Media and Communications Policy : Media Policy & First Amendment Foundation : The Media Institute : Free Speech, Media Regulation, Content Controls

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If newspapers ultimately survive, they might owe a debt of gratitude not only to Rupert Murdoch (as Patrick Maines suggested here recently), but also to two brothers who have combined their expertise in economics and the law to analyze the problem and come up with a potential solution.

As I wrote here earlier this month, online aggregators quite possibly could kill off newspapers by pirating the papers’ original news content.   Among the industry watchers who have studied this phenomenon are Daniel Marburger, Ph.D., a professor of economics at Arkansas State University, and his brother David Marburger, Esq., a partner at the Baker Hostetler law firm in Cleveland.   

The brothers have conducted an extensive analysis of both the economic and legal frameworks of the newspaper industry (print and online), and how these frameworks intertwine in the digital age.  In a number of papers and articles, the Marburgers have gone beyond the usual observations in two important ways: (1) They draw a distinction between “pure aggregators” and “parasitic aggregators”; and (2) they suggest a way of closing a loophole in copyright law that would seriously curtail the so-called parasites.

“Pure aggregators,” they say, use only a headline and maybe a sentence from the original news source, and then link back to that source (i.e., a newspaper website).  Pure aggregators are economically good for papers on balance because they drive readers to the newspapers’ websites.

“Parasitic aggregators,” on the other hand, take content from newspaper sites, rewrite it a bit, and then pass it off on their own sites.  These parasitic aggregators are bad because they retain readers rather than drive them to the newspapers’ sites.

In the Marburgers’ longest paper on the economic viability of newspapers, two section titles sum up the problem and its effect: “The federal copyright act allows parasitic aggregators to ‘free-ride’ on others’ substantial journalistic investments”; and “If the law does not change, newspapers continually will diminish their journalistic resources until they can subsist only by underproducing news or until they go out of business.”

The Marburgers’ solution would allow newspapers to seek redress for unfair competition under state statutory or common-law remedies for unjust enrichment – remedies that federal copyright law has in effect precluded since 1976.  They’re not suggesting a new law – just an amendment to Section 301 of the Copyright Act.

In this short space I am oversimplifying the Marburgers’ excellent analysis and recommendations – but I hope I can help draw attention to a thoughtful paper that is worthy of serious consideration and widespread recognition.   

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A case scheduled for argument next month in the Supreme Court provides another opportunity to drive a stake through the heart of the worst part of the abominable campaign finance law, commonly referred to as McCain-Feingold.

The case (Citizens United vs. FEC), comes in the wake of an earlier Supreme Court decision carving out an as-applied exemption for “electioneering communications” (read: issue ads), save where the communication “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

Welcome as this exemption was and is, the problem, as explained nicely in an amicus brief filed on behalf of ten state broadcasters associations, is that because it requires speakers to make complex and risky decisions about the legality of these ads, the law has a chilling effect on speech.

This case would not have been necessary had the Court done the right thing in 2003, in McConnell vs. FEC, or in 2007, in Wisconsin Right to Life, and thrown out, for its facial unconstitutionality, the whole of the electioneering communications part of the law, Section 203.

In 2002 the Media Institute filed an amicus brief in McConnell, arguing that this aspect of the Bipartisan Campaign Reform Act was an impermissible restriction on political speech, and in 2007 we filed comments with the FEC, in company with the Thomas Jefferson Center.

Here’s hoping that the current case yields the eradication of this most offensive section of this  odious law.

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It's reported that Rupert Murdoch, chairman of News Corp., pledged last week that his company has plans to charge for the online news content of all its newspapers and television channels.  Though the announcement came with few details as to when the charges will commence or how they will be structured, the fact that it is Murdoch who is leading this campaign is hugely important.

This, because nobody is better equipped-- by background, influence, knowledge, or constitution--to attempt such a move.

One of the most telling examples of Murdoch’s shrewdness and tenacity was put on display in 1986 when, as chronicled by his biographer, William Shawcross, he broke the Fleet Street print unions that went on strike against his plans to modernize his newspapers’ printing processes.  Against all odds the striking union members, 6,000 strong, were obliged to surrender a year later after it transpired that the company had built and secretly equipped a new printing plant for all of its British newspapers in the London district of Wapping.

If News Corp.'s plans fail it will send shock waves throughout the industry, but if it succeeds — that is, if its titles can generate sufficient revenue from access fees and advertising — Murdoch will be owed an enormous debt by newspaper publishers here and abroad.  They won’t pay that debt, and some, like The New York Times, are unlikely even to acknowledge it, but it is certain that many will follow his lead, as Murdoch himself claims.

That he is very much on their minds even now is shown in a remarkable story published yesterday (Sunday) in The Observer, sister paper of The Guardian in the UK, one of Murdoch's biggest political and business adversaries.

The lead paragraph sums things up nicely: "Rupert  Murdoch is often cast as the villain of the newspaper trade, but having revitalized the Wall Street Journal and with his radical plans to charge for access to online papers, he could be the unlikely saviour of the beleaguered industry."

And what a relief that would be!  Because if professional journalism is to survive it will have to be paid for, and paid for handsomely.  And the only way to do that is by putting together a business plan that features at least two revenue streams.

Whatever the outcome, Murdoch’s plan provides a stark contrast with the naive and corrosive idea, entertained by some, that journalism can survive on a diet of investigative news stories issuing from nonprofits, "citizen journalism," and greater funding for public media.

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Hardly a day goes by without another reminder that the demise of newspapers is in full swing.
    
In the Outlook section of yesterday’s Washington Post (Sun., Aug. 2) came the latest, an anecdotal example by Post reporter Ian Shapira titled “How Gawker Ripped Off My Story & Why It’s Destroying Journalism.”  The title pretty much sums things up.
    
Gawker is, in Shapira’s words, “the snarky New York culture and media Web site.”  More importantly, it is a news aggregator, and it had written about and heavily excerpted an earlier story Shapira had written for the Post.
    
At first Shapira was glad for the recognition, until his editor reminded him that he, and the Post, had been ripped off.  Shapira had spent several days researching and writing his original story (and getting paid by the Post to do so).  Gawker repackaged his story in no more than an hour and posted it on its site – for free (or close to it, if you count the time of the poorly paid 29-year-old “independent contractor” who did it).
    
And therein lies the worst-case scenario for the destruction of journalism – which is to say, original reporting.  Newspapers are already being decimated financially by online media sites and blogs.  To the extent that any of these sites offers serious journalism, that journalism frequently consists of stories that have been ripped off, er, “aggregated,” from established newspapers.
    
But here’s the rub: As online aggregators continue to strangle the newspaper industry, they are killing the geese that have been laying their golden eggs – original reporting.  Once the newspapers are dead (or knocked senseless), from where will high-quality journalism originate?  How many online outlets will be able to pay real reporters the way newspapers did?  What will pass for journalism?
    
It’s already happening.  Buyouts have emptied newsrooms of many of their most experienced and knowledgeable reporters, leaving things in the hands of novices.  (A small example: An inexperienced reporter at the Post refers to the Obama inauguration train’s observation car as a “caboose,” and the editor doesn’t know the difference.)
    
Sadly, even the august New York Times is not immune.  A piece by the Times’ Public Editor Clark Hoyt on Aug 1. described how the paper of record’s appraisal of Walter Cronkite contained seven factual errors – something of a record, no doubt, and a feat unimaginable in an earlier era.
    
Yesterday I was sitting with a group of friends and one of them was reading the Sunday New York Times.  He asked me if I wanted to see it, and proffered a selection of unmistakably slim sections.  He added apologetically: “The Times isn’t what it used to be.”  No, my friend, it isn’t.  But neither are the rest of them.
    
I don’t know where all of this is going to end, but I do know that we’re well on the way.