Short Sighted Newspaper Association Asks Trump To Whittle Down Fair Use, Because It Hates Google
from the this-is-really-dumb dept
Sometimes you wonder just how ridiculous some legacy industries can be. The latest is the News Media Alliance, which is apparently the new name of what was the Newspaper Association of America. Just a few months ago, we were mocking that organization’s ridiculous proposal that readers of newspaper websites should be forced to allow invasive ad trackers, and that adblockers shouldn’t be allowed. And believe it or not, now the group has even worse suggestions. It has sent a “white paper” to Donald Trump with the types of things it’s looking for from a Trump administration. The white paper is really just a 3 page memo dressed up slightly with the term “white paper” at the top — as opposed to a carefully developed plan.
But the really ridiculous bit is that these media publications — who regularly rely on fair use, are asking Trump to dump fair use:
Strong copyright protection is needed. Newspaper content makes up approximately two-thirds of the content on news aggregation platforms such as Google News, but many of these relatively new players in the digital ecosystem build audiences and generate revenue from newspaper content with little if any revenue coming back to those who have invested in creating the original content. Today, the news media industry invests roughly $5 billion each year in long-form investigative journalism. Our nation?s copyright laws must be structured and implemented in a way that allows for a return on this massive investment. Today, outdated interpretations of copyright laws mean that the industry is currently forced to give away much of its product for free. The government needs to put in place copyright protections that allow news organizations and other content creators to fairly benefit from their critical efforts and investments.
?Fair use? should be reoriented toward its original meaning. Under current copyright law, a person that does not own a copyright may still use a copyrighted work if it is consistent with the ?fair use? factors, which assess: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect upon the potential market. The courts, unfortunately, have dramatically weakened this test by finding a fair use any time a new use could be seen as ?transformative.? This test has undermined the integrity of the long-established fair use factors. As part of any Copyright Act rewrite, we support refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution?s encouragement of compensation to entities that generate creativity and productivity.
This is dumb on so many levels. First, the claim that newspapers don’t get any revenue from the likes of Google is ridiculous, when you consider how much they whine and freak out if Google removes them from search. They get revenue in the form of traffic from aggregators. If they’re bad at monetizing it, that’s one thing, but that’s not the aggregators’ fault.
Second, copyright laws should never be designed with the idea of making sure it enables recouping an investment. Because copyright is not the business model. Copyright is a mechanism that creates a business model, and that business model may or may not be successful. Just saying you invest $5 billion and therefore copyright needs to cover that nut makes no sense. I could just as easily claim that I’m going to invest $5 billion in improving Techdirt — and therefore Trump needs to make sure that there’s a business model to allow me to recoup that? No, that’s crazy. It’s not the government’s job to make sure your own bad business decisions still pay off.
Third: the media attacking fair use is insane. Newspapers regularly rely on fair use in their reporting, and the group is shooting itself in the foot in asking Trump to take away that tool. This is especially true given that Trump himself has insisted he wants to “open up our libel laws” with the specific aim of harming newspapers. Remember, this is the context in which he said he was going to open up such laws:
If I become President, oh, are they going to have problems. They’re going to have such problems.
… One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.
…. So we’re going to open up those libel laws, folks, and we’re going to have people sue you like you’ve never got sued before…
While he was specifically talking about libel laws, as we’ve seen over and over again, copyright is an amazing tool for censorship as well. In fact, the Supreme Court itself has noted that fair use is the necessary “safety valve” on copyright’s free speech stifling powers. So for newspapers to basically gift wrap to Trump a way in which he can pull back a tool that protects their free speech — just as he’s been promising to attack their free speech — is ludicrous.
About the only saving grace in all of this is that Trump acts as if he hates the big newspapers so much, that perhaps he’ll have no desire to make them happy by following through on this idiotic suggestion.
In the meantime, if you work for a news organization that is a member of the News Media Alliance, maybe ask them why they’re undermining a core principle of free speech in asking for fair use to be limited?