Bloggers beware of unfair dealing | national Times
National Times, 8 February 2010 Bloggers beware of unfair dealing

Will scraping erode the future of news? It's about time, after all, to think about what will happen when the paywalls go up.

News Corp announced late last year that it would start charging online readers for access to its stories. "Good journalism is an expensive commodity," said company chairman and CEO Rupert Murdoch. Almost simultaneously, Google announced it would only allow five clicks through to news articles from its Google News site before a registration page would appear.

Fears about unauthorised copying ('scraping') of news which does cost money to produce led the Fair Syndication Consortium, a group of over 1500 publishers, to commission a study into how many news articles are illegally copied and served up to web users.

The study by Attributor found that over 75,000 articles had been scraped and served up on new pages, earning pirates money from advertising placed on the pages. This is scraping at its worst.

"As an industry we must strive to protect our content from those who contribute nothing to its creation and are happy to run on its coat tails," said APN News & Media Ltd chief executive Brendan Hopkins during last September's Pacific Area Newspaper Publishers' Association (PANPA) conference in Sydney.

"Our value is diminished by other media companies, both online and in print, with limited resources, who feed off our newspapers, [and] by those who take the ideas of the newspapers, rewrite our journalists' words to be miraculously their own words, and then put it on a blog or a broadcast piece and call that journalism."

Hopkins' words appear to be directed as much at bloggers as at the more egregious news thieves. After all, news bloggers 'scrape', too. But at least they add some editorial work to the material. Are they protected?

Under S 41 and S42 of Australia's Copyright Act 1968, 'fair dealing' allows for the use of copy for the purposes of review, criticism and the reporting of news. A sufficient acknowledgement of the work must be made.

But neither Hopkins nor Murdoch, who was interviewed by Sky News, which is 30 percent owned by News Ltd the Australian subsidiary of News Corp - in November, seem to place much faith in the law's ability to protect journalism producers. What will happen if an enterprising blogger with an apt turn of phrase starts to reword stuff that's otherwise visible only to those who pay?

After all, blog comments almost universally show that readers want to pay nothing for news.

If we focus on what Murdoch says he's going to do to improve economic performance, it seems he's thinking at least in part about using the law to protect the interests of his media companies. In the interview he said that he considers 'fair use' (the US equivalent of 'fair dealing') to be a "doctrine".

"There's a doctrine called 'fair use' which we believe could be challenged in the courts and bar it [excerpts of articles displayed by search engines? blogger bricolage?] altogether. But, it's OK. We're getting a lot of advertising revenue, so we'll take that slowly."

Automated display of story headlines and first paragraphs on a proprietary website has already proven problematic, with GateHouse Media in the US forcing The Boston Globe (owned by The New York Times) to stop scraping early last year.

Deep-linking is another matter, says GateHouse Media CEO Kirk Davis. "That takes a little bit of human effort." Davis was interviewed by Nieman Journalism Lab, a US-based journalism news site.

"In the spare time I had to follow public sentiment about this case," Davis said, "you'd see comments like, 'GateHouse is against linking.' You've got to be kidding me. What do you think, we're stupid? Of course we like linking and of course we support linking."

The New York Times has itself shown that bloggers' use of copyright material can be distasteful.

Maxwell Gillingham-Ryan at the Apartment Therapy website got notice in early 2009 from his hosting provider that The New York Times had written to them "and threatened them with a lawsuit if they don't shut us down and/or remove all the pictures we've blogged from them in 2009".

The website complied. "After four years of working with the NYTimes, loving them and linking to them often, thus driving lots of traffic, they've gotten dirty on us," wrote Gillingham-Ryan in a post.

"If they say no images at all, that's what it will be. We'll still blog them, it just won't be as pretty."

"We're looking carefully at this in terms of what's fair use and what's just outright plagiarism," says New York Times CTO of Digital Operations Marc Frons.

But how much scraping is too much?

"I think it's one of those things we have to deal with and we want to keep people honest and have people give credit where credit is due but not make their livings off the backs of our journalists and just copy what we do.

"There are standard percentages around usage and I think you have to look at these on a little bit of a case-by-case basis. If it's just some minor blogger in his garage that's taking a little too much content, or it's out of ignorance of the law, or ignorance of best practices, then probably just a gentle reminder or some sort of communication is enough.

"If it's a major site, whose business model is based around taking your content, [and] making it look like their content, then you have to really deal with that at some point."

"Copyright infringement lawsuits directed at bloggers and other online publishers seem to be on the rise," wrote Brian Stelter in The New York Times in March last year. "David Ardia, the director of the Citizen Media Law Project, said his colleagues kept track of 16 such suits in 2007. In 2004 and 2005, it monitored three such suits each year."

"Much of the Web works this way, skimming quotes and photos from other sources while trying to remain within the provisions of fair use," wrote Stelter. "It is a problem, but I don't think it's a reason why people subscribe or don't subscribe to individual news sites," says Frons, who will talk paywalls, iPads and monetisation with other global experts at the Media 2010 conference in Pyrmont, presented by Fairfax Digital, on 19 February.

Matthew da Silva is a freelance journalist