For two lawyers who supposedly specialize in media and First Amendment law, these guys were so full of stupid I'm embarrassed for them. You see, they have just the legislative solutions to the newspaper industry's ills!
-- 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.
Yeah, Google driving traffic to the newspapers' sites are the reason newspapers are in trouble. This line of argumentation is not only idiotic beyond words, but newspapers have a simple solution: block Google from crawling their sites with a "nofollow" "disallow" tag in their robots.txt file. Now if that sounds complicated to you, it's not: it's literally one single word in an HTML page that tells Google "stay the fuck out because we're too fucking stupid to want people to find our material via search engines!"
Here's the problem, 1) the newspapers don't want Google to stay the fuck out, and 2) newspaper execs are actually not so fucking stupid that they want their sites blind to potential readers. The issue is, they want Google to PAY them for the privilege of sending people their direction. Why? Who knows! Maybe because they're fucking stupid?
But the two lawyer geniuses writing this piece double down on this stupidity:
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.
I have no idea what they're talking about, because Google isn't "taking entire web page". This sentence betrays either 1) ignorance so absolute the authors should be disbarred, or 2) a willful attempt to confuse readers (and the congresscritters they're clearly targeting) by pulling bullshit out of their asses.
What does Google do? It indexes a page so that if you're looking for, say, news accounts of Norm Coleman's troubles with the FBI, you can find such articles. But when the results come back, there is no "taking" of the copyright holders content except a headline and maybe the first few words:
That's what these Einsteins think copyright law should be amended to prevent -- the linking to headlines -- all because they don't want to force newspapers to make that oh-so-freakin-hard decision: "do we block Google, which we can do, or do we make sure no one can ever find our material?" And the laughable thing about all of this is that if Congress was so fucking stupid as to change the law as these jokers want, all that Google would have to do is exclude those complaining publications from Google News! What, do these idiots think Google should be forced to pay websites for the privilege of driving traffic to them?
Are they that fucking stupid? Yes, obviously they are. But the stupid doesn't stop there. Oh no it doesn't...
-- 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.
Get that? If a news outlet covers a story first, no one else can cover it. The "hot news" doctrine was created by the Supreme Court in 1918, when rival wire service International News Service was stealing, word for word, content from the Associated Press and passing it off as its own.
Two competing news services were in the business of reporting on World War I in the US. Their business hinged on getting fast and accurate reports published. Following unfavourable reporting on British losses by William Randolph Hearst's INS, that news service was barred from using Allied telegraph lines to report news - effectively shutting down their war reporting.
To continue publishing news about the war, International News Service gained access to Associated Press news through bribery, news bulletin boards and early editions of newspapers. INS members would then rewrite the news and publish it as their own, without attribution. Although INS newspapers had to wait for AP to post news before going to press, INS newspapers in the west had no such disadvantage relative to their AP counterparts. The AP brought an action seeking to enjoin INS from copying news.
What these "First Amendment" lawyers are proposing, in effect, is the very dismantling of the First Amendment. Note, the issue here isn't competing entities or bloggers or whatnot STEALING news reports and passing them off as their own. Nope, they're angry that people may link to outside news reports. And for what? To provide "legal leverage" to force other sites to pay up for, once again, the right to link and discuss material reported elsewhere.
Let's be clear -- someone rips off a news article and passes it off as his or her own, that's actionable. But that's already actionable under existing law. What these guys want to do is force people to pay to discuss anything reported by someone else. In their world, speech isn't free. Discussing current events -- what's happening in the world around them -- would be off limits without "fair compensation". This isn't stupid like their Google proposal. This one is dangerous, clearly unconstitutional, and a clear example of the contempt they hold anyone who would deign discuss current events that they may have reported on first.
Ironically, it's old media themselves that have long made a mockery of this "hot news" doctrine, taking a story written by a competitor, and simply running updates based on new sources or additional information. And you know what? That's been a good thing for the public, as it has incentivized news operations to continuously compete on the important stories of the day. So not only would this unconstitutional proposal be a serious (and insulting) abridgment of the First Amendment, but it would also hamstring the very news organizations it purports to help.
So I take that back, this is, in actuality, a stupid proposal.
-- 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.
This might be controversial with this crowd, but I agree with this proposal! The notion that newspapers are just competing against themselves is pretty absurd. It's a rich media environment. Corporate consolidation of the news biz is no longer a path to monopolizing information.
Of course, it's pretty much corporate consolidation that has killed the newspaper biz, with big media conglomerates squeezing newspapers dry in the quest for 30 percent profit margins. It's no accident that the most stable newspapers left are generally the family owned ones. So the solution these guys are proposing is in fact more of the same that has gotten newspapers into this kind of trouble. So that could be considered stupid. But aside from that, if they want to double down on this failure, all the power to them. I'd give them this one.
-- 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.
Does that apply to Daily Kos? And if not, why not? We're "press". I've even got a collection of press passes to prove it. I'll take a juicy tax cut for my advertisers.
Or, we can acknowledge that it's dangerous for a free press to be in any way beholden to a government that could use its leverage in order to silence criticism or tough coverage. I simply shake my head that two lawyers who supposedly understand what the First Amendment is all about would propose making the press financially beholden to the government. There's a reason the press is the only profession named in the U.S. Constitution. The only one. And why? Because the founding fathers saw the press as a check on government excesses. Hard to provide that kind of oversight when the government controls the purse strings, huh? Crap, we just saw how cowed the press was by simply accusing them of being unpatriotic!
-- 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.
Go for it. Not a bad suggestion, actually. Their rationale for it, though, is kind of funny:
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.
If newspapers want to charge for their content, they can. There's nothing in antitrust law that would prevent them from doing that. But here's the problem:
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'm not sure how that makes sense. The only reason the entire news industry isn't walling off is because of fears of an anti-trust lawsuit that the Obama Justice Department would never file? Do these jokers really think that an antitrust exemption will create collective will to make this happen?
Because here's what would really happen -- an enterprising news operation (like, say, McClatchy) would buck the industry-wide trend, and derive HUGE traffic from being one of those rare news operations to continue feeding the voracious internet news beast. And that would be good.
The notion that the entire news industry will wall itself off, antitrust exemption or not, is nothing more than a feverish pipe dream of newspaper execs desperate for salvation. What they'd ultimately find is that they'd lose the vast majority of their readership, while their new subscription revenues would come nowhere near what they'd need to continue supporting their legacy operations.
Yes, I realize that the authors, Bruce W. Sanford and Bruce D. Brown at the firm Baker Hostetler are feeling the pinch with all their clients going out of business, but if newspapers are relying on lawyers like these Bruces for their legal advice, chalk this up as another reason they're going the way of the dinosaurs.
Ultimately, new models will emerge from the ashes of the newspaper biz. People may feel nostalgic about their morning newspapers, but the world evolves, and the way we consume information evolves with it. Good journalism will get done, on the air, online, and even in newsprint by specialized niche publications.
Journalism doesn't need newspapers to exist. It needs distribution outlets. It is media agnostic. And in today's world, the last thing we lack are distribution outlets.
Update: Crap, the link to the piece at the Washington Post was missing when published. I've updated with the link.
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