Google and Twitter have filed a amicus brief with the appeals court on TheFlyOnTheWall.com case. Briefly, at issue is FlyOnTheWall’s near real-time redistribution of investment bank research ratings. Investment bank research departments spend time, money and resources creating stock ratings and price targets. The purpose of this effort is to create an information asymmetry in the market to the advantage of the i-bank’s clients. FlyOnTheWall does not employ analysts and has no research capability, it discovers stock ratings, aggregates and redistributes them in near real time. Since their cost of production only includes real-time redistribution infrastructure, and therefore they can offer their high-value information feeds at a lower cost than investment banks. Subscribers to FlyOnTheWall pay for these aggregated news feeds, they aren’t free. In their testimony, FlyOnTheWall claimed they only gathered information from publicly available sources and only published tweet-sized snippets summarizing the reports.
Google and Twitter make the following argument in their brief:
News reporting always has been a complex ecosystem, where what is ‘news’ is often driven by certain influential news organizations, with others republishing or broadcasting those facts — all to the benefit of the public,
How, for example, would a court pick a time period during which facts about the recent Times Square bombing attempt would be non-reportable by others?”
At issue is the re-emergence of the hot news doctrine, which was originally put in place in 1918 to stop William Randolf Hearst’s International News Service from taking Associated Press wire news stories and redistributing them as their own. The court set forth five criteria to determine whether ‘hot news’ has been misappropriated:
(i) a plaintiff generates or gathers information at a cost;
(ii) the information is time-sensitive;
(iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts;
(iv) the defendant is in direct competition with a product or service offered by the plaintiffs;
(v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.
In the case of TheFlyOnTheWall.com the court ruled for the plaintiffs, Barclays, Merrill Lynch and Morgan Stanley, and decided that a 2 hour embargo was a reasonable amount of latency to build into the Network. In the fast-paced world of equity trading, two hours is an eternity. These days trades are often executed in a matter of milliseconds. The enforcement of this kind of rule, however, is problematic. In the brave new world of social media, both individuals and news organizations have interconnected real-time distribution networks. Once bits of information touch this public social network they can spread with breathtaking speed. Twitter, Google and Facebook are currently the media through which this information is dispersed. And each of them can be said to profit by the circulation of high-value information through their networks.
Over the last few days we’ve seen the drama of General Stanley A. McChrystal play out. The events were put into play by a story written by Michael Hastings, a freelancer for Rolling Stone Magazine. The story about McChrystal’s comments began leaking out Monday night. Both Politico and Time magazine posted a PDF of the Rolling Stone article to their web sites before Rolling Stone. Rolling Stone asked the sites to remove the PDF. The New York Times reports:
Will Dana, the magazine’s managing editor, said that the magazine did not always post articles online because it could make more money at the newsstand and that when it did, the articles were typically not posted until Wednesday. But other news organizations made that decision for him.
The McChrystal story is an interesting example of the ‘hot news’ doctrine. Rolling Stone magazine puts out 26 issues of its print magazine per year. Even before the issue hit the newsstands, it dominated cable news, has been fully reported in the New York Times and resulted in McChrystal’s resignation and replacement by General David Petraeus. One could argue that Rolling Stone should have a business model that allows them to benefit from these kind of real-time events. And it’s quite possible that the broad dissemination of this story will lead to a significant increase in newsstand sales and web site traffic.
In this case the ‘hot news’ was so hot that the story itself became a story. Major government policies regarding the conduct of the war in Afghanistan had to be decided in real time. There was no hesitation, no waiting for Rolling Stone’s newsstand business model to play out. By the time we finally see the printed magazine it will have become an artifact of history. With the advantage of hindsight, we may even wonder why the headline writer put McChrystal’s story third after Lady Gaga’s tell all and the final days of Dennis Hopper.
The question about the ‘hot news’ doctrine isn’t going away; and the decision of the appeals court will be closely watched. In the meanwhile, the marketplace is searching for a solution to the fact of real-time aggregation and relay of digitally-copied work product. The return of the pay wall is an attempt by producers of stories about the news to create a firewall around their work product. Most corporations employ a firewall to keep their valuable internal discussion from reaching the public networks. Limiting access of your product to paying customers isn’t a new idea. However, when your work product is a story about news events or ideas encoded in digital media, creating reliable access controls is problematic. Where in the early days of the Network the focus was on direct access and disintermediation of the middle man; now the economics favor the man-in-the-middle. Meta-data can be sold at a fraction of the price of the data to which it points. The complex ecosystem of ‘the news’ is looking for a new equilibrium in which both data and meta-data can flourish.