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.)