Last week someone from outside the news industry asked me how The Huffington Post could get away with its liberal excerpts. They’ve angered other publishers for sure, for copying full articles and for liberal excerpts and reposts, but haven’t been shut down yet. However the dispute between Gatehouse Media and the New York Times Co indicates there will be trouble ahead for them. The Huffington Post pulls twice the amount of material, taking the first two grafs, and in some cases will re-post much larger chunks of the content. They’re also trying to diversify by developing local sites, like their Chicago beta, just as the NYTCo was trying to go hyperlocal.
Take for example an article from yesterday about Matt Damon’s political views. It quotes 1330 characters from a Miami Herald article by Glenn Garvin, out of a total of 2000 characters of text on the page. This is common practice for the HuffPo. On their home page they also have a “quick read” feature that will show you a few hundred characters or so from articles published by other organizations. I could find a couple that went up to 430 characters, around twice what most of their peers are doing. That’s about twice the length that got the Times in trouble. That they call it “quick read” makes their intentions clear: giving you enough to read so that you don’t need to click through to the original content. Good for HuffPo, not so good for the source of the article. In some cases, when you click through, you get thin boilerplate over even more copious excerpting, as with the Damon article. Three clicks to the original content, each one showing you more of it.
What’s fair use and what’s foul? I suggest reading Bob Kennedy’s insights on the matter, and the expert opinion from Douglas Lichtman in the Gatehouse suit. Or look at a similar situation from June of 2008 when the Drudge Retort and the Associated Press went a few rounds over fair use limits on AP content. Although the AP said they would draft guidelines, they have not yet materialized. In the Times article linked to above, Columbia Law School professor Timothy Wu is quoted as saying “The principal question is whether the excerpt is a substitute for the story, or some established adaptation of the story.”
All of this indicates that with the Quick Read feature and the heavily excerpted Damon article, they’re on shaky ground and will not withstand a legal challenge. The number of comments seals it: 749 on the HuffPo site, 39 on the original Miami Herald site. This is a problem. HuffPo is deriving more benefit from the article than the Miami Herald.
The HuffPo raised another 25MM in late 2008 and I have to imagine it will be used to fund an expansion with the Chicago beta as a model. So I suspect their policies will be tested soon enough, and they’ll need to return to what they do well: blogging.
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I just realized “Huffington Re-post” isn’t a new one, it was blogged a while ago along with a few other funny names. My favorite, “H. R. Huffingpost“.
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January 29, 2009 at 7:11 am
A question provoking post. Thank you.
Here’s the questions it provoked in my head:
Do you think the standard could be as simple as the number of words used. Getting a story into as a few words as possible is a real value when the world is filled with information abundance and attention scarcity. Even selecting the x number of words that is the crux of the matter is a value add.
A related unformed thought: could the standard of benefit be as simple as the number of comments generated?
If this is reasonable, couldn’t google do an alogrithm that measures the “value” of a story based on outcomes instead of input?
January 29, 2009 at 9:29 am
Interesting question. I think it could be as simple as counting words or characters, or perhaps settle on the first graf. That at least is what most publishers have been comfortable with, Gatehouse being an exception. In that case, Gatehouse may not be opposed to all aggregators, just ones that are competing with them directly and lifting heavily from their papers. So I think if you pick around 50 words or 250 characters, you’ll usually be safe, but you should still think about whether the publishers you are linking to will like what you’re doing. The Gatehouse case has convinced me that they always have the right to prevent this sort of use.
You’re right there is some real value to a good summary. That’s one reason HuffPo has been successful with their general news section. The Damon article I mentioned was quite long, and to be honest, since I don’t care about the subject that much, I appreciated the shorter version. But content owners have control over how their work is rendered, and this seems similar to the remixing and sampling issues in the music industry, where questions about legality have already been answered. They could have an editor summarize the article, which is what Newser does (their motto: reducing important stories to a headline, photo, and two paragraphs). I guess its not plagiarism if you admit you’re doing it. They may be on more solid ground, since they aren’t using the source text. If they’re getting enough click-throughs and publishers are happy, they’ll be OK.
With respect to measuring the number of comments generated, check out PostRank.com. They include comment volume in its measure of audience engagement.