THE BLOG
09/03/2009 05:12 am ET Updated May 25, 2011

Gawker's Big Media Heist

There's a fine line between publicity and a ripoff, says one Washington Post writer.

Ian Shapira was initially delighted to see media buzz site Gawker cover his story on a "millennial guru" who advises hapless twenty-somethings. But after an editor pointed out that the Gawker piece reproduced huge chunks of his article with scant attribution, his pleasure turned to pique.

Did Gawker writer Hamilton Nolan rip off Ian Shapira? Did he rip off the Washington Post? I'd say Shapira, who was pleased, and his editor, who was pissed, were both right.

Shapira wins by virtue of the greater exposure -- and kudos to him for intelligently exploiting the controversy to his advantage. The Washington Post probably loses overall, so the editor is right to be pissed.

The math gets a little fuzzy when you consider that Shapira's story was relatively obscure and, as he acknowledges, Gawker is the second largest source of pass-through traffic to his article.

Shapira concludes his article with a very modest proposal, that source materials be clearly identified. This is fair. It sucks having to write out a clunker like "The Washington Post's Ian Shapira has discovered the world's fakest profession, etc., etc." but it's the only fair and ethical thing to do.

Maybe Gawker should cut a check to the Washington Post as well. Maybe. When I finally read Hamilton Nolan's piece on Shapira"s article, it seemed far less egregious than I had imagined. Sure, there were a few grafs of essential info, but it was well within the realm of being a teaser that primed readers to get more if they so desired. Nolan's real sin, as I see it, was in not giving attribution.

Big media outlets are still in denial mode when it comes to the subversive nature of the Internet. And they are in denial about the ways in which they have damaged their credibility and given smaller, nimbler news outlets the space to steal their market share.

Take newspapers. It used to be the case that if the New York Times or Washington Post said it, that's the way it was. But ever since Judith Miller told her editors that she gave the Times" credibility to a nice farm family, a huge portion of the traditional cachet of working at the "paper of record" went with it. By association, the magic of print at second best papers like the Washington Post, whose own reporting on the leadup to the Iraq War was wide-eyed and credulous at best, misfired as much as Ron Weasley's broken wand in the Harry Potter books.

(Incidentally, in true chatty blogger style: let me say as a Potter skeptic that the new movie is very good. The Filthy Critic, America's second best film critic, agrees. Also, whatever drugs they have Judith Miller on have eliminated her sense of irony. "The tragic figure of Robert McNamara reminds us that government officials can and should ask the kind of policy questions he posed after it had long ceased to matter. His sad fate reminds us of the enormous potential consequences of failing to do so.")

The mainstream media's craven response to the political pressures of our "post 9-11 world" didn't help. As David Cross put it in his standup circa 2002 (paraphrasing from memory) why do I have to go to the Guardian of U.K. website to find out what is happening in my own country?

And while the old media likes to focus on content aggregators and glossers like Gawker, they don't like to talk as much about the scoops that "guys in their pajamas" come up with. (Editorial note: I am at this very moment writing this in my pajamas and a Gators 2007 National Champions shirt. Thanks again OSU!)

It took Josh Marshall's Talking Points Memo to break the U.S. attorneys firing, and, though it gives me no pleasure to admit it, without the concerted efforts of right wing bloggers, Dan Rather would probably still be cozily ensconced somewhere at CBS.

The end result of all of these pressures converging is that even though arguably more media is being consumed than ever before, with greater efficiency of publication, fewer barriers to entry, and more access, the old media companies that create the lion's share of content are losing money to much smaller competitors like Gawker.

Is this bad? Should acknowledgment of the source of original content be accompanied by a share of the profits from page views of that content? How would this be enforced?

It's clearly not nice to ripoff someone else's work. But, while intellectually dishonest, it can be profitable. Dane Cook and Ned Arnel Holness, better known as "Carlos Mencia," (Holness plays a Latino character in the same way that Dan Whitney, aka Larry the Cable Guy, who attended private schools in Florida, plays a redneck) blatantly ripped off the far more talented Louis C.K.'s comedy and made millions doing so. Should Louis C.K. have a way to recoup his lost profits?

Another question: were there lost profits? I frankly had no idea who Louis C.K. was before Joe Rogan confronted Mencia né Holness at a comedy club about the intellectual theft. The end result for me was that I watched a number of Louis C.K.'s clips on Youtube (again, according to copyright purists, theft) and bought C.K."s brilliant show Shameless on DVD. I also look more favorably upon Joe Rogan.

So at the end of the day, did Louis C.K. get hurt by the lifting without attribution of his material? Did Ian Shapira get hurt by the Xeroxing of his material with minimal attribution?

Yes, no, and maybe to both.

Consider the case of the cult show Arrested Development. Although it ran less than three full seasons, Arrested Development attracted a cult following before network executives realized that pouty reality tv stars were more popular than edgy, intelligent humor.

One of the characters in Arrested Development was an itinerant magician named G.O.B. G.O.B.'s trademark music was "The Final Countdown." The song served as G.O.B.'s entrance music and as his ringtone.

G.O.B. is one of those characters who is so incredibly awful that you can't help loving him. So, it shouldn't come as a huge surprise that amidst more contemporary tracks by luminaries like T-Pain and Madonna, "The Final Countdown," a relatively obscure song from the 1980s by the band Europe, is one of the most downloaded ringtones on Itunes. If you get a call and "The Final Countdown" comes on, you can easily separate the room into blank stares and people with whom you might become friends for life, or at least until the Pabst Blue Ribbon runs out. Come on!

The producers of Arrested Development probably paid to use "The Final Countdown." It obviously worked in their show, so it would be unfair to say that they derived no benefit from it. But Europe arguably has profited as much or more by virtue of the use of their song. Should Europe pay the producers of Arrested Development a chunk of their profits from the exposure generated by the song's unexpected resurgence?

(The answer, legally speaking, of course, is no. But lawyers drafting future contracts like this should think of the power meters that run both ways in certain states in which you can both buy power from the grid as we all do, but also, if you have excess electricity generated from solar panels, sell that electricity back to the grid. Contracts should be structured to account for the possibility of the usage having a positive impact on the existing baseline of sales.)

By the way, don't cry for Arrested Development. Not only has it had a profound cultural impact, its devoted fan base provided the fuel for a movie, appearing in theaters sometime next year.

When it comes to newspapers, unfortunately, no one is paying for David Broder or Bob Novack's ringtones (which is a shame, because Broder's "Playing it Straight," and "Right (wink) Down the Middle," are classics) and Ian Shapira probably will be waiting a while before Hollywood options his "millennial guru" story. So how can we make sure that the right folk get paid for their hard work?

Some news industry bigwigs have proposed a system of micro-payments, in which consumers would pay very small amounts to read their news. In his article, Shapira interviews some lawyers who propose a system in which the Gawkers of the world would have to pay the Washington Posts of the world based on the amount of traffic that the original material generated.

Both are nice ideas, but I don't think either has a chance of working. Clay Shirky, who knows as much about micropayments as anyone, effectively debunked the notion that consumers would be willing to pay for content in tiny installments some years ago. After a micropayments micro-boomlet punctuated by former Time impresionado Walter Issacson's omnipresence on talk shows, there's been a suspicious lack of discussion of, much less implementation of a micropayments system.

As for the traffic/profits-sharing concept, the likely result would simply be to make the Gawkers of the world as unprofitable as the Washington Posts. Sites that played by the rules and paid up for content would be eclipsed by newer content aggregation sites. Nice folks like the Web editor Nolan who appropriated Shapira's article would be replaced by Indians or Russians or simply sophisticated content retrieval and aggregation software designed by some bored 14-year-old in Iowa.

The New York Times, the Washington Post, and all their media brothers and sisters would find themselves in the position of the RIAA, pursuing countless lawsuits against the low hanging fruit of kids and moms who accessed unlawful content while the enablers of the intellectual property violations remained protected by the shield of anonymity and servers located beyond the reach of American law.

So what's the solution? Well, if you can't beat them, join them. Newspapers need to re-imagine themselves. They need to realize that they do two things and they need to do them as well as possible without regard for where it leads them. The first thing is to generate original content. Blogs dominate one end of the content spectrum, opinion. But newspapers can dominate the other end of the content spectrum, in terms of facts. Newspapers need to become more aggressively local and relevant to their readers' lives.

The other thing that newspapers do is aggregate content. The fatal mistake that newspapers have been making with all the fervor of the self-flagellating monk in The Da Vinci Code (itself a terrible ripoff of Umberto Eco's far superior Foucault's Pendulum) is to limit their universe to wire services. Gang, there's a whole wide Internet out there.

Media types tend to forget that they are by definition weird. The average American has neither the time nor the inclination to surf a dozen blogs a day. Gawker? Ask ten people in a Washington, D.C. mall what Gawker is. They'll probably tell them that they don't know any personally but they sure are glad the government keeps them away from their children. These are the guys who are kicking your ass? Really?

My parents receive an email newsletter called "Truth Out." Truth Out has some original content and it's excellent. But mostly they aggregate other news sources and package it attractively for people who don't have the time or interest in hunting down the hottest news. If newspapers want to survive, they need to do a lot more of this.

They should also widen their talent pool. Why the New York Times has not yet made an offer that could not be refused to Josh Marshall of Talking Points Memo, I cannot understand. He may be too big for them now, with a double digit staff, and enviable site traffic. But Marshall-like figures are what the NYT and Washington Post need to compete with sites like, well, Talking Points Memo.

Media outlets should consider restructuring contracts. It makes little sense that the Washington Post has not received a significant chunk of Bob Woodward's book proceeds. After incubating his talent for years and providing him a venue, they can't reap any benefit from his superstar book sales? Seems kind of dumb.

Even as they are dying, flailing around in a widening pool of red ink, the titans of the media world refuse to acknowledge that they are being out-competed by nimbler adversaries.

Instead, it's all a con, a trick, black magic which the fickle consumer will ultimately regret, all too late. Until they snap out of self-pity, the old mainstream media hasn't got a chance.

Oh, one final note. It is always heartbreaking to produce something and see it reproduced without credit elsewhere. That's why I was annoyed to see the Washington Post duplicate a post of mine, some two weeks after it had been a Huffington Post "Top Post." As Charlene K observed in the comments to Jonathan Capehart's post,

You"re finally catching up to the Huffington Post. They made this comparison 2 weeks ago.
http://www.huffingtonpost.com/bart-motes/sarah-palin-foreign-polic_b_125835.html
Posted by: Charlene-K | September 27, 2008 1:54 AM

Though Capehart said Palin's "nails-on-a-chalkboard response, and the speed with which it ricocheted in cyberspace, reminded me of another embarrassing video clip of another woman aspiring to a higher position," I wonder if the comparison came as sui generis as he presented it or instead, he saw it bouncing around the blogosphere. Maybe it was synchronicity. At least, Capehart should have done what I did when I made my post: use teh Google and see if anyone else had done it first.

Because appropriation of ideas without attribution is bad and it's bad when a blogger does it to a real journalist and it's bad when, you know, it happens in reverse.

Acknowledgment of intellectual debt: I learned about this story from a tweet by Bill Simmons. I later had my interest further tweaked (tweeted?) by Rachel Sklar's twitter comments.

Acknowledgment of intellectual synchronicity: Hugh McGuire has an excellent post on the same topic that I discovered while tagging this post!

Update: Here's an article Rachel Sklar wrote about the issue, great as usual. I also enjoyed this piece by Dean Baker at The American Prospect. And don't miss Gabriel Synder of Gawker with the semi-official response. Money-quote, I mean steal: "The bigger threat is that blogs say the things that hidebound newspaper editors are too afraid to let their reporters write." Yup.