published May 21st, but ends with the string "us_gulf_oil_spill" suggesting that Yahoo's comment system also ignores numbers at the end of that final URL part in replicating its comments.
And here's another story about the White House's response to the oil spill. Published June 3rd at 11:57 pm. First comment? May 10, 2010 12:58 pm. URL string? "us_gulf_oil_spill_washington_9". And here's a story from May 17th with the identical comments at the end, with the closing URL string "us_gulf_oil_spill_washington_1." Yup, Yahoo seems to just match up comments with pretty simple URL hashes.
You can see all of that below as embedded PDFs:
So while it's easy and tempting to ascribe this to "manipulation" and suggest malice on the part of the AP or Yahoo or whoever else (Israeli operatives? Seriously?), it seems pretty clear that this is more due to technical incompetence on Yahoo's part, somewhat driven by the AP's ridiculous "delete this story after x days" licensing policies.
Update: The AP got in touch to make it entirely clear that this is entirely Yahoo's incompetence and not its own:
The Associated Press distributes news content to Yahoo! News, but the display of AP stories and the curating of comments are entirely up to Yahoo!
While undoubtedly true, in the comments we've heard from multiple people who work at news sites that license AP content, and they note that AP has a weird feed process, whereby it gives a simple slug like the ones used above, so that it can force update stories, often leading people to see stories totally change over the course of the day. This is clearly a Yahoo issue, but AP's policies don't help.
This really shouldn't surprise anyone, but hopefully this means that more folks in the press will realize a simple point: their job isn't just to report on what both sides said, but to say directly when someone is lying or being misleading. The AP, which has had some issues in this department in the past, has started aggressively fact checking politicians and now claims that those fact check pieces are the most popular pieces they do. They're the most clicked and the most linked to stories. This is good news. One of the major frustrations with the press is how they seem to just reprint press releases and talking points, rather than challenging questionable claims. If they start to realize that people really do look to the press to tell them who's being truthful, perhaps some of these publications wouldn't be struggling quite so much.
Back in February, when many in the media were insisting that iPad apps were going to save the media business, we wondered why all the stuff they were talking about sticking in their apps couldn't work on the web as well. It appears that others are noticing that as well. Jason Fry at the Nieman Journalism Lab is noting that publications' own websites may be the biggest competition to their iPad apps -- and he was apparently a big believer in the concept of iPad apps originally. But after using the iPad for a while, he's realizing that the web is pretty good again:
After about a week of using the iPad, I started deleting apps, because the websites themselves were perfectly adequate. This is the reverse experience of the iPhone. On the iPhone, the browser was used only in emergencies, and apps ruled. On the iPad, at least for now, the opposite is true -- the browser is superb, and renders many apps superfluous.
That complicates things for news organizations. Many have already put too much faith in the idea that being able to charge for apps will reinvigorate their financial prospects. Now, they have to confront the reality that their apps may compete with their own websites -- and right now the apps don't win that competition.
Of course, I can see some in the media getting the wrong idea out of this, and using it as an excuse to put "exclusive" content only in the app... but, that will just leave them open to competition from publications who add more value to their website.
Remember the debate about whether or not anonymous commenters were good or evil? Well, let's take it up a notch. The Cleveland Plain Dealer -- who amusingly just recently told its reporters they needed to engage more in the comments on their stories -- had a persistent commenter, who was a bit vocal, and at times mean. After she posted a comment questioning the mental state of a relative of a reporter, the newspaper decided to look into who was behind the comments, and realized that it is a high profile local judge, who has actually been in the news a lot lately. The judge's daughter tried to claim credit for the posts, but apparently there's some evidence that suggests the judge made many, if not all, of the comments (it was her email address, and apparently it's clear that many of the comments came from her work computer). Some of the comments even came on cases she was involved in. Of course, it's also worth noting that she had threatened a reporter from the Plain Dealer with jailtime if he didn't reveal his source for a story (and, yes, this is why we need a strong journalism shield law), so the Plain Dealer may be seen as having an axe to grind.
Still this raises a bunch of questions that lots of sites struggle with. We've often wondered about it ourselves, as there are times when it's obvious who a commenter is -- and even here on Techdirt we've had high level execs pseudononymously comment (while doing little to hide their real identity) -- even at times about issues they were involved in. And, to some extent, those situations seem newsworthy -- though not everyone would agree. Along those lines, we've sometimes pointed out that two commenters may be the same person, though never revealing who they actually are in real life. But, again, does that reach an ethical standard? Of course, a few months ago, there were similar concerns when the online editor at StlToday.com called the boss of a commenter, leading the commenter to resign. But that was purely vindictive, and of no journalistic significance.
It's easy to just say that no publication should ever reveal such info -- but if it has journalistic value, and the commenter has done little to hide their actual identity, it certainly reaches a gray area. I can see the arguments on both sides of this issue. In the end, I don't think it's a good idea to "out" commenters' true identities, but if there is journalistic value in the information, rather than just doing it out of spite or anger, I don't think it's as clear cut as some are making it out to be.
Renan Borelli points us to Atlantic Business staff editor Derek Thompson's recent defense of news paywalls, coming in the form of a series of posts responding to the Pew Research Center's State of the News Media report, and also to a January Harris poll of online adults and their news reading habits. Thompson argues that the numbers in the latter "weren't so bad", but his reasoning makes very little sense.
"43% of those surveyed read the newspaper [online or offline] regularly, and 23% said they were willing to pay a fee to continue reading. That means even before the dawning of the Age of the Paywall, more than 50% of regular newspaper readers said they would pay for online news. As for the other 60% of respondents: who cares? They're hardly reading newspapers online anyway."
This is a surprising attitude for a business expert, and one that would certainly be foreign to a newspaper publisher. 43% reading daily means a lot of room to grow volume and frequency of readership, especially when you consider that 72% said they read at least once a week, and 81% at least once a month. It would be foolish to disregard that audience. Besides, 50% (a shakily extrapolated estimate to begin with) is hardly a good reader retention rate, and Thompson ignores the clearest message of the survey: less than a quarter of online adults would consider paying a monthly fee for news, and only four per cent said they would pay more than $10. Moreover, "how much would you pay" surveys are notoriously unreliable.
Thompson also makes the curious argument that people have demonstrated their willingness to pay for news online by paying for internet access to reach that news. This is irrelevant and confuses value with price: yes, by making online news one of the reasons they pay for internet access, people have shown that they value it. But this demand doesn't set a price, it creates a market—one that is highly competitive on the supply side and will always offer free alternatives. The simple fact that a market exists does not say anything about the best pricing strategy within it.
These poorly thought out arguments come from the first post, which Thompson admits was rushed because he wanted his "opening salvo to get out fresh and early". The second post looks at the Pew report's breakdown of online ad spending by format, which shows the expected dominance of search advertising, followed by display ads—where newspapers get most of their online revenue—in a distant second place.
Based on this, Thompson seems to take it as granted that advertising can never pay the bills for online news, so paywalls and "other exciting ideas" are the future. He makes no mention of increased spending overall or growth in the display ad sector, of news gaining a foothold in other ad categories, of increasing the efficacy and value of advertising, or of going after brand new markets—all missed opportunities on the road to a walled garden.
In his third post, which discusses some of the "other exciting ideas" mentioned in the Pew report, Thompson finally starts to make a bit of sense. He is skeptical of micropayments, seems ambivalent about microaccounting (basically micropayments billed monthly), and he scoffs along with everyone else at the idea of blocking Google. Conversely, he is enthusiastic about improving targeted ads and curious about the possibility of newspapers gathering more demographic information from their online readerships. Unfortunately, he still seems to think that WSJ-style paywall models are the best strategy for the immediate future.
Perhaps the most common mistake that paywall supporters make is forgetting that people haven't paid for the news in 180 years. Newspaper readers used to pay for paper, ink, trucks and delivery boys—and often barely paid enough to cover that bill. Now they pay for internet connections instead. Then and now, the reader only pays for access—advertising always has and will continue to pay for everything else.
This sort of debate comes up every so often among folks who run news/commentary sites, and it seems to have boiled over again recently, as a bunch of newspapers/blogging folks got into a nice little discussion on the goodness or evilness of anonymous comments. Not surprisingly, I side with Mathew Ingram on this one. Since we began, we've always allowed anonymous comments, and, for the most part, find that we've benefited tremendously from allowing that sort of level of speech.
Does this mean we prefer people comment anonymously? Not at all. In fact, we try to encourage people to identify themselves in some manner, but we generally do so by providing greater and greater benefits for those who have verified accounts (with a lot more on the way). However, we recognize that there are times when there are benefits to having people comment anonymously, and we see no reason to take away those benefits.
Does this mean that people don't abuse this privilege? Again, not at all. However, it is actually quite rare that anonymous commenters abuse their ability to be anonymous. It does happen at times, and, in our opinion, there are ways to deal with this that don't involve banning anonymous commenters at all. Some of these methods we have not implemented yet, but we're working hard on them (and, yes, this blog post will hopefully act as a push to those doing the coding...).
Techdirt gets an awful lot of comments, and we've been at this for a long time. We've seen no evidence that anonymous comments, by themselves, are a problem. You can have an occasional annoying commenter at times, but on the whole, the quality of the discussions we see in the comments here is much better than on many other sites that do not allow anonymous comments, and seem to stall out with just a few comments on each story (even on sites that get a lot more traffic than us).
There is a bit of a balancing act that needs to go on. At times, people start demanding we moderate comments (when a particularly annoying commenter hijacks a thread, for example), but then, when a legitimate commenter accidentally gets his or her comment caught in our spam filter, suddenly they get angry and ask "how dare you moderate comments!" Of course, as we explain, if you have a legitimate comment and it gets caught, we free it up within a few hours. If your comment is blatant spam, however, it gets deleted -- and at times, we have noted that "pure trolling" is spam (i.e., comments that don't advertise anything commercial, but are so far off-topic that they are designed solely to send the discussion off-topic). We will never block commenters just because you disagree, however, no matter how wrong you might be or are anonymous. We did have an issue for a while, where our UI confused some commenters into submitting totally blank comments (which automatically get held as spam) because two submit buttons could be seen, and some people clicked the wrong one -- but we recently fixed the comment UI to solve this. Unfortunately, this did confuse some people, including some people who accused us of moderating legit comments, and we apologize for that UI confusion.
On the whole, we have a pretty great community of folks around here -- including those of you who I regularly disagree with. It makes for a fun conversation. Sure, every so often, an immature person tries to cause trouble, but those are few and far between, and it's not because they're anonymous, but because they're jerks. The vast majority of our anonymous commenters (even those we disagree with) add value to the conversation, and blocking them completely seems counterproductive.