David Lazarus of the SF Chronicle, in “Pay-to-play is one way to help save newspapers,” says “it’s time for newspapers to start charging for — or at least controlling — use of our products online.”
Lazarus, normally an excellent columnist, gets things almost precisely wrong in this piece.
He raises the issue of charging and then pretty much dismisses it, noting (via a university professor, Phil Meyer) that it’s an impractical solution because almost no paper can get its readers to pay. I don’t necessarily agree, but let’s concede the point for the sake of argument and move on to the really zany stuff. Such as:
Just as Viacom is arguing that Google/YouTube shouldn’t have unfettered access to clips from “The Daily Show,” MTV and other copyrighted material, newspapers should insist that a licensing fee be paid for aggregators to have access to their content.
They can insist all they want, but they won’t have a legal case. And the comparison to Viacom’s lawsuit against Google is specious.
Second issue first: Viacom’s lawsuit is basically saying that Google has to police itself to ensure that copyrighted material on YouTube — beyond a fair-use clip (though Hollywood even denies the right of fair use with video) — not be there. The law is pretty clear that Viacom has to notify YouTube about infringements, not that YouTube has to be the cop on the beat. But never mind that: Clearly, YouTube boasts lots and lots of video that does infringe copyrights.
That has zero to do with what Google and other headline aggregators — Lazarus cites the Huffington Post and Drudge — do with newspaper stories. Zero.
The aggregators don’t begin to violate copyright. They take a headline and a small amount of text from the story in what to me is plainly a fair-use manner. The send readers back to the newspaper articles; YouTube sends no one anywhere else.
Incredibly, Lazarus gets a supportive quote on this from Jane Kirtley, a professor of media ethics and law from the University of Minnesota. I’m surprised by her support for this notion.
In any event, the papers have an easy way to “fix” this if they choose. They can block the aggregators from including them on those sites with technology.
They’d be idiots to do this, of course. Because then they’d lose even more readers. Whoops.
Lazarus also points out that newspapers would violate antitrust law if they did something like this (or started charging for their content) in concert — demanding royalties. Then he suggests an exemption from antitrust law, but observes that this is “no less problematical, not least because of the symbiotic relationship between politicians and the press — you don’t want special treatment for a business that spends much of its time covering the very people who’d grant such a boon.”
He’s apparently forgotten that the industry already enjoys the odious Joint Operating Agreements law that lets two “competing” papers combine business operations in a city, creating a monopoly. His own paper was the beneficiary of such a deal until fairly recently. But he’s right about one thing: It’s not going to happen, not because it would look bad, but because it would stink to high heaven.
Does Lazarus realize how pathetically whiny he sounds — how he represents the industry’s worst tendencies these days? He’s complaining about reality and looking to law to protect a once-monopolistic, outdated business model.
I love what newspapers do, when they do it well. I wish we could preserve it.
This isn’t the way.
(Two notes: Lazarus neglects to credit Peter Scheer of the California First Amendment Coalition, who as far as I can tell was first to float the price-rigging idea (which I didn’t like then, either); I”m on the coalition board of directors. Also, Kirtley is a member of the board of advisors of the soon-to-launch Citizen Media Law Project, a joint project of this center and the Cyberlaw Clinic at Harvard Law School.)
on Mar 14th, 2007 at 5:12 am
“In any event, the papers have an easy way to “fix” this if they choose. They can block the aggregators from including them on those sites with technology.”
well… that’s not exactly a fix (they would like to be compensated for the use of their content by aggregators who *make $* off of it… — it seems silly that aggregators would be able to make money from other peoples’ content but the producers of that content could not…)
“They’d be idiots to do this, of course. Because then they’d lose even more readers. Whoops.”
well… are they profitable users? (if you just look at them as “traffic” and they actually make money from that traffic through advertising, fine… — except for the idea that advertising revenues cannot be counted on for the long run — but if this is not the case, from the business point of view, why would they care that a large number of users who were just soaking-up broadband would no longer be doing that?)
Delia
on Mar 14th, 2007 at 5:44 am
They have no *right* to be compensated, just as I have no right to be compensated if you quote me in an article you write for pay.
on Mar 14th, 2007 at 8:03 am
but that’s not really what’s going on, now, or … is it? (the aggregators’ business is NOT *commentary* on other peoples stuff — it’s just taking the stuff, repackaging it and selling it… it’s purely *commercial*; I don’t see how “fair use” could apply)
suppose I took your blog, Jay’s blog and Jeff’s blog and figured out how to sell the content (every little bit of it…) without producing any new content: you might not mind it but I don’t think I should be able to do just do that without compensating you (unless you gave me permission, of course)… D.
on Mar 14th, 2007 at 1:00 pm
I’m not giving you permission to reprint in full what I write and charge for it. You don’t have that right.
But even if I didn’t want you to do it, I could not stop you from quoting a headline and short bit of what I write. That is fair use, no matter what you do with it.
This isn’t about commentary or anything like it. I can quote from other people’s work in a new work — say, a regular news article or magazine piece that has no commentary at all — and get paid handsomely, and the money is mine, not yours in any respect. That is the essence of fair use.
If we have to get permission or, worse, pay to quote someone — for whatever reason — then all kinds of valuable work will be much, much harder to do, if not outright impossible.
on Mar 14th, 2007 at 2:58 pm
but aggregators aren’t just… *quoting* things: they take the whole thing! combine it with some other stuff (aka repackage it, without adding any new content of their own) and then sell it… (whether they charge access fee or just get money from advertising or the like).
“This isn’t about commentary or anything like it. I can quote from other people’s work in a new work — say, a regular news article or magazine piece that has no commentary at all — and get paid handsomely, and the money is mine, not yours in any respect. That is the essence of fair use.”
I don’t think that’s true — you may use a *portion* of it but not on it’s own… and not just because… if this was true, I could just take your blog, Jay’s blog and Jeff’s blog and keep alternating “quotes” from them until I’m done with all the content and sell the stuff…
“If we have to get permission or, worse, pay to quote someone — for whatever reason — *then all kinds of valuable work will be much, much harder to do, if not outright impossible* [my emphasis]”.
I agree with the part I emphasized, I think this is what fair use is all about (or if it’s NOT…it *should* be!): being able to use a part of others’ work *provided* that you use it to do some valuable work of your own… (giving people the right to use the stuff… just because… well, just to make money off of it! defeats the rationale of fair use — this means I disagree with having permission to “quote…(…) for whatever reason”).
Delia
on Mar 14th, 2007 at 3:01 pm
oops…I disagree with having the *right* (NOT the permission) to “quote” for whatever reason… D.
on Mar 14th, 2007 at 6:06 pm
This is *such* a silly argument.
It costs newspaper companies more to print and distribute a newspaper than they make in circulation revenue. This has been true for years.
So we’re *already* giving away the content. It’s about finding advertisers to pay for the audience we pay to aggragate.
on Mar 15th, 2007 at 11:28 am
Delia, we’re talking about a different kind of aggregation. Look at Google News and other sites that use headlines and short quotations from news sites. That’s the kind of aggregation that the Chronicle columnist claims is unreasonable. It is not.
An RSS feed that includes everything is being *given away* by the site creating the feed. So there’s no issue there, either. No one is forced to give it away; and in fact RSS allows for summaries instead of full feeds.
The only place where this is an issue is when someone takes the full text/audio/video or a substantial — i.e. not fair-use size — piece of the original content and then gives it away online. I don’t endorse that.
Aggregating short quotes and selling them is absolutely part of fair use, in my own view. Sometimes aggregation is the creation of something new, just in the collecting. So feel free to grab a quote here and there from my work and use it as part of something you sell. Just point to the original and give me credit, and I’ll be happy.
on Mar 15th, 2007 at 3:32 pm
Dan, just to make sure I understand what you are saying: say I wanted to start my own news site, “Delia’s random news,” and that’s exactly what I did… just randomly throw a bunch of quotes (with the proper credit) together to fill up the page … part of my “work” would be a daily “column” entitled “what Dan, Jay & Jeff are sayin’ ” and again I randomly pulled 3 paragraphs, one from each of your daily blog entries and left it at that… would that be fair use in your view? D.
on Mar 15th, 2007 at 7:10 pm
Yes.
The only potential wrinkle would be if the paragraphs weren’t the entire contents of the postings — but rather a fair-use sized portion.
In my case, since this is published under a Creative Commons license, you could publish it all for non-commercial purposes.
on Mar 17th, 2007 at 9:26 am
Whoa, wait a minute though Dan. You may be absolutely right about “fair use” and snippets, but imagine this scenario: Google’s bots scrape blogs, news, newspapers, commentary, etc. pulling just enough content from each to stay within “fair use,” and then dynamically (without human editors) aggregate and repackage each of the snippets into a brand new news story, that is essentially dozens of bite-sized, “fair-use” snippets pulled from others’ work product.
It’s probably not feasible at the moment, but with the increasing complexity of Google’s spiders and algorithms, this will happen someday soon… It’s exactly what was warned about in the video EPIC 2014 where they predicted that Google’s computers will “…construct news stories dynamically, stripping sentences and facts from all content sources and recombining them. The computer writes a news story for every user.”
It sounds like fear-mongering, but man it raises a really interesting question: What happens when technology allows you to stay well within “fair use” boundaries, but at the same time allows you to construct (and profit from) brand new news stories aggregated from others’ content?