MediaTech Law

By MIRSKY & COMPANY, PLLC

Fair Use and the Collapse of Web Advertising

If the thinking behind a liberal approach to web content sharing is driving traffic back to your original content source, what happens when the benefits of doing exactly that – i.e. bumping up traffic for potential advertisers – fails to generate the hoped-for commercial return?

Like all advertising, web advertising has always been somewhat more art than science (yet), for better or worse, with accompanying difficulties in translating eyeballs into advertising revenue metrics.  Comes now the collapse of the web advertising market.  What then becomes of the willingness to go along with liberal content “scraping”, excerpting and other copying under “fair use” arguments?

Brian Stelter probed this very question in the NY Times recently.  Stelter interviews, among others, Henry Blodget of Alley Insider and Arianna Huffington of The Huffington Post, whose publications are among the most aggressive and overt in the practice of integrating others’ content into their writings.  Ms. Huffington states, honestly, that “we excerpt to add value”, which is probably a fair statement, except that Stelter also notes that these sites “highlight [] what they deem to be the most meaningful parts of newspaper articles and TV segments.”

That is troubling from a fair use perspective, removing any serious reason for a reader to follow the link – even where prominently attributed – to the original source.

Further trouble with a fair use argument comes from the evaporation of any serious financial benefit from any increased traffic that does happen to make its way over.

Stelter goes on to discuss the renewed interest recently in paid-subscription models, alluding to (although not specifically discussing) the micro-payment debate among publishers, particularly newspaper strategists.

The whole issue seems the logical next step (a middle-stage consequence) of the enormous success of news aggregator sites like Huffington Post, Google News and others dependent on a vital supply of fresh – and freely available – original content sources.  When does the argument go from an examination of “fair use” to one of how does this business model continue to sustain itself?

To quote the now somewhat-questionable wisdom of (in-bankruptcy) Tribune Company owner Sam Zell, “If all the newspapers in America did not allow Google to steal their content for nothing, what would Google do?  We have a situation today where effectively the content is being paid for by the newspapers and stolen by Google, etcetera.  That can last for a short time, but it can’t last forever.  I think Google and the boys understand that.  We’re going to see new deals and new formulas in the media space that reflect the reality of cost benefit.”

Zell’s comments were dismissed as the know-nothing crankings of a real-estate tycoon dabbling in a foreign sandbox, but he was clearly on to something.  He may not have anticipated the utter collapse – or the timing of the collapse – of the web advertising market, but he was familiar enough with the axiom that economic turndowns reveal the flaws that auditors miss.

[Originally published in Media Future Now on March 16, 2009]

Share this article: Share on Facebook
Facebook
Tweet about this on Twitter
Twitter
Share on LinkedIn
Linkedin
Email this to someone
email

Add Comment

Your email address will not be published. Required fields are marked *