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The News Wars Are Coming

If it's fight or die on the new media landscape, does anyone think traditional media won't fight?

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People keep saying the news wants to be free. I'm not so sure: the other day I cornered the news and tried to get a straight answer to that $64 question.

"I want to be free as the air we breathe and the water we drink," the news blithely replied. "Free as a lark on the wing."

I considered this. "But here in the big city, air that's fit to breathe costs a pretty penny," I said, "and so does potable water. For that matter, even the nature preserves are a budgeted item."

"That's the rub," sighed the news. "I also want to be taken care of. I'm a high-maintenance hottie tricked out to look like a flower child. Sort of a modern-day Helen of Troy."

I called that an outlandish comparison.

"Wait until the war starts," said the news.

Was that just vanity talking, or could there really be war? Put it this way—does anyone actually think big media will just slink off the stage? The classic portents of serious battle are converging:

The belligerent warning. Dean Singleton, chairman of the AP, in April: "We can no longer stand by and watch others walk off with our work under misguided legal theories. We are mad as hell, and we are not going to take it anymore."

The manifesto. An open letter from David Simon, creator of The Wire and former Baltimore Sun reporter, to the publishers of the New York Times and Washington Post (you'll find it in the current Columbia Journalism Review). Get your content behind pay walls and do it fast, says Simon. "If you do not find a way to make people pay for your product, then you are—if you choose to remain in this line of work—delusional." And antitrust laws be damned. "Would that every U.S. newspaper publisher could meet in a bathroom somewhere and talk bluntly for fifteen minutes," says Simon, "this would be a hell of a lot easier."

The vow. Global media mogul Rupert Murdoch this month: "Quality journalism is not cheap. The digital revolution has opened many new and inexpensive distribution channels but it has not made content free. We intend to charge for all our news websites."

The early sortie. The AP now links its stories online to an automated iCopyright form that charges anyone who wants to post the story, or even excerpt it, on another Web site.

The sneering response. James Grimmelmann, an associate professor at New York Law School who blogs at the Laboratorium, ridiculed the AP by filling the "Copy and Paste Excerpt" box with Thomas Jefferson's words: "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea." The AP bot charged him $12 for the privilege of quoting text in the public domain. "I require no license to quote Jefferson," Grimmelmann thundered. "The AP has no right to stop me, no right to demand money from me."

The sacred texts revisited. Media maven Peter Osnos, a former Washington Post correspondent, notes in the same issue of CJR as Simon's open letter that Stewart Brand, who posited back in 1987 that "information wants to be free," understood it's really not that simple. Brand went on, "Information also wants to be expensive. Information wants to be free because it has become so cheap to distribute, copy, and recombine—too cheap to meter. It wants to be expensive because it can be immeasurably valuable to the recipient. That tension will not go away."

And finally, as any proper war these days must enjoy the blessings of the law:

The legitimizing legal theory. Brothers Daniel Marburger, a professor of economics at Arkansas State University, and David Marburger, a First Amendment lawyer in Cleveland, are championing a modest tweak of existing copyright law that they say will transform the battlefield.

The Marburgers, in "Reviving the Economic Viability of Newspapers and Other Originators of Daily News Content," a paper they produced in April and have been revising ever since, dust off a 1918 Supreme Court decision, International News Service v. Associated Press. The AP was then as now the emblem of the media establishment, created and wholly owned by select leading newspapers to provide them with national and global news. INS was William Randolph Hearst's upstart challenger, painfully lacking in reporting resources but given to gleaning AP war news from east-coast papers and telegraphing it as its own to non-AP papers in the west.

INS was the "parasitic aggregator" of its day. That's what the Marburgers call the blogs and news sites that offer so much of a story someone else reported that the reader has no reason to follow the perfunctory link back to the original. "That is not free-market economics where you get to reap what you sow," write the Marburgers. "Instead, under today's laws as they apply to the news business, you get to reap what others sow until you drive them out of business."

Which, if the laws don't change, they believe is what's bound to happen, because the parasites "can charge advertising rates that the newspaper cannot profitably match because of the newspaper's exponentially higher costs to gather news and craft news reports."

The AP took INS to court, and the Supreme Court granted relief. The court said the INS argument, to put it in today's vernacular, was that the news wants to be free and, once published anywhere, is. "Complainant no longer has the right to control the use to be made of it; that when it thus reaches the light of day it becomes the common possession of all to whom it is accessible."

The court didn't buy it: "The right of the purchaser of a single newspaper to spread knowledge of its contents gratuitously . . . may be admitted; but to transmit that news for commercial use, in competition with complainant . . . is a very different matter. . . . Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant's legitimate business precisely at the point where the profit is to be reaped."

The court restrained INS from repackaging the AP's news "until its commercial value as news . . . has passed away." This period was left undefined, but it was understood not to be long. The life span of news as news even then could be measured in hours.

The Marburgers think the court reached the right destination by the wrong route; it framed the issue in terms of INS's "misappropriation" of the AP's "quasi-property," they say, but "it is more valid to view what journalists provide as services."

Knowledge is a poor candidate to be considered anyone's property—that's the basic idea James Grimmelmann gleefully traced back to Jefferson. Writing in dissent in the INS case, Justice Louis Brandeis noted that "the general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—became, after voluntary communication to others, free as the air to common use."

There were exceptions protected by copyright, Brandeis allowed, but no copyright claims were at issue here. "The mere record of isolated happenings, whether in words or by photographs not involving artistic skill, are denied such protection," Brandeis argued, taking, I must say, a fairly minimalist view of what journalists do. And therefore, even though INS's behavior "may be inconsistent with a finer sense of propriety," it wasn't actionable.

Largely because Brandeis offered what, "over time, many scholars and judges" considered the better analysis, the court's ruling in the INS case steadily lost force, the Marburgers tell us. It was superseded almost entirely by the federal Copyright Act of 1976. An early draft of the act echoed the outcome of INS v. AP by listing "rights against misappropriation" as among those the states could individually choose to protect. But the Justice Department objected, grossly exaggerating the 1918 decision "as affording a boundless monopoly over uncopyrighted factual information of public interest that deserves to be in the public domain."

The upshot: news-gathering organizations that would like to take predatory aggregators to court don't have the law to back them up. And that, say the Marburgers, is disastrous for the MSM: "No matter what other 'business models' newspapers decide to employ, we doubt that any can succeed over time unless Congress first clearly restores INS v. AP-style common-law unfair competition rights to the news business."

The Marburgers suggest adding new language to the Copyright Act that would simply say it doesn't preempt "statutory or common law" remedies against unjust enrichment. The brothers want the law to be totally vague about what those remedies might be; the goal "is to create substantial legal and economic pressure on the aggregators to compete fairly with news originators in the market for advertising revenue. Eventually, that should lead to contracts, not lawsuits."

I asked David Marburger this week if his paper has taken either the traditional media or Congress by storm. "If anything's coming of it, I'm not aware of it," he said. A staffer for a U.S. senator (Marburger can't remember who) did call, he went on, but seemingly more out of curiosity than anything else.

But the message is spreading. Ian Shapira of the Washington Post wrote a piece this month about Gawker appropriating one of his stories. Shapira asked David Marburger to compare the Post and Gawker versions of the story. His reaction: "If you don't change the law to stop this, originators of news reports cannot survive."

In June, columnist Connie Schultz did a piece on the Marburgers for the Cleveland Plain Dealer, which David Marburger represents. If the copyright law doesn't change, he told her, "newspapers will die, no exceptions."

When certain doom is the only alternative to buckling on armor, it's the rare war that isn't fought.

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