I write a blog at my home newspaper, The Dallas Morning News, and when I get 10 or 20 comments on a post, I am feeling pretty good about myself. Arianna Huffington? Her site, Huffington Post, draws around a million comments a month.
I struggle with math, but I think that's a new comment every two and a half seconds. Not bad for a site that employs just five full-time reporters. Much of the content is provided by legions of unpaid contributors and the readers they've attracted.
But the site also features loads of professionally reported, often in-depth stories as well -- or at least large enough excerpts from those pieces that many readers may decide it's not worth it to read the original. It's this practice that has drawn scrutiny of late. Josh Benton of the Nieman Journalism Lab (and, full disclosure: a former colleague of mine in Dallas) told TIME Magazine that "Someone is going to sue the Huffington Post. It's not just about the volume of the content that it appropriates, it's about the value."
The site may also be an attractive target, given that it's one of the few news sites -- or, given the sorry state of newspapers these days, one of the few news organizations -- that could be worth serious money.
How does all this work? Well take an example from today's HuffPo. Go to the site and find its AIG Big News page, a smartly packaged collection of news stories from other sites -- lots of them, all paid for by someone other than the Huffington Post.
When scanning the headlines, readers have two choices: click on the "quick read" and check out the first few paragraphs of each story, or click on the larger headline and go to the lending site's home page.
I say lending with some hesitation, however: HuffPo doesn't ask permission to borrow the first few paragraphs of the story. Instead, in a move akin to going to your neighbor's garage and borrowing the lawnmower and leaving a buck or two on the front porch, the site simply takes the content to help fulfill its own mission and figures that any writer or publisher has to be happy to see their work paraded in front of so many eyeballs.
And indeed, in the TIME story, Huffington said legions of sites contact her editors each day, hoping to have their stories linked to from her pages -- with dreams of big surges in traffic at home, should readers decide to go beyond the excerpt back to their site.
And as Michael Calderone notes (while pointing to the NY Times), the practice has drawn legal scrutiny. But as others -- including Josh, in a New York Times piece from earlier this month -- have pointed out, this is under increasing scrutiny. Click-supported ad sales have stalled, and many publishers are rethinking whether a temporary spike in traffic is worth enough real dollars to be so gallant about sharing their content with other sites who pay nothing for it. From the Times:
“A lot of news organizations are saying, ‘We’re not willing to accept the tiny fraction of a penny that we get from the page views that these links are sending in,’ ” said Joshua Benton, the director of the Nieman Journalism Lab at Harvard. “They think they need to defend their turf more aggressively.”
Listen, there is no denying that there is potential for irony here. After all, this post is linking left and right to other sites' work, some of it paid for by others and I'm sure as heck not getting a bill. But of course that's always been part of the calculation made when making use of the copyrighted content of others, and it's part of the fair-use calculations still being made.
Last year, Gatehouse Media sued the New York Times Company for aggregating bunches of local news items on its community news pages outside of Boston -- it also owns the Boston Globe. (We've written about this case often, including here and here and here.) The case settled just before trial, but the dispute has resonated with legal scholars and publishers alike. As we said then, the determining factor is often whether the new use of the copyrighted material is transformative. For instance, I could argue easily, I believe, that linking to TIME's story above was within the guidelines, as I took a small bit of content and made it part of a much longer post of my own.
HuffPo, on the other hand, simply copies the first several paragraphs and calls it a tease. Like the New York Times Company in the GateHouse case, it argues that by pooling the articles in a single spot, it has created something new, something transformative.
I am not sure that's right. A collection of gold coins borrowed from your neighbor but glued together into a single stack of gold may be something new, but the value still comes from the individual coins, not the gluing together.
It's not easy to draw the line, and plenty of writers and publishers are looking for exposure and aren't likely to complain about the kind of flattery represented in being linked to (and excerpted from) on Huffington Post.
Our own David Ardia, the founder and director of the Citizen Media Law Project, recently said something similar to the New York Times. He told the Times:
New modes of creation, reuse, mixing and mash-ups made possible by digital technologies and the Internet have made it even more clear that Congress’s attempt to define fair use is woefully inadequate.
In a piece I wrote earlier this year for TIME about the Pirate Bay file-swapping case in Sweden, some scholars were arguing for a new kind of copyright mentality. Professor Neil Netanel, for example, suggests that copyright protection could be focused on ensuring payment, rather than giving copyright holders control over their content.
"It doesn't have to be an either/or dichotomy," Professor Neil Netanel of UCLA's School of Law told TIME. "Why not look at copyright as the right to be paid, but not necessarily ownership of the work itself. You could establish a levy on equipment or some other fee that everyone pays that can go to compensate the authors or artists. But the authors (or other copyright holders) wouldn't have the right to keep you from sharing the work."
That makes sense to me, but it still bothers me that the lay-about down the street can come into my garage and take my LawnBoy, if he only leaves me a check. I guess I'd be less worried if we could agree on what the use of my lawn mower is worth. A few thousand extra clicks can mean just pennies in this Internet marketplace, and that just isn't going to buy me much gasoline for the next time I have to mow my yard.