It's no secret that newspapers have been struggling, and many are out to blame the internet, even as the evidence
suggests their troubles began long before the internet became popular. However, a really troubling aspect of all of this is that some newspaper industry lawyers have been pushing
for massive changes to copyright law
on the false belief that stricter copyright law for newspapers will somehow magically save them. One (but certainly not the only) aspect of this is an attempt to bring back the "hot news" doctrine
, a concept that had been mostly considered dead. However, with some recent lawsuits, "hot news" is suddenly making a troubling comeback
, much to the delight of some very short-sighted newspaper industry lawyers.
James Boyle recently wrote a column pointing out that the newspaper lawyers pushing for the return of hot news, or for other forms of copyright to protect news, may end up regretting that before too long
. Beyond the fact that full copying is already illegal under copyright law and
the lack of any evidence that aggregators or copying sites actually take away any real traffic from the original sources, "hot news" will be turned back upon these news organizations in ways they absolutely will not like:
So the new right would have no effect on the real problem newspapers face. And it would give them almost no protection that they do not already have either through law or technology. What would it do? It would cast a pall of fear over free speech. Is my blog or twitter feed allowed to say that there has been an earthquake or that some political scandal has erupted? Or must I buy a license to say so? After all, in the new world bloggers are "competitors" as news sources.
In fact, the right would produce all kinds of effects the newspapers have not thought about. They are assuming that this new right will only be wielded by them. Not so. Think of political activists who break a story -- for example the young conservative filmmakers who produced devastating information on the operation of the organization ACORN. They are a news source. They might think it was a great idea selectively to decide which news organizations got to report that story, at least as long as it was "hot." Does that sound attractive? I think not. And then think of the difficulties of proof, the possibility of chilling of speech by wrongly claiming to be its source. Implementation would be a nightmare.
The column itself was actually in response to a recent FTC-organized panel discussion about the journalism industry, that effectively pitted Boyle along with Yochai Benkler, against a team of newspaper industry lawyers. The full transcript
(pdf) is entertaining at parts, as the industry lawyers admit that copyright law today is not the problem, but they still all seem to see it as the solution. But they all keep making questionable assumptions or downright bizarre statements. For example, the AP's Laura Malone seems to think that people won't click through to AP stories, because the AP reporters are so good that they explain all that's needed in the first paragraph and the headline:
What we're talking
about is news-aggregation sites where they take headline and lead, which can be, if it's a well-written
lead and a well-written headline, the way they teach in "J" schools and the way most news
organizations teach their reporters, that's the heart of the story, and the way people consume their
news is to look at the top two or three things, read real quickly, move on to the next article. They're
not going -- They're not clicking through -- To Ken's point, not clicking through to the original
source to read the entire detailed 'graph 4, 'graph 5, 'graph 6. They've got what they need in the
headline and the lead, which can be one or two 'graphs. And that is supplanting what's happening out there with people not going to "The New York Times" because they're reading it on Google
News or they're not going to "The Washington Post" 'cause they're reading it aggregated
somewhere else. And I think that there is a problem with that. We do need to be able to say that
we, the content owners, we, the copyright owners, get to set the parameters by which people can
republish our stuff.
But I read that, and all I think is that if someone copying your headline and your lead is enough to make people not click through, then it's your fault
for not providing any more value in the rest of your article. Sure, the journalism schools teach you to put the who, what, where, when and why in the opening, but the fact that the AP is now admitting that the rest of the article is worthless is incredibly telling. It means that the AP isn't doing a very good job
. If the AP reporters provided real insight and analysis in the rest of their articles, then maybe people would click through. The problem here isn't that people are copying the opening of an article in an aggregator -- it's that the AP itself is failing to give people any reason to click through. They're failing to provide the insight and value that will draw people in. Don't blame the aggregators for that. Improve your reporting skills.
The discussion itself goes along the usual path, starting with copyright in general, moving on to fair use, then to the issue of aggregation, and then jumps to hot news. From there, it begins to get scary again, as the newspaper lawyers (with a slight exception of the guy from the NY Times) start talking about the need to create a permission-based
reporting system, whereby anyone should have to get permission to link to a story. News Corps' Jim Marcovitz summarized it thusly:
It's only opt-out now
because there's nothing that says to someone that you have to abide by these instructions, and I
think you have to shift that paradigm to one that is permission-based as opposed to opt-out-based.
Benkler then demolishes this point by highlighting how ridiculous this concept would be, and how much damage it would do:
idea of permissions everywhere -- permissions for whom? When a "New York Times" reporter
who knows Spanish reads three newspapers from Chile and puts together insight about what is
going on in the earthquake and how people think -- permissions? When any reporter sits, combines
what they hear with seven other reports they've listened to -- permissions? You want to live in a
permissions system that facts are permitted? It is -- that is exactly the point about the fact-expression
dichotomy. We exist in a world where facts are, as Justice Brandeis put it, in the same
case.... Facts, as Louis Brandeis said, should be free as
the air to common use. We do not have a permissions system for breathing.
From there, Malone (from the AP) pulls out the old argument that basically says (paraphrasing a bit, but not much), "but if we don't get to protect our content, we have no business model and reporting disappears," to which Boyle effectively responds by pointing out that technology and markets evolve:
One thing that I like to do is just reflect how wrong I have been
about my confident projections about technology and war in the past, because I find it a useful
corrective. Like, if someone told me in 1990, like, "What would the model be for putting together
an encyclopedia?" You know, one person has this sort of Encyclopaedia Britannica model, lots of
copyright, lots of trademarks, highly paid editors, whatever, and another guy goes, "I'll have, like, a
website, and people can, like, put stuff up," I wouldn't have thought that the latter was a workable
business model. I would have been wrong. I wouldn't have thought that Linux open source was a
viable generation model. I would have been wrong. And I think that the key here is permissions-based,
and I would separate James and Ken's different solutions slightly. At the beginning of the
Net, it was an open question whether linking would be permissions-based or not. Right?
Beginning of the Web, I should say, not the Net. There were people who thought, wrongly, I think,
under American law, but who thought that there ought to be permissions every time there was any
link to anyone. And you still have people, mainly school districts, who write to you, saying, "May
I link to your website?" Right?...
But, anyway, at the beginning of the Internet, if we
had been debating in this room, "Hey, there's this new world wide web thingy, right? So, should
we be permissions-based, or should we be kind of opt-out, right? Opt-in or opt-out?" We could
have come up with great reasons why everyone should have permission. And it's like, "It's not that
hard. You just have to write to the person and get permission to link. It's not that hard. You know,
if you want to create a mash-up on Google Maps, you know, you just have to write to all the data
sources that you're gonna get, all million of them, and, you know, just get permission. It's not that
hard." And all that would have prevented is the world wide web, right? But, of course, the people
in this room wouldn't have cared because they didn't know what the world wide web was and
couldn't have imagined either its horrific site -- child porn, piracy, which appears more often than
child porn. That's one of its horrific sides. Child porn, you know, spam, strangely articulate
Nigerian oil ministers who happen to write to me personally. Okay, so there's all the bad stuff, but
there's also this amazing world that is being built, and the point is we would have got it wrong,
dramatically wrong, if we'd gone permissions-based, okay? Now, the good thing that we would
have foregone, we wouldn't have cared about because we couldn't have imagined it, right? This,
for me, suggests humility as the guiding principle of intervention. Right? And so major changes,
like going permissions-based -- I would say -- I just think that that's -- that is going to be so wrong
in so many cases with such tragic results that I would really push against it.
The real point comes out a bit later in the discussion, as Boyle highlights what this is really all about: it's about one industry trying to use laws to prevent competition
But, you know, there really is -- the sort of Boyle's Law of Technology government
regulation is that there's a pervasive problem which is mistaking the current parties who deliver a
particularly useful social service or the social service itself. Right? You know, the people who --
who sold whale oil -- whale oil for lamps -- you know, could well have come to Congress and say,
"Illumination for reading is a valuable thing. These newfangled electric light companies need to be
put out of business," and that would have been the wrong move. I think that the "hot news"
doctrine has real negative consequences. Right now it operates as a kind of insider's club. Much of
what is done by newspapers with each other is actually problematic under existing "hot news"
doctrine but would never for a moment be considered litigant....
And that really is the key point in all of this. The newspapers think that "the news" originates with them, and they want to make sure that no one else can re-report the facts they're reporting, as if they own them. But they're going to discover quickly that the news does not
originate with them, and quite often will originate with other parties -- parties who might not want the AP or the NY Times to report that news. And then the newspapers and their lawyers who pushed so hard for this hot news doctrine will be in serious trouble -- perhaps even more trouble than they are in today.
So the newspapers are going to keep pushing for new protectionist laws that are not about saving reporting at all. They're about saving their existing infrastructure and their existing companies -- because that's all they know. But they don't recognize the unintended consequences of all this, and how much harm it will do to reporting itself -- including their own reporting. And they'll discover soon enough that when an upstart reports on something, and suddenly the NY Times or the AP or News Corp. can't report on the same thing themselves, that perhaps they made a pretty big mistake.