Fallen Fox News host Bill O’Reilly has prepared well for the day that he lost his precious nightly program “The O’Reilly Factor.” For years now, he has been promoting his own website — BillOReilly.com — with relentless plugs to millions of nightly viewers who watched his program until last week, when he left after causing too much of a ruckus with his sexual harassment and mistreatment settlements.
Dial back to March 2, back when Bill O’Reilly was still King of Cable News. Toward the end of his broadcast, he said, “‘Factor’ ‘Tip of the Day,’ some spiritual advice, in a moment. But first, few notes from ‘The Factor’ factory. Premium membership [on] BillOReilly.com exploding. I think it’s because of our fair coverage of the president, which continues on the website.” The promotions often came during the host’s mailbag segment. Oregonian Bob Dixon wrote in saying, “Just joined as a BillOReilly.com Premium Member. Great deal when you subtract the price of the free book I received. Killing the Rising Sun was excellent and enlightening,” wrote Dixon in a letter that O’Reilly read on Jan. 26. The host didn’t dispute the assessment. “You know, that’s what I tell everybody, Bob. The free book cuts the membership fee in half. And you get big discounts on top of that. On all our stuff,” said O’Reilly.
A Nexis search for BillOReilly.com (and “BillO’Reilly.com”) on Fox News over the past five years turned up nearly 1,000 hits.
Though O’Reilly no longer has a Fox News program, he has the Internet. On Monday night, he cranked out a BillOReilly.com podcast, promising the folks more of something or other in regard to his drama with Fox News. “I am sad that I’m not on television anymore,” said O’Reilly. “I was very surprised how it all turned out. I can’t say a lot, because there’s much stuff going on right now. But I can tell you that I’m very confident the truth will come out, and when it does, I don’t know if you’re going to be surprised — but I think you’re going to be shaken, as I am. There’s a lot of stuff involved here.”
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That whole bunch of stuff will eventually snowball into news, suggested O’Reilly. “You, as a loyal O’Reilly listener, have a right to know, I think, down the lane what exactly happened. And we are working in that direction, okay?” He’s working in the direction of more cash, too: Whereas access to Monday night’s podcast was free to all BillOReilly.com visitors, these chats will soon creep behind the website’s premium paywall. A line in the site’s “premium membership agreement” discloses that BillOReilly.com is owned and operated by “Bill Me, Inc.”
Another service available exclusively to premium subscribers is something known as “Bill’s Daily Briefing.” It consists of the articles that O’Reilly “uses to plan the Factor,” as compiled by “senior Factor producers,” according to BillOReilly.com:
A glimpse at planning materials — even retrospective ones — for “The O’Reilly Factor” is something for which the Erik Wemple Blog readily pays a premium. So we signed up. Turns out that “Bill’s Daily Briefing” is a daily assortment of copyright violations. Sample this item from Monday’s “briefing.” To judge from the top-level architecture, it’s a story written by Eugene Flarmben on the death of Erin Moran.
The first paragraph reads as follows:
The death of Erin Moran in Southern Indiana Saturday afternoon remains surrounded by questions, rumors and wild speculation. In that sense, her passing in the southern part of the state shares much with her life there — a tapestry woven together by tabloid reports, court filings and statements by those who claimed to have crossed paths with the former child star as she moved from place to place in Harrison County. Public records and IndyStar archives show Moran making her way to Indiana in 2011 alongside her second husband Steve Fleischmann. The couple had been married since 1993 and owned a number of properties together in California, according to online public records.
At the bottom of the piece lies a link: “USA Today,” leading to a story by Justin L. Mack of the Indianapolis Star. So did BillOReilly.com summarize and aggregate the USA Today story, just the way that websites everywhere have learned to do? No — BillOReilly.com just copied the text and published it for its premium members. Compare the top of the BillOReilly.com treatment — above — with the initial paragraphs of the USA Today story, right here:
The death of Erin Moran in Southern Indiana Saturday afternoon remains surrounded by questions, rumors and wild speculation.In that sense, her passing in the southern part of the state shares much with her life there — a tapestry woven together by tabloid reports, court filings and statements by those who claimed to have crossed paths with the former child star as she moved from place to place in Harrison County.Public records and IndyStar archives show Moran making her way to Indiana in 2011 alongside her second husband Steve Fleischmann. The couple had been married since 1993 and owned a number of properties together in California, according to online public records.
BillOReilly.com copies nearly every last word of the USA Today story. Chrissy Terrell, a spokeswoman for USA Today, tells the Erik Wemple Blog: “We do not have a content sharing agreement with this site.”
Now observe another example of voracity for copyrighted material.
BillOReilly.com:
Months before Donald Trump was elected president, he attacked a federal judge assigned a case involving the defunct Trump University, accusing him of being biased because of his Mexican heritage. The unusually personal, racially tinged remarks against U.S. District Judge Gonzalo Curiel alarmed legal experts and spurred fierce criticism from the Republican Party, including House Speaker Paul D. Ryan (R-Wis.).Now, the Trump administration must coincidentally face that same judge in a lawsuit in California filed on behalf of Juan Manuel Montes Bojorquez, who immigration advocates say is one of the first “dreamers” to be deported under President Trump.Attorneys on behalf of Montes, who was brought to the United States as a child, filed a lawsuit Tuesday demanding that the federal government turn over all information about the 23-year-old’s case. They assert the California resident was deported in February despite his status as a “dreamer” — a beneficiary of President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) program. The Department of Homeland Security disputes their claim.Despite conflicting accounts, the allegations heightened existing concerns that DACA recipients are now being targeted for deportation, notwithstanding Trump’s pledges to “show great heart” toward them. Montes’s lawsuit could help define Trump’s approach to the DACA program, which has granted permits to more than 770,000 people since 2012.Tuesday’s lawsuit came less than a month after Curiel approved a $25 million settlement in a case alleging the defunct Trump University misled customers and committed fraud. Trump frequently assailed the judge, and in one interview said his Mexican heritage presented an “absolute conflict” in his fitness to hear the lawsuit because of Trump’s tough stance on immigration and his promises to build a border wall.Curiel, who was born in Indiana to parents who emigrated from Mexico, made no public comments about Trump’s attacks and did not recuse himself in the Trump University case. Washington Post
The Washington Post:
Months before Donald Trump was elected president, he attacked a federal judge assigned a case involving the defunct Trump University, accusing him of being biased because of his Mexican heritage. The unusually personal, racially tinged remarks against U.S. District Judge Gonzalo Curiel alarmed legal experts and spurred fierce criticism from the Republican Party, including House Speaker Paul D. Ryan (R-Wis.).\Now, the Trump administration must coincidentally face that same judge in a lawsuit in California filed on behalf of Juan Manuel Montes Bojorquez, who immigration advocates say is one of the first “dreamers” to be deported under President Trump.Attorneys on behalf of Montes, who was brought to the United States as a child, filed a lawsuit Tuesday demanding that the federal government turn over all information about the 23-year-old’s case. They assert the California resident was deported in February despite his status as a “dreamer” — a beneficiary of President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) program. The Department of Homeland Security disputes their claim.Despite conflicting accounts, the allegations heightened existing concerns that DACA recipients are now being targeted for deportation, notwithstanding Trump’s pledges to “show great heart” toward them. Montes’s lawsuit could help define Trump’s approach to the DACA program, which has granted permits to more than 770,000 people since 2012.Tuesday’s lawsuit came less than a month after Curiel approved a $25 million settlement in a case alleging the defunct Trump University misled customers and committed fraud. Trump frequently assailed the judge, and in one interview said his Mexican heritage presented an “absolute conflict” in his fitness to hear the lawsuit because of Trump’s tough stance on immigration and his promises to build a border wall.Curiel, who was born in Indiana to parents who emigrated from Mexico, made no public comments about Trump’s attacks and did not recuse himself in the Trump University case.
Kristine Coratti Kelly, vice president of communications and events for The Post, emailed the Erik Wemple Blog, “We don’t have any agreement with billoreilly.com that would allow him to use our content in that way.”
In fairness to BillOReilly.com, there’s no failure to credit here — the piece, after all, contains a link to the source material, as do the other “briefings” items. Furthermore, BillOReilly.com didn’t gobble up the entire 590-odd words of The Post story. Just 310 of them.
Outside of such courtesies, however, these news roundups betray contempt for the work of journalists, not to mention the imperatives of copyright law. Aggregation is an ages-old practice that took a trip to the major leagues with the advent of the Internet. Over a couple of decades of practice, most news organizations respect a set of principles when it comes to spring-boarding off the written work of others: Don’t copy too much text, link generously and move the story forward with analysis, reporting, humor, whatever.
Those practices square with the four-pronged “fair use” test under U.S. copyright law. A key consideration in evaluating the hygiene of news roundups is whether the reader would need to click through to the original piece of work. As the Digital Media Law Project notes, “A use that cannot act as a replacement for the original work is more likely to be a fair use than one that can serve as a replacement.”
Clay Calvert, University of Florida professor, says that the paywalled status of these briefings raises legal issues for BillOReilly.com. “The ‘premium content’ taken from newspapers like the Washington Post without permission or a license raises huge copyright issues because O’Reilly is basically just bundling it all up and reselling it to subscribers for a price,” notes Calvert in an email. “Although federal law creates a fair-use exemption from normal copyright rules when journalists use the content of others for purposes of ‘criticism, comment, [and] news reporting,’ O’Reilly’s use of stories like the Post’s doesn’t seem to be adding any new criticism, content or reporting on the original stories.”
But at least O’Reilly has figured out how to get people to pay for news!
Now for another example.
BillOReilly.com:
The New York Times
Trump Adviser’s Visit to Moscow Got the FBI’s AttentionEver since F.B.I. investigators discovered in 2013 that a Russian spy was trying to recruit an American businessman named Carter Page, the bureau maintained an occasional interest in Mr. Page. So when he became a foreign policy adviser to the Trump campaign last year and gave a Russia-friendly speech at a prestigious Moscow institute, it soon caught the bureau’s attention.
That trip last July was a catalyst for the F.B.I. investigation into connections between Russia and President Trump’s campaign, according to current and former law enforcement and intelligence officials.
It is unclear exactly what about Mr. Page’s visit drew the F.B.I.’s interest: meetings he had during his three days in Moscow, intercepted communications of Russian officials speaking about him, or something else.
After Mr. Page, 45 — a Navy veteran and businessman who had lived in Moscow for three years — stepped down from the Trump campaign in September, the F.B.I. obtained a warrant from the Foreign Intelligence Surveillance Court allowing the authorities to monitor his communications on the suspicion that he was a Russian agent.
From the Russia trip of the once-obscure Mr. Page grew a wide-ranging investigation, now accompanied by two congressional inquiries, that has cast a shadow over the early months of the Trump administration. At a House Intelligence Committee hearing last month, the F.B.I. director, James B. Comey, took the unusual step of publicly acknowledging the investigation of Russian interference in the election, which he said included possible links between Russia and Trump associates.
Developments beyond Mr. Page’s trip may have heightened the F.B.I.’s concern about Russian meddling in the campaign. Paul Manafort, then Mr. Trump’s campaign manager, was already under criminal investigation in connection with payments from a pro-Russian political party in Ukraine. WikiLeaks and two websites later identified as Russian intelligence fronts had begun releasing emails obtained when Democratic Party servers were hacked. NY Times
New York Times:
Ever since F.B.I. investigators discovered in 2013 that a Russian spy was trying to recruit an American businessman named Carter Page, the bureau maintained an occasional interest in Mr. Page. So when he became a foreign policy adviser to the Trump campaign last year and gave a Russia-friendly speech at a prestigious Moscow institute, it soon caught the bureau’s attention.
That trip last July was a catalyst for the F.B.I. investigation into connections between Russia and President Trump’s campaign, according to current and former law enforcement and intelligence officials.
It is unclear exactly what about Mr. Page’s visit drew the F.B.I.’s interest: meetings he had during his three days in Moscow, intercepted communications of Russian officials speaking about him, or something else.
After Mr. Page, 45 — a Navy veteran and businessman who had lived in Moscow for three years — stepped down from the Trump campaign in September, the F.B.I. obtained a warrant from the Foreign Intelligence Surveillance Court allowing the authorities to monitor his communications on the suspicion that he was a Russian agent.
From the Russia trip of the once-obscure Mr. Page grew a wide-ranging investigation, now accompanied by two congressional inquiries, that has cast a shadow over the early months of the Trump administration. At a House Intelligence Committee hearing last month, the F.B.I. director, James B. Comey, took the unusual step of publicly acknowledging the investigation of Russian interference in the election, which he said included possible links between Russia and Trump associates.
Developments beyond Mr. Page’s trip may have heightened the F.B.I.’s concern about Russian meddling in the campaign. Paul Manafort, then Mr. Trump’s campaign manager, was already under criminal investigation in connection with payments from a pro-Russian political party in Ukraine. WikiLeaks and two websites later identified as Russian intelligence fronts had begun releasing emails obtained when Democratic Party servers were hacked.
Again: BillOReilly.com used copied-and-pasted text from the New York Times, though it did link to the paper’s website and didn’t grab the entire story. New York Times spokeswoman Danielle Rhoades Ha indicates that the newspaper’s legal team is “looking into” the matter.
BillOReilly.com also treated the Associated Press to its aggregation strategy, snatching about half of this story on President Trump. Lauren Easton, a spokeswoman for the AP, says the organization has “no record of BillOReilly.com being a customer.”
Virtually all actions of Bill O’Reilly stand in hypocritical contrast to some principle that he has defended at one point or another. So it is with his website’s over-reliance on mainstream-media news. Here he is attacking USA Today. Here he is attacking the Associated Press for being a “liberal clearing house.” Here he is attacking The Post. And, of course, he strafed all of the above outlets — and many others — in his frequent condemnations of the elite media. It’s a law of conservative punditry: When the mainstream media organizations publish inconvenient facts, crow about their lefty leanings; when they publish helpful facts, cite them as authoritative sources.
All this discussion of bad faith neglects the more pressing question: Who is Eugene Flarmben, anyway? That’s the byline on many of the briefing items on BillOReilly.com. An improbable name, it doesn’t bounce very high on a Google search and fetches zero results on a public records search. This fellow, however, does rate a mention in the 2013 book of short-lived “Fox News mole” Joe Muto. It’s actually an “alias,” Muto tells this blog, used by a booker for the now-defunct “O’Reilly Factor.” “Not sure if everything on the website with that byline is necessarily him though,” writes Muto, a former “O’Reilly Factor” staffer, in an email. “Could be multiple people posting under that name, just because everyone on the staff eventually embraced it as sort of an inside joke.”
The fellow who posted the most recent round of “Bill’s Daily Briefing” is doing business as “Gerald McFoon.” “Bill’s Daily Briefing” originated, says Muto, as an introduction to O’Reilly’s former radio show; he’d read from top news stories, and then riff some commentary. “We put it together quickly in the morning… it was generally a straight copy-and-paste job on the staff’s part — give him the headline and a paragraph or two,” says Muto. “Eventually Bill came up with the idea to just post this document online, as a perk for the Premium Members.”
In search of a comment on these matters, the Erik Wemple Blog sent an inquiry through the comment portal on BillOReilly.com. We received a grammatically challenged reply hinting at our warm relationship with the dethroned King of Cable News: “As a Premium Member, Bill considers you to be the vanguard of BillOReilly.com. As such, your letter will receive priority treatment.” Who knew that Bill was a premium member on his own website?!
Mark Fabiani, a crisis-communications expert hired by O’Reilly to steer him through the sexual harassment allegations, tells the Erik Wemple Blog: “The use of articles on BillOReilly.com was vetted by lawyers when the site was established, and this usage falls squarely within the fair use doctrine — the same doctrine that has allowed an untold number of news aggregation sites to exist online.”
Surely BillOReilly.com takes copyright law seriously, at least when it comes to its own stuff. “The Site Materials may not be copied and posted on any other web site,” reads a provision in the “premium subscriber agreement.”
Just the way O’Reilly obsessed about his TV ratings, he cares a great deal about traffic to BillOReilly.com. On Tuesday night’s podcast, for instance, he boasted that 750,000 people “heard” Monday night’s “broadcast.” “He keeps a close eye on it,” says Muto. “Every morning he gets a print out that tells him how many new premium memberships, how much merchandise was sold, how many active logins, etc. And whenever he sees those numbers dip, he comes up with a stunt to revive them.”