Huffington Post suspends writer, apologizes for over-aggregated post

Romenesko Memos
The Huffington Post has suspended Amy Lee, who wrote a summary of an Ad Age post that Simon Dumenco complained was unethical and brought just 57 page views to AdAge.com. Huffington Post Executive Business Editor Peter Goodman apologized for the post in an email to Dumenco: “Your criticism of our post is completely valid. We should have either taken what you call ‘the minimalist approach’ or simply linked directly to your story.”  Here’s what Goodman told Dumenco:

Dear Simon:

I oversee business and technology coverage here at the Huffington Post Media Group and I’m writing in response to your July 11 post about our aggregation practices.

Let me say, right off the bat, that your criticism of our post is completely valid: We should have either taken what you call ‘the minimalist approach’ or simply linked directly to your story.  That is how we train our writers and editors to handle stories such as this.

We have made a very substantial investment in original reporting here, bringing in dozens of new writers in recent months. And while we will continue to curate the news for our audience, what occurred in this instance is entirely unacceptable and collides directly with the values that are at work in our newsroom. We have zero tolerance for this sort of conduct. Given that, the writer of the offending post has been suspended indefinitely.

More broadly, your complaint has prompted us to redouble our efforts to make sure our reporters and editors understand that this sort of thing is unambiguously unacceptable.

Please accept our apologies.  Thank you for your time. I’m happy to discuss this further, as needed.

Regards,

Peter Goodman


Peter S. Goodman

Executive Business Editor
AOL Huffington Post Media Group

Related: The seven steps to a successful aggregation strategy for your news organization

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  • Pingback: The Aggravation Of ‘Over-Aggregation’: HuffPo Suspends Writer — paidContent

  • http://twitter.com/davelucas Dave Lucas

    Splitting hairs regarding journalistic ethics aside, readers familiar with HuffPo and many other blogs (including mine) have come to expect that they will encounter active aggregating every now and then. I’ve had brushes with those who would accuse me of “over-aggregating” even though regular readers have come to recognize it is something I do (in some instances just to save a lot of time, not at all for ‘SEO’) :::

    http://dave-lucas.blogspot.com/2011/05/to-all-you-aggregator-haters-out-there.html

  • http://pulse.yahoo.com/_JSUNTE67TUHS36QAOVMR4LC5HA Pink

    Boy oh boy, there’s no winner in this one.

    Is Simon really complaining about a no-name blogger who doesn’t know how to tastefully aggregate on a story that Simon openly admits was being written for SEO, that uses trend words and phrases that are leading the search engines as a way to increase traffic to your own site?

    What’s more ethical and what’s real news? At least the HuffPo “blogger” re-used facts from an article. Simon  even has the audacity to say it takes a lot of time and hard work to create articles that are stacked with search engine trend words.

    What happened to Simon surely didn’t warrant the attention it is getting and it certainly didn’t warrant the reaction in her blog. No doubt, the HuffPo blogger did not aggregate responsibly. But the link and credit exists, albeit without much class. The HuffPo manager overreacted.

    Simon, whom I do not know and never heard of either, sounds pretentious in the attack blog and comes off looking silly calling out a no name blogger who gets hardly any traffic to her content.

    Now, if this was done by a more professional, seasoned journalist or blogger, I might be able to understand such a response. But everyone knows HuffPo is hit or miss, and most readers could care less about how the information is aggregated to them.

    Thumbs down to everyone for this circus event.

  • Anonymous

    >>> Look, I don’t know much about you, but I gather I’m a lot younger. I gather I grew up with the technology that has created the current influx (and by influx, I mean like 8 in nearly one and a half decades) of hot news cases and that you didn’t. I also have a degree in journalism and a master’s degree in journalism and I, unlike a lot of my colleagues, don’t subscribe to the idea that traditional news organizations are struggling because of sites like the Huffington Post, or Twitter or whatever — they’re struggling because they’re legacy and they’ve failed to adapt.

    You don’t know much about me. My first job was at HotWired, where I started a few months before they sold the first clickable banner ad. I also have a masters in journalism. And I don’t really give a damn what ideas you “subscribe to” – I’m more interested in facts. Try to find some that support your opinion. 

    >>>I’m not interested in having this debate with you because in my experience, people who take that stance should probably go the way of legacy media, too. 

    Translation from the nerd-ish: I can’t argue with you, so I’m going to keep shouting “You’re old” until I turn blue!

    >>> Just like you knew how that one case you found on the internet today “revived” hot news when it really gutted it by narrowing the doctrine down so far that it only exists in extremely rare circumstances

    Perhaps revived is the wrong word. As I understand, it established a 5-part test, which lawyers on both sides of the issue told me established this in the modern era. Did it narrow it? Perhaps so. But it also proved it could still work in some circumstances. 

    >>>Hot news gives a news organization exclusive provence – a property right — over a piece of information. Not the expression of the information, which copyright protects, but the information itself. It bars anyone else from reporting on it until it’s of no value to the person who first came across it. It was a law that made some marginal sense 90 years ago — marginal — before the court developed our free speech doctrines and before the electronic communication changed the way we access information. 

    As I understand, the hot news doctrine only comes into effect if:
    The plaintiff spends money to gather information; said information is time-sensitive; the defendant free-rides on the plaintiff’s efforts; the defendant competes directly with the plaintiff; free-riding would reduce the incentive to produce news of the same quality.

    So it looks like this only right only applies to certain news in certain cases. 

    If you look at that five-part test, it seems that this applies more than ever. Information is more time-sensitive than ever before; there’s more free-riding than ever before; the Internet has more publications competing directly than ever before; and we have a decade of layoffs that shows exactly how this free-riding reduces the incentive to generate news.

    Maybe I’m missing some nuance of this law. But if you think that the Huffington Post isn’t hurting legitimate publications, perhaps you can argue why that is instead of throwing out insults. Or are you waiting for someone else to find those facts so you can copy them ?

  • http://justinmclachlan.com Justin McLachlan

    Look, I don’t know much about you, but I gather I’m a lot younger. I gather I grew up with the technology that has created the current influx (and by influx, I mean like 8 in nearly one and a half decades) of hot news cases and that you didn’t. I also have a degree in journalism and a master’s degree in journalism and I, unlike a lot of my colleagues, don’t subscribe to the idea that traditional news organizations are struggling because of sites like the Huffington Post, or Twitter or whatever — they’re struggling because they’re legacy and they’ve failed to adapt. Technology is disruptive. That doesn’t make it bad or evil or civilly liable. I’m not interested in having this debate with you because in my experience, people who take that stance should probably go the way of legacy media, too. They stand in the way of innovation and change for “what was.” Really, I don’t care how you feel about the Huffington Post. I find those kinds of debates counterproductive.

    I do care about someone spouting off half-baked legal theories based on a surface (mis)understanding of the law, arguing themselves in circles about something that they admit they don’t understand fully, but at the same time seem to know better. I cited the EFF because their brief was online and they’re right, not because I care in particular about what the EFF says.

    “Now, the idea that the hot news doctrine gives someone a right to ‘own a fact’ is utter nonsense.”

    That is exactly what it is, but you apparently know a lot more about it than me. Just like you knew how that one case you found on the internet today “revived” hot news when it really gutted it by narrowing the doctrine down so far that it only exists in extremely rare circumstances, and in a case that the plaintiffs ultimately lost. But I guess it’s alive and well, right?

    Hot news gives a news organization exclusive provence – a property right — over a piece of information. Not the expression of the information, which copyright protects, but the information itself. It bars anyone else from reporting on it until it’s of now value. It was a law that made some marginal sense 90 years ago — marginal — before the court developed our free speech doctrines and before the electronic communication changed the way we access information. Laws are slow to adapt to change, that doesn’t mean they’re good laws. You say it’s protecting journalism. If hot news became the rule instead of the exception, it could paralyze not only journalism (there are, after all, a finite number of stories to go around — who do you think could compete with the NY Times on National News?), but any number of technologies that depend on the spread of information. That’s what the EFF is warning about, but you don’t care (or have missed the nuance).

    But why listen to me? We’ve got an armchair legal scholar with google. Much better.

  • old_frt

    Everybody makes a living.
    By extension everyone of us can be criticized for either talking our book or singing for our supper.
    In this case EFF has been scrupulous in it’s presentations.
    Taking money from Big Technology is not quite the same as taking money from Big Pharmaceuticals.

  • Anonymous

    >>>The plaintiffs lost NBA v Motorola. This case didn’t “re-establish” anything
    The decision showed that the hot news doctrine _could_ still apply, even if it did not do so in that particular case.

    >>>They are urging the court to do so and suggesting that the hot news doctrine could never withstand the heightened scrutiny that would apply if that were the case.
    The EFF said in a press release that the doctrine was “surviving but on life support” – I summarized this as “hanging by a thread.” Does your keen legal mind find that summary inadequate? How so? It is possible that a court will find the doctrine to be unconstitutional but so far that has not happened. Also, it is worth pointing out that the EFF has some rather unusual legal theories. They believed that file-sharing was the future of free speech – but the Supreme Court disagreed.

    >>>You’re not following the difference here. We regulate marketing and advertising because they are a distinct category of speech
    I absolutely follow the difference. I am suggesting – partly, but not entirely in jest – that the Huffington Post has more in common with a marketing campaign than it does with journalism. I am partly kidding. But not entirely kidding.

    >>>Ginsburg is talking about copyright, and she’s talking specifically about a constitutional challenge to the very scheme of copyright protection itself

    Again, I understad this. My point is that there is a precedent that original speech deserves more protection than ‘copied’ expression. Would it apply here? I don’t know. 

    Now, the idea that the hot news doctrine gives someone a right to “own a fact” is utter nonsense. The test established in NBA v Motorola is very specific and most of the cases brought have not met that standard. This really doesn’t involve owning a fact. Let’s look at this Huffington Post summary of the Ad Age article – it’s not about owning a fact but about taking an entire article and, significantly, _doing so on an ongoing basis in a way that reduces the economic incentive for publications to invest in reporting the way they do_. You are certainly free to disagree with the court, and to suggest that this would be an unacceptable restraint on speech. But suggesting that this involves “owning the news” is just hogwash – pure and simple.

    >>>You make very broad assertions tying aggregators or curators to this supposed downfall of journalism itself, but that’s all you’ve got 
    I did not attend law school, so I do not have your legal expertise, but I’d venture to say that I have a decent understanding of the media business. So riddle me this? How can original reporting survive _in the long term_ if ‘free riders’ that bear none of its costs can sell ads against it just as well as those that invested in it? (And in some cases better, since Google and Facebook have a scale media companies constrained by ownership regulations could never hope to match.) Do you have any evidence to suggest that online ad rates will rise, even though the supply of ad space keeps rising and the demand for ads, expressed as a percentage of GDP, has remained relatively unchanged since 1955? Do you think publications will be able to charge money for articles that can be instantly summarized? Do you see any evidence that crowd-sourced journalism can replace the reporting that was generated by all the journalists newspapers have lost over the last decade? 

    Lastly, you didn’t respond to one point – what would prevent the Huffington Post from “over-aggregating” Ad Age stories this way without the hot news doctrine? What would you have Ad Age do to keep its business going under such circumstances? And what in the Huffington Post summary of this article is deserving of free speech protection? 

  • http://justinmclachlan.com Justin McLachlan

    “First, the case that re-established the hot news doctrine is NBA v Motorola, which very much showed it’s alive.”
    The plaintiffs lost NBA v Motorola. This case didn’t “re-establish” anything. It narrowed the doctrine significantly by creating a five part test that must be passed before a claim of hot news misappropriation will succeed.

    “But while the EFF seems to suggest the doctrine hangs by a thread, I can find no evidence of that. Want to share?”

    The EFF is saying that no court of appellate level has ever analyzed the doctrine in light of the First Amendment, as I’ve said again and again. They are urging the court to do so and suggesting that the hot news doctrine could never withstand the heightened scrutiny that would apply if that were the case. They are probably very, very right. Hot news is a prior restraint on speech.

    “What about the Huffington Post suggests it has other interests? I’m sort of serious. So far, it’s devoted more attention to search engine optimization than it has to journalism.”

    You’re not following the difference here. We regulate marketing and advertising because they are a distinct category of speech. We call it commercial speech. We don’t regulate news articles or books or magazines in the same way as ads, even though they are created, ostensibly, to have  commercial impact (generate profit) for the publisher. They are not commercial speech as the term has legal meaning.

    “Thus, the First Amendment ‘bears less heavily when speakers assert the right to make other people’s speeches.’”

    Ginsburg is talking about copyright, and she’s talking specifically about a constitutional challenge to the very scheme of copyright protection itself. Hot news is often about the misappropriation of facts — not giving one protection over their expression of an idea, but giving them the right to actually own a fact — something copyright protection explicitly doesn’t do. Just because a judge writes something in an opinion that seems apt, doesn’t mean that case can or would be applied to the issue at hand. The facts are different and the law is different. I know it’s not easy to understand, but it just doens’t apply here.

    “Dozens of entrepreneurs would start businesses devoted to nothing but summarizing news generated by professional reporters.”

    Yes, welcome to 2005. Welcome to Romenesko’s blog. You make very broad assertions tying aggregators or curators to this supposed downfall of journalism itself, but that’s all you’ve got — really broad assertions and a surface understanding of a complicated legal issue.

  • Anonymous

    Sorry for the double-post, but I have a question for Peter Goodman. Mr. Goodman, did you see this piece before it went online? Did another editor see it? Since the Huffington POst is so committed to transparency, I’m eager to know . . . but I won’t hold my breath.

  • Anonymous

    If opinions are welcome from non-lawyers and other members of the middle class, here are some thoughts from my ‘quick Internet research’: 
    First, the case that re-established the hot news doctrine is NBA v Motorola, which very much showed it’s alive.>>> Don’t confuse silence with decision. Fair enough. But while the EFF seems to suggest the doctrine hangs by a thread, I can find no evidence of that. Want to share?>>>The kinds of things the hot news doctrine supposedly protect are not commercial speech. Commercial speech is advertising and marketing that *only* involves the commercial interests of the speaker.What about the Huffington Post suggests it has other interests? I’m sort of serious. So far, it’s devoted more attention to search engine optimization than it has to journalism. As far as significant comment, wouldn’t this be part of free speech? If you cannot comment on the news, that’s a restriction of free speech. But the Huffington Post summaries don’t express anything – they just repeat other stories. Thus, the First Amendment “bears less heavily when speakers assert the right to make other people’s speeches.” I know very well that the hot news doctrine has nothing to do with copyright. But if the Supremes have decided that a free market provides a crucial incentive for free speech – Justice O’Connor says that “By
    establishing a marketable right to the use of one’s expression, copyright
    supplies the economic incentive to create and disseminate” – who’s to say that wouldn’t apply here?As for a chilling effect, of course I’ve considered it. I just happen to disagree with you. But while I did not go to law school, I do have some experience living in the real world. There, investigative reporting has been decimated, statehouse stories go uncovered, and many editors say they don’t have the staff to do the stories they’d want to. But that’s OK because . . . we have Twitter and the Huffington Post?!? I guess we can agree to disagree on that.If the hot news doctrine was struck down entirely, what would give the Huffington Post an incentive to pull down the story they just pulled down except Arianna’s better nature. (That’s a joke.) Dozens of entrepreneurs would start businesses devoted to nothing but summarizing news generated by professional reporters. Newspapers would be decimated further. Eventually, these “businesses” would also die, since they depend so much on newspaper reporting. While we can argue about whether the law does or should allow this, it seems odd that anyone (besides Arianna, who hates to be scrutinized by journalists herself) would applaud it.

    >>>And while I’m at it, it’s foolhardy to dismiss someone’s argument as “As for the EFF, it receives funding from technology companies, so it’s not exactly objective, is it?”

    It does not prove they’re wrong – which I didn’t suggest – but I think it’s worth considering. Don’t you? It’s often said that newspapers and media companies litigate to defend their own interests. So do technology companies – they just do it through Astroturf organizations like Public Knowledge, Creative Commons and, to some extent, the EFF.

  • Anonymous

    lol. a wonderful reponse!

  • http://justinmclachlan.com Justin McLachlan

    What circuits exactly, beyond the Second? When? Which cases? Did you read the brief I linked to? Have you come across the phrase “elephant in the room” in any of your quick internet research?

    1) Just because a court doesn’t reach an issue, say, the constitutionality of the hot news doctrine in light of 90 years of Supreme Court precedent to the contrary, doesn’t mean it’s decided –silence does NOT equate to “a thing adjudicated.” Don’t confuse silence with decision. 

    Again, from the brief: “For procedural reasons, the District Court did not consider whether the hot news doctrine, as created in International News Service v. Associated Press (INS), 248 U.S. 215 (1918), and narrowed by National Basketball Association v. Motorola, Inc. (NBA), 105 F.3d 841 (2d Cir. 1997), is consistent with the First Amendment.” and “Surprisingly, the speech-restrictive effects of the hot news doctrine have never been squarely addressed.  The INS majority opinion did not address the First Amendment, and Justice Brandeis’s famous dissent, while hinting at the tension between freedom of expression and the hot news tort, likewise failed to consider the First Amendment as an independent limitation on the brand new doctrine.  This may be explained by the fact that INS predated the advent of modern speech jurisprudence, which began the following year”

    2) This is not a commercial speech issue. The kinds of things the hot news doctrine supposedly protect are not commercial speech. Commercial speech is advertising and marketing that *only* involves the commercial interests of the speaker.

    3) The hot news doctrine does not require “significant comment.” The Second Circuit created a five-part test, that’s only binding on the Second Circuit, and nowhere is “significant comment” a requirement.

    4) But, even the First Amendment doesn’t give something labeled even ‘commercial speech’ or ‘intellectual property’ the right to violate property laws, the reverse is also true. Property laws aren’t insulated from being in line with the First Amendment. That’s why even copyright law, which you attempt to argue has something to do with hot news (you can’t copyright facts, only the expression), has a “safety valve” for the First Amendment — fair use. From the brief you didn’t read: “This is markedly different from hot news misappropriation, which contemplates restricting the speech of strangers who have obtained information lawfully from publicly available sources.”

    What you’re not grasping here, because you don’t have appeared to have thoroughly studied the issue as I have — in law school — is that the potential chilling effects (is my Twitter account infringing on someone’s hot news rights? My blog? My Facebook page?) outweigh the value. From the brief that you dismissed out of hand: “If mainstream media outlets, bloggers, and other non-traditional journalists are unsure whether they are violating the law, they may well think twice about sharing newsworthy information out of “timidity and self-censorship.” Cox Broad. Corp., 420 U.S. at 496.  Those concerns are more serious for those who 
    lack institutional support and legal assistance, and the chilling effect may be exacerbated by overreaching cease-and-desist letters.”

    And while I’m at it, it’s foolhardy to dismiss someone’s argument as “As for the EFF, it receives funding from technology companies, so it’s not exactly objective, is it?”

  • Anonymous

    Justin, Although the Supremes haven’t revisited the issue, a few circuit court cases have established that the doctrine is alive and well. If the circuit courts found the doctrine unconstitutional, they would have knocked it down. The fact that they didn’t do so suggests that they believe otherwise. Remember: This doctrine is _very_ limited (as it should be) and the pleading standards are very high (as they should be). It’s hard to make the case that this interferes with free speech.

    Although this derives from common law rather than copyright, the Supremes have established that copyright is “the engine of free expression” (Harper & Row v Nation Ent.). By providing a market for expression, copyright encourages it. Logically, one could say the same thing about his. Repeating the work of others with no significant comment (this last part is important) gets very little free speech protection. The First Amendment “bears less heavily when speakers assert the right to make other people’s speeches,” according to Justice Ginsburg in her decision on copyright term extension.

    There have always been limits to commercial speech. I cannot show Star Wars in my home, sell photocopies of the New York Times, or public perform a copyrighted song without paying a fee. None of these go against free speech. Obviously, hot news is different, because it’s not copyright, but there are plenty of precedents for exceptions to free speech. (The next time Huffington brags about how much AOL stock will increase, she might find out about another one of them!) By making original reporting less economically untenable, the Huffington Post is damaging free speech – not helping it. 

  • http://justinmclachlan.com Justin McLachlan

    Look, the Supreme Court has not revisited ‘hot news’ since it created the doctrine 90 years ago. Most legal scholars would argue that it’s been preempted by federal copyright law (depending on one’s approach to preemption — I don’t agree, hot news isn’t actually copyright law) and the Court’s myriad free speech rulings since INS v. AP. And that’s the more basic problem, in the last 90 years free speech law has been robustly developed and the Court has already told us that prior restraints (which is the remedy that hot news envisions, restraining one publisher before publication) are the most serious types of free speech infringements.

    There was similar doctrine created in the 20s called the ‘sweat of the brow’ doctrine. It took the Court 70 years, but they ultimately rejected it as going against the “essence of copyright.” Hot news areguably go against the essence of free speech.

  • Anonymous

    @justinmclachlan:disqus, they narrowed it but didn’t eliminate it – and HuffPo’s behavior could fit. (Go through the factors and check – this is a classic case.) If it’s Constitutionally questionable, why has it been U.S. law for most of this century? If it’s bad for free speech, why has speech thrived since its establishment? Fact is, the hot news doctrine _preserves_ free speech by protecting the market for it. As for the EFF, it receives funding from technology companies, so it’s not exactly biased, is it? 

  • http://justinmclachlan.com Justin McLachlan

    The second circuit recently narrowed the hot news doctrine and it’s a constitutionally questionable  and dangerous pursuit anyway. It directly impacts free speech protections.

    https://www.eff.org/files/filenode/barclays_v_fly/FlyBriefFinal.pdf

  • Anonymous

    Dear Media,
    Please ignore our massive financial liability under the “hot news doctrine,” which is supposed to deal with this kind of “free-riding” on the reporting of others. It could potentially have a material impact on AOL earnings, and we hardly want that, do we?
    If we throw overboard this one junior reporter, perhaps you will ignore the fact that benefitting from the work of other publications has been our entire business model so far. (We have hired some fantastic reporters, but there’s no evidence that the revenue from online advertising can support this new salary structure.) We look forward to steering the conversation back to the fact that Arianna Huffinton comes off better on television than Bill Keller does.
    Kisses,
    Arianna