Monday, June 29, 2009
News / News Bites Does the news want to be unlinked?
Posted by Michael Miner on 06.29.09 at 01:37 PM
Assume for the sake of argument that if a paper like the New York Times has a future, it's online. Can it migrate online and keep up not only its standards but also the scope of its journalism? No, says Judge Richard Posner of Chicago's Seventh Circuit Court of Appeals, because of what I'll call the leeches -- aggregating Web sites that suck off the Time's journalism and offer it themselves.
Posner raises the problem on the blog he maintains with University of Chicago economist Gary Becker. Thinking outside not merely the MSM box but also the box on which "the news wants to be free" visionaries stand so they can see tomorrow, Posner offers a solution.
Outlaw links. Or as he puts it, "Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion."
Read the comments that follow Posner's blog post. You'll see that his readers aren't crazy about his idea.
UPDATE: Listen to a conversation on Posner's idea of changing copyright law by Mark Fitzgerald and Jennifer Saba of Editor & Publisher.
Comments (16)
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What's not to like? If bloggers and online news gatherers are such paragons of 21st Century journalism, lack of access to stale, stuffy old media and their copyrighted material shouldn't harm them a bit.
I'm with Andrew on this. If these stuffy old media outlets and their copyrighted materials want to dig themselves a grave even more quickly than they already are, banning links would be a great way to do that.
That's almost as awesome as Cass Sunstein's old suggestion that political balance be mandated on blogs. WTG U of C law. Here's what's weird about Posner's argument. Providers who find their work being "paraphrased" have redress under fair use - but save for the Gatehouse suit, no one's taking advantage of that opportunity. I'd love to see Posner address aggregation in the light of fair use rather than just threatening to come for all the Web's precious links.
@Frank Edwards But if linkages were the answer--or even anything close to an answer--wouldn't they be working right now? Wouldn't the fusty old mainstreamers who've been busily shoveling all their stuff online for years be experiencing a windfall? Even the New York Times doesn't see anything like the revenue online that it would need to survive. This ill-conceived, misbegotten experiment has failed. Online revenues for the mainstream media were flattening before the recession, even as more and more aggregators came online. If you don't think Posner's idea is any good, at least you have to admit that free-usage and broad linkage just aren't producing. If going with Posner would cause mainstreamers to dig their graves faster, the speed increment would be picayune. I hereby second John Callaway's clarion call: Theft! And Stephen Colbert's observation: Giving your expensively produced stuff away free online for every Potemkin Web site to use is, indeed, a "tough business model."
to outlaw links would serve, in effect, as a legal bail out. given the times, a bail out plan for a critical institution/service/industry w/o using tax dollars should be applauded... along w/ the chicago judge who came up w/ it.
...make that applause for both Posner and the Marburgers (David & Daniel)...just saw the E&P piece on them...David is a 1st amendment attorney, brother Daniel is an economics prof. E&P's lede: "With individual newspapers and professional associations chasing after all manner of notions of how to build a business model that successfully bridges the transition from print to digital, a seemingly simple idea is taking hold among some legal thinkers -- rewriting copyright law."
I'll second DeBartolo, too. As for Whet Moser's point that copyright law shouldn't be used to "come for all the Web's precious links," I agree with the part about "precious links." They are indeed valuable, but largely because a lot of them are generated at great cost by mainstream media. Problem is, that value comes with a price. And no matter how many links there are, the ad revenue thereby generated isn't paying. These links are indeed precious, and it'd be great to preserve them. But not at the expense of killing off the institutions that produce the stories that make the links valuable. If there were a way to avoid this, we would have long since found the formula. The news is free, no question. And Huffpost, Drudge and Google are as free as anyone else to go out and GATHER it. But that's the hard part. It involves hiring reporters and editors, paying them, providing benefits, making entire career trajectories possible, building up the institutions to house, support and nurture these journalists in their work, including all the staffing that goes with that, as well as legal representation when things get sticky. Plus lots more. So Arianna, Matt and all you other fine Web folk out there, here's your chance. Once you've been purged as parasites, mainstreamers should welcome honest competition, for a change.
Here's the thing: links are your online distribution network. It's not "stealing" or violating copyright to link to a story on a newspaper's website, it's publicizing that story and giving it an audience -- likely much more of one than that mythical second and third "pass around" read that each printed copy supposedly gets. Prohibit linking and your audience gets reduced rapidly -- why do you think NYTimes.com keeps dropping its firewall, and the WSJ allows Google News searchers to read its otherwise-subscription stories? at.tribune, go ask Tribune Interactive how much traffic tribune.com is direct and how much of it is referral, i.e., a link from somewhere else. Anyone who thinks outlawing links would aid newspapers doesn't understand how the Internet works on a fundamental level.
Andrew, I don't think anyone is suggesting that simply outlawing links would benefit newspapers. Richard Posner did not do a good job at explaining what he was trying to say. But I don't believe that he was arguing that it would benefit a newspaper to prohibit others from linking to their articles. All I think he was stating was that it would be in their interests to retain copyrights to the linking and paraphrasing of their content. If they were to somehow be successful with this then they could grant permission for people to link to and paraphrase their content for a fee. I think he is clearly correct about that. Of course, there still is the question of whether there is any basis in the law for them to stand on and whether they have a serious chance of being successful at convincing judges that these things should be protected by copyright (I'm no lawyer but it seems to me this would be quite a long shot). While it clearly is the case that it would be counter-productive for any one newspaper to shut itself off from linkages (if it is not coupled with other major changes in its business model) I think it is indisputable that newspapers would be a lot better off if news aggregating sites were out of the picture. Every day, a very large number of people interested in finding our what is going on in the world will go to the Huffington Post, to Yahoo News, Chicagoist, or even your site as a starting point. You would have to assume that a substantial percentage of these people would have gone to the home page of a content provider (The New York Times, Chicago Tribune, CNN, etc.) if those websites did not exist. They are interested in news, after all, so it is difficult to believe that many of them are just users who otherwise wouldn't be reading articles. This is a fundemental problem. The news aggregating sites are not the ones paying for the enormous resources that it takes to report the news. Yet they are benefiting from it tremendously. Yes, people will click on these articles and perhaps notice the ads on the content provider's website. A small number will actually purchase whatever the advertiser is promoting. But the reality is the process of going from a third party website to a content provider (and most likely right back again) is not very friendly to advertisers. It encourages people to spend a very short amount of time on the site (although that doesn't mean newspapers have not done a horrible job designing their sites so as there are not many noticable links that encourage people to go from one article to another) and I think also conditions people to be more likely to ignore advertisements then they would if they had more association between the website and the content. I think it is rather clear that people who visit a newspaper's website from a third party are even less responsive to ads than the already low response, relative to print, that occurs when they go directly to the website. Huffington Post and your main competitor, Chicagoist, routinely have posts that do nothing but paraphrase all or nearly all of the content from a newspaper article or other news source. They will have a small link at the bottom but it seems unlikely that many people would click on it when they already read pretty much everything they needed to know. I find that disgusting and it clearly violates the spirit of copyright law, if not the letter. Obviously that is not what occurs the majority of times bloggers or others link to and paraphrase their content. I've never seen you do anything like that at Gaper's Block, for example. But, on the whole, newspapers would benefit if they could control who could link to and paraphrase their content. I'm not saying that would neccessarally be a good thing for society. But Pozner is correct that it would be for newpapers. News aggregating sites are likely to become less of a serious issue anyway. It has been widely reported that many newspapers are going to start charging for much of their content. When this is shown to be successful (and I guarantee you it will, assuming that they don't completely fumble in how they set it up) you can bet that just about all newspapers will end up following the lead. The fact is that online advertising has shown no indication that it has the abilty to create a substantial amount of revenue. So the newspapers are going to have to stop giving their content away for free on the web so that people will go back to buying the print edition. I don't understand why so many people, including Richard Posner, just take it for granted that it is inevitable that everything will need to be online and that newspapers just have to freely provide their content there despite the fact that it is generating a tiny portion of revenue for the amount of people reading it. People want to read news. Since it has been shown that nobody will be able to spend the amount of money that newspapers do to generate content and make money off of it on the web they don't have to worry about any serious competition. So people will read the print edition. And when they do so all of the advantages that come from this will occur. People read more articles and view more advertising. And print ads have a much easier time at generating the attention of a reader than online ads. It's just common sense. The question of what newspapers should do about links is almost irrelevant because they will make almost no money online no matter what.
Oh. I should also respond to your statement "why do you think NYTimes.com keeps dropping its firewall". I'm am so sick of people mentioning the failure of NY Times Select as evidence that charging for content would be unsuccessful. NY Times Select did not charge for what the paper is most know for, its in-depth reporting of the news. It charged for opinion columnists. Very few people are not going to pay for opinion columnists, no matter how popular they are. When readers are deprived of someone's opinion they are more than happy to simply look for someone else's. Newspapers will be successful when they start charging for their web content that nobody else is able to provide. For local newspapers that is local news. No one else provides anything close to the depth of local newspapers. The television stations don't and the bloggers certainly don't either. For the New York Times, the content that they are known for is their in-depth coverage of news from around the world. Hundreds of thousands of people subscribe to their print edition because they know that is where they can get this. If they wall-off their content this number will rise dramatically. Yes, their total combined print and online readers will substantually decline but they will benefit because they make far more money in print. If they take this action, you can bet that The Washington Post and maybe even USA Today will also begin charging for online content. And it will benefit all three. Your use of the work "keeps" actually suggests you are also referring to the paid wall used by the New York Times in 1996! Yes, that's right, 1996. Come on, Andrew. You are smarter than that. Any notion that comparing internet business models in 1996 with 2009 has any relevance is laughable. In 1996 everybody had dial-up internet and desktop computers. Placing newspaper content on the internet wasn't going to stop many people from subscribing to the print edition. So of course it didn't make sense for them to continue the subscription wall at that time. But it is not 1996. People are able to carry computers around them wherever they go. Soon there will be internet access at places where there isn't now, such as parks and trains. So the newspapers can continue to provide their low revenue product for free on these computers or incentivise people to read the print edition with its much higher advertising rate. It seems a simple choice to me.
@Andrew What you say is true, as far as it goes. I'm sure that almost any newspaper Web site gets a huge proportion of its traffic from links on other sites, including aggregators. My point is that, no matter how much traffic a newspaper Web site gets and no matter how much of that traffic is driven from another site, IT'S NOT MAKING ANYWHERE NEAR ENOUGH MONEY! And meanwhile, it's undermining the medium that DOES make money--the print edition. It's likely (can't prove it) that readers and advertisers are migrating from print to online news in part because they think they can get the same stuff online. Which is true. But it shouldn't be. I believe that newspaper publishers flocked to get their products online primarily because they thought they saw a way to get rid of costly presses, pressmen, truckers and home delivery staff. It was an anti-labor move, pure and simple. I doubt that ANY actual adult thought was given to improving service to readers or advancing the banner of journalism. An industry that held in its sweatly little palms the absolute holy grail of semi-monopoly status in each of its markets was driven mad by the universal American industrial impulse to crush and subjugate workers. Thus the industry rushed to surrender, stumbled and chopped its own head off in the process. There's no mystery here. It's not a matter of grey eminences and wise old media figures and great lions of the profession ruminating over a dazzling new cyber universe that has invaded their reality like some vast menace out of a Vernor Vinge space opera. Rather it's a matter of third-rate business school rejects crapping all over themselves while messing around in a new medium that is mainly a full-service in-house vending machine for porn and other chewing-gum-for-the-mind delights. Totally cartoonish.
"Anyone who thinks outlawing links would aid newspapers doesn't understand how the Internet works on a fundamental level." @ huff: one might argue just the opposite is true - those advocating copy right law changes are doing so 'cause they know full well how the 'net works & they're trying to change it - trying to fundamentally change how news gets distributed on the internet ... changing how the evolved "online distribution network" works is the goal.
@DeBartolo: And by doing so, they'd be going against the way the Internet works at its core. The medium's very name refers to linkages between computers and the information they contain. @at.tribune: The reasons newspaper websites make so little money are at least two-fold: first, the sites are massive but the readership of each individual page is tiny, so their value to an advertiser is much lower than in a print equivalent, and second, newspapers have devoted very few resources (aka sales people) solely to selling online ads. For most of the past decade, web ads were sold as add-ons to print buys, at a huge discount, because the print salesmen didn't know a thing about the web. That in turn lowered advertisers' impression of the value of web advertising. It's tough to turn around that perception in a short amount of time. If online ads were sold in a similar fashion to print -- on a date basis as opposed to impressions -- we might not be having this conversation. That's a theory that's impossible to prove, of course, since it didn't happen that way. But Gapers Block has had good success with our weekly text ad service ($35/wk for a fraction of the site's entire readership), and The Deck ad network [http://decknetwork.net/] is wildly successful selling on a "cost per influence" basis at a premium compared to CPM. @IAC Re: Times Select, fair enough. However, I could point to the Tribune removing the pay wall on much of their archives as a similar move, and that happened just a couple years ago, quietly and with little fanfare. Similar moves have occurred at other papers. And the WSJ's decision is obviously current, and I'd say more relevant anyway. The WSJ can't afford to shut everyone out. "All I think he was stating was that it would be in their interests to retain copyrights to the linking and paraphrasing of their content. If they were to somehow be successful with this then they could grant permission for people to link to and paraphrase their content for a fee." Think about the unintended consequences of such a change to copyright. Can you honestly imagine that the inability to even *paraphrase* copyrighted work would be a positive development for newspapers? Setting aside the practicalities of enforcing such a rule, newspapers would no longer be able to rework other media's stories (don't pretend that doesn't happen every day), and would have to pay each other every time they use the construction "according to Newspaper X" (see Whet's example: http://blogs.chicagoreader.com/chicagoland/2009/06/30/aggregation/), because if attribution were the issue, most aggregators would be off the hook. And let's not forget that copyright applies to a far greater pool than just the news. Fair use would be thrown out the window. Our parents would be flaunting the law every time they forwarded us Mary Schmich's oft-misattributed "wear sunscreen" commencement speech. Students would have to pay royalties for every blockquote in an essay. In fact, a whole new bureaucracy would have to be created to manage payments for rights management of "textual sampling," similar to ASCAP and BMI in the music industry. Except larger, because compared to the volume of written content produced each day is far greater than the volume of music being made or played. That sounds pretty unwieldy, doesn't it? And yet that's the sort of sweeping change this sort of action would cause. Just as the efforts of Disney and other media companies to extend copyright to keep Mickey Mouse and other properties from entering the public domain have kept other works out of print and inaccessible for decades, this proposed change would have a far greater reach than simply putting aggregators out of business. Nothing good is going to come from protectionism. Just ask Detroit. I agree that the news industry is in trouble right now, and that drastic measures are in order. But this feels like cutting off the nose to spite the face. There are much easier ways of combatting aggregators and other supposed threats to the industry, starting with acknowledging that maybe the old way doesn't work anymore. I get it, change is hard, and the industry is changing in dramatic and painful ways. Newspapers are hurting right now, although that has a lot more to do with their mismanagement and having too much leveraged debt during a credit-driven economic slump than any competition from the web. The internet is a really convenient scapegoat, trotted out by management as they're cutting jobs and by journalists as the scourge of the industry. But if radio and TV didn't kill the newspaper, it seems really unlikely that the web will -- and at least with the web, newspapers can have a direct hand in the future of the medium -- they could even start their own aggregation-based sites and beat the "thieves" at their own game if they want. (Oh wait, they starting to: http://chicagonow.com) And print journalists have an opportunity to continue their craft with minimal retraining -- really, HTML isn't that hard.
Again, the correct content for newspapers to place an online pay-wall is the information that readers expect the most from and cannot get anywhere else. And it needs to be available in the print edition. The entire point is that the newspapers need to start encouraging people to move back to reading the print edition where it can make money. Obviously, paid newspaper archives do not serve that purpose. So it is irrelevant if the Tribune's archive pay-wall was unsuccessful. Besides, I don't believe the Tribune even provides its archives at all anymore (passed whatever point you used to have to pay for it). I think they just removed the pay-wall and just no longer provide these articles at all on their website. I know that's what the Sun-Times did. Maybe you can get them from subscription services such as Highbeam.com. So these decisions don't seem to have resulted from realizing the importance of linkages. Whatever The Wall Street Journal might be doing to increase its exposure on Google, the fact remains that it still very much has a subscription only service for a very large portion of its online content. It is the most successful newspaper in the country and is the only one that I know of to report consistant INCREASES in print circulation during the past few years. It has only reduced its newsroom staff by a tiny percentage while just about everyone else has cut around 20, 30, 40% or even higher. These facts, quite obviously, are related. The Arkansas-Democrat Gazette, one of the only local newspapers to charge for online content, has contradicted the industry trend and continued to have good print circulation numbers (amazangly nobody ever talks about the Arkansas Democratic Gazette when discussing this issue). So we know paid-walls work. So unless newspapers somehow figure out a way to enormously increase the amount they can charge for online ads, they need to create these paid-walls immedietely.
Thanks, IAC. I wasn't aware of the Arkansas paper's success with a pay wall. I think the WSJ's experience is fairly well known, but it's mainly a business newspaper (though increasingly less so under Murdoch), so it may be exceptional. Still, the Arkansas story is fascinating. I remain skeptical about newspapers offering much of any content online (maybe only subscription services, news teases and some form of classified ads), but a pay wall may be a way to transition back to print only, where the real money is.
