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The Way To Save Journalism is To Restrict Information

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by Brien Jackson

I almost can’t believe that an article like this actually ran in a major American newspaper. But it is The Washington Post, which means Fred Hiatt is the guy making the discussion on what to run, so I shouldn’t be surprised. Anyway, the writers are a couple of lawyers who work for a firm that specializes in representing media outlets (a fact the Post glosses over by calling it “media and First Amendment law), and they have a few suggestions regarding legal changes Congress could make to save “journalism:”

— Bring copyright laws into the age of the search engine. 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.

Publishers should not have to choose between protecting their copyrights and shunning the search-engine databases that map the Internet. Journalism therefore needs a bright line imposed by statute: that the taking of entire Web pages by search engines, which is what powers their search functions, is not fair use but infringement.

Such a rule would be no more bold a step than the one Congress took in 1996 rewriting centuries of traditional libel law for the benefit of tech start-ups. It would take away from search engines the “just opt out” mantra — repeated by Google’s witness during the Kerry hearings — and force them to negotiate with copyright holders over the value of their content.


— Federalize the “hot news” doctrine. This doctrine protects against types of poaching that copyright might not cover — the stealing of information not by direct copying but simply by taking the guts of the content. While the Internet has made news vulnerable to pilfering because of the ease of linking from one site to the next, the hot-news doctrine has limited use because it is only recognized in a few states.

Now that many news aggregator sites have taken “linksploitation” to a commercial level by selling ads wrapped around the links they post, Congress has the incentive it needs to pass a federal law protecting hot news. Such a law would give publishers an additional source of legal leverage outside of copyright to demand fair compensation for the content they create.


— Eliminate ownership restrictions. Media insolvency is a greater threat today than media concentration. Congress should abolish caps on ownership of broadcast stations and bars on newspaper and television ownership in the same market. These outdated rules belong to an era when the Web was a home for spiders.


— Use tax policy to promote the press. Washington state is taking a lead in the current crisis with legislation signed into law this week to slash business taxes on the press by 40 percent. Congress could provide incentives for placing ads with content creators (not with Craigslist) and allowances for immediate write-offs (rather than capitalization) for all expenses related to news production.


— Grant an antitrust exemption. Congress first came to journalism’s defense with antitrust relief in 1970, when it permitted endangered newspapers to combine their business operations without fear of antitrust suits if their newsrooms remained independent.

As noted in the Kerry hearing, publishers need collective pricing policies for their Web sites to finally break out of the expectation of free content that is afflicting the industry. Antitrust immunity is necessary because most individual news sites can’t go it alone by walling off their content for fees — readers will simply jump to sites that are still free.

I imagine you’d have to search long and hard to find such a thorough repudiation of basic concepts of free press in a major journalistic enterprise, but there you go. The garbage is so deep, I barely know where to start, so I’ll just tick off a few major observations.

1. The writers apparently don’t know how Google works. Google search bots index wab pages, and aggregate them into Google’s search page. Google does not reproduce entire stories. At most, the headline and first 30 or so words are displayed, so unless the writers believe that’s the extent of the articles that are read by consumers, they’re either dumb as rocks or lying through their teeth. What’s more, the “solution” doesn’t really make any sense. Indexing on Google drives traffic to a site, so what the writers are basically arguing is that Google should have to pay for the right to increase The Washington Post’s online readership. And WaPo, like every other website, can already block Google bots from browsing their site. That they don’t proves that there’s benefit to websites from being indexed on Google. So what the writers are effectively arguing is that Google should be required to pay in order to provide a service to The Washington Post and other media outlets.

At the same time, I’m not really sure how this is supposed to be a fix for anything. Given that the news outlets are getting much more benefit in the relationship than Google is, one would assume that, were Google required to pay to index these site’s material, they would simply…stop indexing them, and hits on these sites would decrease due to not being available as search results on Google.

2. Similarly, the idea of granting newsmedia firms an anti-trust exemption such that they can collude to block content and fix prices doesn’t really make any sense, even if you don’t object to the idea. The whole idea rests on the idea that everyone will participate, which is a rather bizarre assumption. There would be an awful lot of market share to be devoured by any firm who was the only major outlet giving away their content for free. The amount of traffic they’d get on a daily basis would be through the roof. So the entire enterprise would fall apart by its own success; as soon as you had created the sort of monopoly the writers are envisioning, the incentive for members would be to bail on the collective. And it apparently never occured to anyone that there would still be 3 cable television news networks with 24 hours of airtime to fill every day. So even though this idea gets tossed around by basically everyone who wades into this discussion on the side of newspapers, it doesn’t hold up to even minimal scrutiny. Doesn’t exactly make you feel confident about the people deciding what should and should not be published does it?

3.  Finally, it’s very important to understand exactly what the writers are lobbying for vis-a-vis “hot news” changes. What they’re essentially asking for is a standard in which the first outlet to report a story owns that story, and anyone who wants to comment or report further on said topic must pay a royalty to them for it. So everyone who ever wrote or produced something on the Lewinsky affair would have had to pay a fee to Matt Drudge for it, POLITICO would have owned the rights to “wardrobe-gate,” etc. Obviously, this is pretty much at odds with the Constitutional protection of the free press, and far from simply hurting blogs and internet venues, it would affect the news outlets themselves, given that much of journalism revolves around taking stories someone else broke and adding information to them. This is the most pernicious part of the whole thing, and it’s in no way compatible with a free press, or basic journalism precepts. But what the writers have proven, if nothing else, with this piece is that conversations about how to “save journalism” really have nothing to do with journalism. Most of these proposed changes would probably be a net negative for journalism on the whole. Rather, what this is really about is saving a relatively small number of corporations that are involved in publishing newspapers. That’s a much less compelling proposition to most people. As it should be.


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