Editorial is not advertising vs editorial is advertising

Some fuss today that the ESA is threatening to sue the Kotaku blog for an editorial post linking to a t-shirt that allegedly breaches the ESA's copyright. As various people (TechDirt) have pointed out (not least Kotaku themselves), editorial content isn't an ad as the ESA is claiming. There - should - endeth the matter.

So what's the other big news of the day that concerns me? This (TechCrunch). Another PayPerPost (with, admittedly, less evil).

Now, Kotaku has a whole raft of defences beyond the "it's just editorial content" one. The t-shirt itself is probably perfectly legal (not that I'm a lawyer). But...the day when yet another service launches offering to pay bloggers for their reviews seems an odd one on which to claim that the editorial/advertising dichotomy is unambiguously set in stone. The more ambiguity we let seep into this system the weaker that defence seems likely to become.

Now, whether paying bloggers to review products is all that different to what Free Features has been doing with its product-placement newswire (Editorsweblog) I'm less certain. The line between editorial and commercial content has been blurred ever since someone hit on the idea of sending our product press releases and seeing whether journalists would copy them out rather than coming up with a story. But it looks...increasingly optimistic, on the day we find another PayPerPost foisted upon us, for bloggers to cheerfully declare "they can't touch us - editorial isn't advertising".