21. >"More to the point, if Google's snippet-and-a-link isn't fair use, how can it be fair use when I do the same thing in my blog?"

When you do it you do it yourself with human intention.
When Google does it it's automated.
Just look at your own example of why SlashDot is not a scraper.

>>"...fair use is NOT 200 characters."
>"Copyright law does not provide a yardstick to determine fair use. If it did, fair use arguments would not be resolved via litigation."

Exactly. This is why automated 200 character is NOT fair use. Fair use means a "portion" of a written piece. If the written piece is less than 200 characters, republishing the entire piece is NOT fair use.

Besides the copyright arguments, there are the contractual arguments made well by Lucas:

>"The entire way the robots.txt file works is backward. The file should award permission instead of opting out. Google and others have no legal right to copy your content without asking. And you, as the content owner, have no requirement to tell anyone they're not allowed to just take content. You've already told them they can't take it simply by holding the copyright."

Here's a thought experiment to illustrate my point:

Imagine someone designs a web site in 1999. He puts up a site with only photos and haiku poetry. To his site he adds a copyright notice along with a very clear and conspicuous terms of service that state "none of the content of the site may be used for any purpose without the explicit permission of the site owner including but not limited to copying and republishing the poems, forwarding the poems in emails, printing out the photos or poems. Site visitors have permission to view the site as it is. No guarantees... Use at your own risk..."

He gets hit by a car and seriously injured. He's in a coma for 8 years. He comes out of the coma and realizes that his entire website's content is in the public domain as a result of Google image search and the various sites that pull so-called snippets of 200 characters.

Is he wrong to feel violated? Doesn't it make more sense to opt in rather than opt out?

Posted at 4:42PM on Apr 8th 2007 by Elaine Vigneault

22. Elaine, I don't think that requiring human intervention is a reasonable measure of fair use. Google uses software to grab that 200-word chunk, but the chunk was written and published by people equally dependent on software.

As to whether or not Google's publication of all of a, say, 198-word article is fair use is something I'm willing to leave up to specific involved parties and their lawyers.

Slashdot is not a scraper because it doesn't scrape anything. Neither does Google. It links to sites that have made their content available to the public. If Google, or Slashdot, were scraping, then they would simply republish the entirety of the stories they copied from other sites. That, I agree, would violate copyright.

Would your position be different if Google employed legions of people to create all those links by hand?

The mere act of publishing content on the web constitutes a freely given invitation to link to that content. It seem clear to me that Google's news engine is not violating anyone's copyright. I'm not sure what contractual issue you or Lucas are pointing to, but I think it is evident that the assertion that Google is copying content doesn't wash. They are publishing links to content. If someone feels that the act of publishing those links violates copyright, or that the snippets Google uses violates copyright, they can seek remedies through the courts.

If someone does not want the material they publish on the public web to be searched and indexed, they can alter their robot.txt file accordingly, and Google will honor it. That's the upside. The downside: No one will know they're on the web. (I can never remember the URL for my local paper. I find it by Googling its name and then clicking through to the paper's site. It's easier and quicker than finding it in a lengthy bookmarks file.)

About your example of the comatose poet/photographer: First, he had the means to prevent search engines from indexing his material, but did not do so. Second, I'm not certain that his posted statement would take precedence over fair use rights outlined in copyright law. Third, his material would not become public domain simply because Google found it. Fourth, no, I do not think opt in is appropriate.

The entire purpose of the web is to provide a way to publish content that allows one piece of content to point to other pieces of content so readers can, as they choose, discover new content sources and move interactively among them. As I read it, you're argument would turn all that on its head.

The net result of being indexed by Google is more traffic. If a publisher wants to trade that traffic for less visibility and fewer readers, they can easily do that by making simple alterations to a single file.

Finally, if a newspaper can't figure out how to make money from its online presence why should they expect Google to pay them? Monetizing a web presence solely via a copyright tax on Google won't keep that business alive. If you can't generate revenue via publishing on the web, you can't generating revenue even if Google links to you.

In other words, the primary reason newpapers can't make money on the web is that not enough people want to read their stuff on the web. Trying to convince Google to pay them to link to that same content isn't going to create new readers.

The truth is simple: If you are on the web and Google and all the other search engines do not index you, you are invisible. Why would you want to be invisible?

Posted at 5:48PM on Apr 8th 2007 by billg

23. Just another example for the Dinosaur Principle.
See my small cartoon:
http://geekandpoke.typepad.com/geekandpoke/2007/04/the_dinosaur_pr.html

Bye,
Oliver

Posted at 6:31PM on Apr 8th 2007 by Oliver Widder

24. Zell is putting up, what, 315 million, to buy the Trib and fund the rest by apparently grabbing employee stock ownership. If he spins of the LA Times to Geffen, he'll probably already be ahead financially.

I doubt he cares even slightly about newspapers. That's not the point.

Posted at 6:50PM on Apr 8th 2007 by Bob Morris

25. This comment from an earlier poster is truly an example of tilting at windmills:

"Google ignores copyright. But it's not just Google. The entire Web is still set up this way because Congress hasn't understood the implications yet. Eventually, they will. And this will change with the laws."

The web is not print, nor is the internet a broadcast medium. The juridical, political and social arenas will have to adjust to this reality. Posting on the web inherently means that one has given away content. There is nothing comparable to the immediacy of the hyperlink in the print world. The primary usefulness, indeed the very definition of the web, stems from linking. Tim Berners Lee, author of http and html, clearly articulated this in _Weaving the Web_, and Zell, the reporters at the Washington Post, and David Lazarus would do well to read Berners Lee's book.

Linking, of course, is not the only novel aspect of the internet. Tcp/ip also make it so that zero distance exists between hosts, thereby breaking the broadcast model -- or, more correctly, making it so that broadcast is but one protocol that fits nicely into the tcp/ip suite.

Again, journalists and investors from the print world do well to dwell extensively on these facts. To take another approach, anthropologist Benedict Anderson's book, _Imagined Communities_, examines the similarly disruptive character of an earlier innovation: the printing press. I highly recommend it as an excellent primer on what we're seeing unfolding now.

Posted at 9:30PM on Apr 8th 2007 by rss

26. I love it when people say that google steals content.

My metaphor for what google/search providers actually do is: provide the "road" to the "store" that is your content.

Now if you open up a widget store in the middle of the forest with no path/road to it and no parking...you aint gonna sell too many widgets.

Very simplified but basically that drills it down. I got widgets...googles got customer...lets make lots of money.

Newspapers aren't a totally dead play as an investment though. They have more information about local business contacts and networks than any one else and they generally have a decent sales force.

They need to continue creating internet properties like apartments.com and cars.com and strike more partnerships with the big players on the series of tubes that is the internet. Focus their local news and create more discussionary(made up word of the day) content.

Posted at 10:14PM on Apr 8th 2007 by ryan l.

27. Ryan l. said: "My metaphor for what google/search providers actually do is: provide the "road" to the "store" that is your content."

And just one comment earlier, someone said: "Linking, of course, is not the only novel aspect of the internet. Tcp/ip also make it so that zero distance exists between hosts."

In other words, the road analogy doesn't work. I see what you're trying to say, but it's way oversimplified. This is about business. There's a lot more at stake (money, jobs, future technology, the third-estate, etc.) than who is allowed to post road signs.

My point has been that posting a single link within the context of real discussion or reporting on that content is fair use. Blindly posting links (complete with a copy of the photo, plus the exact wording of headlines and blurbs) and doing it on a mass scale for every piece of content generated by a newspaper is grand theft.

Someone claimed earlier that posting anything on the Web makes it up for grabs. Fat chance arguing that one in front of a judge.

I have to agree with the commenter who urges everyone to sue. Go ahead, sue Google. They'll lose.

My recommendation to Google is they do something to prevent lawsuits. The thing to do is reverse the way the robots.txt file works. Spidering should be opt-in, not opt-out. Google needs permission to copy any content.

Otherwise, it's called plagiarism. It's called copyright infringement. And it's going to cost them millions.

Posted at 10:47PM on Apr 8th 2007 by Lucas

28. For those who allege that Google "steals" content, there's a mighty simple solution: just put your site under password protection.

That way no one'll find it and you'll get the kind of attention you deserve.

Posted at 1:02AM on Apr 9th 2007 by Leo Klein

29. I wanted to clarify two things that I said in a post above.

First, I said: "Linking, of course, is not the only novel aspect of the internet." I think it's more accurate (thought a bit awkward) to say: "Linking is not the only novel aspect that occurs ON the internet." Links, after all, are only one way to represent information, and protocols other than http use other metaphors: bulletin boards, mail correspondence, etc. Just as there is a significant difference between colloquims, symposiums, forums, dialogues, monologues, drama, etc., so too does presentation's form affect information's character.

Second, I should make it clear that I believe that there is a distinction between linking and copying. I suspect that linking will eventually (hasn't this already happened in legal precedent?) fall into the area of copyright that permits either limited quoting or creative re-use. Google News almost certainly falls within the bounds of acceptable limited quoting (but the old legal framework still doesn't quite fit the new reality, does it?).

Newspapers are going out of business not because of Google News, but because of Craigslist. Craigslist doesn't reproduce any newspaper content; to the contrary, it competes with newspapers fairly. Zell sounds rather like a sore loser.

It is a little surprising that Sam Zell and the Washington Post reporters seem to be unfamiliar with this legal and technological terrain.

Posted at 4:26AM on Apr 9th 2007 by rss

30. Jason - No need to explain what an EIR is - this is from Wikipedia:

An Entrepreneur In Residence (EIR) is an entrepreneur who partners with a venture fund..

[edit] EIR

A role as an entrepreneur in residence (EIR) with a venture fund is a very coveted role for many entrepreneurs. The role of an EIR varies from fund to fund (and entrepreneur to entrepreneur), but typically it involves an individual that wants to start a company. The entrepreneur may enter the position with an idea at various stages of development. Sometimes an entrepreneur has already spent a great deal of time on the idea and is leveraging the EIR position for office space and mindshare with VCs.

Another EIR role is to act as a “partner” and help VCs evaluate potential deals where the entrepreneur has a particular expertise. An EIR might also spend some time with an existing portfolio company to provide his or her functional expertise. In this scenario, the EIR will sometimes enter the company as a full time executive (typically CEO or some “C” level role) if the company and the executive feel there is a good fit.

It is rare that a venture fund will place a job listing for an EIR position. Typically, these positions are filled based on existing personal relationships that develop over long periods of time. An EIR may be an entrepreneur from a past portfolio company of the fund or a well know CEO that has delivered solid returns for the investment community. Sometimes EIRs are chosen from large public companies such as eBay, Yahoo, Google, AOL, etc. Most often the individuals chosen are at the Vice President level and up, but it is not unheard of for someone at the Director level to be chosen (although it is rare). As a rule, the EIR positions are so coveted that they are only available for “brand name” entrepreneurs, highly visible public company executives or the very well connected.

[edit] Notable EIRs

* Jason Calacanis

But - would you mind explaining both "conflict of interest" and "full disclosure" ?

(you can always look up how Bambi Francisco handled this)

Elliott

Posted at 12:00PM on Apr 9th 2007 by Elliott Dahan

31. @ lucas
Your right this is about business, particularly an old bloated one that was slow to embrace change, in bed with its control mechanism (Audit Bureau of Circulations) and is still entirely too complacent.

Newspapers charge ridiculous prices for display advertising based on inflated circulation numbers and absolutely no potential action...and whats their answer too the internet's pay per click action items;"freaking coupons" I mean come on.

the problem is the life cycle of news has shortened so drastically...yesterdays news is DOA when it gets too your door at 5 am.

If you want to succeed as a newspaper...let your reporters post news to your website real time. Give your audience a voice. Focus on local, local, local and unique content. Cut you payroll drastically and pray.


Whether or not Google News or Gootube are actually infringing is beside the point. The newspapers were sinking long before google news or rss readers.

What this really begs to question is; how long till we have some decent copyright reform that acknowledges that the rules have changed.

Posted at 2:57PM on Apr 9th 2007 by ryan l.

32. I was trying to determine how profitable Tribune’s online operations would be if they blocked sites from displaying links to their stories. The answer: “Not very.”

The stats for washingtonpost.com and nytimes.com (which have much stronger online operations than Tribune) are dismal. Of all the people who visit the washingtonpost.com site in a given month, less than 14% visit the home page, according to comScore data. For nytimes.com, that number is 20%.

More here:
http://blog.agrawals.org/2007/04/09/who-reads-the-front-page/

Posted at 7:46PM on Apr 9th 2007 by Rocky Agrawal

33. Hi Bill,

I'll address some of your thoughts:

>"Would your position be different if Google employed legions of people to create all those links by hand?"

It's not the links I have a problem with. It's the content. They grab content sometimes without permission.

So, it depends on the legions of people and how well trained/ versed they are in US law. If they're 14 year old kids in another country, well no. But if they're adult Americans trained to respect US copyright and contract law, well yes, it would make a big difference.

Coders are not lawyers.

>"The mere act of publishing content on the web constitutes a freely given invitation to link to that content."

Today that may be true, but it wasn't always that way. In fact, there was a time when the ethical thing to do was to ask for permission before linking to a website. Things have changed. I think that particular change is just fine, but I'm sure there are still people who disagree with me.

>"If someone feels that the act of publishing those links violates copyright, or that the snippets Google uses violates copyright, they can seek remedies through the courts."

Sure they can. But that doesn't mean we can't or shouldn't discuss the possibility. We all know law can't keep up with technology. Some people take advantage of that by making certain technologies so mainstream that by the time the law catches up and we realize they in fact did something illegal, the court of public opinion won't buy it.

>"If someone does not want the material they publish on the public web to be searched and indexed, they can alter their robot.txt file accordingly, and Google will honor it. That's the upside. The downside: No one will know they're on the web."

Currently that's true. But do you think Google will always and forever be the big thing? No. Things change. The web proves that everyday.

When something else comes along and does it better, guess what? Think Yahoo vs. Google.

>"About your example of the comatose poet/photographer: First, he had the means to prevent search engines from indexing his material, but did not do so."

Google Image search didn't exist at the time of his car accident. The means to block image search didn't exist.

>"Second, I'm not certain that his posted statement would take precedence over fair use rights outlined in copyright law."

Well, that's actually going to be tested in the courts pretty soon so we'll just see.

>"Third, his material would not become public domain simply because Google found it."

If Google gets to decide that 200 characters is automatically fair use, then the rest of the web follows suit. And then my hypothetical guy's haikus become part of the public domain due to Google's actions.

>"Fourth, no, I do not think opt in is appropriate."

Why?

>"The entire purpose of the web is to provide a way to publish content that allows one piece of content to point to other pieces of content so readers can, as they choose, discover new content sources and move interactively among them."

No, actually. The web itself has no purpose. It's purpose is defined by the people who use it.

What you say is like saying Utah's purpose is to house Dooce and support skiing. Uh, no. It's a space. That space is defined by people who use that space.

>"The net result of being indexed by Google is more traffic. If a publisher wants to trade that traffic for less visibility and fewer readers, they can easily do that by making simple alterations to a single file."

Here's the thing. Google is setting a precedent. By taking 200 characters without permission they are saying it's OK for everyone on the web to do the same. Well, there are times when it's not OK. A Haiku blog is one of those times.

>"The truth is simple: If you are on the web and Google and all the other search engines do not index you, you are invisible. Why would you want to be invisible?"

I'm not going to defend newspapers. I'm making the argument that Google does in fact steal content.

There are plenty of reasons people might not want Google bots indexing all or portions of their sites. Here are some examples:

1. Your site gets plenty of traffic. On part of your site you have a private, paid subscription forum. You want the contents of that forum to remain private so that only people with paid subscriptions can enter.

2. I don't want Google image search pulling my photos. I believe the users of image search are looking to use images, not to find new sites. And I don't want people stealing my photos. So that part of my site is invisible to Google.

3. You make a website to share photos and stories with your family who lives in a far away country. You only want to share your site with your family. You post pictures of your children and other private stuff on your site and you want to keep it out of search results.

4. You're a company with employees all over the world. You want share information only with employees. There is no reason to index your site with Google.

I'll write more about this in my own blog soon...

Posted at 1:18AM on Apr 10th 2007 by Elaine Vigneault

34. Your comments about Dino Media not "getting it" with regard to readers' desire for interactivity really hits home w. regard to the horrendous example of the New York Times. First, they make my day by putting their hardest left columnists behind a pay wall, and now (just yesterday in fact) they shut down their very popular "forums" section. If you think Sam Zell is an idiot (he's not, although he needs help here), what can we say about the genius that is Pinch Sulzberger?

Posted at 6:27PM on Apr 10th 2007 by J. T. Sweeney

35. Jason,
Right on target. As you know, I came out of the newspaper industry and spent the better part of the past fifteen years working with a number of them on digital initiatives. As well-intentioned as those newspaper-driven digitial initiatives have been and are, they can't match the challenges that those companies they face in their core product and from their institutional inertia to sit tight. The newspaper industry is going to look very, very different in five years and not in a way that will please many newspaper purists.
Dave

Posted at 12:57PM on Apr 11th 2007 by Dave Morgan

36. Damn! How can he still be a billonaire? He's gotta get real.

Posted at 4:56PM on Apr 12th 2007 by Andrea

37. Jason -

Nice rant but I think you are a little to harsh on the newspaper industry and may have a short sighted view on the true indepth journalism that newspapers provide that is lacking in today's internet news world.
There's a really fantastic piece that frontline did on how the newspaper industry is dying ... take a look

http://www.pbs.org/wgbh/pages/frontline/newswar/view/

Posted at 8:04PM on Apr 14th 2007 by Brian Shapiro

38. "I beleive that he will make money somehow. You need to remember that this is a man who is used to making big money. Why would he put up so much money if he hadn't invetigated the business and has an idea as to how to turn a profit?"

What are you saying, that people who take business risks will always be profitable on a new risk, because they've been successful at some other business at least some times before? Or that brilliant, talented business people never miscalculate sizing a business opportunity?

Posted at 6:44PM on Apr 19th 2007 by jkilkullen

39. Remember -- the business has other assets besides print media! One of Zell's rules for investing is to take a close look at a firm's assets -- so consider what else Zell gets in the deal... and btw -- I heard on CNBC that Zell *only* put $65M of his $4.5B fortune into the purchase, and that he invests as a private equity investor... (aka lbo)

Posted at 10:41PM on May 4th 2007 by Ronald Ronny

40. The newpaper is a dying breed. Most of the people who read the newspaper ore the older generation. The younger gerations depend on tv and the internet for any news, if they are intersted.

I work for the Tribune and think that Zell made a mistake. But, I also think that he made a good one. I beleive that he will make money somehow. You need to remember that this is a man who is used to making big money. Why would he put up so much money if he hadn't invetigated the business and has an idea as to how to turn a profit?

No, you can believe that he has a plan and that it will be very profitable.

As I mentioned, news in print is dying. It only remains due to advertisers. Once people can just click on some page (google?) and direct them to the ads that they want, and can then print their coupons to go shopping (which they can do now), the paper will disappear.

I have watched sales drop dramatically in just one year. Consider this, the sales of the local sunday paper in one (un-named area)used to be 2,500 (10 years ago). For that same area, the sales for two weeks ago on a sunday was barely 1,000. In ten years, more than half of the sales have been lost. And, for that same sunday for last year, sales were at 1,400. If you ask me, that is a considerable amount.

What will happen to the print in 10 years? It will be obsolete. You can just log on to the internet and either google or go to your local newspaper site. Or any news site and get the latest. Better yet, have it sent to your PDA, cell phone, e-mail, however you want it. Why buy the paper when all you have to do is open your phone and read it why on the tram on your way to work.

If you want to see how quick the newspaper is dying, find out who delivers your paper to the store. Find out from them what warehouse they work out of and then go visit them at 2 am and find someone who has been delivering the paper for ten years. Then you will understand the dying business better. They know more than anyone how much they are making now as compared to then. Try it.

Buddy

Posted at 3:56AM on Jul 22nd 2007 by Buddy