July 07, 2010 04:16 PM UTC

Colorado Pols Responds to Newspaper Legal Threats

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• by: Colorado Pols

UPDATE: Check out this note we received from David Mastio, Deputy Editorial Page Editor at The Washington Times:

SUBJECT: poor silly newspapers

I hope you’ll be forgiving when they come crawling back. Feel free to link us however you like.

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You might have noticed that the principal authors of Colorado Pols have not cited The Denver Post, or several other newspapers in the state, for some weeks. We’re sorry to tell you it’s not an oversight or laziness on our part, but the result of legal action threatened against us by MediaNews (owners of the Post, Boulder Daily Camera, Ft. Morgan Times, Lamar Ledger, and Sterling Journal-Advocate), Freedom Communications (Colorado Springs Gazette), and Swift Communications (owners of a number of small-market papers in Colorado – all are listed at the bottom of this post). We stopped citing these sources soon after receiving a “cease and desist” letter, while we evaluated our options and sought legal advice.

You can read the entire letter here, or follow along as we go through some of the key excerpts. In essence, the Denver Post and 16 other Colorado newspapers have opted to take their ball and go home because they don’t want to play with us anymore. Here’s the blow-by-blow from the “cease and desist” letter, and our response. (Pols Note: The letter is addressed to Jason Bane, who is listed as the point of contact for the ColoradoPols.com LLC. There have always been multiple authors writing under the “Colorado Pols” moniker)

We are writing today to lodge notice with you of our clients’ objection, and their intent to seek relief if no corrective action is taken, to your firm’s flagrant and persistent theft of our clients’ intellectual property by the Colorado Pols website at www.coloradopols.com.

Your publication’s wholesale, and unjustified, use of the news content published by our clients, which is produced at significant expense by them and from which your firm is deriving advertising revenue everyday without our clients’ permission and without any compensation to our clients by your firm, constitutes multiple violations of our clients’ rights under the federal Copyright Act and the common law doctrine of hot news misappropriation.

Without getting too far into the legal mumbo-jumbo, our understanding of the law expressed in this letter (which comes from actual lawyers, not us reading Wikipedia) suggests they are incorrect. There are a number of reasons why they are incorrect, but here are some of the main points:

First off, you can’t steal something that is already given away for free. This would be like Westword accusing you of stealing their newspaper by taking it out of one the FREE bins located all over town. We’re not going behind any paid system or other kind of firewall and offering up content that you would otherwise have to pay for online. We would understand complaints if we had been repeatedly cutting and pasting entire articles, but we’ve always avoided doing that and have made that point to other posters on multiple occasions.

Not only are we posting only a few paragraphs from stories THAT ARE ALREADY FREE FOR EVERYONE ONLINE, we have gone out of our way to name the publication, highlight the author in particular, and provide a clear link to the story. Legally speaking, we don’t actually need to do any of this, but we’ve always tried to be symbiotic Internet purveyors and give credit where credit is due (incidentally, the Post almost never links to us or even mentions Colorado Pols when we have a story before they do, which happens all the time, but we don’t go all “attack of the killer attorneys” on them). What’s more, the case law this letter cites pertains to some obscure spam site that was republishing AP news stories in their entirety without attribution. After the efforts we have always made to properly credit the cited publication as well as the story’s author in boldface, such a comparison is insulting in the extreme.

Second, the idea that The Denver Post or any other outlet owns “hot news” is absurd. Twenty years ago the only way you could get your local news was to subscribe to a newspaper or watch one of the network TV stations’ nightly news broadcasts. That, of course, is no longer the case. By and large, the stories that we have referenced from the Post are not “exclusive stories,” and thus they have no claim to the “hot news doctrine.” If we reference a Denver Post story about the winners at the state convention, we’re doing so as a way to quickly catch up a reader at Colorado Pols as to a subject we are about to discuss. But we could just as easily do the same thing by using another news outlet as the source, or by not using another news outlet at all. It’s not exactly a big secret when the winners are announced at the Democratic or Republican state conventions, and we get all the same press releases they do. We also get a tremendous amount of breaking news and inside information directly, just like the Post and other news outlets.

It appears that the entire business model of the Colorado Pols website is built upon flagrant copying of the hard work of all manner of news media organizations, including not just our clients listed above but others of this firm’s clients, including the New York Times, Associated Press, and CNN.

That’s cute that they think we have a “business model,” but the idea that people come to Colorado Pols so they can read The Denver Post is, in a word, stupid. People come to Colorado Pols to find out what politicos in the state are discussing, which is unrelated entirely to which news outlet we decide to reference on a given story; for example, it’s not unusual for a daily “open thread,” which includes zero content from us, to end up with more than a hundred comments from people just discussing whatever issue they choose. People come to Colorado Pols to be part of a large and growing online community interested in Colorado politics. People come to Colorado Pols because they know that elected officials, staffers and journalists also read Colorado Pols on a daily basis. If Colorado Pols succeeded only because of what other news outlets were doing, it would stand to reason that the closing of The Rocky Mountain News in 2009 would have caused us serious damage. Obviously that didn’t happen, and in fact, we’ve consistently added readers for years now.

One of the neat things about the Internet is that we don’t have to make assumptions here – we can actually show you whether or not referencing the Post is vital to our “business model.” In April 2010, the last full month that we referenced the Post or any of the outlets included in this letter, Colorado Pols generated 617,661 page views. If it were true that our very existence depended upon the Post and similar news outlets, it would stand to reason that our traffic would drop dramatically once we stopped talking about them, right?

We’ve told you what kind of traffic we received in April, and we’ll tell you what kind of traffic we have once the month of July is completed – an entire month of no references to the Post or others listed in the letter, from either us or others posting diaries or comments. We are fully confident that our traffic won’t decrease because we aren’t referencing the Post, because we know that our success has absolutely nothing to do with the Post, the Lamar Ledger, or any other news site. People come to Colorado Pols to read (wait for it) Colorado Pols. It’s not any more complicated than that.

Each of the instances of infringing copying listed above involved the unauthorized appropriation of the heart of a breaking or highly newsworthy story, taking the lead and the principal substance of the underlying reporting.

We love this part of the letter. Apparently we only link to the Post or one of the other mentioned news outlets if it is “a breaking or highly newsworthy story.” Like the May 9, 2010 edition of the Lamar Ledger: “Jane Norton makes campaign stop in Lamar.” We’ll never forget that story-that was one SMOKING hot scoop. In fact, people are still buzzing about it today. Everywhere we go, we hear someone talking about that Jane Norton visit to Lamar.

Moreover, because none of the postings by Colorado Pols generated any appreciable traffic at the websites of the underlying publishers, it is beyond dispute that this copying by Colorado Pols harmed the market value and revenue generating potential of the infringed works. Indeed, MediaNews Group has been monitoring the traffic to its sites from Colorado Pols during the listed time period, and the links inserted by Colorado Pols in the infringing excerpts of MediaNews Group’s stories are generating no more than zero to five clicks to the underlying stories at The Denver Post’s website.1 [Pols emphasis] This pattern of a lack of any appreciable traffic from Colorado Pols is the same for Swift and Freedom. The explanation for this lack of traffic is quite obvious: Colorado Pols is taking so much of our clients’ reporting that no reader need ever click through to the underlying story that Colorado Pols has copied; Colorado Pols has taken anything, and everything, of value in the reporting by our clients.

1. And even these numbers are overstated because they include my own click-through’s to monitor Colorado Pols’ activities.

Before we begin discussing this section of the letter, let us offer a profound apology. We had no idea that Colorado Pols was somehow responsible for damaging the revenue potential of The Lamar Ledger. If only we could go back in time and stop people from not reading The Lamar Ledger! And while we’re at it, we’re also sorry for causing BP to spill all of that oil in the Gulf of Mexico. Sorry about that. Really.

Oh, and for the Denver Broncos trading several draft picks in order to take Tim Tebow in the first round of the NFL Draft…no, nevermind. We’re not taking that blame for that one.

Anyway, our bigger beef with this paragraph is the completely ridiculous statement that a link from Colorado Pols produces “no more than zero to five clicks to the underlying stories at The Denver Post’s website.” Now, we can’t explicitly prove this to be false, because our stats don’t provide a complete picture of outbound links or “click-thru rates,” but we can show the likelihood of this claim to be pretty close to zero.

Let’s go back to April 2010, the last full month in which we would have linked to stories in The Denver Post. In April, Colorado Pols generated 617,661 page views. According to this letter, The Denver Post is lucky if 5 people clicked on a link posted at Colorado Pols on any given day. If this were true, it’s more likely that you know someone who speaks Yiddish than it is that you know someone who clicked on one of our links to The Denver Post.

Please be advised that our clients hereby demand that Colorado Pols cease and desist from any and all unauthorized literal copying from our clients’ newspapers or websites, i.e., from any of the publications operated by MediaNews Group, Freedom Communications, and Swift.

Our clients reserve all their rights with respect to this matter, including their right to seek injunctive relief to halt your website’s unlawful conduct.

Well, then, consider us ceased and desisted, so as not to be injunctively relieved.

As we mentioned earlier, we don’t believe these claims to be accurate, nor do we believe that they would stand up in court. But we also don’t believe that we actually gain anything from referencing The Denver Post or The Lamar Ledger, so it’s no big deal for us to just stop talking about them altogether. Note that the letter is not asking us to stop providing links or to stop mentioning their name – they just don’t want us to use “blockquotes” and repeat any part of any of their stories at Colorado Pols. What they want, of course, is for us to continue to link to them, but only in such a way as to make sure that more people go to their website.

So here’s what we are going to do: Not only are we going to stop referencing passages from The Denver Post and other news outlets listed in this letter, but we’re going to go one step further. We’re going to go out of our way to not even mention these news outlets at all. We’ll just link to our partners at The Washington Post, or other local news sites, or any other of the thousands of other potential sources out there. We reserve the right to discuss something that might appear in one of these papers, but we’ll just do what traditional media outlets like the AP have done for decades – we’ll just say, “Humpty Dumpty fell off the wall today, according to The Denver Post,” and then continue on with our own writing. But for the most part, unless it is a truly important exclusive story that no other news outlet is reporting, you won’t again see us talking about The Denver Post or the other news outlets listed below.

We aren’t overestimating our own importance to say that not linking to the Post will have a major impact on their traffic, but it certainly won’t help. The bigger point is that we lose absolutely nothing by deciding to cease from pulling a few paragraphs out of one of their stories, but the Post and their quality reporters lose plenty of exposure that comes from other links – which, of course, is the lifeblood of the Internet.

The Post and these other news outlets don’t understand that their real problem is not something they can fix with a letter from an attorney. Heck, it’s not something they can fix, period. As we started to discuss earlier, the Internet has forever removed the one thing they had a premium on: Distribution. They may think that trying to sequester their own content will somehow make it more valuable, but that horse has long since left the barn, and there’s no way to put it back. Newspapers used to have a monopoly on distribution, because if you wanted to know what was happening in your state, your country and around the world, you didn’t have a lot of options outside of your daily newspaper. But now that you can find the same story from numerous other outlets online, their monopoly on distribution of the news just doesn’t exist.

By now, some of you are probably asking, “So what’s really going on here?” We don’t claim to know everything that motivated MediaNews CEO Dean Singleton and these lesser papers to take this action, but we do have a theory. An obscure memo from Singleton to MediaNews employees in May 2009 provides a clue.

We will begin to move away from putting all of our newspaper content online for free. Instead, we will explore a variety of premium offerings that apply real value to our print content. We are not trying to invent new premium products, but instead tell our existing print readers that what they are buying has real value…

This statement is remarkable for a number of reasons, but the biggest problem with what Singleton is proposing is it is totally counterintuitive to how marketplaces work. The market determines the clearing price of a product, not the owners of that product. Attempts to force the market to give you a bigger profit…well, they end in disaster. Every time.

The idea that the Post will suddenly become more valuable if it is not offered for free online doesn’t fix the fundamental problem that the news in general is already offered online, everywhere, for free. It doesn’t make the print version of a newspaper more valuable or more relevant if you have to pay to read it online; all it does is make the newspaper more complicated to read, and thus, less attractive to most potential readers (and advertisers). In going to a paid online model, what they will be doing is saying, “you can’t get our version of the news for free anymore.” In response, most people will just shrug and visit other websites instead, just like we are doing in response to this letter.

The only way this approach could possibly succeed–and we emphasize possibly — is if every news outlet in the country decided to do the same thing, thus forcing readers to pay for something if they wanted coverage from the “traditional media.” But even that wouldn’t likely succeed because of the prevalence of so many new media outlets and blogs–many of which already get more readers than their local “news media” counterparts (incidentally, Colorado Pols receives more traffic than a lot of the newspapers listed below already).

Having committed to this line of action, Singleton goes ever further:

We will build a new local utility site (Local.com), which is an ecosystem of local information, resources, user content, shopping guides, and marketplaces. This site will be focused on a younger audience as well as other targeted audiences based on demographics which are attractive to our current and potential advertisers.

Got that? First they’re going to try to make you pay for stuff you can already get for free…and then they’re going to try to replace the popular local blogs and websites that people already read with a new, souped-up version of the moribund YourHub.com. And to make sure it works, they’re going to send nasty cease-and-desist letters to local websites beforehand, thus fraying relationships that would lead to future links that would elevate their popularity over time. Sounds like a recipe for smashing success, don’t you think?

As we have sought advice (both legal and otherwise) on this matter, it has been suggested to us that Singleton, and some like-minded newspapers, may be using our blog as a test case for a much larger assault on independent new media in general, and blogs and “feedreaders” in particular. Somebody at the Post could have just, you know, called us instead, but maybe it’s good for the economy to give more work to lawyers. If we’re the guinea pig in this little experiment, then so be it. Nobody wins in this silly confrontation, but we certainly don’t lose, either.

It’s no secret that traditional media executives like Singleton blame “the blogs” for much of their recent decline, but what they should really be blaming is the Internet in general. We didn’t change the rules or the reality – the Internet did that all in one big bang. What’s done is done, and there’s no going back to the days before Al Gore built the Internet tubes.

There are really two ways to deal with the advent of new media and ‘uncontrolled’ distribution of the news: you can either accommodate this new reality and find ways to mutually benefit (and increase your online traffic) like our partners at The Washington Post and National Journal have gainfully done, or you can break out the lawyers and try to retreat into a paid firewall content cave. The first approach is useful in increasing website traffic and generating new links, which leads to more online traffic, and so on. We honestly can’t tell you the benefit of the latter. We submit to you, our loyal readers since 2004, that only one of these approaches will result in survival for the print newsrooms we all greatly respect and value.

Look, we have no desire or interest in seeing the demise of local newspapers, and we had no interest in blocking out the Post and these other newspapers from Colorado Pols. Sending us threatening legal letters may make the bean counters at The Post and these other outlets feel better, but it accomplishes basically nothing. You don’t want us to use excerpts from your website? Whatever.

Today, we are just one less online source sending readers to The Denver Post and the other mentioned news sites. Maybe this will benefit the Post, and maybe it won’t. Either way, tomorrow will look pretty much like yesterday from where we’re standing.  

What This Means for Colorado Pols Users

The good news for Colorado Pols users is that this doesn’t change much for you. The main thing to understand is that diaries should not include excerpts from any of the news outlets listed below, and no diary that includes a link to any of the outlets listed below is likely to be promoted to the front page. As we said, you’re free to discuss stories that appear in these publications, just like the AP has done for years reporting the work of other news services.

News Outlets for Ceasing and Desisting

The following news outlets will no longer be quoted at ColoradoPols.com, nor will links be provided to their content. We ask that all Colorado Pols users also follow these guidelines and refrain from referencing or linking to content from these sources:

MEDIA NEWS GROUP

FREEDOM COMMUNICATIONS

SWIFT COMMUNICATIONS

For questions, comments or media inquiries, contact webmaster@coloradopols.com.