What the AP and other content producers should do to protect their content

by Jason Preston on April 20, 2009

I’m realistic enough to know that content does not produce itself. Well written stories require a certain amount of effort and, if you are a publishing outlet, it requires a certain amount of money to produce it. If anyone’s going to stay in business as a publisher, they need to protect their product’s business scarcity.

I’m co-opting the term business scarcity, to show that there is a clear difference between non-business use of content and business use of content, and to help explain why one of them should cost money, and the other one should not.

Personal use is fair use

Non-business use of content is advertising. The conversation that news consumers have outside of your site is both socially valuable (some would say, “democracy in action”) and free content promotion. The more pages that refer to your work and your brand, the chances you have to convert a passing reader to an enthusiastic fan.

That exposure is valuable and free, and it’s the last thing in the world you should want to stop. These people are your best customers.

The important thing is to make sure that you don’t lump your customers in with your parasites. There really is a material difference between Fred Wilson, his use of the New York Times, and the Huffington Post, and their use of the New York Times.

Fred serves ads on his site, but he doesn’t clear 50k in annual revenue, nor does he keep the money. When he sources the New York Times, his goal is to advance the conversation, or to share a really good story with people who haven’t already found it.

When the Huffington Post sources the New York Times, their goal is to take content that they did not have to pay for, and make money with it. I’ll go ahead and assume they’re not completely evil, and that they select the stories they share based on whether they want to advance the conversation or the quality of the article, but at the basic level they’re trying to make a buck for free.

This concept annoys even the “information is free” junkies who wrote the Creative Commons licenses. It’s generally frowned upon (in legalese) for someone to take, say, an e-book I’ve written and licensed under a CC license, and sell it for money to someone else.

If you’re making money with something, you’d better have put something into it.

Telling the difference is hard

It’s one of those “you have to look at it” things. The bad news is that if you’re the AP, or the New York Times, you need to hire someone (or some company) to do the research for you – to look at the sites where your content is being republished, in whole or in part, and decide whether or not that site is a business.

And a human needs to make that decision.

It’s a cost that I think is well worth it, when you consider the PR value of Not Screwing Up. Everyone hates the RIAA because they sued 85 year old grandmas for stealing content when it was clearly their 16 year old grandchildren who were stealing.*

A good barometer, aside from that intangible decision, is probably the amount of money any particular site makes. If I were at the AP, I’d set the number privately, and approach sites that seem like they’re making more than, say, $250,000 per year in revenue.

These sites owe a subscription fee for use of content, or of course, they could choose stop republishing it. If they’re under the magic number, let the prove it. If they’re under, wait until they grow.

In the end it strikes me as a remarkably fair solution. Assessing a fee on businesses who are using your content to draw revenue is a perfectly legitimate business strategy; it’s called reselling.

* I buy all my music. Downloading music from torrents is stealing, and I’m not hypocritical enough to steal digital content when I want to make a career out of producing such things.

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1 Jaclyn 04.20.09 at 11:39 am

Jason, I really like this solution. It’s not a one size fits all and I like where you draw the line — seems to make sense. But the enforcement isn’t easy. Are newspapers with dwindling revenues really going to make sure their budgets pay an individual or a company to see if they should be charging for their content when it is used?

2 Jason Preston 04.20.09 at 12:21 pm

Thanks Jacyln –

I think this is much more a solution for the AP than for many newspapers, but in short: absolutely. Think about it; you pay one or two people a living wage (expense: ~100,000/yr) to keep tabs on which online publishing businesses are repurposing and reprinting your content.

Their job is to track those sites down and negotiate a contract with them so that you get a revenue stream. Say they each locate a really low number (4) sites that then sign up for a 60k/yr licensing agreement. These employees are making the paper money already.

For a small regional paper, I think content theft is less common, and the position less necessary. In a sense, the bigger you are, the more worth it it is, AND the more of a problem it is.

Seems handy that way.

3 Jaclyn 04.20.09 at 12:59 pm

Jason, I think you’re right about small regional papers, but I can’t see this model working for newspapers that are major content producers like the Chicago Tribune or the Boston Globe.

Another thing I’m thinking is: when would you begin to charge? Obviously a site doesn’t generate money just from linking an article once. Do you see this as a pay-per-article model?

4 Mathew Ingram 04.20.09 at 8:28 pm

Jason, you mention the AP (or anyone else who produces content) paying people to “look at the sites where your content is being republished, in whole or in part.” What about fair use? Isn’t that how Google News justifies what it does, because it only uses short excerpts?

5 Jason Preston 04.20.09 at 10:18 pm

Mathew – It’s true, Fair Use is a valid legal concept, and a tricky one. I don’t have enough legal background to give you a strong answer, but I suspect that sooner or later a case will need to go to the courts.

My basic assumption, however, is that you can’t simply present a whole bunch of “fair use” excerpts as an original work.

To use an old media analogy, I don’t think I could simply take a couple sentences from a hundred or so different books, bind them up, and sell them as my own work (could I?) – or at the very least, people wouldn’t think of it as a legitimate business idea.

6 Mathew Ingram 04.21.09 at 6:23 am

Well, if we’re talking about Google, they aren’t presenting excerpts as an original work — it’s an information service, like a directory or index — nor are they making money directly from those excerpts. Courts have already found that Google’s image search is fair use, so I don’t see why they wouldn’t apply the same test to Google News.

7 Jason Preston 04.21.09 at 1:09 pm

Mathew – I’m actually *not* talking about Google. Not only is most of what they do “fair use,” they’re also an AP member, so the AP can go stuff their complaints, because Google is paying the fee.

Goog: “How much to do this?

AP: “400k”

Goog: “OK.”

AP: “Hey, how come your doing this?”

Goog: “WTF? I paid you!”


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