Joe Mullin, writing about a current hot–news-doctrine case in his blog, The Prior Art, reacts to the five-part test this way. "Personally, I can't see how all five of these don't apply to any news organization that's writing a story that follows a 'scoop' by a competitor." He continues:
It's quite common for editors to ask reporters to "match" a story that has been published or broadcast by a competitor by re-tracing the facts, and often the sources, of the "scoop." As long as it's all re-reported and re-written, that's fair game. But the criteria of a "hot news" claim are still met; because newsgathering still costs money, the information is still time-sensitive (that's why we're rushing to get the second-day story), and it could still be thought of as "free-riding" if the second news outlet is just publishing a do-over of the themes, sources, ideas, in the first article—and such second-day stories could reduce the incentive to get scoops. (Although "substantially threaten" might be a reach.) It's all a bit theoretical, since individual scoops aren't really worth that much money, but it does seem like "hot news" misappropriation claims could allow any scooper to sue the still-competing "scoopee."
In other words, any success Brill and his clients have in shutting down the Gawkers of the world that distill their contents will only generate legal blowback that they'll live to regret.
Brill, like so many journalists, overestimates the value any one, two, three, or four news articles may have to the average or even above-average reader. The greatest value overestimate on record was pointed out to me in the mid-1990s by Suck.com co-founder Joey Anuff, who noted that LATimes.com was charging readers more to read an archived review of a movie than it cost to rent the movie itself!
Other Brill blind spots: Long before the nasty old Internet arrived to teach readers that the news was "free," the newspaper industry had already spoiled its customers by heavily subsidizing the product with advertising. If we're talking original sin, we should talk more about this ancient newspaper "transgression." The cash you pay for a subscription to the Washington Post covers only a fraction of the paper's $120 million-plus editorial budget. And while the idea of "free" media may startle Brill, broadcasters have done exceedingly well for themselves with the business model for many decades.
Still other Brill blind spots: He obviously knows the media landscape has changed since the original sin was committed, so he can't possibly think that readers are willing to return to 1995. People were losing their taste for newspapers then! National circulation had been falling for a half-decade. And because Brill won't get 95 percent of top publications to throw in with him at the beginning, his initial clients will suffer a first-user disadvantage: If the Washington Post takes most of its act behind Journalism Online's wall and the New York Times doesn't, Times readership will grow and the Post's will decline, and the Post's new direct-from-online-reader revenues probably will not make up the difference from losses in online advertising.
Brill's approach to getting back to the garden by walling it off from the free Web contains just a whiff of the notion that the news should be secret—and if not secret, then closely held, confidential information—and read by only those who pay full freight. His ideas run against the long-standing views of an industry that has always wanted its market power measured by how many people read newspapers, not by how many buy them, as illustrated by this Washington Post's media kit page, where the paper boasts of having 1,599,900 daily readers, even though circulation stands at just 633,100.
Maybe Brill's business model should find a way to start billing the millions of free-riders who pick up pre-read copies in coffee stores or family members who share newspapers at home.
How many New York Times articles would Shafer-Manjoo have to summarize each day to satisfy a just-give-me-the-facts readership on the Web? The June 8, 2007, edition of the eight-page TimesDigest (discussed in a previous Press Box column) contained 12 news stories, two editorials, one editorial column, two sports stories, a weather column, the crossword puzzle, a stocks box, and nearly a dozen shorts, so I'm guessing about a dozen. Maybe Manjoo and I could tweet our summaries to the Web? Send your reflections via e-mail to email@example.com. (E-mail may be quoted by name in "The Fray," Slate's readers' forum; in a future article; or elsewhere unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)