More on Newspapers and Aggregators

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.   

Keeping Kids Safe Online

Everyone, it seems, has had a hand in trying to keep children safe online.  For more than a decade, various groups and individuals representing parents, children, educators, law enforcement, government, and industry have weighed in with suggestions.

Now, however, a worthwhile report has emerged from a coalition that is notable in equal parts for its diversity, its lack of political agenda, and its candor.  The coalition was brought together by the National Cable & Telecommunications Association as an element of its “PointSmart.ClickSafe.” initiative to promote online safety and media literacy.

The coalition includes industry leaders like Verizon, Comcast, Cox, Google, Yahoo!, AOL, and Symantec.  It also includes groups like Common Sense Media, the Internet Keep Safe Coalition (iKeepSafe), PTA, Family Online Safety Institute (FOSI), and the Children’s Partnership.

Following a summit in Washington in June 2008 and a year-long effort, the coalition has now issued a report titled “PointSmart.ClickSafe: Task Force Recommendations for Best Practices for Online Safety and Literacy.”  It’s online at www.pointsmartreport.org.  

The “best practices,” 20 in all, are grouped in three categories: “before children go online, “during a child’s online activities,” and “when problems arise.” You can read the particulars here.

What I find noteworthy about the report more broadly, however, is its candor in admitting the sizable number of obstacles in trying to keep kids safe.  Kids know more than their parents about technology.  Kids lack impulse control.  It’s hard to verify identities and ages.  Technology keeps changing … the list goes on and on.

Given this daunting list of variables, many activist groups would turn to the government for a “solution.”  But, thankfully, not this coalition – and that’s also noteworthy.  “Best Practices … provide the most direct potential benefits, because they empower the private and nonprofit sectors to create solutions and allow government to focus on broad policy guidelines rather than detailed, prescriptive, onerous or problematic laws and regulation,” the report states.

As the FCC and several other federal agencies pursue their own studies of media and online safety, they would do well to take note of NCTA’s PointSmart.ClickSafe.  This effort demonstrates that the industry, with input from a wide range of responsible advocacy groups, is indeed able to keep its own house in order without a government housekeeper. 

The Big, Uneventful Day

A blog about media and communications policy would be remiss if it did not mark the fact that this is a watershed date in television history – even if nothing much seems out of the ordinary.

This, after all, is June 12, the date years in the making on which television broadcasters are converting their analog signals to digital.  For TV viewers with cable or satellite (i.e., most of us) there is no difference.  For those who still rely on antenna reception of over-the-air broadcast signals, there will be no more TV until they get a converter box (for which the federal government has been offering discount coupons for months).

The good news is that most people have already taken steps to become digital-ready.  Paul Karpowicz, chairman of the National Association of Broadcasters TV Board, said at a press conference yesterday that only 1.75 million over-the-air households have not prepared for the changeover.  

The National Telecommunications & Information Administration (NTIA) said it received almost 320,000 requests for converter-box coupons yesterday alone, up from the recent daily average of 114,272.  And for those who somehow haven’t gotten the word about the switch to digital, the FCC has 4,000 operators standing by 24/7.

FCC and industry leaders acknowledge that some stations might experience a few engineering bumps.  But for broadcasters and viewers alike, the changeover is said to be going relatively (and even surprisingly) well.  

The FCC, NTIA, NAB, NCTA, and countless station engineers deserve a “well done” for making this watershed day so uneventful.  

Digital Technology: Double-Edged Sword

Two items in the Washington Post in the past three days point up how the relentless march of technology will affect news in the months to come – both how it is generated by the White House, and how it is reported by at least one local TV station.

President-Elect Barack Obama sees new technology as a means “to reinvigorate our democracy,” according to senior adviser David Axelrod.  And, as Chris Cillizza reported on Dec. 14, Obama is starting with the Saturday morning radio broadcast begun by Ronald Reagan in 1982.  

“The speech is still beamed out to radio stations nationwide on Saturday mornings, but now it is also recorded for digital video and audio downloads from YouTube, iTunes and the like, so people can access it whenever and wherever they want,” Cillizza reports.

It’s part of a “broader revolution” in how the Obama White House will communicate, according to Doug Sosnik, a senior aide in the Clinton Administration. "The mainframe for this White House will be the Internet, not TV," he told Cillizza.

Only two days earlier (Dec. 12.), Paul Farhi reported that WUSA-TV, Channel 9 in Washington, D.C., had reached a new labor agreement that would scrap the traditional two-person news crew of reporter and photographer.  Under the new pact, an individual “multimedia journalist” will report, shoot, and edit stories alone using digital tools.  Reporters will double as their own camera crew.  Camera operators will take on reporting tasks as well.

In the case of WUSA, however, the impetus is economic. The one-person operatives are part of a broad budget-cutting scheme under which these “multimedia journalists” will actually be paid less than current reporters.

It’s encouraging that Obama embraces digital technology and plans to use it extensively.  At the same time, it’s ironic that digital technology has siphoned viewers from broadcast television and weakened some local news operations to the point where they can only be saved by changes in news-gathering built around … digital technology.

Digital Copyright Questions Deserve Answers

The U.S. Supreme Court has an opportunity to chart a clearer course for copyright protection in the digital age if it agrees to hear a case from the U.S. Court of Appeals for the Second Circuit.  The matter involves a video-on-demand service offered by Cablevision Systems, and allegations by Cable News Network that the service constitutes the unlawful copying and public performance of copyrighted works.

The case raises at least two serious and unresolved issues.  First, who is responsible for making a copy of protected content?   The cable customer who makes a selection from the cable company’s video-on-demand service?  Or the cable company itself, for putting in place and making available the automated software that allows the customer to make that selection?  

Second, what constitutes a public performance?  Is a video-on-demand program viewed in the privacy of one’s family room a public performance?

Such issues are important because they go beyond the narrow scope of video-on-demand and touch on broader questions of how digital technology will be used to produce, store, transmit, and copy content across a variety of platforms – and how that content is to be protected in this digital environment.  Once again technology has far outpaced law and regulation, and is striding ahead in territories still largely uncharted.

How the courts map that territory will depend on how much value they place on protecting the creative rights of copyright holders.  Meanwhile, the digital age in general and the Internet in particular have generated a new class of content users (including many college professors) who believe that anything goes when it comes to obtaining and sharing copyrighted material.  (Remember Napster?)

In the Cablevision matter, however, professors of a different stripe have filed an amicus brief urging the Supreme Court to take the case.  Led by copyright guru Prof. Raymond Nimmer, this group of six law professors and one economics professor (all with impeccable intellectual property credentials) argue that creative rights are worth protecting and that the law should come down on the side of copyright owners.  (Two of the group, Dean Rodney A. Smolla of the Washington & Lee University School of Law and Prof. Stan Liebowitz of the University of Texas at Dallas, sit on the advisory council of the National CyberEducation Project, a program of The Media Institute.)

I agree with these professors, that the Supreme Court needs to take this case for the sake of digital information systems going forward.  I further agree that copyrights are essential – and that copyright protection needs to be clarified in this digital age.   

Digital Politics Comes of Age

Pundits, pols, and political scientists will spend months and years dissecting this presidential election.  But one fact is unmistakably clear: We have seen the future of politics.  And it’s digital.

Digital technologies played a bigger and more decisive role in the outcome of this election than ever before.  For a confluence of reasons, they worked spectacularly well for Barack Obama.

Consider some of the particulars: The respective campaigns relied on sophisticated marketing data from commercial firms that tracked Internet viewing habits, political leanings, and issues of interest to likely voters.  In addition to making it easy to donate money online, the candidates’ websites placed cookies in visitors’ computers, making it easy for the campaigns to keep track of potential voters and to target them at the online sites they were likely to frequent.

The campaigns collected the cell phone numbers of thousands of participants at political rallies and the national conventions.  They set up dedicated social network sites for their candidates, and individuals set up scores of independent socnets and blogs of their own.  The campaigns barraged their supporters with e-mails.

Barack Obama took things a step further by famously announcing his running mate via text message.  And his campaign even embedded Obama ads in video games. 

Okay, I think the running mate gambit was a gimmick.  But it seems to me that Obama clearly had the edge in using digital technologies more effectively than his competition in both the primary and general elections. 

Why?  Obama ran a young person’s campaign.  He appealed to the young demographic with his charisma and calls for change in a way the Republicans couldn’t touch.  And he was wildly successful at reaching young people via the digital technologies that are their lifelines.  They were able to interact not only with his campaign, but with their friends and online communities – and to extend that online involvement to grassroots participation on the street.

Obama has given us the best model of what digital politics will look like henceforth: using the Internet and personal electronic devices to find potential supporters; to keep track of and stay in touch with them; to make it easy for them to donate their money; and to “activate” them to work on the candidate’s behalf.  

There are a lot of factors that determine the success of a political campaign, starting with the amount of money raised.  There are the strategic decisions large and small, the quantity and quality of advertising (especially on TV), the effectiveness of local organizing, personal charisma, the tone of media coverage … oh, and even the candidates’ stances on the issues.

Maybe it’s a stretch to say that Obama won because he did the better job of mobilizing young voters via digital technologies.  But I suspect it’s not a big stretch.

Sheer Lunacy: Taxing the Technologies of Freedom

Imagine that someone came up with an idea to solve the “problem” of information overload (a.k.a. “too much information”) by levying a tax on the technologies that have sparked our information explosion.  Making it too expensive for many people to blog or otherwise send and receive information through digital and Internet-based technologies would not only reduce a lot of superfluous, self-indulgent electronic clutter, but would reverse the fragmentation of opinion threatening our democracy, the theory would go.

Well, someone has come up with just such a scheme.  An environmental attorney named Dusty Horwitt published his incredibly outlandish idea in the Aug. 24 Outlook section of the Washington Post.  (“If Everyone’s Talking, Who Will Listen?”)  He proposes a “progressive energy tax” that would “make the technologies that overproduce information more expensive and less widespread.”

Anyone who has the faintest sensibility about the free flow of information must find this notion not only preposterous, but repulsive.

Forget, for a minute, that such a scheme would be utterly unworkable.  (How, for instance, would the government tax the electricity going into your computer differently than the electricity keeping the beer in your refrigerator cold?)  And we’ll leave it to our economist friends like Harold Furchtgott-Roth to point out the fatal flaws from an economic standpoint.

From a First Amendment perspective, Mr. Horwitt’s proposal is simply horrendous.  Restricting the means of disseminating information is tantamount to restricting information itself.  And information is speech, almost all of which is protected from government interference by the First Amendment. 

It is freedom of speech, and the free flow of information, that distinguishes the United States from China, totalitarian regimes, and most third-world countries.  Restricting the availability of information is a totalitarian tactic that is the antithesis of democracy, not something undertaken in support of it, as Mr. Horwitt alleges. 

Under Mr. Horwitt’s scheme, who would decide how much information was enough? Perhaps we would need a Ministry of Information to make those decisions.  And if the quantity of information were regulated, would the regulation of content be far behind?

In an earlier age, maybe Mr. Horwitt would have favored a stiff tax on printing presses and newsprint.  It’s no coincidence that the Founding Fathers created the First Amendment, because taxing the means of producing speech was a form of government coercion they found utterly repugnant. 

And perhaps it’s no coincidence that Mr. Horwitt never mentions the First Amendment or acknowledges any constitutional concerns about his proposal.  I don’t see how his scheme could possibly pass constitutional muster under the Supreme Court’s O’Brien test, for instance.  Taxing speech isn’t the same as taxing cigarettes or gasoline.

The technologies that Mr. Horwitt would like to tax into oblivion, or at least into submission, are the latest iteration of what Ithiel de Sola Pool famously called the “Technologies of Freedom.”  Give me my newspaper and my traditional radio and TV, but also give me the rollicking, raucous world of the blogosphere, satellite and Internet radio, hundreds of cable and satellite TV channels, and the incredible wealth of information available on the Web.  These are today’s “technologies of freedom” that make our democracy what it is. 

How could anyone be fearful of “too much information”?  Information is the lifeblood of democracy, and the more the better.  The idea of restricting speech by taxing the messenger is repulsive indeed.    

Where Are the First Amendment Champions?

First Amendment advocates must acknowledge a stark reality:  Too many players in the new generation of digital media either do not understand the First Amendment, or think the First Amendment is irrelevant to their piece of the digital action, or both.    
   
This is a dangerous situation because these digital gurus are the future of America’s media.  Are they eager to uphold constitutional principles like freedom of speech?  No.  Their interests revolve around technological innovation, software and hardware applications, content availability, distribution platforms, consumer acceptance, cost per unit … business considerations wherein technology and the marketplace trump policy concerns.  What does this bode for the future of free speech and free press as we know it?
   
Right now, the equipment manufacturers appear to be the standard bearers for the First Amendment rights of the new media.  Their Washington reps at the Consumer Electronics Association aren’t afraid to invoke free-speech arguments in policy circles.  But even within this industry, and certainly among the new media generally, we have yet to see emerge an entrepreneur or company head willing to lead the First Amendment fight in the way that William Paley championed freedom of speech in an earlier era.
   
We need a new generation of First Amendment champions.  They must, of necessity, be recruited widely from the ranks of the new media.  Before they can be champions, however, they must be educated about the First Amendment.  They must realize that the First Amendment will prove utterly and crucially relevant to all manner of digital media in coming years.  And they must be willing to embrace our cherished constitutional guarantee of free speech and free press as their unqualified ally.