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Art Brodsky

Art Brodsky

Posted: May 18, 2009 03:26 PM

Oh, the Hypocrisy: First Amendment Attorneys Would Destroy the Internet to Save Newspapers


It's hard to imagine an American industry as privileged and protected as the newspaper. Right there in the First Amendment to the Constitution, are the words: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..." No other industry is mentioned in the Constitution.

The rights of journalists, working in print or electronic media, have been protected down through the years. While ordinary citizens might be liable to be sued for libel, the U.S. Supreme Court in 1964 set a higher standard in Times v. Sullivan so that a newspaper could be sued only if it could be proved the paper knew ahead of time that what it was printing was false.

In any other industry, the concept of competitors combining operations might be anathema to rigorous antitrust law (admittedly a stale concept after the past eight years). However, newspapers in the same city were able to execute Joint Operating Agreements (JOA) under the Newspaper Preservation Act of 1970. Ironically, the law was passed to protect failing newspapers in an era before the Internet was invented. In many cities, the JOA's, which allowed combinations of non-news operations like administration, ad sales and printing, still didn't work as newspapers continued to fold.

Newspapers from Alaska to Virginia (many owned by the E.W. Scripps Co.) folded -- without the help of Google and the Internets. In those days, the culprit was the changing nature of society, as afternoon newspapers became a victim not only of a working culture in which factory shifts ended in early afternoon, but in which the growth of suburbs made it almost a physical impossibility to deliver a newspaper in a timely fashion.

Freedom of speech and of the press should be protected. That's not the issue here as noted First Amendment attorney (and former reporter) Bruce W. Sanford and his colleague Bruce D. Brown argued in a Washington post column May 16 [note: normally, a link to the story might go here, but we will spare the Post the burden of the additional, easily directed traffic to their site that a link would bring] that not only do newspapers deserve even more special protection, but that the rest of the Internet should be hobbled or damn near destroyed in the process.

In addition, the attorneys want to impose the collateral damage of destroying the few remaining protections in copyright law due to the users of material. The sense of entitlement that has characterized the newspaper business for the past 150 years or so is now going too far, conflating the business of journalism with the freedoms due the practice of journalism. The irony is too rich -- one of the most lauded First Amendment attorneys in the country, who represents newspaper publishers, is actually advocating policies that fundamentally misunderstand the Internet and would shut down the engine that has brought the greatest freedom of expression to more people than perhaps any medium in history.

By proposing a series of radical changes to copyright law and to antitrust law, Sanford and Brown are attempting to divert attention from the circumstances that can be said to have brought on the problems of the newspapers -- the industry's reluctance to understand and embrace new technologies, the unfortunate business decisions newspaper owners have made and, perhaps most of all, their failure to adapt advertising value to the online model.

It is simply stunning that two such learned attorneys could so completely fail to comprehend the Internet. One waited in vain for them to say how the "series of tubes" was draining away newspapers. (The Sanford-Brown article wasn't the only one in the Post over the weekend that failed to comprehend the realities of the online world. Two features on Web-based TV did not mention that caps on usage that some Internet Service Providers would like to impose -- a death sentence for online video.)

Their fundamental misperception is that, "The law of the Internet was written for the technology companies seeking to protect their growth in a once-fledgling medium, not for the journalism outlets that are now handicapped trying to survive there. Regulatory reform is needed because the playing field has become so uneven." Actually, the playing field is remarkably level.

Sanford and Brown blame provisions in the 1996 Telecommunications Act and the 1998 Digital Millennium Copyright Act (DMCA) for allowing online companies "to prosper from the content they carry with little concern of being held accountable for it." They refer to the "safe harbor" provisions of both laws -- laws which, by and large, were written to benefit the largest, best-financed industries around, like the telephone, cable and broadcasting companies in the first instance, and Hollywood in the second. A little common-sense provision hardly balances out the damage the bulk of those laws have done, topics that the attorneys also don't address.

The "safe harbor" provision is fundamentally different from the law that protects newspapers. A newspaper is protected because of its place in society. Note that the production of a news story is a hands-on process, with reporters and multiple editors going over the copy. However, the "safe harbor" provisions apply to automated products in which there is no editorial control, much less editing. The process of posting material online is mechanized. There is no way any site with as much material as most sites have can be held liable for content that isn't supervised. Perhaps that explains a lot about the free-flowing nature of the Web, but there it is.

Their "reform" of copyright law would basically eliminate the linked-based network that we have today. It is based on the concept that a snippet of information which leads a user elsewhere is fair use. No one is reprinting an entire story. The authors argue, "Taking a portion of a copyrighted work can be protected under the 'fair use' doctrine. But the kind of fair use in news reports, academics and the arts -- republishing a quote to comment on it, for example -- is not what search engines practice when they crawl the Web and ingest everything in their path."

When the search engines crawl the Web, they do ingest everything, but that's not what shows up on the user's screen during a search. A search for the Sanford and Brown article, perhaps by Sanford's name, will turn up this: Bruce W. Sanford and Bruce D. Brown -- Laws That Could Save ...
Journalism doesn't need a bailout, but it could use a "recovery act."

That's it. For any more information, users click on the link and go to the Post Web site for the full article, plus advertisements. The argument that, "that the taking of entire Web pages by search engines, which is what powers their search functions, is not fair use but infringement," is simply wrong. It doesn't matter what's in the computer. Obviously, a page has to be indexed to be searched. It's what shows up on the screen that counts. And yet, the newspapers don't want to take the simple technical step of keeping their sites from being searched. They want to be paid for the snippets of information that, through links, bring users to the newspaper Web page. It is the ability of one site to link to another that makes the Web the web. Take that away, through "reform" of fair use or by any other means, and the Internet we have today disappears.

They also want to give newspaper ownership over facts under the 1918 "hot news" doctrine. So if the Post reports first that the prison at Guantanamo Bay closes, not only does the newspaper get ownership of the fact, but an unrelated web site can't sell an ad around a link to that fact. Unfortunately, the world has changed since 1918, and facts are available from a multitude of sources. A story in a newspaper will be reported on the radio, posted to web sites, Tweeted, Facebooked, whatever else people can do. Newspaper lawyers might have a field day tracking down all the uses of one story.

Instead of repealing copyright, eliminating antitrust restrictions and granting ownership over news, as Brown and Sanford recommend, the news industry might be better off trying some new ways of doing business that work within the Internet ecosystem, and not against it.

The one party not at the table during the hearings of the Senate Commerce Committee hearing on the Future of Journalism was the advertising sector. Rather than have Arianna Huffington debate the publisher of the Dallas Morning News over the future of their respective products, let the publisher explain why Web ads cost so much less than print ads, and have national advertisers explain why they don't value the Web as highly. After all, if the newspaper content is as valuable as we are led to believe, advertisers should pay to be seen next to it. A full-page ad in a major newspaper might be $35,000 or $40,000. A Web ad might be a tenth of that, depending on how it's displayed online.

Another ancillary option if newspapers want to capture some revenue from the online user, they might think of setting up a mechanism along the lines of an ASCAP or BMI in the record business. Online newspaper readers could contribute a certain amount of money to a central collection organization. At the end of each month, funds would be distributed to newspapers based on the amount of clicks each newspaper has received.

Newspapers are as much, if not more, the victim of their own incompetence as they are of the nefarious Internet. Debt-ridden deals, stock buy-backs, misplaced investments, failure to diversify -- all have contributed to today's state of the industry. It doesn't matter how many new laws that Sanford and Brown propose. It doesn't matter if hypertext links are eliminated. It doesn't matter if search engines are outlawed. The industry has to save itself.