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March 22, 2010, 10 a.m.

Don’t forget: A few news orgs would still like to make aggregation opt-in

Remember all the way back to March 2009? Somali pirates roamed the ocean. The just-inaugurated President Barack Obama nominated Kathleen Sebelius as Secretary of Health and Human Services. Tiger Woods was happily married. Closer to the world of journalism, the Seattle Post-Intelligencer was still a printed newspaper. In that vein, a look back at the Nieman Journalism Lab archives reminds us that March 2009 was still a time of innocence in the world of online news. Aggregation was good, linking was easy, and paywalls were a crazy idea. Google was still a search engine, not a six-letter word for “intestinal parasite of the Internet.”

All joking aside, it’s clear with a little hindsight that late March and early April 2009 marked a turning point in the conversation about the economics of online journalism. Lab headlines from the time include “A new fighting spirit, or a New Century Network?” (about Dean Singleton’s speech to the AP threatening to crack down on unauthorized content use); “Mutter: Publishers trying to write happy ending to revenue crisis” (about a not-so-secret Chicago meeting of news execs); “David Carr: The reckoning is at hand for free content“; “Blogs: One person’s curation is another person’s scraping“; and “Fair Syndication Consortium: News orgs’ new way to confront Google?” By November 2009, when the topic of discussion had shifted to News Corp.’s flirtation with the Bing search engine, most of the drama from the spring and summer had settled in. Not only was it all old news, but it had been simultaneously dismissed and absorbed into the collective conversation about the future of journalism.

All this not-really-so-old-news came rushing back to me this week when I finally read the transcripts of the March 9, 2010 FTC hearings on the future of journalism. Key to the conversation that day was a discussion about journalism and copyright between James Boyle (Duke Law School), Yochai Benkler (Harvard Law School), Kenneth A. Richieri, (senior vice president and general counsel, The New York Times Co.), Bruce W. Sanford (partner, Baker Hostetler), James Marcovitz (senior vice president and deputy general counsel, News Corp.), and Laura Malone (associate general counsel for intellectual property, Associated Press). You can download a PDF of the hearing here, and for those of you looking for crib notes, blogger and law professor Rebecca Tushnet has a write-up here.

I’m drawing attention to this because I’ve never seen a clearer outline of the way that the legal counsels of a few incumbent news organizations would like to re-imagine the future of the web. In dialog with Yochai Benkler and James Boyle, and in front of a regulatory body that might actually assist them in their task, this vision was remarkably clear. (I should note, however, that the companies represented at the hearings actually didn’t always agree with each other. Richieri, counsel for NYT Co., generally took a far less sweeping approach — as he has before — when arguing in favor of limited regulatory changes.)

All in all, there were two basic arguments being made at the March 9 hearings, one about aggregation and the second concerned the so-called “hot news doctrine.” Both arguments can be unified in terms of their basic hostility to the current citational structures that undergird the web.

The core of the major argument about aggregators, put forward cogently and clearly by News Corp.’s Marcovitz, goes as follows. Noting that Google allows content providers to use robots.txt to opt out of Google spidering, Marcovitz said:

I mean, you know, opt-in, you know — it tells you it’s an — it’s only opt-out now because there’s nothing that says to someone that you have to abide by these instructions, and I think you have to shift that paradigm to one that is permission-based as opposed to opt-out-based.

Or stated even more clearly:

What we would like to see is a permission-based economy where we could set the value for our content and people come to us and seek permission to use it. Just like an RSS feed, there are permissions attached to it. Aggregators would like to build businesses based on the use of our content. They should come to us to seek permission to obtain it on terms that we would set.

As AP’s Malone added:

We do need to be able to say that we, the content owners, we, the copyright owners, get to set the parameters by which people can republish our stuff. If people want to build sites based on the news that is published by any of the news organizations, that’s great. We’ll give them a license. Licenses are not difficult to get, and they’re not terribly expensive. Talk about a barrier to entry. It’s not that difficult. It’s just that people, because they can do it for free, are doing it for free and assuming that that’s all right and then raising a stink if news organizations bring a copyright-infringement claim or send a DMCA takedown notice, make a stink and say, “News is free. What’s the matter with you? Don’t you know anything about the First Amendment?”

While the Times general counsel distanced himself from the “aggregation as an opt-in system” argument, he did argue that the rewriting of originally reported news material as a practice by which another organization achieved “sustainability” presented major legal difficulties. (No offending organizations were named during the hearing.) Such an organization might be subject to litigation on unjust competition grounds, Richieri warned.

The panel concluded with a nuanced discussion of the “hot news” doctrine. Once again, the AP counsel seemed most keen to press arguments in favor of a limited copyright protection for the facts contained in breaking news. The importance of the hot news doctrine seems to be that it stands as one of the few times the Supreme Court ruled (in 1918) that “facts” could be subject to copyright. In part, this ruling was grounded in the idea that these facts were obtained through work, through the “sweat of the brow,” and were thus copyrightable. But as was noted several times over the course of the FTC testimony, the Court has also definitively ruled (in the Feist case in 1991) that, in the words of Duke’s Boyle, “the idea that you get copyright by putting labor in things or that rights follow labor is not only wrong but, the Supreme Court has said, unconstitutional, at least under the copyright clause.” Nevertheless, AP counsel Malone argued that:

Hot news misappropriation does protect what you could call “sweat of the brow.” It protects people. It protects the news organizations who are sending their reporters out at a cost.

Throughout the FTC hearing, Boyle and Benkler mounted a sustained counter-attack on these claims being made by the represented news organizations. You can read their arguments over at the hearing transcript. For now, I’d just note that the overall tenor of their comments can be summarized in three quotes. First, in this insightful comment from James Boyle:

One thing that I like to do is just reflect how wrong I have been about my confident projections about technology and war in the past, because I find it a useful corrective…This, for me, suggests humility as the guiding principle of [regulatory or legislative] intervention. Right? And so major changes, like going permissions-based — I would say — I just think that that’s — that is going to be so wrong in so many cases with such tragic results that I would really push against it. There are actually sort of criteria that one can work with to have the least harmful government intervention, right? So, you know, acknowledge you’re likely to be wrong about the future of the technology. Acknowledge you’re likely to be wrong about the promise of technology.

Second, by these two comments from Yochai Benkler:

I think that to describe the day of a journalist or journalism today as one that looks only to fully funded long trips and three months of — of — in the hills of Afghanistan finding a Taliban fighter whereas everybody online just looks at what The Associated Press says is news and copies it just profoundly misstates the way in which — mischaracterizes the way in which the ecosystem is developing…

There is an emergence of a particular industry that has used to extremely high rents in a new competitive environment. It is looking for a set of interventions that will change the present law, create barriers to particular forms of competition so that it can extract values. The simplest solution is do nothing.

So while those of us in the “talking about the future of online news business” have dissected the arguments made by News Corp., the AP, and others — and have largely moved on to the next big online news issue (iPads, anyone?) — it’s important to keep in mind that these older discussions are still very much alive, and are occurring inside the halls of power. What’s more, the status quo on the web may not be as settled as we think. As James Boyle noted in his FTC testimony, the question of whether “linking” would be allowed by default or would be “permissions based” was actually an unsettled issue in the early days of the web. (See here for some legal cases involving the right to link. See here for the Wikipedia overview of the issue. And does anyone remember the NPR “no linking” controversy in 2002?)

The point is, while those of us who have grown up with the Internet naturally assume that certain aspects of its infrastructure are eternal (like the right to link and aggregate freely), no infrastructural element of a large system is impossible to change. Some elements (like linking? like aggregation?) are just harder to change than others. At least, I personally hope they are.

POSTED     March 22, 2010, 10 a.m.
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