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.

Comments

[ThePeacemakers]

Advertising models for earning revenue will be a dead end for businesses and make them all subject to the same slumps (as we see now).

There has to be other ways of making money (to support the creation of content - this ALL costs money To do) off intelluctual properties, creative endeavors, etc.

Everybody whoring for the same ad dollars.

And in my opinion, nothing has ruined the internet experience more than the CONSTANT advertising.

[JimCarlile]

I don't find ads to be that intrusive, really. Much better ads than charging for content, I say.

There is a bright side to all of this.

If Google ends up being accused of copyright infringement for indexing, they will simply stop indexing content. But if they stop indexing, how will anyone find anything on these newspaper sites?

They won't-- which means no one will go to their sites! No one is going to go to each site individually and then separately search for material. So the papers will very quickly learn to allow indexing ! It's a no brainer here.

[Eyeheartfreedumb]

Plain and simple, journalism is not an industry, it's an institution. It enjoys constitutional protection because it is supposed to be part of the structure of checks and balances. In modern times we have turned it into a money making enterprise, and surprise, surprise, forcing it to make money lead to its demise. You can focus on all of the other things, but when journalists stopped being allowed to do their work and had to start worrying about profit motive, advertisers, etc., it stopped being effective and was therefore expendable.
A long time ago newpaper owners put the advertisers and their bottom lines ahead of actual journalistic work (if we wanted that we'd watch t.v.'s entertainment news). They had one job (reporting the truth, in depth) and they stopped doing it to make a quick buck. The public saw through it and from that day forward newspapers have been a dinosaur. The only way they will ever recover is to dust off the fossils and start doing their jobs again. But that doesn't seem likely when you look at who owns most of the newspapers.

[shaman]

The irony is that we would not be reading this post in a newspaper.

I gave up the newspaper many years ago when I found that I could get all of the news I could consume on the web. And that news is not just stuff you would find in the newspaper. It is science, social and cultural papers that the newspapers did not serve. It is also so much easier to find what you want, thanks to the Search Engines that seem to be threatened. Is an article on page 1 or 50 is not so much a problem.

On the other hand, the reporters need to make a salary for their work, just as musicians should be paid for their songs. The sites that aggregate the news (Huff, Drudge, Google News etc) are a two edged sword. They bring readers, but they are ala carte. This is a similiar to the move to get ala carte pricing for Cable. It will take time and most likely a certain amount of pain before this gets worked out, but passing legislation will only delay and distort the outcome. Call it Buggy Whip Legislation.

[Stephen Guilfoyle]

This comes across as a learned treatise.
Except, of course, from its very beginning, something it sets up as a premise is categorically false.
Times V. Sullivan did not create a new "right" or protection for newspapers.
It was a newspaper case, but it changed libel law for EVERYONE.
All the rest follows, as I said, from that flawed, angry premise that newspapers are being treated more fairly.

[PrinceHal]

Now here's a one-sided argument written by somebody who either loves the internet half to death and hates newspapers, or just accidentally sounds that way. And he's too considerate of the Washington Post's website traffic to give his readers a link to whatever made him so angry in the first place.

But why bother to tell us what the other guy said when you don't have to? The usual "change or die" crowd is right behind you anyway, yelling about how newspapers think they're "entitled.­"

As near as I can see, the prevailing sentiment about print journalism out here in Cyberland is "Drop Dead."

[noamjunior]

not so much "drop dead" as "you get what you deserve." It isn't the cyber crowd telling newspapers to change or die- it's the marketplace

[JimCarlile]

If newspapers think that by changing fair use and refusing to let aggregators and search engines index them, that this is actually going to help them increase consumer access, they are out of their minds.

It will backfire on them pronto. If you can't find them online-- then you won't find them online. How else are people going to discover content but through Google, etc.? By going to each site separately? yeah, right.

And if they set up a proprietary indexer/database, they are right back at the same place they were! Aggregated content. I suspect what big media is really mad about is that Google caches the material, too-- forever, and they don't control own it any more.

What's going on here is that the big media want to pursue their Google Book scan argument-- that indexing and caching is automatic infringement.

If they succeed-- then bye bye fair use, and to no useful end for anyone.

[rjmiller]

The reforms of copyright law need to go in the other direction. The "safe harbor" laws under the DMCA are a sham, but it's because they are so scewed for the industry.

Under the DMCA, to qualify as a "safe harbor" sites must comply with takedown notices sent by copyright owners (or representatives such as record labels). The problem is that there is ZERO burden of proof. The copyright owner simply has to have a "good faith belief" that the material is infringing. For a person to contest that their material was removed unfairly, they are under penalty of perjury.

This has led to widespread overuse of the takedown notice. Groups have claimed copyright infringement to take down content that simply disagrees with them, the opposite of the intent of the First Amendment (notable the Church of Scientology). Labels have just searched for the name of their artists and sent takedown notices for everything that came up, sometimes even issuing takedown notices of their own official content.

The DMCA must be amended so there is a burden of proof. Ideally, takedowns would require a court order, but at the least the penalty of perjury must go both ways. Labels shouldn't be able to simply google an artist and issue takedowns and lawsuits to every hit.

[noamjunior]

If in the 1970's, newspapers went bankrupt after investing heavily in training carrier pigeons to deliver newspapers, everyone would rightly say they deserved their own demise.
So why is it any different in 2007 when papers are trying to push an outdated and impracticle delivery and ecconomic model best suited for the last century

[Stan-Musical]

I hate to see newspapers going out of business altogether. With so much info. out there on line, I have doubts that a pay per view type of arrangement will get much revenue for online newspapers. If you don't want to pay for a particular newspaper or site, you will just seek out the remaining free internet sites.

[Indra]

Copyright laws need to be observed, however newspapers are on the skids and it does have to do with their not being able to cope with a new media. Actually the issue is not that important as most people don't care. The reason they don't care is that the quality of news offerings is so bad that it just does not make any difference. Someone is going to have to understand and do quality journalism so that they can become a model and leader for the industry.

[Mikeeee]

About a month after I first went on the net in '97, my thoughts were that this could be the great democratizer, the real meeting of people exchanging ideas without the filters and control that always come. Now you can see the controls and filters coming everywhere.
What the newspapers are doing is protecting corporations and share holders. It is not what the founding fathers were trying to protect with the first amendment.
I hope O gets a judge on the bench and quickly who is mindful of this, because scalia and a few others are very afraid of a free and "active" internet, they like the docile malleable msm that exists now.

[mlaiuppa]

And it was.

The internet played a huge role in the last election.

Which is why the Republicans are trying to muzzle it. They'd like nothing better than to destroy net neutrality, privatize it, make it pay per view, whatever.

Obama is aware of this and he supports net neutrality.

[ssg13565]

It was the very lack of competition that allowed the quality of the newspaper product to decline so much that the papers lost some of their audience. When there was no internet, the newspapers could get away with cheapening the product and still make huge profits.

Now that there is competition again, the customers' pent up anger at the print newspapers has an outlet. The angry customers are rushing to the doors after the way they have been treated.

When I returned from 12 years away from Massachusetts I would have resubscribed to the degraded Boston Globe had it been my only source of local, national, and international news.

As long as I was going to have to downgrade on the print media anyway, I could live with the Worcester Telegram and Gazette for local news and the internet for national and international news.

The New York Times itself had so ruined its own reputation that there was no need to even consider that option.

[mlaiuppa]

Exactly. There was only one newspaper in my city and it has a decidedly conservative Republican bent. So I've been getting my news online for years.

And the newspaper industry has failed to modernize or embrace new technologies. They think they have some sort of entitlement.

At least publishers are embracing ebooks, kindle, etc. They're remaking themselves. Newspapers are stuck in a rut of their own making.

Change or die.

[Otaku1031]

There's nothing in the rule book that says the profits of any industry, even one as venerable as our print news, must be preserved in face of advancing technology. The "press" mentioned in the First Amendment addressed the technology of the day, the print medium, which was the only way that news could be disseminated without the distortion that "word of mouth" invariably causes. Information technology has redefined the "press" and the newspapers have been slow to catch on to this fact. I would have thought that the newspapers, long in the business of "scooping", would have recognized the coming changes and rode the crest of the wave instead of drowning. Now they are crying foul when people get their news from the web. A lot of the discussion about the floundering print media lately seems to be centered around preserving their profits, not their status, legal or otherwise, in the business of information access.