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July 08, 2010 09:40 PM UTC

Newspaper Legal Threat Coverage Roundup

  • 21 Comments
  • by: Colorado Pols

Some new media coverage of our disclosure yesterday of legal threats by various Colorado newspapers against this blog. As you might have expected, neither The Denver Post, nor the 15 other papers who signed on to their attorneys’ letter, saw fit to write about their actions–nothing either from Dean Singleton’s AP wire. For one explanation, see the quote at today’s open thread.

Meanwhile, everywhere else on the internets…

UPDATE: Westword’s Michael Roberts goes in-depth:

Colorado Pols’ Jason Bane responds, “We don’t need the Denver Post. Nobody does.”

…”There had been a gentleman’s understanding between the political desk at the Post that Colorado Pols would take no more than two paragraphs” from articles it was referencing, [MediaNews attorney Christopher] Beall says. “That had been the Post’s expectation and understanding. But at some point this year, it appeared to the Post that something had changed, and Colorado Pols had been going well beyond two paragraphs.”

Beall maintains that the Post and the other newspapers he represents weren’t seeing a page-view bump from Colorado Pols links…

Bane’s response upon hearing these statements is a mixture of surprise, amusement and exasperation. He says there was no “gentlemen’s agreement” of the sort Beall describes in regard to the amount of text Colorado Pols might use: “That’s the first I’ve heard of that,” he says…

Why the gap between the late May arrival of the letter and the July 7 item? Among other things, Bane says it took the Pols crew a while to find an attorney, Holland & Hart’s Ian O’Neill, who’d represent them pro bono. O’Neill recommended that Colorado Pols stop using the Post or any of the other newspapers as they worked toward developing a strategy — a decision that led to an unexpected discovery.

“We haven’t linked to the Post in six weeks and nobody even noticed,” he says. “Nobody mentioned it online. And that bears out what we’re saying. It’s not like the Denver Post is the only news outlet reporting that Dan Maes beat Scott McInnis at the state assembly. It’s not secret information.” [Pols emphasis]

We found one part of the Westword story particularly ridiculous:

Whatever the case, Beall says the letter had the desired effect, with Colorado Pols ceasing to use big chunks of articles from the papers he represents. He thought the matter was closed until yesterday, when the site published the item linked above in what he suspects was “some kind of fit of anger.”

We hardly find our response to be the result of “some kind of fit of anger.” But even if it was, what is the appropriate emotion when you receive a threatening legal letter? Elation? Sadness? Melancholy? Hey, thanks for sending us that threatening letter from your attorneys! That was really awesome! We were totally hoping that we would get a “cease and desist” letter!

Faster Times’ T.R. Donoghue writes:

You would think that the owners of these Colorado newspapers would realize that their position is untenable and that these petulant displays are going to have the opposite intended effect. But apparently they don’t have time to keep up with industry news so we’ll lay it all out there for them.  In 2007 The New York Times aborted its 2 year old experiment whereby premium content was walled off behind a pay site…

I don’t want newspapers to die out, I truly don’t. But that’s not because newspapers are themselves irreplaceable but rather because good journalism is irreplaceable. If The Denver Post goes out of business tomorrow news in Colorado will continue to be made and news in Colorado will continue to be reported. The same goes for every community and every newspaper in the country…

The quickest way to irrelevancy for any media outlet is to engage in the petulant games that these Colorado newspapers have. If The Denver Post wants to take its internet ball and go home no one will notice and no one will care. The Denver Post will only succeed in hastening its own demise.

Colin Heilbut of the World Editor’s Forum:

After having consulted with their own attorneys,  ColoradoPols has posted a detailed clever rebuttal to each of the claims made in the initial accusatory correspondence.  The site also provides a good explanation of why they think the actions of The Denver Post and the other papers are misguided from a business point of view.  In essence, the suggestion, implied by part of their response below, is that the newspapers are cutting off their nose to spite their face.

Over at TechDirt, Mike Masnick weighs in:

Just because the stories might not generate clicks (and ColoradoPols disputes this claim in its post) doesn’t mean that harm has been done at all. If the people who are reading ColoradoPols wouldn’t have read MediaNews’s own site (in this case, the site for The Denver Post) anyway, then there’s no harm. MediaNews seems to want to make the case that ColoradoPols is siphoning traffic away from its own sites, but fails to actually show that. The lawyers here seem to be confusing an important prong of the fair use test. They seem to be suggesting that the fourth prong means it’s only fair use if the use provides greater economic value for the original source. That’s not the test at all. The test is whether or not it harms the economic value of the original. A lack of positive benefit does not mean there is harm, even if the lawyers want to pretend that’s the case…

Either way, it seemed worthwhile to explore this “fair use” claim a bit deeper, so I went looking for details. From the C&D, you would believe that ColoradoPols was simply copying text from The Denver Post with nothing else. So I dug up an example. One of the examples cited involves this blog post from May, which quotes a section of this Denver Post article, but also adds an awful lot of commentary to the cited parts. Commentary, of course, is a key part of determining fair use.

On top of that, as someone who blogs in a similar manner, there are plenty of legitimate reasons for quoting large segments of text in order to provide commentary. Since publications like the AP and other newspapers often “disappear” their content, providing just a link is not very helpful to our readers, because those readers may go looking for the original content and find it gone. In fact, one of the reasons why we now quote the articles we comment on is because of regular complaints from readers who couldn’t find the original source of what we were talking about. In fact, ColoradoPols notes that Singleton has stated that he plans to wall off much of his content. And they give a pretty good assessment of how clueless that is…

Here’s the response from local blog Wash Park Prophet:

The claim of intellectual property rights in “hot news” and the claim of copyright violation despite fair use limitations on those rights are dubious, at best. The cease and desist letter is an abuse of the legal process. Copyright does not protect facts or ideas, it protects particular expressions of those facts and ideas. It also also limited “fair use” for purposes such as political discussion and criticism. And, mere links have generally been held not to constitute a use of any kind for copyright purposes. Some of the thin thread of case law behind the hot news doctrine can be found here. Don’t take my word on the shaky basis of the “hot news” doctrine, ask Google’s lawyers. Also, even under the alleged “hot news” doctrine, it isn’t at all obvious that Colorado Pols or other blogs would be violation of it.

Of course, if the papers want to keep their material limited access it is easy for them to do so. They can limit access to paid subscribers and some publications do. There is no need to resort to legal recourse to accomplish that end if they are serious about it.

Perhaps they think that bloggers are making big money by linking to newspaper stories, trust me. They aren’t.

Jon Bershad at Mediaite tries to see both sides of the issue:

A cursory look at the site shows that they do pass the Commentary Test (they don’t just republish wholesale, they quote, cite, and then add additional comment) and their legal arguments seem sound but this is such a tough argument. Print media is dying and the Internet is the main cause. Blogs quoting these sources is kind of like having your murderer kill you and steal and start wearing your clothes as well.

Regular Pols commentator and former Rocky Mountain News columnist Jason Salzman writes:

In its response, Pols claims that The Post never really tried to work things out-before dropping the legal bomb. That’s a shame for The Post, which needs web traffic and buzz from Pols, and for Pols’ readers, who won’t have the convenience of a quick click to a Post article. That’s an inconvenience that could add up because The Post is still the biggest journalism game in the state by far, reporting lots of political news that’s not found anywhere else.

How great would it have been if somehow, some way The Post (old media) and Pols (new media) could have announced today a deal to support each other. And maybe this could have served as a national model. Maybe such a deal could have been struck.

But instead, the battle lines are drawn, despite the “respect” that Pols rightfully has for “print newsrooms,” as acknoledged in its letter. As it is, Pols’ response could serve as a national model for how blogs will battle cranky old media, like The Post.

Athenae at First Draft:

Shut down the whole Internet tomorrow, and you’re not gonna have reporters being paid well and advertisers flocking back to the printed word and the clock turning back to 1972. I mean it, I’d like to see somebody try it. Just flip the switch, Al Gore, and give it a week or so, and maybe the Golden Age of Hard-Working American Copyboy will come back.

It’s not going to happen, because of a million things readers of this blog already know about all the gazillions of dollars that got flushed down the toilet of CEO vanity and shareholder entitlement and outright thievery…[t]he debt’s racked up, the stupid people are permanently in place in many levels of management, the principle that 17 percent profits mean you’re failing has been enshrined in Major Media Thought as an actual thing despite my best efforts…

Back in the day, and I’ve been out for five years now so I know that’s uphill both ways in the snow for some folks, we used to LIKE hearing and seeing our stories picked up other places. It meant we were having an impact. It meant people were interested in what we were saying and doing. It was a good thing.

Now, apparently, it’s a sign that an evil thing is loosed upon the earth, and only pissy letters from attorneys can stop its devouring of everything in its path.

Comments

21 thoughts on “Newspaper Legal Threat Coverage Roundup

  1. Even a few clicks is a plus rather than a minus. Print Post readers like me keep our subscriptions not because we can’t easily get news on line but because we’re addicted to print, to the ritual of the morning paper at the kitchen table.  We aren’t canceling because of chunks of articles we see here on ColPols but might (I think someone mentioned doing so already) if the Post pisses us off enough. So how is ColPols losing them anything beyond what they are losing, ColPols or no ColPols, due to changing habits and what is the upside of this puzzling crusade?

  2. Having received my share of dease and desist letters, I’ve learned that the ultimate cease and desist–and in business the only one that counts–comes from the market. MediaNews’s cease and desist letter-in-fact will ultimately backfire and contribute to a cease and desist order-in-practice from their customers.  

    Market forces may encourage the national trend toward print media conglomeration, resulting in quasi-bureaucracies like MediaNews. If each of the named newspapers affiliated under MediaNews (and its associates) were permitted to establish its own policies and agreements regarding story sharing and cooperation on the internet, I doubt they would all fall in lockstep with the Post.

    Some of the smaller market newspapers could reasonably conclude that crafting strategic agreements and/or policy positions encouraging sharing with ColoradoPols (for politics), and other outlets for sports, science, entertainment, local goings-on, and so on, would result in better service for their customers. It would also provide a viable survival strategy for these firms as they retool for the future.

    However, MediaNews’s overbearing, bureaucratic policy-minding, forced down the throats of its collective, runs contrary to the Media 2.0 information consumer realities.  Yet, they’re not alone. A cursory review of defunct and bankrupt companies from all information bearing industries will yield similar policy slants–provided the government didn’t bail them out. Therefore, unless MediaNews is striving to become too big to fail, its choices are evolve or die.  

    Continuing on the present course is a proven poor business model that will both hurt the Post’s reputation (what’s left of it), and ultimately force that change or die decision point, like it or not.  

    Despite its desire to increase profits and restrict its “product” to only paying customers, the Post and others of that ilk fail to understand what their consumers really want from them, and how to extract corporate value from that want.  As observed with Web 2.0’s fits and starts, Media 2.0 organizations that refuse to evolve and flatten their strategic policy-making processes will soon die out like the transient market noise they are.

    Until then, we suffer right along side the Post.  While I want to look away and not even acknowledge the Post’s and MediaNews’s buffoonery, it’s akin to driving past a major car accident.  Despite your humanity and compassion, you can’t help but watch the carnage.

    Observe. Orient. Decide. Act. …rinse and repeat

     

    1. the tragedy of the carnage is the slow demise of useful local and regional reporting. As noted yesterday, both the quality and quantity of TPTSNBN has declined to laughable proportions, and yet we need the deep reporting. And meanwhile their ridiculously inept site is a shining example of the great extent to which they just do not get it.

      Somebody yesterday suggested a Craigslist override to fund local reporting. Not sure how that can be made to work, but something must be done or the demise of journalism will enable the corporatist state to make a mockery of our liberty.  

    2. .

      Dean shoulda bought CoPols, instead of threatening it.  

      I put the value at $175,000.

      Then he coulda charged for the ability to post.  Looky-Lou’s free.  I estimate 300 folks would pay up to $16 per year for that privilege.  

      .

  3. Was a time when people were afraid of picking a fight with someone who buys ink by the barrel.  Singleton thinks that’s still true.  I wonder when he will learn that bits and bytes beat barrels of ink….

  4. “..”There had been a gentleman’s understanding between the political desk at the Post that Colorado Pols would take no more than two paragraphs” from articles it was referencing, [MediaNews attorney Christopher] Beall says. “That had been the Post’s expectation and understanding. But at some point this year, it appeared to the Post that something had changed, and Colorado Pols had been going well beyond two paragraphs.”

    This is quite odd.  Fair use is not an implied agreement doctrine.  Indeed, it exists in substantial part to lubricate non-consensual uses such as extended parodies and criticism, that would be a threat to free speech if fair use did not exist.

    A two paragraphs of quotes expectation is an extraordinarily weak legal argument.  There is no authority whatsoever for a bright line test.  Fair use is a mixed question of fact and law that is inherently not subject to bright line tests.

    In news reporting, the issue goes even deeper, because in simple factual reporting (e.g. election results and press release regurgitation), the reporting is itself simply copying of facts or someone else’s statements without meaningful elaboration of them by the newspaper itself.

    It would make far more sense for the paper to be arguing that the emerging law of hot news makes claims that didn’t seem viable in the past more relevant, than it does to think that some arbitrary length cutoff is meaningful legally.

    Length of quotation is relevant to fair use but not in such a cut and dry or direct way.

  5. The Post is foolish.  But if they go to a pay model, I hope they succeed, because the only way they could succeed is if they provide exceptional content, content much better than their current content.  

    If they are smart, they will go to the model Mark Cuban espoused: register a credit card and then charge pennies for each article read.  But judging from this attempted legal shakedown, they are not smart.

    In-depth political coverage shrank to almost nothing in the Post.  People wanted in-depth political coverage.  ColoPols filled the void left by the Post’s dumbing down.  So now they are shocked when their readers come here instead?  There is much more informative political analysis available on ColoPols. The Post’s abandonment of real journalism is the source of their troubles.  

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