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The Hot News Doctrine: Google's reason for Google News changes

The Google News Meta Tag program, activated 12 days ago on November 16th, has ignited a firestorm of controversy that shows no sign of abating. The intent of the online news aggregator's effort was to give proper link credit to the originator of a story. (Which, in itself, is a dicey affair, considering unnamed sources, and small blogs that are ignored by search engines.) But the real result has been the de-listing of small blogs and news websites, while large content farms like Associated Content have been retained.

Indeed, by the experience of this blogger at Zennie62.com, Google News staffers delist the blog, then claim some "violation" of their guidelines without providing evidence to back their claim while having counter evidence produced. Meanwhile, true violators of Google News guidelines, like Associated Content, are permitted to remain listed on Google News, and even today, as of this writing, produce content that is an obvious affront to those same guidelines.

Scott Rosenberg specifically pointed to Associated Content's practice in Salon in August, when he wrote...

A.C.'s appearance in the Google lead position surprised me. I'd always assumed that, inundated by content-farm-grown dross, Google would figure out how to keep the quality stuff at the top of its index. And this wasn't Google's general search index recommending A.C., but the more rarefied Google News -- which prides itself on maintaining a fairly narrow set of sources, qualified by some level of editorial scrutiny.

Gee, maybe Associated Content is getting better, I thought. Maybe it's producing some decent stuff. Then I clicked through and began reading:

The Dr. Laura n-word backlash made her quit her radio show. It seems the Dr. Laura n-word controversy has made her pay the price, as the consequences of herbrought down her long-running program. But even if it ended her show, it may not end her career. Despite being labeled as a racist, and despite allegedly being tired of radio, the embattled doctor still seems set to fight on after she leaves. In fact, the Dr. Laura n-word scandal has made her more defiant than ever, despite quitting

But fast forward to today, after the Google Meta Tag program, and the mass blog delisting for what this blogger claims is the "cover reason" of "guideline violations," and Associated Content still remains, and with a new post that features the use of "fantasy football" a whopping seven times in a paragraph-and-three-quarters.

So how can Associated Content's "crap" as Scott Rosenberg implies, remain, and better content from smaller blogs be removed?  Simple.  I assert that Google News Staff's not telling the truth and this move has everything to do with the arguments over something called The Hot News Doctrine, court cases involving websites FlyOnTheWall.com and Briefing.com, and Google's "friend of the court" role.

The Hot News Doctrine

According to a number of sources, among them a very good post at Arstechica.com , The Hot News Doctrine was originally introduced by The Associated Press in 1918 and in a case where a competitor news organization called INS was taking AP newspapers and rewriting their World War II stories if they originated from INS. At some cases, ilke California, where INS had a geographic advantage, it looked as if INS broke the story, not the AP.

The Supreme Court ruled that the Associated Press work was being used for profit and without credit of any kind by INS. In the process of developing the argument supporting their ruling, the term "Hot News Doctrine" was created.

Fast forward to today, and since 2005, media observers have warned that news organizations, hemorrhaging ad revenue as more news went to the Internet, and blogs proliferated, would resort to the "Hot News Doctrine" to protect their revenue base and get rid of the impact of blogs and bloggers. That, under the idea that they, the legacy news organizations, were the originators of news, even when that wasn't the case.

In 2008, the AP went on a kind of rant against blogs , claiming that some were infringing on its copyright by including portions of content from its articles. But the AP has not then, nor as of this writing, ever explained what a fair use of its content was. The best option was not to even link to the AP, as TechCrunch' Michael Arrington implied when he said his blog would just pretend the AP "didn't exist."

That inflamed the claim by some legacy sites, like the AP, that bloggers were not giving "proper link credit" to their work, even if bloggers could claim that legacy news sites were not giving "proper credit" to blog sites, ether.

This year, 2010, the big media players - in this case The Associated Press, New York Times, Time,Washington Post, Agence France-Presse, and Advance Publications to name the major players - have brought up the Hot News Doctrine in friend-of-the-court briefings in the case of Barclays Capital vs. TheFlyOnTheWall.com. Basically, the legacy media players don't want what they consider to be the re-reporting of "their facts."

What FlyOneTheWall.com was doing was collecting had gathered stock recommendations from investment banking companies, including Merrill Lynch, and reposting them on its website. The Federal Court agreed with Barclays and asked FlyOneTheWall.com to delay the release of its information. The case went to the appeals court.

That directly relates to the idea in Google News guidelines that news should be original or contribute to the original news story in some way. Blogs are commentary, thus, by the nature of the definition of that term, blogs do "contribute to the original news story." But the overall assumption, based on the position of big media as the accuser, is that they produce all original content, when in point of fact, blogs like TMZ.com and PerezHilton.com create as much or more original content. (Regardless of your view of the blogs, which is irrelevant, that is the case.)

The brief written in the Barclays Capital vs. TheFlyOnTheWall.com case states that

Unless generalized free-riding on news originators’ efforts is restrained, originators will be unable to recover their costs of newsgathering and publication, the incentive to engage in the news business will be threatened, and the public will ultimately have fewer sources of original news," reads the brief.

One of those "original news" sources online has been Google News. Google, with Twitter, wrote a "friend of the court" brief attacking the position of the big media players. The online giants have claimed the Hot News Doctrine is not workable in today's Internet news world. Google claimed that enforcing The Hot News Doctrine would create a "hot mess." Their voice was joined by that of the Electronic Frontier Foundation (EFF).

The EFF, in a statement to the U.S. Court of Appeals for the Second Circuit in the Barclays's case by Staff Attorney Corynne McSherry, wrote: "We're asking the appeals court to recognize the elephant in the room and analyze the 'hot news' doctrine in light of the strong First Amendment protections developed by the Supreme Court to encourage the expression of truthful statements on matters of public concern."

While a decision is expected, perhaps before the end of the year, one has been made in another case, the Briefing.com case . There, the Hot News Doctrine was used by Dow Jones, a division of Rupert Murdock's News Corporation. But Briefing.com admitted to copying parts of more than 100 articles, which is a violation of federal copyright law.

Google News and The Hot News Doctrine

Where Google News fits in this complex issue is that as a news aggregator facing a legal vice grip being tightened by the big media players, it's role in a Hot News Doctrine world is severely curtailed. According to Sam Bayard of the Citizen Media Law Project, news aggregators like Google News are negatively impacted, because TheFlyOnTheWall itself, which in court and is now in appeals court, is itself a kind of news aggregator.

What I think happened is, anticipating a negative ruling in the Barclays appeal case, Google had Google News install a "meta tag program" that would get rid of blogs, push them to "Google Blog Search" status, and leave Google News for many of the same big media players that Google and Twitter attacked in court via the friend-of-the-court briefs.

Everything in the Google Meta Tag Program results point to that occurrence. It's not that your blog's content is in some violation of Google News content guidelines, just that you're a small blog that Google News wants to get out of the way to protect itself. From what? From a lawsuit it fears it may lose by The Associated Press.

The only place of relief for this is Congress and the Federal Communications Commission (FCC). The big media organizations have too much legal money, think their very life is on the economic line, and Google and New Media players don't seem to have the stomach to fight them. This is a battle bloggers have to fight, if they can stop attacking each other for a spell.

Stay tuned.
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