CORRECTION: 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.

Maury 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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Comments (9)

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What a great topic....
written by David Allan, August 04, 2009

Maury, although you point out never bite the hand that feeds (and I will retweet this link). I have to wonder, is it fair that for instance, mlbtraderumors.com for instance is built entirely on the republishing the knowledge that others have worked so hard to obtain.

How am I going to justify paying for an insider package to for instance ESPN, if I can go there and get the information for free? That has to stick it to companies bottom lines in the long run more than "biting the hand that feeds." So to speak...then again maybe the exposure is worth it.

As someone that has found my stuff in some of the oddest places on the internet being used as content I have to ask, should a guy with a better set up to rank higher on google than me be able to use half my story to generate a page hit? Even if he is only printing part of my story? They searched a topic that ultimately brought them to what I wrote, and as tough as the new media market is to generate money in should I have to share revenue generated by a particular story with someone that did little but link to the story?

Seems wrong to me.

David

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AP aggregating
written by James daSilva, August 04, 2009

As far as the AP goes, when its member newspapers use AP content, it's part of a paid, and very expensive, deal. In return, the AP gets to use member papers' content and doesn't have to spend the money, online and print, on hosting its own content.
So it's definitely not the same as the aggregator issue, regardless of how one feels about the latter.
If there are revenue-sharing or licensing deals in place, then yes, aggregators can claim hypocrisy. And aggregating may be able to be defended on its own merits.
But the AP-newspapers deal is not a sound comparison, as the aggregators discussed do not have revenue-sharing, licensing or any other contractual deals with the producers they are linking (or not linking) to.

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The AP
written by Maury Brown, August 04, 2009

Thanks very much on this, James. Always understood that member papers had the right to run AP content, but did not know that as part of the agreement, AP has the right to use member content, as well. Heck of a deal for The AP.

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...
written by Alex A, August 04, 2009

To David Allan - I think the key point in whether aggregators deserve revenue is whether they are contributing any value to the content creator. I would argue that in the case of mlbtraderumors.com they are. There are two keys to success in new media - obviously good content is piece 1, but discovery of that content is piece 2 (hence the Empire of Google). In the old days you subscribed to your hard copy news sources, they showed up on your doorstep, and that is how you found your content. With the internet the options for content are almost limitless, but it's like trying to find a tree in a forest. Hence, if an aggregator a*sists in the discovery of your content this can directly lead to more revenue to you, and they are adding value, in some cases very significant value.

Could I google every mlb player who might be the subject of trade rumors? Yes, but I won't. I will, however, go to mlbtraderumors.com, scan to see if there is a story of interest to me, then click through to that story. In most cases these are stories I would not have taken the trouble to find. The original publisher may be sharing the value of my impression with the aggregator, but it is an impression they would not have gotten without the aggregator.

When an aggregator adds no value to the original content creator (ie, no linkback, republishing so much of the piece there is no incentive to click through to the original, no facilitation of revenue opportunity for the original content source) I think gaining revenue from aggregation becomes unfair.

Full disclosure: I work for an aggregator. However these opinions are my own, and I have been using mlbtraderumors.com and other niche aggregators to discover content I would not have otherwise found and read for far longer than I have been in the aggregation business.

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"Gist" a clever way of saying "facts"
written by MichaelC, August 04, 2009

Three points I hope the AP one day understands:

1. "Aggregators" drive traffic to AP partner websites.

Independent web site owners spend incredible amounts of time and money to try and drive traffic to their sites this way - but the AP wants to stop this traffic from going to their partners' sites? It sounds either badly misinformed or a desperate grab for a new form of "licensing," i.e., money.

In specific, griping about Google News seems like cutting off one's nose to spite one's face. (If taken to the AP's desired extreme, it may end up being more like decapitation.) It makes the AP Board look like old-time newspapermen who don't understand that newfangled Internet thing.

2. You can't copyright facts.

Sorry AP, but calling it a "gist" doesn't make the argument any more intelligent. If you report that someone has been arrested, I don't have to go down to the police station and dig up the arrest report myself to be able to comment on it. (And going back to point #1, you're lucky if I link to one of your partners on that.)

3. Bloggers are actually end users. And as the RIAA has demonstrated, attempting to harm your end users doesn't go so well.

The AP seems to believe in the music-industry ideal, which is that there should be a license that everyone, no matter how small (and reading the above article, specifically those too small to "do their own reporting") can buy so that the AP is "properly" (that is, more highly) compensated for its work.

And like the RIAA, they seem to be picking their fights with the little guys, hoping fear will keep everyone else in line.

As always, there are people who go too far, but as usual, it's a minority and the AP doesn't need to publicly posture in order to do something about that. No, the bottom line to me is that this is a desperate money grab disguised as righteous indignation.

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To Alex...
written by David Allan, August 04, 2009

Alex,

You do make an excellent point on the value add of the aggregators in question. I put mlbtraderumors.com out there because I do in fact use it.

There are better examples of groups that add little or nothing and thus are using the content of the internet to drive their own revenue.

Next time I'll choose more a carefully my example.

David

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Craig Calcaterra - THT/Shysterball
written by Maury Brown, August 04, 2009

Craig Calcaterra discusses the ethics of proper blogging in this Hardball Times/Shysterball column:

You double-cross once - where’s it all end? An interesting ethical question

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Train's already left the station
written by DKMB, August 05, 2009

Sorry to say as someone who worked from the mid 90s to 2000 within the newspaper industry trying to get them to embrace the digital platform, the train has already left the station.

This is exactly the strategic conversation we we're trying to have with industry mucky-mucks who couldn't care less at the time. It was obvious where a "everything's free" online POV was going.

Moreover, everything is fair use now lawsuits or no lawsuits (see how well that route worked for what was the recording industry).

The bigger question is what are the new business models (there's no one single bullet) for content developers (news & entertainment co's), what kind and size of business will it be, AND most importantly, what happens to the traditional role of the 4th Estate in our democracy? Who will fund the investigative city hall reporter or the baseball team beat reporter? Is it a sustainable business model? Does it become citizen journalism with news curators (formerly known as editors)?

The ugly truth is that newspapers we're sold and read for comics and puzzles (check industry studies). Advertising in the form of cla*sified advertising and to a lesser extent display ads, subsidized reporting at all levels (national, local, sports). And a small minority or people consumed that content (older, higher income, highly educated audience). That ad revenue is gone and it ain't coming back.

So it's nice to think about fair use issues but it's moot at this point. The discussion's about 15 years too late and most traditional newspaper media companies will be gone or extremely smaller versions of themselves (Boston Globe, Chicago Trib). I'm not happy about it at all and frankly am very frightened by the prospect.

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...
written by PaperBoyz, August 05, 2009

First, AP not a business with a "good deal" to re-use subscribers' content; AP is a co-operative OWNED by its subscribers, who share all its costs on a scaled basis (bigger operations pay more).
The members use AP as a clearinghouse and distribution system for all member content. It's actually a hell of a good system.
Members upload content they think is of use to a broader national/international audience; AP makes editorial decisions about what to distribute, edits it to meet certain rules of style, and disseminates it on its wire to be downloaded by members. AP also has its own reporters on certain important beats.
On to "fair use": I am not a copyright lawyer, but I bet content originators are going to have an easy time winning cases against bloggers and aggregators, because the latter’s claims of “fair use” don’t seem to be aligned with the meaning of the term (at least as I understand it).
The main point of fair use is to allow subsequent comment on the work created. The most obvious example is quoting brief pa*sages from a work for to offer criticism. Thus I could quote the original text’s many uses of “reference” (as a verb) and “referencing” to argue that the text itself is not well-crafted, and I would be engaging in “fair use” of the original text. But I couldn’t simply cut-and-paste a block of quoted text (however small) on my own site, link to the originator, and call it “fair use.”
Some of the comments in the piece referred to the idea that it might be “fair use” to quote a swath of text and then comment on the issues raised (the Daily Kos model), and not on the craftsmanship of the content. I think it’s OK to quote analytical content or commentary in order to argue with it, but I’m not so sure aggregating content meets that test.
Nor does it meet another test of “fair use”: whether the re-use of copyrighted content is “transformed,” as it is when a second user criticizes the work, or satirizes or parodies it, thereby creating substantially new content. I wouldn’t want to argue that aggregating content really transforms it in the way anticipated by fair use restrictions.

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