Thoughts on the Value of Journalism in the Wake of GateHouse v. New York Times Settlement

The fallout from the GateHouse v. New York Times settlement, anticlimactic as it was, has been fascinating, and deliciously exhaustive in the way that only Internet-based discussions of Internet-related issues can be.

But in rereading a large sample of those discussions, I came away with two questions that are still bouncing around inside my own head. Given that I've made a career out of writing about, whenever possible, what interests me rather than trying to predict what will interest readers, I'll hog a few kilobytes to flesh them out.

One issue got my journalist's blood flowing, and the other tickled my interest in media law. And well, with temps in Texas dropping to the freezing point, it's been a good evening for reading.

To begin with, if one non-litigious solution for Gatehouse was to have instead re-examined the role its headlines play, as David Ardia proposed in an early Q&A on the case, what does that suggest about the role of journalism itself in a Web-fueled, linked-up world?

The first is to think about the nature of headlines in the first place. You could use the headline as a teaser. One of the arguments in this case is that a user who goes to the site sees a headline: "Big Fire Downtown." That may be all the information that they need. There is no need for them to click on the link and to go and read the story. But if headlines were written in such a way that they were teasers, so all the information wasn't conveyed in the headline — if it would've just simply made someone interested in clicking on the headline to get that additional information — then GateHouse would welcome the fact that was using their headlines. . . .

So one way that GateHouse could address this is to think about how headlines are used. Another way to think about it is by thinking about what value they can add. If you're just talking about breaking events, that kind of information is a relative commodity. The fact that there was a fire downtown — once I know it, I don't need to get it from another source. . . .

But is a breaking news report, even in the digital world, a commodity? The way I've always understood it is that a commodity is something to which the producer adds no value, like a soybean. But a news site with a piece of breaking news has two things: A written piece of copy or video or blog piece that it has distributed, AND it has a reporter or some other producer who knew enough about the local community to learn that something interesting had just happened.

Even assuming that the news site wrote the piece in a such a way that added no value, the mere fact that the site had employed someone to find that bit of information out means that it had created value to the otherwise unreported fact of the fire, for instance. (Besides, even that assumption is risky, given that the aggregator in question would certainly not have any reason to filter out headlines or opening paragraphs that were written in an unusually interesting or expert way. No, they'd get snapped up and reposted on the competitor's site just as routinely as the ordinary, commodity-like news brief.)

Still, assuming the written report was indistinguishable in its essential nature from any other report of the event, the commodity metaphor leaves something to be desired. Perhaps an analogy nearer to the mark would be if a soybean company finds itself competing with another whose beans were grown by the first company's farmers, and lifted off the farm-to-market truck for free.

That brings me to the legal issues that I find just as interesting. Just about everyone, including the smart folks over at the Nieman Journalism Lab, have pointed out that the case would have likely turned on the issue of fair use, and the four-legged legal test that has come straight out of the federal Copyright Act of 1976 to dominate the related case law.

One of the questions asked is whether the use of copyrighted material is transformative, (hat tip here to Zachary Seward for pointing me to the court filing by UCLA's Doug Lichtman) -- that is, whether the new use has in fact created something new that goes beyond the original site's purpose, and therefore leaves the market potential of the original use more or less undiminished. That's an issue, I'd pay special attention to if I were the one wearing the robes. And toward that end, I'd ask whether the copyrighted material was aggregated by an algorithmic function in the dark of the night, or if some real live journalist at another site had read the protected material and decided there was a place for it on his own page.

In this age of Google News, which has so far withstood its own fair use tussles (except, I suppose, in Belgium), the question of human involvement may seem beside the point legally, and for that matter, a bit precious in every other way. But a page that is simply programmed to give readers a sampling of whatever news stories that fit its filters adds very little to the sum total of journalism in the world. In fact, given the market realities, I'd argue that it's one way that the sum total of journalism is being reduced.

The same headlines proliferated on sites throughout the world, or across a variety of local Web sites, doesn't in fact add to the amount of journalism readers can choose from. It merely adds pages from which they can choose to read it.

A world in which news site operators had to either provide the news themselves -- you know, by finding reporters to gather it -- would be a world in which more journalists were working. If we are going to allow sites to cadge others' work and pass it off as their own -- and we should, given the role the interconnected Web plays -- then we might as well insist that real people are using real judgments about which of the freeloaded work is worth the attention of their readers. As Lichtman points out, that decision-making is journalism, too.


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