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The Battle Over Content Fair Use Places "Aggregators" in the Crosshairs PDF Print E-mail
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Written by Maury Brown   
Tuesday, 04 August 2009 03:27

The Biz of Baseball - ExclusiveCORRECTION: Within the article, Bart Hubbuch of the New York Post referenced ESPN's Buster Olney as someone that he believes links "properly." The article then went on to reference an article/video piece with Olney that has references to the Washington Post without linking back.

Olney contacted me to say that he only was involved in the video piece, and the cooresponding article is an ESPN news service piece, based largely on what Pedro Gomez reported and augmented by the info from the Washington Post.

The article has been corrected to reflect this.


If you follow sports on the web, you most likely read ESPN, or SI, or The New York Times. And just as likely as you are to read those traditional media outlets, you might be just as likely to make Baseball Think Factory, MLB Trade Rumors, or MetsBlog your daily stop.

 

Both types of sites are exceptionally popular.

Both, for the most part, are very different.

The new media sites mentioned have been called by some as "aggregators", sites that sweep the web, find the best stories for their given audience, and either copy and paste a paragraph or two of article with a link back, or describe the gist of the article in total and link back.

The value of these sites is that they make it easy to go to a single location and get information from a broad range of sites and then engage in commentary with others in a blog format.

For some that write for the larger traditional sites that get linked to – at least for some of the writers – aggregators are stealing content.

What is Fair Use?

At the heart of the debate is what is deemed as fair use of content. At its extreme, if you copy>paste an entire article in a blog, and don’t link back, it’s a clear sign of copyright infringement. But, from there, it becomes a case of interpretation.

For example, if an article is three paragraphs long, and a blog lifts two paragraphs, you can make a solid case that it does not fall within the “fair use” boundaries. But, what if the article is 5 or 6 paragraphs, the blogger lifts two paragraphs, and then writes a lengthy commentary around what was pulled and links back? What then? At that point, you have what has been considered traditional blogging since, well… blogging pretty much began.

But, there are a writers that see that method as over-stepping the boundaries. The argument goes, if the entire gist of the article is republished, why would anyone feel the need to actually click to the originating content?

This past Sunday, Ian Shapira of the Washington Post bemoaned the aggregating of content in an article entitled, The Death of Journalism (Gawker Edition). That caught the eye of Bart Hubbuch, the Mets beat writer of the New York Post, who said on Twitter that if you replaced “Gawker” with “metsblog.com” you’ll know exactly how Mets beat writers feel. As Hubbuch continued, “Beat writers object when aggregators cut and paste large sections and quotes from stories.”

Aggregators as Bloggers and Traditional Media Outlets

Hubbuch made a clear point that he views aggregators as different from bloggers, saying, “I have no objections whatsoever to bloggers who do their own work.”

The problem is, the lines can get particularly gray in this regard.

A good example is the SportsBusiness Daily, an extension of the SportsBusiness Journal, who is owned by American City Business Journals. The site is considered an electronic trade magazine, and is rarely, if ever, called a blog or aggregator. The SBD, is a subscription based site, that not only reports on news from other outlets, it provides an extensive amount of information researched and reported from the SportsBusiness Journal staff. They are considered the premiere sports business media outlet. As mentioned, they are a subscription based outlet. As an example, a single user, six month (26 weeks) rate is $700. (see an example of a page from the SportsBusiness Daily – PDF).

Yet, when I asked Hubbuch if he sees the SportsBusiness Daily as being guilty of aggregating content, he said, “Yes it is, in my opinion. Especially with how much the [SportsBusiness Journal] charges for that. I wonder how many publications are aware of SBD…” adding, “…and how freely they cut and paste. I see SBD, and there isn't even that many links in there.”

What About Referencing Without Linking In Mainstream Articles?

Pressed for what Hubbuch sees as the proper method for linking back to content, he cited Buster Olney’s blogging technique of a “one-sentence tease” with a link as being “spot on” – fair use.

However, a search of ESPN brought up this video/article on the Nationals and efforts to sign Stephen Strasburg.

Olney is only within the video, and did not contribute to the corresponding article. It is published as an ESPN News Service piece by Pedro Gomez. The total length of the article is six paragraphs tied to a video clip. Of the six paragraphs, three contain details with the reference, “according to the Washington Post.” There is no link to the Washington Post, simply the citation. Is this fair use? It is unknown whether ESPN has any agreements with the Washington Post, but if not, it points to another instance of how content is republished across media outlets.

That aside, referencing other news sources does occur in mainstream media, through lucrative content agreements. An example of this can be seen in this The Associated Press article from Monday in regards to The Boston Globe story on two security staffers with the Red Sox being fired after being linked to steroid use. The AP agreements allow not only licensed outlets to publish AP stories, but The AP has the right to reference the content of those that license content of The AP.

Fair Use Will Move Beyond Just Opinion

The issue of fair use of content is moving out of the sphere of personal opinion between those that provide original content, and those that aggregate that news. In June of 2008, a blogger was sued by The AP over six disputed blog entries, one of which had “18 words from the story and a 32-word quote by Hillary Clinton.”

The Associated Press Board of Directors voted this past March that “it would launch an industry initiative to protect news content from misappropriation online.”

In a statement at the time, AP Chairman Dean Singleton said the news cooperative would work with portals and other partners who properly license content – and would pursue legal and legislative actions against those who don‘t.
“We can no longer stand by and watch others walk off with our work under misguided legal theories,“ Singleton said at the AP annual meeting, in San Diego. As part of the initiative, AP will develop a system to track content distributed online to determine if it is being legally used.

Standards For Fair Use Sets Up a Likely Court Challenge

While The AP seems to be drawing a clear line in the sand, other media outlets have yet to follow suit, although it may be simply a matter of time. Legal challenges seem a near certainty as the statements give way to practice.

As mentioned, one of the aggregators Hubbuch takes issue with is Matthew Cerrone’s MetsBlog.com, one of, if not the most popular Mets outlets on the web. As Cerrone was pulled into the Twitter conversation on fair use, he said in one Tweet, “WFAN just cited a newspaper report on air. I tried to click the link, but it was radio, so I guess I can't read the original report.”

While comedic, it begs the question: What news can be re-reported without crossing the “copyright infringement line?” It’s an extreme example but will Re-Tweets on Twitter become simply aggregating? If content is going to be policed, then there will need to be standards by which all will be held, a difficult legal matter that is bound to touch on copyright use.

Finally, One Might Consider the Following...

The newspaper industry has seen collapse after collapse due to waning revenues as news becomes readily available across multiple platforms. With newspaper website ad revenues becoming critical to their bottom line, playing hardball with aggregators could present a case of the aggregators finding less stringent sources to follow, which in turn lowers page views to stories once linked to, which, in turn lowers critical revenues, which, in the end, could lead to more layoffs and shutdowns in the print industry. While aggregating content may rub some writers raw, they are, in many ways, supplementing their paychecks. There needs to be a proper line between fair use, and cutting the flow of revenues off at the spigot by cutting aggregators off entirely. I'm reminded of the old saying... Don’t bite the hand that feeds.

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If you follow sports on the web, you most likely read ESPN, or SI, or The New York Times. And just as likely as you read those traditional media outlets, you might be just as likely to make Baseball Think Factory, MLB Trade Rumors, or MetsBlog your daily stop.

Both types of sites are exceptionally. Both, for the most part, are very different.

The new media sites mentioned have been called by some as aggregators, sites that sweep the web, find the best stories for their given audience, and either copy and paste a paragraph or two of article with a link back, or describe the gist of the article in total and link back.

The value of these sites, is that they make it easy to go to a single location and get information from a broad range of sites and then engage in commentary with others in a blog format.

For some that write for the larger traditional sites that get linked to – at least for some of the writers – is that they view aggregators as stealing content.

What is Fair Use?

At the heart of the debate is what is deemed as fair use of content. At its extreme, if you copy>paste an entire article in a blog, and don’t link back, it’s a clear sign of copyright infringement. But, from there, it becomes a case of interpretation.

For example, if an article is three paragraphs long, and a blog lifts two paragraphs, you can make a solid case that it does not fall within the “fair use” boundaries. But, what if the article is 5 or 6 paragraphs, the blogger lifts two paragraphs, and then writes a lengthy commentary around what was pulled? What then? At that point, you have what has been considered traditional blogging since, well… blogging pretty much began.

But, there are a writers that see that method as over-stepping the boundaries. If the entire gist of the article is republished, why would anyone feel the need to actually click to the originating content?

This past Sunday, Ian Shapira of the Washington Post bemoaned the aggregating of content in an article entitled, The Death of Journalism (Gawker Edition). That caught the eye of Bart Hubbuch, the Mets beat writer of the New York Post, who said on Twitter that if you replaced “Gawker” with “metsblog.com” you’ll know exactly how Mets beat writers feel. As Hubbuch continued,Beat writers object when aggregators cut and paste large sections and quotes from stories.”

Aggregators as Bloggers and Traditional Media Outlets

Hubbuch made a clear point that he views aggregators as different from bloggers, saying, “I have no objections whatsoever to bloggers who do their own work.”

The problem is, the lines can get particularly gray in this regard.

A good example is the SportsBusiness Daily, an extension of the SportsBusiness Journal, who is owned by American City Business Journals. The site is considered an electronic trade magazine, and is rarely, if ever, called a blog or aggregator. The SBD, is a subscription based site. As an example, a single user, six month (26 weeks) rate is $700. (see an example of a page from the SportsBusiness Daily – PDF).

Yet, when I asked Hubbuch if he sees the SportsBusiness Daily as being guilty of aggregator of content, he said, “Yes it is, in my opinion. Especially with how much the [SportsBusiness Journal] charges for that. I wonder how many publications are aware of SBD…” adding, “…and how freely they cut and paste. I see SBD, and there isn't even that many links in there.”

What About Referencing Without Linking In Mainstream Articles?

Pressed for what Hubbuch sees as the proper method for linking back to content, he cited Buster Olney’s blogging technique of a “one-sentence tease” with a link as being “spot on.” – fair use.

However, a search of ESPN brought up this article by Olney on the Nationals and efforts to sign Stephen Strasburg.

The total length of the article is six paragraphs tied to a video clip. Of the six paragraphs, three contain details with the reference, “according to the Washington Post.” There is no link to the Washington Post, simply the citation. Is this fair use? Without placing words in Hubbuch’s mouth, the difference may be that Olney’s referencing of the Washington Post story is a rare exception, not the rule. Olney is considered one of the best in the baseball business for breaking news. He’s hardly an “aggregator”.

But, the point being made here is it’s difficult to say that it’s unacceptable for a new media outlet to aggregate news, when traditional news sources do it almost daily. A quick search finds that gold standard news organizations such as The Associated Press did so on Monday in regards to The Boston Globe story on two security staffers with the Red Sox being fired after being linked to steroid use.

Fair Use Will Move Beyond Just Opinion

The issue of fair use of content is moving out of the sphere of personal opinion between those that provide original content, and those that aggregate that news. In June of 2008, a blogger was sued by The AP over six disputed blog entries, one of which had “18 words from the story and a 32-word quote by Hillary Clinton.”

The Associated Press Board of Directors voted this past March that “it would launch an industry initiative to protect news content from misappropriation online.”

In a statement at the time, AP Chairman Dean Singleton said the news cooperative would work with portals and other partners who properly license content – and would pursue legal and legislative actions against those who don‘t.
“We can no longer stand by and watch others walk off with our work under misguided legal theories,“ Singleton said at the AP annual meeting, in San Diego.
As part of the initiative, AP will develop a system to track content distributed online to determine if it is being legally used.

Standards For Fair Use Make a Likely Court Challenge

While The AP seems to be drawing a clear line in the sand, other media outlets have yet to follow suit, although it may be simply a matter of time. Legal challenges seem a near certainty.

As mentioned, one of the aggregators mentioned Hubbuch takes issue with is Matthew Cerrone’s MetsBlog.com, one of, if not the most popular Mets outlets on the web. As Cerrone was pulled into the Twitter conversation on fair use, he said in one Tweet, “WFAN just cited a newspaper report on air. I tried to click the link, but it was radio, so I guess I can't read the original report.”

While comedic, it begs the question: What news can be re-reported without crossing the “copyright infringement line?” It’s an extreme example but will Re-Tweets on Twitter become simply aggregating? If content is going to be policed, then there will need to be standards by which all will be held, a difficult legal matter that is bound to touch on copyright use.

Finally, One Might Consider the Following…

The newspaper industry has seen collapse after collapse due to waning revenues as news becomes readily available across multiple platforms. With newspaper website ad revenues becoming critical to their bottom line, playing hardball with aggregators could present a case of the aggregators finding less stringent sources to follow, which in turn lowers page views to stories once linked to, which, in turn lowers critical revenues, which, in the end, could lead to more layoffs and shutdowns in the print industry. While aggregating content may rub some writers raw, they are, in many ways, supplementing their paychecks. There needs to be a proper line between fair use, and cutting the flow of revenues off at the spigot. As they say, don’t bite the hand that feeds.


Maury BrownMaury Brown is the Founder and President of the Business of Sports Network, which includes The Biz of Baseball, The Biz of Football, The Biz of Basketball and The Biz of Hockey. He is contributor to Baseball Prospectus, and is available as a freelance writer. Brown's full bio is here. He looks forward to your comments via email and can be contacted through the Business of Sports Network (select his name in the dropdown provided).

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