Category: Journalism

Google Down-Ranks Real News

Photo by enriscapes

As alluded to in yesterday’s post, the 2016 shock to what we might politely call political orthodoxy provided a boost to mainstream news subscriptions. “The [New York Times] added 276,000 net digital-only subscriptions in the final three months of 2016, the best showing since it implemented its paywall in 2011. In the weeks immediately following Mr. Trump’s election in November, subscriptions increased tenfold compared with the previous year,” wrote Shannon Bond for Financial Times in February.  Similar spikes occurred at The Washington Post and other traditional news sources. So, if nothing else, the bizarre theater of obfuscation and Twitter rants coming out of the new administration seemed at least to rekindle millions of Americans’ desire for credible reportage.

But get this…

Gerry Smith for Bloomberg reports that when The Wall Street Journal blocked Google users from reading its articles for free, its subscription business “soared” only to see this gain countered by a 44% drop in traffic from Google search.  It turns out, according to Smith, that Google’s algorithm prioritizes free content over paid content.  Assuming this is true, there’s a whole lot wrong with it, beginning with the fact that this belies Google’s boastful raison d’etre to “organize the world’s information” and deliver search results based on quality and relevance.

If the algorithm looks for free content first, this suggests that fake news and other junk content will be consistently prioritized over the WSJ, The New York Times, The Washington Post, The Daily Beast, and so on. Not only does Google’s policy in this case stifle these organizations’ flexibility to choose their own strategies for financial survival, but for the general public, it exacerbates the already toxic brew of bad information that is, at this point, literally threatening democracy itself.  And for what?

Money of course.  Google makes money by serving ads to content that users can more readily access without going through paywalls.  Consequently, ConspiracyIdiots.com makes it into the top results instead of, y’know, news—at least according to what Bloomberg is reporting. “The Journal’s experience could have implications across the news industry, where publishers are relying more on convincing readers to pay for their articles because tech giants like Google and Facebook are vacuuming up the lion’s share of online advertising,” writes Smith.

I’ve gone so far as to assert that we’ve actually lost the “information revolution.” The promise of a more enlightened society through digital technology has hardly been fulfilled, but we do have some very funny memes to stick on the fridge of history.  Given the extent to which the current narrative has been hijacked by a strange confluence of bored trolls and professional data manipulators, a sane person can be forgiven for deciding that it’s about time to unplug.  A recent report by the Data & Society Research Institute on the influence of—I guess we can call it “troll culture”—on even the mainstream media says the following:

“Mass media has greatly profited off the appeal of conspiracy theories despite their potential for harm. Network news channels feature ‘documentaries’ investigating theories without fully refuting them. In 2011, when Donald Trump began promoting the “Birther” conspiracy theory, claiming President Obama was born outside of the United States, mainstream news outlets like CNN and Fox News covered these claims extensively. Out of this environment, an entire industry of conspiracy and fringe theory has emerged.”

The report delves into the intricate network of internet subcultures described as “an amalgam of conspiracy theorists, techno-libertarians, white nationalists, Men’s Rights advocates, trolls, anti-feminists, anti-immigration activists, and bored young people,” who are directly influencing the narrative that many citizens around the world think of as the truth.  And this is bad enough.  “Google says its ‘first click free’ policy is good for both consumers and publishers. People want to get the news quickly and don’t want to immediately encounter a paywall,” writes Smith.

Sound familiar?  What’s good for Google is invariably “good for consumers.” And consumers invariably buy the pitch for a while.  Free?  Yeah, free sounds good.  Until it turns out that free actually a cost. Sometimes a very dire cost—like millions of voters who would sooner believe in alien abduction than climate science. And the point of the above quote about television news creating entertainment out of nonsense is that sensationalism will be the only thing left, if business models no longer support investigation, travel, research, fact checking, and other expensive human labor required to deliver quality journalism.  Add to all this that Google search will apparently down-rank legitimate news because it isn’t free?  Damn.

A Free Press Needs to Be Expensive

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Photo by stocksnapper

As a follow-up to my last post, I see that the Electronic Frontier Foundation has (not surprisingly) also accused the News Media Alliance (NMA) of petitioning the incoming administration to “weaken fair use doctrine” and, by extension, threaten press freedom itself.  Granted, in contrast to Mike Masnick’s ad hominem style on Techdirt, when EFF obfuscates, they usually write a more sober, mature-sounding article, but readers should not be mesmerized by the parlor trick.  Because they’re still not telling the whole truth.

At a time when Americans are suddenly realizing that professional journalism may be more important—and more under siege—than ever, both citizens and advocacy groups like EFF should remember that good journalism is expensive.  If we don’t want news to devolve entirely to the glib gotchas of Twitter, then somebody has to invest in the reporters, researchers, editors, etc. who develop the skills and experience to cover stories with integrity.  In order to make those investments possible, to say nothing of profitable, publishers have to retain the right to protect and exploit the products of this labor through distribution models of their choosing.  So, while fair use doctrine is unequivocally necessary for journalism, this reality is not in conflict with the need for news publishers to protect their copyright interests at the same time.

Frankly, in light of the fact that the anti-copyright policies advocated by EFF and similar organizations have played a substantial role in creating information havoc, like the fake news problem, I think when it comes to the press, these groups ought to be rubbing gravel in their hair—or at least sent to their rooms to think about what they’ve done. Years of blind—and greedy—advocacy of anything goes under the ambit of the First Amendment is a major reason why real journalists have to compete with bogus ones,  and why news organizations continue to have their investments threatened by various platforms and tech interests that appropriate their work.

In the EFF’s version of accusing the NMA of trying to weaken the fair use doctrine, they  set up a straw man and then point to a bunch of unrelated “evidence” to support the accusation.  As stated in my last post, the NMA’s white paper does not seek any revision to the fair use principle, but it does call into question the relatively recent, broadening interpretation of the “transformative” standard within fair use analyses.  The EFF article might give readers the impression that this standard is a well-grounded and longstanding legal principle, but that simply isn’t the case.

If we bracket the “transformative” standard between the first major application in Campbell (1994) and the most high-profile, current case, Google Books (2016), we see that we’re dealing with two very different meanings of the word “transformative.” ”Transformativeness” in Campbell entails a use to create a new expression while “transformativeness” in Google Books entails a use to create a new service that is not an expression. While both uses can be valuable, and even described colloquially as “transformative,” it is misleading to suggest that the case law in which this standard has been applied is consistent, given the divergent meanings of the term.

It is the application of the latter standard that is of concern to many rights holders, including news publishers. This is because the latter interpretation substantially alters the original intent of fair use, which is to favor the First Amendment, to a more generalized standard of “creating some new thing,” which may not be a form of expression at all. It is also worth noting that most uses by journalists have always been protected by fair use principles that existed prior to the introduction of the “transformative” standard by Pierre Leval in his 1990 Harvard Law Review paper.

The truly insidious part of this story is that the EFF has been directly responsible for morphing fair use doctrine in both the courts and the court of public opinion.  With its decade-long boondoggle in Lenz v UMG, and its chronic implication that fair use is the antithesis of copyright (rather than an important component of copyright), the EFF fails to recognize that its advocacy in this regard can be more harmful to free expression and a free press than the concerns it claims to address.  While the organization defends the role of aggregators and other platforms that make uses of works they did not author, the EFF ignores some of the very negative results of this policy, which have become starkly manifest in recent weeks.

For instance, the violent assaults on a Washington, DC pizzeria as the consequence of fake news is not exclusively a story about criminal instigators and idiot readers. It is symptomatic of a disease caused when serious journalism is given equal footing with the ravings of every crackpot or miscreant with a keyboard.  This trend has been toxic for the press, and it is naive to think that defending every use and every expression on First Amendment grounds has not been an aggravating factor in this case.

In some instances, news aggregators do not merely provide access to news, but they often strip news of context or substance by repackaging segments in a manner that may be good for driving traffic but do disservice to the goals of journalism.   Press freedom is utterly meaningless unless we support a professional press, and the News Media Alliance is correct to observe that relatively recent distortions of the fair use principle have played a role in threatening that professionalism.

Masnick Makes a Hash of Fair Use & Censorship

Photo by Pond5
Photo by Pond5

In an effort to conflate president-elect Trump’s rhetoric on censoring the press with copyright protection, Mike Masnick at Techdirt accuses the News Media Alliance of seeking to “whittle down” fair use. He further says this will only leave journalists vulnerable to the kind of censorship Trump has threatened by amending libel laws.  There are too many holes in Masnick’s post to address efficiently, so I’ll stick with the main point about fair use doctrine. The Newspaper Association writes the following:

“Fair use” should be reoriented toward its original meaning. Under current copyright law, a person that does not own a copyright may still use a copyrighted work if it is consistent with the “fair use” factors, which assess: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect upon the potential market. The courts, unfortunately, have dramatically weakened this test by finding a fair use any time a new use could be seen as “transformative.” This test has undermined the integrity of the long-established fair use factors. As part of any Copyright Act rewrite, we support refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution’s encouragement of compensation to entities that generate creativity and productivity.”

For starters, this statement isn’t asking anyone to “whittle down” fair use. Instead, the News Media Alliance is simply asserting what many copyright experts and rights holders have observed, which is that the “transformative” standard is in fact a relatively new and often-vague principle that has become something of a vestigial fifth factor not codified in the 1976 Copyright Act.  In fact, “transformativeness” began as a measurement of creative transformation in the landmark case Campbell v Acuff-Rose but has since been applied in broad contexts in which uses are “transformative” of something other than the original work to create a new expression.  

So, “transformativeness” can exceed the original free-speech motivations for codifying fair use into the federal law in the first place.  And that in itself is not inherently bad; we want law to be elastic to a certain extent, otherwise copyright itself could not have adapted to changing market and technological conditions. 

Having said that, however, the “transformative” standard has come dangerously close to asserting that simply using a work in a new context—like posting it on social media—is “transformative” enough to make the use fair.  So, the Alliance is not attacking fair use doctrine at all, as Masnick asserts, but is rather seeking to mitigate what many rights holders view as an irrational expansion of the doctrine until it ceases to be an exception at all.  

The part where Masnick accuses the Alliance of playing into Trump’s censorship hands is just a malarky cocktail well spun.  He writes the following:

“While [Trump] was specifically talking about libel laws, as we’ve seen over and over again, copyright is an amazing tool for censorship as well. In fact, the Supreme Court itself has noted that fair use is the necessary “safety valve” on copyright’s free speech stifling powers. So for newspapers to basically gift wrap to Trump a way in which he can pull back a tool that protects their free speech — just as he’s been promising to attack their free speech — is ludicrous.”

Masnick is mashing up unrelated topics to argue the interests of OSPs like Google and taking the opportunity to use the words copyright and censorship in the same sentence. As a general statement, it is true that fair use is a free-speech-based exception to copyright, but most speech-related, or press-related, uses almost always relate to other forms of expression, including journalism, and they rarely implicate the “transformative” standard being referred to by the News Media Alliance. 

For instance, I noted in a past post that a FOX Network initially sought to argue that its use of another news agency’s photograph was “transformative” simply because it was posted on their Facebook feed.  That argument didn’t get very far, but it’s the kind of argument rights holders are nervous about arriving in the courts; and it has nothing at all to do with legitimate concerns about a president threatening to use libel laws to silence the press. For another perspective on how the “transformativeness” standard can come very close to effectively obliterating copyright, see this post about TVEyes v FOX News.  

As usual, the internet industry and its advocates behave as though their platforms, which make unlicensed uses of all manner of works, are synonymous with free speech or freedom of the press.  From that premise, they argue that a desire to maintain boundaries and contours around the fair use doctrine is synonymous with trying to kill the doctrine outright.  That is ludicrous.