Heedlessly Hijacking Content; New York Times, 6/28/10

David Carr, New York Times; Heedlessly Hijacking Content:

"Gen. Stanley A. McChrystal was not the only one who had a tough week at the office.

Last Monday, the word got out that Rolling Stone had a stunning piece about General McChrystal, in which he and his aides were critical of the White House. It’s the kind of scoop that thrills magazine editors, and no doubt they couldn’t wait to get their issue on the stands.

The problem was, nobody else could wait either. On Tuesday morning, a PDF of the piece the magazine had lovingly commissioned, edited, fact-checked, printed and distributed, was posted in its entirety on not one but two Web sites, for everyone to read without giving Rolling Stone a dime.

It was a clear violation of copyright and professional practice, and it amounted to taking money out of a competitor’s pocket. What crafty guerrilla site or bottom-feeder would do such a thing?
Turns out it was Time.com and Politico, both well-financed, reputable news media organizations, that blithely stepped over the line and took what was not theirs.

Both companies said that a frenzy involving a significant national issue was under way and that because Rolling Stone itself did not post the article on its site, they took matters into their own hands. Each said that when Rolling Stone protested, it was taken down, and that when the magazine put up the piece at 11 a.m. on Tuesday, their sites linked to that instead.

Content-makers had a rough week across the board. A federal judge granted summary judgment to Google, whose subsidiary, YouTube, had been sued by Viacom for $1 billion for copyright infringement. Judge Louis Stanton of United States District Court for the Southern District of New York ruled that even though thousands of clips of Viacom shows had been uploaded to the site, YouTube was shielded from damage claims because of “safe harbor” provisions in the Digital Millennium Copyright Act.

Google was busy elsewhere, filing an amicus brief in a New York case against an aggregator called Theflyonthewall.com, for its appropriation of proprietary bank research. Lawyers for Google, along with Twitter, asked a federal appeals court to reverse a decision upholding the so-called hot news doctrine, which gives the publishers of up-to-the-minute news the sole rights to that content. They called that doctrine obsolete.

News organizations, including The New York Times, The Associated Press, Gannett and others, filed a brief of their own in the case, suggesting that, “unless generalized free-riding on news originators’ efforts is restrained, originators will be unable to recover their costs of news gathering and publication, the incentive to engage in the news business will be threatened and the public will ultimately have fewer sources of original news.”

In the Rolling Stone case, it wasn’t tech companies arguing for the right to appropriate content, but content-makers themselves.

The magazine delivered an advance copy to The A.P. on Monday afternoon (many magazines try to promote coming articles that way) with some restrictions. When The A.P. article ran with some highlights and excerpts, other news outlets, including networks and major newspapers, asked for a copy. Politico and Time Inc. did not receive copies from Rolling Stone directly.

Some party, probably a news outlet seeking comment, gave copies to both the subject and the White House — a pretty naughty move in and of itself. And by some point on Tuesday morning, the Rolling Stone article by Michael Hastings had become a piece of electronic samizdat, passed around and, eventually, published.

Several commentators suggested that Rolling Stone brought this on itself by not immediately publishing the McChrystal article on its own site (the magazine had planned to publish online but on its own schedule).

“That’s like saying, ‘She had it coming,’ ” Eric Bates, executive editor of Rolling Stone, said in an interview on Thursday. “The decision about when to publish our material is ours and ours alone. It was completely inappropriate.”

Reached by e-mail on a plane, Jim VandeHei, executive editor and a founder of Politico, suggested that the imperatives of the news cycle superseded questions of custody. “Our reporters got the article from sources with no restrictions,” he wrote. “It was being circulated and widely discussed among insiders, and our team felt readers should see what insiders were reading and reacting to. Rolling Stone raised a reasonable objection once they posted the story, so we quickly agreed to link to their URL.”

Time Inc. is in the print magazine business, and Ann Moore, its chief executive, has been a vigorous public defender of copyright. Last year, in an interview with The Telegraph of London, she said, “Who started this rumor that all information should be free, and why didn’t we challenge this when it first came out?”

The folks running Time.com apparently missed the memo, but they are now in receipt of its message.

“Time.com posted a PDF of the story to help separate rumor from fact at the moment this story of immense national interest was hitting fever pitch and the actual piece was not available,” a spokeswoman for Time wrote in an e-mail message. “We always had the intention of taking it down as soon as Rolling Stone made any element of the story publicly available, and we did. It was a mistake; if we had it do over again, we would only post a headline and an abstract.”

(A spokeswoman for Ms. Moore said Ms. Moore believed it was a mistake and that it would not happen again.)

Publishing a PDF of somebody else’s work is the exact opposite of fair use: these sites engaged in a replication of a static electronic document with no links to the publication that took the risk, commissioned the work and came up with a story that tilted the national conversation. The technical, legal term for what they did is, um, stealing.

Media organizations can file all the briefs they want about protecting their work product from free-riders and insurgent hordes of digital pilot fish, but once they break their own rules and start feeding on one another, the game is sort of over.

These were decisions made in the midst of a white-hot news cycle, and perhaps cooler heads will prevail the next time around. But if some of the biggest names in the business are not above cut-and-paste journalism when it suits their needs, how can they point a finger at others?

“This is not about our slow-footedness on the Web, but our right to publish on a schedule we chose. To me, this was really a transitional moment,” said Mr. Bates of Rolling Stone. “We’ve had fan sites that have published the text of some stories, but what these two big media organizations did was really off the charts. They took something that was in a prepublished form, sent out to other media organizations with specific restrictions, and just put it up.”

http://www.nytimes.com/2010/06/28/business/media/28carr.html?scp=1&sq=david%20carr%20rolling%20stone&st=cse