"His pep talk amounted to showing a chart of upward linear growth and telling us it wasn't good enough," said one employee. "But what do you expect from Nick—is he going to go around and rub everybody's shoulders?"

No. He is not. Denton should feel good that he came off as a real hardass. Everyone knows where they stand now: grow (more!) or get out. And another principle he issued was that Gawker Media is to be considered a tech company—but it should also be considered a tech company with editorial products... that should soon just happen to get more traffic than the New York Times website or the Huffington Post. Gawker Media, of course, is essentially supposed to be the next Facebook. Along the way to that goal, there'll be some big news announced by the company. (But not yet.)

So one highlight of the meeting was a top site editor taking issue with the conception of the company as a tech company. (Tech companies sell for a greater revenue multiplier than "editorial" companies do, although Denton also announced the company was absolutely not for sale.) Gawker Media's tech build-up includes what is said to be a very intense commenter system. (What was your top takeaway from the evening? I asked one writer. "Soon writers will be obsolete," the writer told me. "Reddit?" said another. To be fair, that's a common refrain over the years at Gawker, but it is an ideal outcome for a tech company. Gawker Media loves talent, but they also know there's always more talent.) In any event, Denton did not relent to the editor's insistence that the company was an editorial property.

Nor did anyone explain what this new commenter system is like. It runs apparently on magic, and will increase pageviews magically. With Gawker Media's history of smooth product rollouts, we're sure it'll work splendidly right out of the gate! Speaking of! Nick was asked if he would do the infamous redesign differently if he could do it over again. "No," he said—saying that, what's the point in having an independent company if you can't do things that are radical and make screw-ups? (While the company's competitors are, he said, hide-bound and risk-averse. That is true.)

Attendees described the meeting as alternately hilarious, exciting, boring and frightening. Looming over it all is the matter of pageviews, as there always is. Money is not just being spent on tech development, but on beefing up website staff—something of a hiring spree is at hand, because each site is expected to grow quite incredibly over the next year.

Andrew Gorenstein, the new head of ad sales, recently taken from Condé Nast, came off impressively, even from editorial, who is always expected to hate the ad guys. (That is a new and weird thing.)

There was a grab-bag of anonymous questions from the staff, which were presented all at once, and were slightly distorted in the reading. (One question, which went in as essentially "Will there be a future system for annual raises?" was asked as "When will I get a raise?" To which Denton responded, "You'll get a raise when you're promoted.") This is a strangeness of the company, even as it has maternity leave, good pay and retirement plans: there is, with some exceptions, not so much promotion from within. People in senior editorial positions who have held lower positions generally achieved their new promotions by leaving the company and then returning. The other way to get promoted is to, essentially, hire a department under you—a sort of Amway situation.

There was, however, a highly enjoyable historical montage of photographs from throughout the enterprise's already-storied history. Now everyone just has to go out and get more traffic. (Because it's not like they weren't already trying to do that.) But good news: there are chefs cooking sushi in the office today. Stuff your pockets with raw fish on your way home.

I have an insane number of both conflicting and mutual interests with Gawker Media. None of the above is based on information provided by the company.

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Still, it's interesting that Denton is sending out pageview charts in response, as he doesn't care about pageviews. "Search traffic fell but organic traffic is robust," he said this morning. Here's pageviews on Gawker and Gizmodo over the last year.

What you start to suspect in some of the diversity between sites is that some of this isn't redesign-related.

One thing that supports the search traffic being down but the organic traffic being "robust" is seeing "people" down and pageviews up or steady (with Gizmodo being an exception):

Here's Jezebel, Kotaku io9 and Fleshbot, in pageviews:

And the same sites, in "people" visiting:

Let us not forget Jalopnik!

In people:

And in pageviews:

Usual disclaimers apply, yadda yadda.

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So what’s going on here? Does Gawker have a First Amendment right to excerpt Sarah Palin’s book and make fun of it? Or can Sarah Palin use her powers under copyright law to stop them? The answer is, depends! The copyright clause of the Constitution does not always get along well with the First Amendment. When they find themselves in a conflict, we go to the judges, and the judges now use something called the Fair Use Doctrine to mediate it.

Judges invented the Fair Use Doctrine a long time ago because they noticed a natural tension between free speech and the right to keep your own expression on lockdown. Congress eventually agreed this was a good idea and they passed it into law during the bicentennial. Here’s how it works. Someone borrows part of something made by someone else, for their own creative thing, but without getting permission, and then there’s a lawsuit. A judge examines the particular use in the light of four factors, easily phrased as questions. One, what is the purpose of the use? Two, what is the “nature” of the copyrighted work? Three, how much material was used in relation to the whole? Four, might the unauthorized use have a harmful effect on the market for the copyrighted work?

Then the judge takes all the answers to these questions and weighs them against each other. They call this a balancing test, but it’s not like balancing a see-saw. It’s more like balancing a dinner plate on the pointy end of a nail. Because some answers mean more than others in one situation and less in another, and sometimes a judge will just introduce a new idea into the equation, totally on her own. Fair use is one of the most subjective laws on the books. It’s impossible to predict which way the dinner plate is going to tip.

Lawyers don’t like uncertainty. It makes them queasy because it creates risk. If a lawyer at a traditional media company makes a decision that relies on the fair use doctrine and the company gets sued, the lawyer gets fired. Gawker, on the other hand, has a rather high tolerance for risk. They have their own calculus for whether getting sued is worth it, whether the cost of fighting off a lawsuit is worth the new eyeballs the offending post may bring. Here, probably not worth it. And the odds are that Gawker will settle this lawsuit, because they’re in the making money business and not the litigating on principle business.

But that shouldn’t stop us from the fun sport of legal speculation as to whether Gawker would win if this case went to trial, and to the appellate courts, and to the Supreme Court! I always secretly wish they do this with one of their legal issues. The People vs. Larry Flynt is a great movie and could use a sequel. So let’s call this Gawker Media Court Battle Fan (Non)Fiction if you like.

Here’s what Gawker would be up against. Twenty-five years ago a remarkably similar case ended up before the Supreme Court. It was brought by Harper & Row (one-half of the conglomerate now suing Gawker) and it concerned the memoirs of Gerald Ford, another former half-term executive official with a sordid reputation. Harper & Row sold some exclusive excerpts to Time Magazine, which Time planned to run a week before the book hit shelves. However, The Nation got a hold of the book, and with the admitted goal of scooping Time, they ran an article featuring quotes from the most salacious part of Ford’s memoirs, the part where he discusses the resignation of Richard Nixon and Ford’s decision to pardon him. Time refused to pay Harper & Row for what was no longer an exclusive, and Harper & Row sued The Nation.

The Court sided with Harper & Row, and found The Nation’s article to be copyright infringement not protected by fair use. The thing that weighed most heavily, they felt, was the unpublished nature of Ford’s memoir. An author’s right to control the method and timing of publication, and really the choice whether to publish or not, this is something the Court found sacred, and I bet many of the writers who read this will agree. That consideration outweighed any First Amendment interest in pushing someone’s private words out there into the world, even if they’re a person of interest. The matter was choice.

Obviously the information in Ford’s memoir was newsworthy, especially the stories of the last days of the Nixon administration from the perspective of the man to succeed him, and the thought process behind how in hell could anyone pardon the former president. The Court said, sure, this was central to First Amendment values, as spreading news is a favored purpose. But, they said, The Nation had another purpose, a purpose they considered nefarious, one that balanced out the more noble goal of news reporting. “The Nation,” said the Court, “went beyond simply reporting information and actively sought to exploit the headline value of its infringement, making a ‘news event’ out of its unauthorized first publication of a noted figure's copyrighted expression.” This supposed “impropriety” of The Nation’s conduct weighed against its free speech claim.

Exploiting the headline value of something is kind of central to the Gawker business model. Gawker is regularly accused of all manner of ethical breaches, whether it’s because they post a photo of Brett Favre’s alleged penis or an alleged encounter with Christine O’Donnell’s vagina, or whether it’s because they practice checkbook journalism as a matter of course. But regardless of your feelings about this, if you believe in the sanctity of the First Amendment, that at its heart it commands the government to keep its hands off the press, the Court’s reasoning in the Harper & Row case should give you pause. They’re saying that the Freedom of the Press is reserved for journalists who are polite. You may think that journalism should have a code of conduct, but I bet you’re not terribly comfortable with idea of the government setting that code. And there’s no better test for that than Nick Denton saying as much to the Supreme Court.

And the truth of the matter is Gawker has a better case than The Nation did. The Nation offered little commentary on the Ford memoirs; Gawker called Sarah Palin out for all kinds of bullshit. The Courts prefer not to use copyright law to stifle criticism, and you know the reason she asked HarperCollins to sue was because she has a thin skin. If she didn’t want the pages out there, why would she put her own excerpts on her Facebook page? Also, nobody was financially harmed by Gawker’s publication of the Palin stuff. The market for the work was not harmed, not like it was with Ford’s book, when Harper & Row lost licensing revenue due to The Nation’s scoop. The market was arguably even improved, as the publicity this case will bring may help sell more copies. The unpublished nature of Palin’s book is a problem, from Gawker’s legal perspective, but fair use is a balancing test, and the commentary and other factors might just outweigh that.

It’s impossible to tell, and that, for most people, would be reason alone to settle. But I can’t get past that “impropriety” thing, that a precedent exists for the Court to pass judgement on Gawker’s visigoth manners. At the hearing on November 30, the plaintiff’s attorney will say, “Look at all these terrible things Gawker does,” solely to press the advantage of the Harper & Row mandate that distasteful behavior somehow makes a journalist less qualified for fair use protection. Like it or not, Gawker stands for something, something that Sarah Palin claims to stand for but just doesn’t quite get. I hope, if the hearing results in further action, that Gawker defends, and appeals, and appeals again.

Eric Spiegelman is still technically a lawyer.

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From: Nick Denton
Date: October 28, 2010 3:52:52 PM EDT
To: [EDITORIAL]
Subject: Getting out of the way of the story

http://beta.gawker.com/#5674353/i-had-a-one+night-stand-with-christine-odonnell

This Gawker scoop is an example of brilliant packaging. The composite image that shows up on the front is good; the pull quotes; etc.

But, best of all: the story was written in the first person. The journalist is a ghost-writer. The account is much more compelling as a result. As is the headline.

And this points to a general rule on the web. Writers are successful to the extent that they can sublimate their egotism and get out of the way of the story.

Sometimes a video or photo is undermined — not enhanced — by the length of the companion text.

That atmospheric video of the Iceland volcano works because it takes the viewer there; it and the track create a mood. A TV reporter friend of mine, when I told him how successful these clips were, moaned to me: but what do I do? He wants to be the guy at the rim of the volcano, saying: "This is Matt Wells, reporting from Iceland."

But it's better to get out of the way of the pictures.

Unless the story happened to you, or the piece revolves around your opinion, in which case get in the way as much as you can!

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From: Nick Denton
Date: September 7, 2010
Subject: Gawker Media would be the second largest online newspaper

A quick note to start off the new internet year. This is usually the strongest season for internet media: the period from the return to school in September through to the big tech shows in January. And we have a particularly good base this year — because last month was excellent.

It's not that we benefited from any gigantic stories. The top 10 are the usual mix of helpful (how to opt out of Facebook Places) and surprising (Greek statues were tacky, Justin Bieber sounds cooler slowed down) and gratuitous (yet more athlete dong.) Take a look through the whole list of the Top 100 (linked below) for more examples of stories that struck a nerve.

But it seems that — even if there were few home runs — you were scoring more singles. Most sites were substantially up on a year ago. The US audience of Jalopnik, Jezebel, Gizmodo, Gawker, Lifehacker and Kotaku all grew by 30-60%. And a special mention to io9, which was up 118% on August 2009.

The network as a whole drew 17.8m domestic visitors for the month. Let's put that in context. How do we stack up, against the established names in online news. Last time we measured ourselves against the traditional newspapers' online operations, we were fourth. But we've overtaken both the Washington Post and USA Today, according to Comscore. And, in this category, we're behind only the New York Times.

A note of caution, however: the newspapers are now the least of our competition. The inflated expectations of investors and executives may one day explode the Huffington Post. And Yahoo and AOL are in long-term decline. But they are all increasingly in our business. And we have a long way to go before we can surpass them.

One other note. We don't talk about it that much. But advertising sales hit a new record in August — which is usually a rather lackluster month. That's largely down to the increasingly slick marketing collateral and creative services execution — and tireless salesmanship. But I think we may also be benefiting already from audience growth this year and buzz from stories such as the iPhone 4 scoop.

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