A Tale of Two Proposals to Change Copyright Law to Protect Newspapers: Part 1

Newspapers are in trouble these days.  Many in that industry blame competition from bloggers and websites, and some believe that the way to deal with that competition is to change copyright law.    One proposal to do so appeared in a blog post by Judge Richard Posner  in June of this year.  Shortly thereafter, a more detailed proposal by David and Daniel Marburger (David Marburger is a lawyer and former journalist who has represented the Cleveland Plain Dealer; Daniel Marburger is an economist) first appeared in Connie Schultz’s column in the Plain Dealer.  Since then, the Marburgers have published expansions of the proposal on various sites on the internet.

My father was a newspaper reporter and editor for over 20 years, most of the time for a chain of small-town newspapers in Tennessee, and our lives revolved around newspapers.  When I was a kid, I sat on my father’s lap and he explained to me about typeface and how he’d decided to lay out the front page.  He kept a copy of the state sunshine law in his wallet.  When he came home, the wonderful smell of ink clung to him.  When I was 16, I started reading proof at the paper, and when I came home, I smelled like ink, too.  My younger brother followed, first learning to stuff papers and then to work with the presses.  By the time I was a senior in college, I was allowed to write stories—weddings, and gospel singings, and dinner on the grounds.  I have many wonderful and some bizarre memories of the time I spent at the paper and my father’s colleagues over the years.

Newspapers are a valuable source for news, and I normally read two a day, one in print and one online.  For example, my local newspaper recently published a series of really valuable articles that helped prisoners who had been mistakenly convicted receive DNA testing and be exonerated.  Traditionally, a newspaper is the medium that has the resources necessary to pursue this kind of story.

Despite my concern for newspapers, I do not believe that changing copyright law is the way to save them.  There are concerns about abridging First Amendment rights and concerns about whether the proposed changes to copyright law would really accomplish their goal.  In addition, as David Nimmer pointed out in the final essay “Coda,” of his book Copyright: Sacred Text, Technology, and the DMCA, copyright is “increasingly…laden with Christmas tree ornaments by special interest groups and then exemptions to try to counter these extensions.”  These ornaments make it increasingly difficult for the layperson to learn and apply the basics of copyright law with confidence.

In his post,  “The Future of Newspapers,” Posner has three suggestions for how changing copyright law can help save newspapers: by expanding copyright law to exclude access to newspaper content without the rights holder’s consent, by prohibiting linking to copyrighted material without the rights holder’s consent, and by barring paraphrasing material without the rights holder’s consent.

Posner’s first suggestion, that copyright law be changed to bar access to online material that viewers have not paid for, is currently available through various technological means; there are many ways to put material on the Internet and require payment or authentication before a viewer can read it.  The Wall Street Journal is the primary example of a newspaper that does this successfully.  A creator who wants to limit its audience on the web this does not need copyright law to do it.

His next suggestion is that copyright law be changed to bar linking to articles without the copyright holder’s consent.  This suggestion initially seems counterproductive.  It would appear that links are desirable because they direct readers to a site and so to the ads therein.  Even if a site were pay-only, would not some of those readers pay to read an incisive, exciting article?  Why would any business, especially one that is in trouble, want to cut off that potential source of readers and revenue?  And finally, prohibiting linking raises troubling First Amendment problems.  However, the Marburgers’ proposals, with their definition of “pure aggregators” who lead readers to the original content and “parasitic aggregators” who paraphrase it and substitute for it suggests that these proposals do not see all linking as created equal and deserving of the same level of protection.

Posner’s last suggestion is that copyright law be changed to bar paraphrasing articles without the copyright holder’s consent.  At first blush, news organizations would find this a significant constraint, with limits that would be difficult to define and enforce.  No one can own the fact that news occurs, and, in the United States, facts are not copyrightable; however, using an unjust enrichment theory, the Marburgers’ proposal would allow a news organization to control how a story was disseminated, unless the other party could independently confirm the story.

Many,  but not all commenters from the newspaper business feel that changing copyright law is what is needed to save newspapers.  On the other side, some commenters  have decried Posner’s and the Marburgers’ proposals on First Amendment grounds.  Others, using the same sort of law and economics arguments Posner often employs, have argued that these ideas would hurt newspapers more than they would help them.

The newspaper that employed my father was one of several in Tennessee that used the slogan “What the People Don’t Know Will Hurt Them” on its masthead.  It is ironic that newspapers would move to lock down expression in this way for what is likely to be a very tenuous reward.

The next post on this subject will examine the Marburgers’ proposal and the discussion surrounding it in more detail.

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