January 10, 2014 Last Updated 9:01 am

Tell it to the judge: Dow Jones lawsuit may help set the rules of the road, or lead to chaos

There is a saying among cops, at least on old television shows and the movies, “tell it to the judge.” It is the thing to say to the person just arrested that is trying to protest their innocence.

That is what my reaction was to yesterday’s news that Dow Jones has had enough of another financial news service “pirating” their hot news. Another reaction would be “it’s about bloody time.” (See TNM post on lawsuit here.)

But the issue of whether what Ransquawk can legally use information published by the WSJ minutes after the financial newspaper has posted the information is one worth discussing, in front of a judge.

The reason this needs to be heard in court is that unless this is settled law, where the boundaries are set for aggregators, we will continue to see aggregation expand in directions that can destroy the value proposition established for news.

The argument that aggregation is here to stay is lazy. Yes, I can see that this morning on Twitter that the Labor Department jobs report shows only 74K jobs were added to economy. I can see that the NYT and other outlets are reporting it and so can write a post myself using their information. But can I cut and paste their news and claim it as my own, without attribution?

In essence, those who criticize the Dow Jones position as a quaint leftover of another day do not place any value on news gathering and authorship. The same people who know plagiarism when they see it are somehow willing to say that the Internet is a special case – that there is no reason to credit sources, or do original reporting at all, as long as someone else is there to do it for them.

As someone who has been in a publisher position at various media firms since 1991, my gut tells me that if I can not defend my reporters work, that work no longer has real value. Yes, information travels fast, and exclusives can live for mere seconds. But if I write a sentence, do I instantly lose authorship of that exact sentence the minute it appears online?

But what if those who diss Dow Jones are right, that a judge rules that their lawsuit is without merit? What then? Can TNM begin cutting and pasting live reports from CES that appear on The Verge and Engadget? Why not? Isn’t that merely aggregation?

I think Dow Jones, if their facts are right, may have a case. The reason is that this is not about mere aggregation. They are not accusing Ransquawk of randomly using WSJ information, but of substituting any real reporting for wholesale appropriate of material, “word-for-word” as the complaint states, and without direct attribution.

“Ransquawk often broadcasts DJ Dominant headlines within five seconds or less of the original posting on DJX. On one recent occasion, a breaking news headline announcing Twitter’s initial public stock offering – which Dow Jones first published exclusively on DJX – was broadcast word-for-word by Ransquawk through its audio feed two seconds after running on DJ Dominant – and before Dow Jones published that news through any other channel.” (emphasis in the original PDF)

Further, the complaint says that Ransquawk does not attribute any of its information to Dow Jones, but systematically labels it as coming from “Newswires”.

Aggregation is a thorny issue for many reasons. The number of websites created merely to aggregate headlines is in the thousands. For every link to TNM that refers to a post here inside another originally written post, there are dozens more that are links from sites that merely aggregate the headline, possibly a paragraph, then link back to TNM. These sites are created to take advantage of the fact that ad networks don’t pay on quality, only quantity of web traffic. Are these illegal sites? Doubtful. The sites are not claiming original authorship, are linking back to the original source, and are not using the entire story.

If Ransquawk were crediting Dow Jones, by saying that “DJX is reporting…” it might be a more difficult lawsuit to defend. But the complaint is that Dow Jones is doing the work, Ransquawk is getting the credit, and the financial rewards, AND diminishing the value of their product.

Will they win the case? I have no idea, the case hasn’t even gone to discovery yet.

But I say that if anyone really can defend these types of practices they should tell it to the judge. They may find that, in that setting, they may squirm a bit when trying to explain to a judge, not another web-based journalist, why they are right to aggregate the work of others. Pass the popcorn.

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