Google Vs. NY Times: Who Owns Breaking News?

The most dangerous defensive tactic parried by legacy news organizations today is their attempt to claim ownership of “hot news” and prevent others from repeating what they gather at their expense for as long as they determine that news is still hot. It is a threat to free speech and the First Amendment and our doctrines of copyright and fair use. It is a threat to news.

The old companies – NY Times, Advance, Gannett, Belo, McClatchy, Scripps, AFP, AP, Washington Post, et al – are lining up against the new companies – Google and Twitter – on hot news as they file briefs in the TheFlyOnTheWall.com case. I’ve just read both briefs and will give you highlights in a moment.

Hot news also makes an ominous appearance in the Federal Trade Commission’s thinking about rescuing legacy news companies as it proposes a constitutionally abhorrent doctrine of “proprietary facts.” And hot news is a factor in the dissemination of Rolling Stone’s story about Gen. Stanley McChrystal, which the Times’ David Carr writes about today, scolding Time and Politico for reproducing the story because RS hadn’t (and because it was so hot).

Hot news refers to a 1918 case, INS v. AP, in which one wire service – barred from transmitting news from Britain in the war – rewrote the others’ news for its clients three time zones away. It was cited in the Fly case, in which brokers – Barclays, Merrill, Morgan Stanley, et al – complained that the web site repeated its analysts’ recommendations. Now news companies want to use hot news to restrict aggregators and others; Google and Twitter are trying to cut them off at the pass.

Hot news is ridiculously obsolete. What’s hot today? As Tom Glocer, head of Thomson Reuters, said, his news is most valuable for “miliseconds.” Hot news limitations should be repellant to journalists, even desperate ones, because every journalist builds on the facts revealed by others. It should further be repugnant to them as it constitutes a form of court-supervised prior restraint. Hot news restrictions would be suicidal to news organizations – even though they foolishly think it would protect them – because it would restrict everyone’s ability to spread the news via links and send journalists audience. Hot news should worry every citizen because the free flow of information is vital to a democracy.

The architecture of news and media – how it is gathered and shared – has changed utterly since 1918 … and 1998. That’s what makes the Rolling Stone story instructive. McChrystal’s quotes leaked and spread instantly, having significant and instant impact on news and the affairs of state. The fact of the quotes was hot news indeed. As I asked four days ago, under hot news, would the magazine have been able to prevent others from repeating these facts? Ridiculous, no? Because Rolling Stone did not publish its own story online and because it was so hot, Politico and Time published PDFs of it – even though Time is a party to the Fly brief – which Carr perhaps rightly scolds them for. But maybe he should also scold Rolling Stone for not recognizing the importance of its news and recognizing the opportunity in sharing it. Once Rolling Stone did put the story on the web, the other publications linked to it. The link economy works when given a chance. So does the First Amendment.

“Once facts are made public,” says the Google-Twitter brief, “they belong to the public.” Once McChrystal’s quotes were known, they were part of the democratic dialog. To restrict us – anyone – from repeating them is to steal from the public. (That is a key argument in my next book.) “The reporting of truthful information,” says the brief, “is one of the most protected forms of speech under the Constitution…” These parties aren’t just fighting about old and new media. They are fighting about the nature and value of the public sphere.

The two briefs illuminate the worldviews of the two camps all too clearly. The legacy companies’ brief argues that hot news is “necessary to protect the news industry’s incentive to gather and report news….” It complains about “free riders” who may repeat their news at lower cost. “One of the greatest concerns among news originators,” they say, “is inexpensive technology that allows easy aggregation of news.” The legacy companies nowhere even acknowledge the economic value of links to their news.

The news companies complain about newspapers going bankrupt, not acknowledging that fate came as the result of high debt and mismanagement. They even have the balls to whine that news is a “low-margin business under economic pressure” (though not long ago, it was a high-margin monopoly). They say they are not going after occasional use of others’ facts – since they all do it – but instead the “systematic” (read: computerized) gathering of their news. They do not acknowledge the tools – robots.txt – that allow them to cut off aggregators. It’s an intellectually disappointing, morally weaselly attempt to get anticompetitive aid from the courts while blithely ignoring the profound constitutional implications for news and the democracy.

The Google-Twitter brief issues many calls to the importance of free speech and news in a democracy that only a few years ago the news organizations would have been saluting. It cites a 1991 case, Feist Publications v. Rural Telephone Service, in which the court said that “[t]he first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.” Thus even competitors “remain free to use the facts contained in another’s publication to aid in preparing a competing work.” Says the brief: “Central to Feist is the rejection of the notion that ‘sweat of the brow’ can itself create intellectual property rights. ‘The primary objective of copyright is not to reward the labor of authors but to “promote the Progress of Science and useful Arts.”‘” Hot news, they argue, “attempts an end-run around the Copyright Clause.”

Google-Twitter remind the court that news organizations all use each others’ facts: TV stations repeat newspapers’ reporting without attribution and now newspapers do the same to TV. Indeed, the brief says Feist establishes that “the freedom to use facts – even to “free-ride” on facts gathered by others through great effort – is constitutionally protected. Friend Spencer Reiss just told me how he moved mountains to cover Nelson Mandela’s release from prison in time for a hard Newsweek deadline only to find that his editors in New York got what they needed from TV. That is our news ecosystem; it’s not new, only bigger and faster.

“In a world of modern communications technology,” the Google-Twitter brief says, “where anyone with a cell phone may disseminate news throughout the world even as it is occurring, the notion that a single media outlet should have a monopoly on time-sensitive facts is not only contrary to law, it is, as a practical matter, futile.” They worry that news organizations would pay sources not to cooperate with competitors and that judges would become “super-editors” determining the hot time period of, in their example, news about the Times Square bombing.

Worse, even the fear of litigation would “chill the lawful dissemination of important news by fostering uncertainty among news outlets as to how long they must ‘sit’ on a story before they are free of a potential ‘hot news’ claim.” During last week’s damaging storms in the New York area, I saw a Long Islander complain that by keeping its news behind a wall, Newsday was ill-serving the safety of its community. Says Google-Twitter: “Breaking news may involve a threat to public health or security, but the district court’s opinion, if affirmed, would stifle the dissemination of such crucial facts – a particularly dangerous outcome in circumstances where the time-sensitive nature of the event is the precise reason why the facts should be widely disseminated as quickly as possible.” If Newsday has a better forecast than a competitor, could it keep the fact of a warning of danger to itself?

In the U.S. and Europe, news organizations are trying to extend copyright and limit fair use but the Google-Twitter brief is eloquent in objection. “Under Feist, this Court has repeatedly confirmed that facts must remain in the public domain, free from any restraint or encumbrance.” It quotes another case: “[A]ll facts – scientific, historical biographical, and news of the day … may not be copyrighted and are part of the public domain available to every person.” Another: “[R]aw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.” Another: “[A]llowing the first publisher to prevent others from copying such information would defeat the objectives of copyright by impeding rather than advancing the progress of knowledge.” Do news organizations truly want to oppose the progress of knowledge?

Says the Google-Twitter brief: “The modern ubiquity of multiple news platforms renders ‘hot news’ misappropriation an anachronism, aimed at muzzling all but the most powerful media companies. In a world of citizen journalists and commentators, online news organizations, and broadcasters who compete 24 hours a day, news can no longer be contained for any meaningful amount of time.” This fight sn’t just about a few huge companies. This fight is about our rights.

Cross-posted at Buzzmachine.com

Jeff Jarvis blogs about media and news at Buzzmachine.com. The author of What Would Google Do? (HarperCollins 2009), Jarvis is associate professor and director of the interactive journalism program at ...read more

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