Moneyweb editor Ryk van Niekerk made the announcement last Friday: Moneyweb has submitted a court application against Fin24 for alleged “plagiarism, copyright infringement and unfair competition”. Van Niekerk’s claim is that Moneyweb has made substantial investments in “unique and original content”, and that Fin24 then goes ahead and copies their stories. There may be some cursory attempt at a rewrite, Van Niekerk says, but “the key is that the core essence of the original article appears in the Fin24 version”.
In Van Niekerk’s affidavit he emphasizes that he is familiar with the modus operandi of the Media24 stable because he worked for the company from 1997 to 2011. Originally, Fin24 generated its own original content, but after an “aggressive restructuring” in 2009, the website started to rely increasingly on “articles that are effectively copies of articles published by Moneyweb and other publishers”.
In particular, Moneyweb’s application relates to seven articles published on Fin24 between 26 July 2012 and 4 July 2013. It focuses on a series of stories broken by Moneyweb on the “Defencex” Ponzi scheme, which Van Niekerk says his website expended a great deal of time and money to secure. By way of comparison, Van Niekerk quotes the first paragraph of a story originally published on Moneyweb:
“Chris Walker, the mastermind behind the R800-million Defencex scheme, has likened the insurance industry and the banks to Ponzi schemes, while admitting that his battles with the Reserve Bank (SARB) could never have been won. He also claims not to have profited from his embattled business and suggests that the accounts linked to Net-Income Solutions were frozen to protect the profit-seeking interests of the banks and to allow liquidators and attorneys a slice of the R349-million pie.”
Here’s the first paragraph of a story Fin24 uploaded to their website very shortly afterwards:
“They think I am the biggest criminal in SA at the moment,” said Walker. He likened the insurance industry and the banks to Ponzi schemes, while admitting that his battles with the Reserve Bank could never have been won. He also claimed not to have profited from his embattled business and suggested that the accounts linked to Net Income Solutions were frozen to protect the profit-seeking interests of the banks, and to allow liquidators and attorneys a slice of the R349-million pie.”
Van Niekerk concedes that when Fin24 borrow from Moneyweb stories, they do credit the source website and include a link to the original story via hyperlink. But he maintains that this isn’t good enough. “If Fin24 were serious about giving Moneyweb appropriate credit and attribution, it would have prefaced the hyperlink with a statement such as ‘To read the original Moneyweb article, click here’, or ‘To read the complete Moneyweb article, click here,’” the affidavit states.
Perhaps most damagingly, the affidavit also contains details of the amount of traffic directed to the original Moneyweb stories from the Fin24 articles. It is negligible, in some cases as few as 13 people clicked through to the Moneyweb original from Fin24. “It is clear that the links in the Fin24 articles to their Moneyweb sources were in fact inconsequential,” says the affidavit. “Fin24 readers just do not click on these links to read the original story.”
Moneyweb’s case rests on the interpretation of a section of the Copyright Act dealing with “fair use”. The act holds that you can reproduce bits of a “literary work” (which is what a news article counts as) “for the purpose of reporting current events”, provided that the source and the name of the author is mentioned. Fin24 doesn’t usually credit individual journalists, but Moneyweb’s affidavit stresses that this technicality isn’t the crux of their case. What it comes down to, Van Niekerk asserts, is that Fin24’s use of their material does not constitute “fair dealing”.
Unsurprisingly, Fin24 disagrees. News24 editor-in-chief Jannie Momberg told Daily Maverick on Sunday that “Obviously it’s our view Fin24 used the material within the requirements of ‘fair use’.” He said that Fin24 would “without a doubt” fight the case. “We see the upcoming case as very important as it could set a legal framework for fair use and content aggregation and look forward to it establishing precedent,” Momberg said.
We asked intellectual property expert Buhle Lekokotla, a member of the Victoria Mxenge Group of Advocates at the Johannesburg Bar, for her opinion on the case. “Since fair dealing is not defined in the Copyright Act, our courts have held that it is necessary to consider the quantity and quality of the materials that are taken in order to determine whether or not the copying is fair,” Lekokotla told Daily Maverick.
She suggested that Fin24 may argue that it was quoting information that is lawfully available in the public domain. “Even if Fin24 was to allege that it was merely quoting from the Moneyweb articles, which are available to the public, it would still have to prove that it did not ‘reproduce’ Moneyweb’s articles through its later works by excessive quotations but that it limited the quotations to the extent that is strictly necessary for the purpose for which the quotations were used,” Lekokotla said.
While this is the first time the issue has arisen in South Africa, a debate over the fairness of content aggregation has been raging overseas for some years. In 2009, Washington Post journalist Ian Shapira had the experience of seeing a profile he wrote heavily excerpted on the popular website Gawker. In a piece on the matter, Shapira wrote that he initially felt flattered, but an editor questioned why he wasn’t angrier that his story had been stolen. Chewing the matter over, Shapira began to feel steadily more enraged: his article had taken hours of research and preparation, and the Gawker journalist who “aggregated” his content had spent less than an hour on its re-mixing.
Shapira wrote that a US lawyer called David Marburger wanted to see the copyright laws amended to give media outlets the right to sue the competition if they were pirating their stories without compensation: “That change would give news organisations rights that they could enforce in court if ‘parasitic’ free-rider websites (the heavy excerpters) refused to bargain with them for a fee or a contract”.
In a New Statesman piece from July this year, Willard Foxton also compared content-aggregating websites to parasites. “In a world where journalism is a commodity, is stealing essentially the whole premise of an article, and then providing a link that very few people will click on, any different from [plagiarism]?” he asked. “Aggregators are parasites, only slightly more benign than plagiarists – and sooner or later, parasites kill the host. Someone has to actually create words for other people to steal.”
In a statement last week, Momberg called Moneyweb’s stance “an old media approach” and said that Fin24’s publishing principles were used worldwide by sites like BuzzFeed and the Huffington Post. Both BuzzFeed and HuffPo have come in for heavy criticism on this score, however.
Most notably, in 2011 New York Times editor Bill Keller wrote a column lashing out at Arianna Huffington and the content aggregation of her website. “‘Aggregation’ can mean smart people sharing their reading lists, plugging one another into the bounty of the information universe. It kind of describes what I do as an editor,” Keller wrote. “But too often it amounts to taking words written by other people, packaging them on your own Web site and harvesting revenue that might otherwise be directed to the originators of the material. In Somalia this would be called piracy. In the mediasphere, it is a respected business model.”
Huffington hit back with her own column pointing to the amount of original journalism produced by HuffPo. Others suggested that Keller sounded like a grumpy old man struggling to keep up with rapidly-changing times, and pointed out that all media engages in aggregation, adapting content from news wire sources like Reuters and Associated Press. If that is considered acceptable, the argument goes, isn’t it arbitrary to draw the line at other forms of content aggregation? It sounds likely that this will be part of the defence mounted by Fin24 as well.
Actually, the problem isn’t really aggregation, a New Republic editorial suggested shortly after the Keller-Huffington showdown. “It’s that the entire structure of the media world currently provides publications with huge incentives to aggregate and comparatively small incentives to actually create. If your goal is to increase revenue by increasing Web traffic, it’s simply much cheaper and more efficient to excerpt or summarize other stories, rather than to produce your own.” The problem with this is obvious: “We are going to wake up one day and discover that we are simply aggregating each other’s aggregation”. DM
Disclosure: Rebecca Davis contributes occasional columns to Women24.
Photo: New South African bank notes featuring an image of former South African President Nelson Mandela are displayed at an office in Johannesburg January 17, 2013. South Africa’s rand was slightly firmer against the dollar on Thursday, a day after miners at Anglo American Platinum called off a strike at the world’s top platinum producer. REUTERS/Siphiwe Sibeko.
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