Felix Salmon

How PR people break the blogosphere

By Felix Salmon
May 13, 2010

Mike Arrington has a classic Arrington rant today, directed at Fortune.com and entitled “You’re Welcome, You Bastards”. To cut a long story short, Fortune’s PR people got in touch with Arrington to flack a couple of excerpts they were running from David Kirkpatrick’s new book. Arrington agreed to all their preconditions (embargo, mentioning Fortune, linking to where the posts were excerpted on Fortune.com, etc) — and then got chewed out by both Fortune and Simon & Schuster, threatening to sue him for copyright infringement.

I can see this from both sides. From Fortune’s point of view, they gave Arrington a heads-up on their excerpts, and then instead of just linking to them and quoting them selectively, he ran the whole things, which is a violation of copyright. From Arrington’s point of view, however, it didn’t look like that at all. Since Arrington was barred from quoting anything at all until after the excerpts were openly and freely available online, the quid pro quo didn’t make any sense if, as Fortune asserts, he was only allowed to run excerpts of the excerpts. Here’s what Fortune’s flack wrote to Arrington:

The EMBARGO is until 8am, that’s when the stories will be live on FORTUNE.com. Below are the links, so you can include them in the story. Again, you’re set to post as soon as our story goes live and in the first line or two, note that the story stems from an exclusive excerpt in FORTUNE of David Kirkpatrick’s new book The Facebook Effect.

The problem is that once the stories were live on Fortune.com, anybody could link to them and quote from them selectively, with or without Fortune’s permission or advance knowledge. Fortune has neither the right nor the ability to dictate how a blogger links to and quotes from a story on its website, if all he’s doing is quoting small excerpts of the excerpt.

So it was reasonable for Arrington to assume that he was being offered something that wasn’t available to any other blogger: the flack talked about Arrington’s “exclusive post” and said that s/he would “love to offer” the excerpt to Techcrunch. But after Arrington ran the whole thing, it became clear that there was really no exclusive offer at all, as far as Fortune was concerned: they just wanted Arrington to blog their story in the same way that any other blogger would, and they thought that if they showed him the excerpts in advance under embargo, that might increase their chances of getting that blog entry.

Obviously, there was a miscommunication, and in the wake of the miscommunication I think that Fortune’s behavior stands up much better than Arrington’s. (I should mention here that Fortune.com now comprises three former colleagues of mine from my Portfolio days: Dan Roth, Paul Smalera, and Megan Barnett.) Fortune, sensibly deciding that there was no upside in getting into a public fight with Arrington, let the matter drop. But Arrington, even after he was informed that he was in violation of copyright, kept the full excerpts up on his site, and then decided to go public with an aggressive blog entry when the inevitable c&d came from Simon & Schuster.

The fact is that misunderstanding a flack’s communications is no defense against continued copyright violation — not when the details of the violation have been spelled out to you in no uncertain terms. Arrington can legally no more continue to publish the Fortune excerpts in full than I can publish Arrington’s blog entry in full. And given that the excerpts are freely available at Fortune.com, it’s no disservice to the readers of Techcrunch for Arrington to just point them to Fortune.com and let them read the excerpts there.

But equally an important part of the whole story is the way in which Fortune’s PR people fundamentally messed things up. If they’d just waited for the excerpts to go live and then told Arrington about them, none of this would have happened. But instead they decided to make lots of extra work for both themselves and Arrington, all of which ended up creating nothing but ill-will, ranting phone calls, and legal threats. They should never have offered Arrington an “exclusive” anything — because that isn’t what they wanted to do. But they over-reached, and ultimately bear the blame for what happened.

I get flacked quite a lot, and whenever people offer me exclusive stuff, my general response is that once something’s up online, anybody can link to it. So just let me know when it’s up, and I’ll link to it then if I think it worthwhile. And I think Arrington’s coming around to the same conclusion: “the next time someone asks us for a favor,” he writes, “we’re less likely to do it given how this turned out.” Good. If only because level playing fields ultimately benefit everybody.

3 comments so far | RSS Comments RSS

I have to disagree. It’s a reasonable interpretation of what the PR person wrote that the excerpts, not just the links, are available for inclusion in the blog post. In any event, any quotation of copyrighted material is subject to the “fair use” principle; I’m not sure how long the excerpts were, or how long the book itself is, but unless the excerpts were really extensive, fair use is likely to apply.

Posted by DACoffin | Report as abusive

And this:

“I’d love to chat with you about FORTUNE’s exclusive excerpt of David Kirkpatrick’s book on Facebook, which I’d love to offer for tomorrow.”

really sounds like he’s being offered the entire excerpt for use.

Posted by DACoffin | Report as abusive

I think it’s hard to argue that the excerpts and the structure surrounding them (linking, trying to sell the book, lovebombing the author etc.) are a willful and malicious case of “copy write infringement”.

Posted by BarryKelly | Report as abusive

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