Newspapers, political site lock horns over quotations from online stories

By Ernest Luning
THE COLORADO STATESMAN

Colorado’s top political blog has been ignoring stories from the state’s largest newspapers for more than a month. The move — which the website’s owners said has mostly gone unnoticed — was in response to a threatening letter sent by an attorney for the news organizations that accused the website of copyright infringement and demanded it stop posting excerpts of the newspapers’ articles.

The owners of the website ColoradoPols.com went public on Wednesday with a demand it received from three media conglomerates — owners of The Denver Post, the Colorado Springs Gazette, The Boulder Daily Camera and The Greeley Tribune, along with more than a dozen smaller newspapers across the state — and announced they’re not only happy to comply but will go one better, banishing any mention of the litigious news outlets from their website.

The policy affects political stories reported in Colorado newspapers owned by Media News Group, Freedom Communications, Inc., and Swift Communications Corporation.

In a strongly worded four-page letter dated May 21, prominent Denver-based media attorney Chris Beall accused the website’s owners of “flagrant and persistent theft of our clients’ intellectual property” and closed with a demand that “Colorado Pols cease and desist from any and all unauthorized literal copying from our clients’ newspapers or websites.”

Beall’s letter listed a dozen examples of what he called a “repeated pattern of unauthorized copying from the website versions of our clients’ news reports” found during a three-week period in May. The bulk were lengthy excerpts of Denver Post stories but the citations also included stories the website quoted from The Lamar Ledger, The Summit Daily News, The Greeley Tribune and two stories from the Gazette.

In addition to representing media firms, Beall’s firm is retained by the Colorado Press Association and, by extension, he would be the lawyer representing The Colorado Statesman on some matters.

The cease-and-desist letter closed with the threat of a lawsuit if the website didn’t do as instructed: “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.”

“We’re replying, OK, whatever,” said Colorado Pols co-founder Jason Bane in an interview Tuesday with The Colorado Statesman. “We’re going to stop linking to them and mentioning them at all because there’s no need to.”

In fact, Bane said, the site had quietly stopped mentioning The Denver Post and the other news organizations more than six weeks earlier with hardly a ripple, instead relying on numerous other sources for the same information.

Asserting that “99 percent of the stories you can find anywhere else,” Bane decried what he said was the news organizations’ archaic approach to the changing news landscape.

“It’s not individual sites or individual blogs that are causing problems for other outlets,” he said. “The hold they had on distribution is gone, and that’s never coming back.”

The ubiquitous availability of information — on websites, over the phone — has irrevocably altered the landscape, Bane contends.

“The thing that’s gone that they’re never going to get back is control of distribution,” he said. “Twenty years ago, if you wanted local news, you had to get your local newspaper or watch your local news on TV. That ship has sailed and there’s nothing they can do to fix that.”

It hasn’t been difficult to maintain the website’s attention to political news without referencing the newspapers that complained, he said.

“There’s been a few times I’ve seen we probably would’ve posted something from them but didn’t,” Bane said, “and then the same story was somewhere else — it was in the Durango Herald or the Pueblo Chieftain or it was a national story — that was basically the same information.”

In at least one instance, Colorado Pols bent over backwards to keep references to The Denver Post out of its discussion. Last month, when Denver Post reporter Allison Sherry broke an exclusive story about disciplinary action taken against Republican Senate candidate Ken Buck — including references to hundreds of pages of personnel files Buck made available only to the Post — the website quoted another online news site’s summary of the story and reprinted press releases from Democrats attacking Buck for the revelations but didn’t directly credit the Post for coming up with the scoop.

The policy hasn’t affected Colorado Pols’ ability to discuss politics, Bane said, or had any impact on the number of readers visiting the website — in fact, he said, internal reports show the website’s traffic on track to increase 23 percent over the previous year’s. But reporters at the newspapers have noticed.

“There are some reporters at the Post and other outlets that are not happy about this,” Bane said. “They understood that Colorado Pols gets their name out, gets their brand out, gets their stories out to the wider political audience and chattering class their stories are aimed at.”

Numerous reporters at the affected newspapers didn’t respond or declined comment to The Colorado Statesman when asked for their reaction to the dispute.

It’s only one way the newspapers’ aggressive position harms the newspapers more than it hinders the website, Bane suggested.

“If a story doesn’t have a lot of incoming links, search engines take that to mean it’s not as valuable, not as important,” he said, adding that he wondered if the news organizations “really understand the ‘inter’ part of the Internet.”

The Denver Post could find itself walled off even further from the free exchange of information if it goes behind a paid firewall, as its owner has suggested might happen in the near future, Bane predicted.

“I honestly don’t understand,” he said. “It’s hard to see from their perspective what they want to gain. But they’re going to get what they want and see what good it does them.”

At issue is the legal question of what constitutes “fair use,” a corner of federal copyright law Beall concedes is “a murky area,” especially when it comes to determining how news propagates around the Internet. “Major news organizations from (the Associated Press) on down are struggling with what to do about this problem,” he said.

A source with the AP — whose chairman, Denver resident Dean Singleton, is also the CEO of MediaNews Group, owners of The Denver Post — said the news organization regularly sends out cease-and-desist letters to websites it believes are infringing on its copyright.

The AP’s local bureau chief and a spokesman for the national AP, however, declined to comment for this story.

Beall contends the website simply used too much of his clients’ news content — without enough of a “transformative” treatment, an element considered when determining whether copying someone’s intellectual property falls under “fair use.”

He acknowledged his clients can’t force Colorado Pols to stop using its content altogether but said he issued the blanket demand because the website’s editors were so frequently straying so far out of bounds.

“There are plenty of posts where Pols goes after the reporting for bias or missing the heart of the story — that’s legitimate commentary — but what’s not legitimate is simply reprinting it,” Beall said.

He pointed to several instances highlighted in his cease-and-desist letter where Colorado Pols merely posted copyrighted content under a headline and threw the topic open for discussion, as opposed to supplying its own commentary, adding context or going beyond what the newspapers had produced. (In other instances cited by Beall the website’s editors supplied numerous links to previous posts, asked questions raised by the news and weighed in on probable repercussions.)

It was the website’s wholesale “excerpting large chunks of other people’s stories” that drew the attention of the newspapers and brought lawyers onto the scene, Beall said.

“My clients cannot insist someone stop engaging in fair use,” Beall said. “So Colorado Pols is entitled to engage in fair use of our newspapers’ content. The easiest course to avoid a dispute is to not engage in any copying, because then you don’t have to figure out whether the use is a fair use.”

He said the news organizations singled out Colorado Pols — and haven’t sent similar demands to any other blogs or websites — because no one else quoted from his clients’ articles so extensively.

Still, he emphasized, “Colorado Pols has a right under the Copyright Act to engage in fair use.”

If the news organizations just wanted the website to post briefer excerpts and be sure to add some commentary, why initiate the discussion with such a hard-line stance? Beall said confusion about the law required hitting hard out of the gate.

“The position we stake out is, if you want to be sure you’re not infringing, don’t engage in any literal copying,” he said. “Go forth and make merry, but don’t engage in literal copying of the heart of the news coverage we create.”

The website doesn’t need to shut out the newspapers Beall represents, he said.

“My clients’ view is Colorado Pols can achieve its goal of engaging in discussion of political news in the state without excerpting large chunks from our clients,” he said.

Thanks but no thanks, Bane said.

“The official legal action is something that changes the discussion and makes us, or would make anybody, look at it a little differently and say it’s really not worth the headache,” he said.

While he said the website’s attorneys were confident they would prevail if the dispute landed in court, Bane disagreed with the notion that’s anything Colorado Pols should do.

“Ultimately if we won and a court determined we do indeed have the right to provide excerpts — so what?” he said. “It doesn’t mean anything to us. There’s too many other options out there. Once (the Post) goes behind a paid system, we couldn’t use their excerpts anyway.”

A prominent national media attorney said the news organizations took the wrong approach to fixing whatever problem they perceived but also suggested the owners of Colorado Pols might consider a less drastic response to the impasse.

“The good thing about this move is it brings the standoff into the public and gets people talking about what is happening here and hopefully can lead to a solution,” said Philadelphia-based attorney Adam Bonin, who regularly represents blogs and websites in federal court and sits on the board of the Netroots Nation advocacy group for political sites.

He said he wasn’t surprised by the position the owners of Colorado Pols took when confronted by legal threats from news organizations with deep pockets and plenty of lawyers at hand.

“Especially when you’re dealing with the blogosphere and the perception the proprietors of these blogs not being as sophisticated or as well resourced as the people handing out these (cease-and-desist) letters,” Bonin said, “they can have a chilling effect.”

Indeed, the conversation turns decidedly chilly “when you get a cease-and-desist letter from an attorney and they’re threatening legal action,” Bane said, adding that he had no guarantee this would be the end of it.

“If they’re going to take some sort of legal action for this, who knows what else they’ll try down the line,” he said, “so we’ll just ignore them, period.”

It wasn’t a hard decision to make, he said.

“We figured it doesn’t hurt us to not use their content at all, and there’s no reason to bother with them if this is the kind of approach they’re going to take.”

It’s a less aggressive approach than a Nevada newspaper has taken recently against bloggers and other websites reposting its material. Starting several months ago, The Las Vegas Review-Journal has sued dozens of websites in federal court for copyright infringement and recently settled a case with a national advocacy group for several thousand dollars after the group reprinted one of its articles.

A newspaper editor who was approached to join the complaint against Colorado Pols but declined — and who frequently posts links to his own breaking news on the website — said both sides went to the barricades too hastily.

“I do think there’s a middle ground if people just take a deep breath,” said Fort Collins Coloradoan executive editor Bob Moore.

He said he sympathizes with the owners of the aggrieved newspapers but also realizes the importance of inserting political stories into the online community.

“We really have not had that kind of problem with Colorado Pols,” Moore said, noting that his own efforts to promote Coloradoan stories on the website have helped increase his reputation among political observers statewide.

“But at the same time,” he added, “I do cringe when I see Colorado Pols taking eight paragraphs out of a 10-paragraph story. It is piggy-backing for free off the work others have paid for.”

While Moore was on the phone with a Statesman reporter, Colorado Pols posted a diary excerpting four paragraphs from a nine-paragraph story about legislative fundraising recently posted at The Coloradoan website.

It was an example, Moore said, of appropriating the gist of someone else’s story so the website’s readers would have no reason to click through to the newspaper’s website.

“I wish they wouldn’t do that,” he said, adding that he “might send an e-mail saying, ‘Hey guys, can you tone it down a little bit.’”

But that’s probably all it would take to sort things out, Moore said. The website shouldn’t have to freeze out the state’s largest newspapers, and the news organizations shouldn’t have threatened a lawsuit when a simple phone call might have sufficed.

The solution, Moore suggested, is simple: “There’s a better way to do that — just not block quoting so much material. In that sense, I think Pols is over-reacting in their response.”

An executive at another newspaper — whose political coverage has already gotten a boost from Colorado Pols’ stance — said he declined to sign on with the cease-and-desist letter from the other news organizations but understood why they sent it.

“We probably would have been part of this effort had we seen a clearer abuse of our intellectual property rights by Colorado Pols,” said Grand Junction Daily Sentinel publisher Jay Seaton.

Make no mistake, Seaton said, his company isn’t shy about asserting copyright to its stories. “For the survival of the industry,” he said, “it’s important to protect these rights.”

Seaton said the Daily Sentinel regularly contacts “local aggregators” and other media outlets that commit what he termed an “egregious abuse of our intellectual property” by copying stories. But he didn’t feel Colorado Pols has been crossing the line.

“What we had seen Colorado Pols do with our content is borrow bits of it to be part of a larger conversation,” he said and then added, “What they did with The Denver Post is quite different. It appeared to me to be enormous, liberal bits of posting content and repurposing for their own ends.”

While Seaton acknowledged he was happy the newspaper’s political reporting got more attention when Colorado Pols featured it, the publisher cautioned the website against taking his stance as a license to go hog wild. “If that happens, we will pursue a remedy against them,” he said.

Still, Seaton said, he might follow the less blatantly confrontational approach that’s worked in the past with local bloggers and television stations that rip off his newspaper’s work.

“We have sent sternly worded e-mails or letters addressing the problem,” he said. But those missives are only sent “after a telephone call,” which invariably sorts things out. “Without exception the problem has been resolved.”

The day Colorado Pols posted a lengthy discussion of the cease-and-desist letter, the website also featured front-page diaries — blog-speak for online articles — quoting from the Fort Collins Coloradoan, the Grand Junction Daily Sentinel, the online news site The Colorado Independent, and The Colorado Statesman. (The site regularly posts excerpts and links to Statesman articles, a practice Statesman editor and publisher Jody Hope Strogoff said she’s happy with because it publicizes the weekly newspaper’s political coverage beyond its niche readership.)

In addition, Colorado Pols featured contentious discussions centered on TV ads released Wednesday by the two Democrats vying for the Senate nomination, including embedded videos of the ads, and a link to the campaign theme song of a Maryland candidate.

As it does every day, the website posted an “open thread” for general discussion, introduced with a provocative quote, this time from humorist Will Rogers: “Get someone else to blow your horn, and the sound will carry twice as far.”

Ernest@coloradostatesman.com