Earlier this week, Sharon Waxman of the Wrap accused Michael Wolff of Newser of “parasitism” for the way his Web site summarizes and links back to copy from the Wrap. Waxman promised a “cease and desist” letter from her attorney to make the dispute a legal one, and yesterday she made good on the promise with this letter (PDF).
My friend Andy Ferguson once compared disputes like this to the Nazi siege of Stalingrad—you want both sides to lose. Sharon Waxman is to be despised because she has blown out of proportion Wolff’s use of Wrap copy and her attorney has composed and sent one of the most wobbly and overreaching threatening letters in legal history. Michael Wolff is to be despised because, well, because he’s Michael Wolff.
The letter’s demand that Newser “immediately stop using The Wrap as a source” is, as far as I can tell, without any legal basis. Did a first-day paralegal draft this thing? The Wrap does not own the facts that it reports, and Newser and every other news organization, blog, and town crier in the nation has the right to use Wrap copy as a source, as long as they 1) don’t violate the Wrap’s copyright and 2) don’t violate its intellectual-property rights under the hot news doctrine.
Do Newser summaries of Wrap stories violate Wrap copyright? I can’t imagine any court or jury in the land finding that Newser digests exceed the “fair use” provisions of copyright law as spelled out on this U.S. Copyright Office page. I also don’t imagine that the law firm Waxman hired thinks Newser has infringed upon Wrap copyrights, either; otherwise, it would have spelled it out. Instead, the firm stupidly informs Newser that “[t]he Wrap will begin registering copyrights in its original content with the Copyright Office on a going forward basis.” But as any first-year law student can tell you, every work that satisfies the “originality and fixation” requirements of copyright law is born with copyright protection. Registering a work with the Copyright Office gives it additional legal benefits and is necessary if you intend to sue for infringement, but this is mostly dull barking by Waxman’s attorney. I can’t wait to check in with the Copyright Office and see whether the Wrap actually goes through with this registration charade.
If Newser’s use of Wrap copy amounted to copyright infringement, you’d think that the Wrap’s attorney would have pointed to at least one Newser page that infringed on the Wrap’s copyright. But it doesn’t. Instead it states, “Your staff should think twice about re-writing The Wrap’s stories in the future.” This is not “cease and desist” language; this is more like the scolding a kindergarten teacher gives to a student who doesn’t wash his hands after visiting the bathroom. The letter also states, “While underlying facts are not protectable, The Wrap’s original expression of those facts is protectable.” But unless Newser has copied the Wrap’s original expression, and I see no examples cited, this is just more jabbering.
Although the letter does use the phrase “hot news doctrine,” paragraph three appears to be attempting to make a claim that Newser has somehow violated the hot news doctrine in summarizing copy from the Wrap. Ever since its discovery by the Supreme Court in 1918, the doctrine has bestowed upon some content creators intellectual-property rights that go beyond copyright. The court found that “hot news”—roughly, timely news gathered at a cost and sold at a price—could not be copied by a competitor inside an interval that would deny the creator the fruits of his labor. Hot news claims have been few and have not been very successful in court in recent decades, although the doctrine has had some bite to it in the last year. (See the cases against AHN Media and Theflyonthewall.com.)
As Wolff points out in his nyah-nyah piece today, and as I wrote two days ago, it’s hard to imagine that any court would agree that the Wrap has had a genuine hot news case. The facts in Wrap news stories are not hugely time-sensitive, and Newser’s summaries present little threat to the Wrap’s survival, just to cite two of the five tests for a hot news case.
“All we really want is for Newser to stop pissing on our leg and tell us it’s raining,” Waxman wrote yesterday, as she announced the remittance of her silly cease-and-desist letter. “Very simply: put in credit and links where they are missing. Add a Wrap homepage link to the source grid page. Make it simple and logical to get to actual Wrap content from that page.”
But if Newser is guilty of copyright infringement or of violating the hot news doctrine, as Waxman and her attorney seem to think, the addition of links and credits won’t change that! You can give acres of credit and still infringe on a copyright! What sort of signals from Mars is Waxman listening to? Are they so intense that they’ve caused her to make Wolff a sympathetic character? (Yes.)
Wolff says, with some justification, in his column today that he thinks Waxman’s protestations are part of a publicity stunt. I agree. Her fledgling site is hardly a Web leader—see the page-view comparisons of the Wrap, Newser, and Slate at Alexa and the unique-visitor comparisons for the same sites at Compete—and a public fight with Wolff can’t hurt her site’s Q quotient. As Wolff also points out, Waxman’s play has succeeded. The two will pair up for a “debate” on Howard Kurtz’s CNN show Reliable Sources on Sunday at 11 a.m. May the bigger ego win. (That would be Wolff.)
As Ben Williams tweeted this week, the argument Waxman and Wolff seem to be having about credit and linking isn’t really about the law. It’s about etiquette. “Don’t bury the link,” Williams writes. On this point, Williams is right. Wolff’s site is one of the more ungenerous linkers. I don’t expect anything good to come of the Waxman-Wolff tussle, but if he reforms his retrograde linking ways, I’ll count that as a plus.
After I filed this piece, Newser CEO Patrick Spain’s assistant sent me his response (PDF) to the Wrap’s attorney’s letter. It’s pretty good! It’s almost as good as the summary the Newser will write of the piece you’ve just finished reading! Get meta with me with e-mail to email@example.com. If you don’t read my Twitter feed, I’ll sue you. (E-mail may be quoted by name in Slate’s readers’ forums; in a future article; or elsewhere unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)
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