Re: “Finally, A Plan to Save Newspapers” by Connie Schultz

This rant was written in response to a column by the Cleveland Plain Dealer’s Connie Schultz. She argues that Internet news aggregation is killing traditional newspapers and that dismantling the public’s right to quote the day’s news articles is the solution to maintain newspapers’ profitability. She quotes her paper’s lawyer:

“It’s unfair competition with unjust enrichment,” Marburger says. It’s also a downward spiral toward extinction. “If the copyright law doesn’t open the way for originators of news to stop the free riding, newspapers will die,” he said.  “No exceptions.”

The Marburgers propose a change in federal law that would allow originators of news to exploit the commercial value of their product. Ideally, news originators’ stories would be available on only their Web sites for the first 24 hours.

Shultz’s column is posted at: http://www.cleveland.com/schultz/index.ssf/2009/06/tighter_copyright_law_could_sa.html (though it is worth noting that I read it first through an “aggregator” run by Daryl Cagle here.)

This plan is hogwash. I’m sorry I have to be so harsh, but here is yet another newspaper person who doesn’t understand why newspapers are failing, and doesn’t understand the consequences of what she proposes to “fix” them (by actually not fixing them at all and diminishing the people’s rights of free speech). Freedom of speech is the issue here, particularly that increasingly important facet of freedom called “fair use”. The public’s fair use right is a “defense” against an accusation of copyright infringement, that covers limited uses of copyrighted material for legitimate purposes, such as academic use or “review” of content. (See Wikipedia: http://en.wikipedia.org/wiki/Fair_use ). It involves a “balancing test” to determine whether or not unauthorized use is “fair.” As part of this balancing, an Internet “aggregator” (a type of site that I cannot meaningfully distinguish from a mere “blog”) is more likely to prevail with a fair use claim if they merely quote a snippet of an article like Google News does, than if they republish the entire article.

Now here’s what Ms. Schultz doesn’t understand: In print, when an author such as a newspaper writer uses somebody else’s words without authorization, we call it “quoting.” Quotes are attributed to sources, and are an essential part of almost every news story. They are usually the meatiest part of the story. Some quotes are sourced directly by a reporter, through investigation, but others are copied from other people’s interviews or press conferences. We would not dream of forcing reporters to only use quotes that they sourced themselves or otherwise paid to use. Newspapers have never been held to this standard. Costs would soar, and newspapers would die if they were. Ms. Schultz suggests that we force Internet reporters to pay for the quotes they find in order to report the news, when it just so happens that the person they are quoting is a newspaper reporter.

Now to her “solution”. The two points of “remedy” that are prescribed are a wishlist, not actual changes you can make to the law. In order to effect a change to copyright law that would force Internet reporters to turn over their revenue to the sources for their quotes, this would have to be codified against those reporters’ fair use rights, greatly diminishing those essential freedoms. I don’t see how that could be done fairly without applying the same standard to newspaper reporters as well. (Feel free to try to argue this distinction. I don’t see it.) The right to “quote” a reasonable amount of text from whoever you want for newsworthy “reveiw” purposes, I feel, is an essential part of our First Amendment rights.

If the First Amendment lawyer your newspaper hired (David Marburger) doesn’t understand this, you’ve been paying a lot of money to a fool, right? Isn’t that your newspaper’s problem, not the fact that an aggregator might scrape a few dollars of income? I’m sorry Craigslist is better than newspapers for posting what used to be called “classifieds”… while being free. Nobody is going to make much from those anymore; the world has changed. I’m sorry your paper can’t make enough money from local subcriptions, but isn’t that your fault too? If you can’t offer a product people will pay for, please don’t change the law to diminish my free speech rights in order to avoid the rest of the collapse of your failed business model.

(An aside:A big part of the problem is that almost all this country’s wealth is in the hands of just a few bigwigs.. making the bigwigs the only ones who are able to pay for anything is not a recipe for healthy institutions that rely on broad-based subscription models.  If you want to save your media, use it to correct this inequality. If you figure out how to do that, you will be indispensible. If we don’t have jobs, we can’t afford to subsidize yours. And we REFUSE to subsidize your job with our free speech rights.)

The business model that newspapers rely on exploits a monopoly over information to extract revenue from information’s scarcity. This works in a world where information is naturally scarce, but the Internet destroys that world. Information is plentiful now. Linking is possible, and doesn’t require going to the library to dig up a paper copy of somebody else’s newspaper anymore. People expect their overall news-reading experience to be better than newspapers are offering it now. The in-depth investigative stories are great and important, but the quick-glance-overview is necessary too, and newspapers can’t provide the up-to-the-minute

When Ms. Schultz said, “I heard (Plain Dealer Editor) Susan Goldberg talking about how revenue from online advertising is pathetically low and newspapers can’t recoup their investment. As soon as she said it, the wheels started turning…”, she didn’t realize when her editor said this that it works both ways; there isn’t really much money to be “stolen” by the aggregators anyway. (Here are 236 aggregated articles about this that I found with a 5-second search..  http://news.google.com/news/more?cf=all&ncl=dy4Xzvb2XWsTf6MWLGrE6qDOaRgBM If I wanted to read one, I could select from the snippets provided and read whatever reporter’s contribution looks best. Efficient competition in action. Beautiful, eh?) Butchering the people’s fair use right (an essential part of free speech utilized every day by newspaper reporters and news aggregators alike) in order to grab a mere single day’s worth of ad revenue is heinous. I love my fair use right more than newspapers, honestly. It makes conversation possible. Not to mention the massive bookkeeping expenses that would be incurred to anybody who wanted to run an aggregator. Can you imagine how complicated it would be to break down $10 in advertising among the 30 different stories and news sources that a medium-size blog might link to in a day? In the beginning of this paragraph, I fairly quoted Ms. Schultz, and I am going to post this on my blog without authorization or payment, asserting my essential fair use right to engage with the ideas that are floating around on the Web today. I’m also going to make diddly from advertising revenue. Nothing worth sharing back with you, even if I had ads posted on my blog (“aggregator” of news content I want my readers to see).

It is my absolute right to engage with Ms. Schultz’s article in agreement or disagreement. Newspaper people have trouble understanding that Internet reporters have the same rights to talk about (and “quote” and “link to”) any news story they want the exact same way that she has the right to do in her printed columns… except that you can’t click a link in a paper newspaper to see where this conversation came from like you would be able to on the Internet. The Internet does quoting and attribution better than newspapers do. These are important facets of journalism, and if newspapers can’t catch up to the Internet, they are going to be left behind, and should be.

Ms. Schultz thinks excerpting stories is unfair because most people won’t bother clicking through to read the whole story on most of the snippets they look at. Nobody owns the actual news that is reported. The actual events are uncopyrightable. The excerpts that aggregators or blogs may quote from news stories are taken under fair use. Ms. Shultz quotes her laywer saying that “these parasitic aggregators are capturing the heart of the stories so that readers have no need to visit the site of the original story,” but doesn’t realize that this is a good thing for news readers. When I look at news in the morning, I don’t want to spend hours on it, but I want to be broadly informed. A couple key sentences quoted by an intelligent aggregator (“blogger”) are all I want to read of 90% of the stories I see every day. I don’t want to waste my time reading a bunch of stuff I’m not interested in–I’d rather click through only to the 10% of stories that really capture my interest… And trust me, I do click through and read tons of stories. As I write this, I’ve got about a dozen stories open in background tabs in Firefox (that I clicked on from an aggregator) that I wanted to read today. I skimmed over hundreds of summaries and picked out exactly what I wanted. This is just like reading the front page of a newspaper with the first half-column of each story, and then flipping through to page C6 for the couple stories I wanted to read, EXCEPT that I can do this faster from an online aggregator, the news is more up-to-the-minute, and I can cover so much more ground it’s not even funny. Within minutes, I am connected to the best reporting from all around the country after just looking at a few aggregators. This is why the Internet is beating newspapers. The goal of Ms. Scultz’s plan is that “ideally, news originators’ stories would be available on only their Web sites for the first 24 hours” would kill the up-to-the-minute scannability of the “newsscape” via aggregators that the makes reading Internet news such a valuable experience. Nobody wants to read yesterday’s news today.

The future of newspapers looks more like an “aggregator” than a traditional newspaper, and if you are a newspaper that doesn’t get this, you are going to fail. Internet “aggregators” are better for the reader, cheaper to operate, can contain a wider breadth of news (by just excerpting and linking to the best of the work of others, wherever they have published it), and still let users link right to the exact full stories they want to read. If a publication saves money on getting a wide range of national/international stories, it can spend its resources paying people to write the great in-depth stories that are the best of what reporters can offer. These will be quoted and linked to by bloggers and aggregators. If you want your story about corruption to spread, let it be quoted and talked about. So do what newspapers do best; write the good stories. Then excerpt/link to the good stories that others have written. We’ll read the good stories when they percolate into view on our aggregators. We’ll use the excerpts we see to filter out the chaff.