Author Topic: The "Hot News" Doctrine: Villifying Original Content & Supressing Free Speech  (Read 7821 times)

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Offline Optimus

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Newspapers Pushing For Hot News Doctrine May Find It Comes Back To Bite Them
from the think-this-through-for-a-second dept

http://www.techdirt.com/articles/20100404/1649588866.shtml

It's no secret that newspapers have been struggling, and many are out to blame the internet, even as the evidence suggests their troubles began long before the internet became popular. However, a really troubling aspect of all of this is that some newspaper industry lawyers have been pushing for massive changes to copyright law on the false belief that stricter copyright law for newspapers will somehow magically save them. One (but certainly not the only) aspect of this is an attempt to bring back the "hot news" doctrine, a concept that had been mostly considered dead. However, with some recent lawsuits, "hot news" is suddenly making a troubling comeback, much to the delight of some very short-sighted newspaper industry lawyers.

James Boyle recently wrote a column pointing out that the newspaper lawyers pushing for the return of hot news, or for other forms of copyright to protect news, may end up regretting that before too long. Beyond the fact that full copying is already illegal under copyright law and the lack of any evidence that aggregators or copying sites actually take away any real traffic from the original sources, "hot news" will be turned back upon these news organizations in ways they absolutely will not like:

    So the new right would have no effect on the real problem newspapers face. And it would give them almost no protection that they do not already have either through law or technology. What would it do? It would cast a pall of fear over free speech. Is my blog or twitter feed allowed to say that there has been an earthquake or that some political scandal has erupted? Or must I buy a license to say so? After all, in the new world bloggers are "competitors" as news sources.

    In fact, the right would produce all kinds of effects the newspapers have not thought about. They are assuming that this new right will only be wielded by them. Not so. Think of political activists who break a story -- for example the young conservative filmmakers who produced devastating information on the operation of the organization ACORN. They are a news source. They might think it was a great idea selectively to decide which news organizations got to report that story, at least as long as it was "hot." Does that sound attractive? I think not. And then think of the difficulties of proof, the possibility of chilling of speech by wrongly claiming to be its source. Implementation would be a nightmare.


The column itself was actually in response to a recent FTC-organized panel discussion about the journalism industry, that effectively pitted Boyle along with Yochai Benkler, against a team of newspaper industry lawyers. The full transcript (pdf) is entertaining at parts, as the industry lawyers admit that copyright law today is not the problem, but they still all seem to see it as the solution. But they all keep making questionable assumptions or downright bizarre statements. For example, the AP's Laura Malone seems to think that people won't click through to AP stories, because the AP reporters are so good that they explain all that's needed in the first paragraph and the headline:

    What we're talking about is news-aggregation sites where they take headline and lead, which can be, if it's a well-written lead and a well-written headline, the way they teach in "J" schools and the way most news organizations teach their reporters, that's the heart of the story, and the way people consume their news is to look at the top two or three things, read real quickly, move on to the next article. They're not going -- They're not clicking through -- To Ken's point, not clicking through to the original source to read the entire detailed 'graph 4, 'graph 5, 'graph 6. They've got what they need in the headline and the lead, which can be one or two 'graphs. And that is supplanting what's happening out there with people not going to "The New York Times" because they're reading it on Google News or they're not going to "The Washington Post" 'cause they're reading it aggregated somewhere else. And I think that there is a problem with that. We do need to be able to say that we, the content owners, we, the copyright owners, get to set the parameters by which people can republish our stuff.

But I read that, and all I think is that if someone copying your headline and your lead is enough to make people not click through, then it's your fault for not providing any more value in the rest of your article. Sure, the journalism schools teach you to put the who, what, where, when and why in the opening, but the fact that the AP is now admitting that the rest of the article is worthless is incredibly telling. It means that the AP isn't doing a very good job. If the AP reporters provided real insight and analysis in the rest of their articles, then maybe people would click through. The problem here isn't that people are copying the opening of an article in an aggregator -- it's that the AP itself is failing to give people any reason to click through. They're failing to provide the insight and value that will draw people in. Don't blame the aggregators for that. Improve your reporting skills.

The discussion itself goes along the usual path, starting with copyright in general, moving on to fair use, then to the issue of aggregation, and then jumps to hot news. From there, it begins to get scary again, as the newspaper lawyers (with a slight exception of the guy from the NY Times) start talking about the need to create a permission-based reporting system, whereby anyone should have to get permission to link to a story. News Corps' Jim Marcovitz summarized it thusly:

    It's only opt-out now because there's nothing that says to someone that you have to abide by these instructions, and I think you have to shift that paradigm to one that is permission-based as opposed to opt-out-based.

Benkler then demolishes this point by highlighting how ridiculous this concept would be, and how much damage it would do:

    This beguiling idea of permissions everywhere -- permissions for whom? When a "New York Times" reporter who knows Spanish reads three newspapers from Chile and puts together insight about what is going on in the earthquake and how people think -- permissions? When any reporter sits, combines what they hear with seven other reports they've listened to -- permissions? You want to live in a permissions system that facts are permitted? It is -- that is exactly the point about the fact-expression dichotomy. We exist in a world where facts are, as Justice Brandeis put it, in the same case.... Facts, as Louis Brandeis said, should be free as the air to common use. We do not have a permissions system for breathing.

From there, Malone (from the AP) pulls out the old argument that basically says (paraphrasing a bit, but not much), "but if we don't get to protect our content, we have no business model and reporting disappears," to which Boyle effectively responds by pointing out that technology and markets evolve:

    One thing that I like to do is just reflect how wrong I have been about my confident projections about technology and war in the past, because I find it a useful corrective. Like, if someone told me in 1990, like, "What would the model be for putting together an encyclopedia?" You know, one person has this sort of Encyclopaedia Britannica model, lots of copyright, lots of trademarks, highly paid editors, whatever, and another guy goes, "I'll have, like, a website, and people can, like, put stuff up," I wouldn't have thought that the latter was a workable business model. I would have been wrong. I wouldn't have thought that Linux open source was a viable generation model. I would have been wrong. And I think that the key here is permissions-based, and I would separate James and Ken's different solutions slightly. At the beginning of the Net, it was an open question whether linking would be permissions-based or not. Right? Beginning of the Web, I should say, not the Net. There were people who thought, wrongly, I think, under American law, but who thought that there ought to be permissions every time there was any link to anyone. And you still have people, mainly school districts, who write to you, saying, "May I link to your website?" Right?...

    But, anyway, at the beginning of the Internet, if we had been debating in this room, "Hey, there's this new world wide web thingy, right? So, should we be permissions-based, or should we be kind of opt-out, right? Opt-in or opt-out?" We could have come up with great reasons why everyone should have permission. And it's like, "It's not that hard. You just have to write to the person and get permission to link. It's not that hard. You know, if you want to create a mash-up on Google Maps, you know, you just have to write to all the data sources that you're gonna get, all million of them, and, you know, just get permission. It's not that hard." And all that would have prevented is the world wide web, right? But, of course, the people in this room wouldn't have cared because they didn't know what the world wide web was and couldn't have imagined either its horrific site -- child porn, piracy, which appears more often than child porn. That's one of its horrific sides. Child porn, you know, spam, strangely articulate Nigerian oil ministers who happen to write to me personally. Okay, so there's all the bad stuff, but there's also this amazing world that is being built, and the point is we would have got it wrong, dramatically wrong, if we'd gone permissions-based, okay? Now, the good thing that we would have foregone, we wouldn't have cared about because we couldn't have imagined it, right? This, for me, suggests humility as the guiding principle of intervention. Right? And so major changes, like going permissions-based -- I would say -- I just think that that's -- that is going to be so wrong in so many cases with such tragic results that I would really push against it.


The real point comes out a bit later in the discussion, as Boyle highlights what this is really all about: it's about one industry trying to use laws to prevent competition:

    But, you know, there really is -- the sort of Boyle's Law of Technology government regulation is that there's a pervasive problem which is mistaking the current parties who deliver a particularly useful social service or the social service itself. Right? You know, the people who -- who sold whale oil -- whale oil for lamps -- you know, could well have come to Congress and say, "Illumination for reading is a valuable thing. These newfangled electric light companies need to be put out of business," and that would have been the wrong move. I think that the "hot news" doctrine has real negative consequences. Right now it operates as a kind of insider's club. Much of what is done by newspapers with each other is actually problematic under existing "hot news" doctrine but would never for a moment be considered litigant....

And that really is the key point in all of this. The newspapers think that "the news" originates with them, and they want to make sure that no one else can re-report the facts they're reporting, as if they own them. But they're going to discover quickly that the news does not originate with them, and quite often will originate with other parties -- parties who might not want the AP or the NY Times to report that news. And then the newspapers and their lawyers who pushed so hard for this hot news doctrine will be in serious trouble -- perhaps even more trouble than they are in today.

So the newspapers are going to keep pushing for new protectionist laws that are not about saving reporting at all. They're about saving their existing infrastructure and their existing companies -- because that's all they know. But they don't recognize the unintended consequences of all this, and how much harm it will do to reporting itself -- including their own reporting. And they'll discover soon enough that when an upstart reports on something, and suddenly the NY Times or the AP or News Corp. can't report on the same thing themselves, that perhaps they made a pretty big mistake.
“The Constitution is not an instrument for the government to restrain the people,
it's an instrument for the people to restrain the government.” – Patrick Henry

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Offline Optimus

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The Troubling Implications Of Recognizing 'Hot News' As Property
from the you-can-copyright-facts? dept
http://www.techdirt.com/articles/20090225/0321273898.shtml

A bunch of sites have been discussing the Associated Press's lawsuit against All Headline News, but I wanted to spend some time reading up on the case before commenting -- and the more I read, the more troubling it became. A standard tenet of copyright law is that "you can't copyright facts." However, it appears there are some exceptions to that, in practice -- which is the basis of the AP's lawsuit. Specifically, the AP is reaching back to some rulings from nearly 100 years ago, noting that "hot news" can be treated as property. Now, technically, this is outside of copyright -- but for all intents and purposes, it effectively creates a copyright on "hot news" using an amazingly broad five factor test:

   1. a plaintiff generates or gathers information at a cost;
   2. the information is time-sensitive;
   3. a defendant's use of the information constitutes free riding on the plaintiff's efforts;
   4. the defendant is in direct competition with a product or service offered by the plaintiffs;
   5. the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

In practice, that would effectively rule out any reporting based on a scoop by another news organization. That's obviously a ridiculous outcome -- but if the courts continue to recognize a "hot news" right, then that could be where things lead. And, given the AP's recent attempts to push to control as much of its content as possible, don't think for a second that it wouldn't look to use this rule even more broadly. The eventual implications of more widespread use of "hot news" rights could be massively damaging, especially in an age where news is spread through online sources, with lots of folks spreading the news themselves. For example, imagine seeing a breaking story over the AP wire and mentioning it on Twitter. That fourth prong would have to be proven (are you in direct competition? it might depend on who you are...), but think of all the ridiculous lawsuits that would result.

The "hot news" exception is only recognized in a few states -- but one of them is New York, where the AP filed this lawsuit. One would hope that courts would eventually recognize that such a right would violate the concept of copyrighting of facts not being constitutional, but we may be in for a long series of legal fights before that's actually decided.
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Offline Optimus

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Hot News Is Back: Court Blocks Website From Reporting The News
from the first-amendment? dept
http://www.techdirt.com/articles/20100319/1214338635.shtml

In the last few years, there's been a push by some companies to bring back the immensely troubling "hot news doctrine," that appears to violate everything we know about the First Amendment and copyright law. Basically, the "hot news doctrine" says that if someone reports on a story, others are not allowed to report on their reporting for some period of time -- on the theory that it somehow undermines the incentive to do that original reporting. Last year, we wrote about the very troubling implications of allowing the hot news concept to stand. Beyond the free speech implications, it also has the troubling quality of effectively creating a copyright on facts -- which are quite clearly not covered by copyright. On top of that, it's not necessary in the slightest. As anyone who is actually in the online news business knows, getting a scoop gets you traffic -- even if others report the same thing minutes later. Being first gets you the attention. You don't need to artificially block others from reporting the news.

Unfortunately, with various publications struggling, some have picked up on the hot news doctrine as a way to somehow block competition. Tragically, it looks like a court has now adopted the hot news doctrine in one case. Paul Alan Levy alerts us to the news that a judge issuing an injunction against TheFlyOnTheWall.com, a website that would publish summaries of Wall Street research. The Wall Street firms said this undermined their business model -- and the court agreed. It passed an injunction saying that TheFlyOnTheWall had to hold off publishing any news about any Wall Street research report until either 10am (if the report is released early in the morning) or for two hours after it's released if it comes out during the day.

These totally arbitrary restrictions are highly troubling from a free speech standpoint and seem effectively random. This seems like yet another case of a company being upset by interference with its business model, which should be a reason to change the business model -- not run to the courts.

But what's most troubling of all is that now all the publishers who have been salivating over the hot news doctrine have a legal ruling to point to. Can you imagine how the world would work if you couldn't blog about or mention a particular piece of news for a few hours because the Associated Press got to it first? It's hard to see how this could possibly stand up to a First Amendment analysis, and it's quite troubling that the judge found the way she did.
“The Constitution is not an instrument for the government to restrain the people,
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Offline larsonstdoc

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  Nice work Route. Your title pretty much says it all. 
I'M A DEPLORABLE KNUCKLEHEAD THAT SUPPORTS PRESIDENT TRUMP.  MAY GOD BLESS HIM AND KEEP HIM SAFE.

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This is very, very important and will have consequences for all infowarriors

Offline donnay

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As someone who used be in the biz and is a first amendment advocate, the hot news doctrine is totally unconstitutional.  We always joked that "AP" stood for "Applied Propaganda" and I think that title would apply today. 

I agree with the first articles key point:  "The newspapers think that "the news" originates with them, and they want to make sure that no one else can re-report the facts they're reporting, as if they own them. But they're going to discover quickly that the news does not originate with them, and quite often will originate with other parties -- parties who might not want the AP or the NY Times to report that news. And then the newspapers and their lawyers who pushed so hard for this hot news doctrine will be in serious trouble -- perhaps even more trouble than they are in today."

It will definitely come back and bite them on the ass, if they choose to press this issue. [pun intended]

And, of course, good journalists can also work around such draconian measures if need be--  Telegraph, telephone--tell-a-woman!   ;D
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Offline jofortruth

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Isn't it amazing how the ELITE always blame their problems on OTHERS.

The reason they are losing viewers, ads, supporters is because THEY LIE TO THE PUBLIC!  Grow up and start telling us the truth, and you wouldn't have a problem boyz!  Is that too hard to understand?    ::)
Don't believe me. Look it up yourself!

Offline chris jones

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THANKS..Good post, these lackeys pushing this are backed!!
The truth is the last thing they want in print!!!
Keep the masses in a dark closet and feed them shiite..

Offline llucbinhtim

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Nice work!!!
Thanks so much.