First, kill the lawyers – before they kill the news

June 28, 2009 by Jeff Jarvis
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Following the frighteningly dangerous thinking of Judge Richard Posner – proposing rewriting copyright law to outlaw linking to and summarizing (aka talking about) news stories – now we have two more lemming lawyers following him off the cliff in a column written by the Cleveland Plain Dealer’s Connie Schultz.

First note well that Schultz is married to U.S. Senator Sherrod Brown as she calls on her newspapers and employer (my former employer, Advance Publications) and fellow columnists to influence Congress to remake copyright. She should be registered as a lobbyist. No joke.

Schultz says that David Marburger, an alleged First Amendment attorney for her paper, and his economics-professor brother, Daniel, have concocted their own dangerous thinking, proposing the copyright law be changed to insist that a newspaper’s story should appear only on its own web site for the first 24 hours before it can be aggregated or retold.

Incredible. So if the Plain Dealer reported exclusively that, say, the governor had just returned from a tryst with a Argentine lady, no one else could so much as talk about that for 24 hours. A First Amendment lawyer said this.

They make vague reference to the hot news doctrine theAP has been trying to dig up from its very deep grave. Note that their definition of hot is the cycle of newspaper publishing, not the cycle of news itself. Look at how fast the Michael Jackson news spread. Under these guys’ scheme, TMZ would have had exclusive right to publish his death for a day. Well, except it’s not a newspaper. And what they care about is protecting newspapers.

Schultz and the Marbergers complain about what they call the “free-riding” of aggregators, et al. But they simply don’t understand the economics of the internet. It’s the newspapers that are free-riding, getting the benefit of links.

These newspaper people are the ones trying to act as if they own the news and can monopolize it. Those days are over, thank God.

: LATER: Schultz has responded in the comments here. I have responded in turn. And I have just sent this message to the office of her husband:

Please consider this a press inquiry:

I want to know Sen. Brown’s stand on his wife’s column in the Plain Dealer on attempting to rewrite copyright law to give newspapers a 24-hour period of exclusivity on the news they report.

Does the senator support this legislation?

What will the senator vote on this legislation?

Will the senator recuse himself from voting on this legislation, considering his wife’s role in lobbying Congress on the issue?

Is his wife registered as a lobbyist?

  • Gail Tenzer

    The newspapers are in financial trouble. If they try to impose this, everyone is just going to move offshore. You cannot muzzle people! At best, we won’t be able to copy a report with its credits, but you can always paraphrase and cite sources. If you can’t, then SHUT ALL THE UNIVERSITIES DOWN TOO!

  • http://Cleveland.com/schultz Connie Schultz

    To my knowledge, Jeff Jarvis and I have never met, nor have we ever spoken, so his speculations about my motives are curious, to put it generously.

    Mr. Jarvis felt the immediate need to dwell on my marriage, rather than flesh out anything about my seven years as a columnist at The Plain Dealer. It is no secret that I am married to U.S. Sen. Sherrod Brown. I regularly disclose this in columns, television interviews and speeches when the situation merits. I also wrote an entire book for Random House about my time on the campaign trail with him in 2006, during which period I took a leave of absence from my job as a columnist at The Plain Dealer. I learned a lot about politics, including how to run a successful campaign, and I did not hesitate to share some of that knowledge in the column that Jarvis seems to take such pleasure in dismissing outright. I am not directly lobbying Congress, nor is my husband taking a significant role on this proposed legislation, which Mr. Jarvis would have known had he bothered to pick up the phone or send an e-mail.

    Mr. Jarvis derided David Marburger as an “alleged First Amendment lawyer,” when in fact lawyer Marbuger is a former journalist who has represented newspapers and other news organizations on First Amendment issues for nearly three decades. A simple Web search would have unearthed that information. I fail to see how misrepresenting Marburger’s credentials helps anyone looking for traction in this important debate.

    As for the heart of my argument, I did not even suggest that facts should be copyrighted, so Mr. Jarvis’ example about Michael Jackson falls on its face. My basic argument is that news organizations should be able to recoup their investment of time, energy and resources before their work product is grabbed by aggregators who pay little or nothing to these originators of news coverage. I have no beef with Google News, for example, which posts a headline and a link to the original story. My objection is to aggregators who post such significant rewrites or summaries that readers to their sites lose any interest in going to the original stories. Nor am I arguing that the copyright exists in perpetuity. I suggested a 24-hour window – and this is up for debate, of course – to allow the originators of the coverage to exploit the full commercial value of their product. Hardly a dangerous proposition.

    I certainly welcome a spirited debate on the proposal, which can be read in its entirety at http://bit.ly/savenews. You will find my column there as well.

    I look forward to an candid and thoughtful discussion.

    Connie Schultz
    Columnist
    The Plain Dealer/Creators Syndicate
    Cschultz@plaind.com

    • http://LincolnParishNewsOnline.wordpress.com Walter Abbott

      Newspapers tried this seventy-five years ago. It didn’t work then, and it won’t work now.

      http://www.cjc-online.ca/index.php/journal/article/view/982/888

      Between 1924, when the first presidential election returns were reported on radio, and 1939, when the Associated Press lifted its ban on providing news to stations, the American newspaper industry fought a vigorous but losing battle to maintain a monopoly over the distribution of news. Though divided initially over how to deal with the threat of radio news, print journalists were eventually able to put aside their differences and take joint measures against what they believed to be such incursions. Matters reached a head in 1933 when the wire services stopped providing news to the networks, the American Newspaper Publishers’ Association resolved to cease carrying radio program logs, and news piracy suits were filed against particular stations. In December 1993, CBS and NBC agreed to curtail gathering their own news and instead finance a Press-Radio Bureau to supply broadcasters with AP, UP, and INS bulletins under very restrictive conditions.

      This partial victory for the press proved to be short-lived, however; the Biltmore Agreement (named after the hotel in New York where it was negotiated) was scorned by many stations, which turned to new independent services such as Transradio for news. Before long UP and INS began selling news to radio and AP later followed suit. At the same time, many newspapers applied for their own radio licences or purchased existing stations.

      In resisting radio news, Jackaway argues convincingly, print journalists were trying to defend an established set of unwritten rules governing the flow of information in society; they were seeking to maintain not simply personal profits but 2 what they perceived to be a democratic communications environment.

      Look back at Pope Leo X’s Exsurge Domine of 1520 and note the parallels.

      http://en.wikipedia.org/wiki/Exsurge_Domine

      • http://www.ccil.org/~cowan John

        Actually it goes back further than that, to 1918. See International News Service v. Associated Press, which established that for INS to rewrite AP’s war news “through bribery, news bulletin boards and early editions” was misappropriation through unfair competition, but not a violation of copyright.

        That said, pickup stories are very common: newspaper A will report that newspaper B has reported X. Here’s a Google search for the string “Wall Street Journal reported that” on ap.org. Is the AP committed to stop running stories like this?

        (Disclaimer: I worked briefly for the AP, as a computer technologist, not anyone involved with editorial. However, I did raise the question internally and was told that while pickup stories are subject to restrictions, the AP does use them. Not very consistent.)

      • http://LincolnParishNewsOnline.wordpress.com Walter Abbott

        @ John, 7/1/09, 4:38

        Excellent!

        From the ruling:

        Pitney held that the information found in the AP news was not copyrightable as “the information respecting current events contained in the literary production is not the creation of a writer but is a report of matters that ordinarily are publici juris; it is the history of the day.”

        Sounds logical to me. Here is a link to the case.

        http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=248&invol=215

    • http://www.buzzmachine.com Jeff Jarvis

      Well, you are lobbying Congress and you cannot ignore your uncomfortable position. I’m quite serious: You should register and disclose as a lobbyist. Read your column again. You are trying to influence Congress. Whether your husband is a sponsor of this effort at changing copyright law is irrelevant. Will he vote on it? Will he recuse himself? What is his stand? I want answers to those questions. Will you and he provide them?

      You do not deal with the substance of my argument at all. News when it is news is fact and fact in discussion is not subject to the protection you seek to bring to it. Links to newspapers’ news benefit the newspapers.

      I suggest you start by studying the new realities of the internet and try to understand how to take advantage of that rather than protect against it and the future.

      And I question the credentials of Mr. Marburger, esq., for good reason as he is seeking to protect the business of dying newspapers, such as yours, over the rights of the people in the First Amendment.

      I mean what i say: Your argument and that of the Marburgers is outright dangerous to the First Amendment and the future of journalism.

      • http://www.lftwings.blogspot.com Linda Foley

        We’re talking copyright here, which is perfectly consistent with First Amendment rights. So if something is copyrighted, what does that mean in the digital world? Nothing? Original work still needs protection from those who would profit by stealing (yes, stealing) the intellectual property of others. I’m all for using the internet for broad dissemination of “antagonistic sources” as the U.S. Supreme Court has said. But when profits are involved, that’s when there need to be some rules about who benefits. Otherwise, the marketplace of ideas will end up just like the financial marketplace did without any regulation or rules.

      • MarkW

        Mr Jarvis, I know/have known Connie Schultz for many years BEFORE she married Rep. Sherrod Brown, and in mentioning this I also want to point out that this is most definately a defense of her personally, and her motivations.
        Ms. Shultz is one of many journalists out there (yourself included Im sure) who hold themselves to the highest standards of integrity and respect of this trade. I dont know you, but I know your standards are no higher than hers.
        It seems you also mis-read/understand her point even in her response on this page. Please take off your defensive blinders and read it again. This is not about keeping any other enterprise or news outlet, analog or digital, from REPORTING on a news Item through their OWN direct sources, but protecting the published work of AN originator of a news item.
        This protection FOR 24 hrs, as sited for financial and other expenditures, is perfectly reasonable.
        As a Journalist yourself, who Im sure, wishes to be paid for your work (hours of research, and writing etc.) were you to write a story that I saw imediately after you published it and summarized or “re-wrote” it and published it elsewhere thereby taking a section of your potential audience, and hance income away… I doubt that would sit very well with you, or maybe you could care less.
        As with any medium, artistic or otherwise, all work of an individual or organization has the right to protection of their works/product. With the advent of electronic media and availability of information and its disemination, copyright law should be looked over and amended to reflect these changes. I have a hard time believing you seriously have some beef about that.

      • Andy Freeman

        > This is not about keeping any other enterprise or news outlet, analog or digital, from REPORTING on a news Item through their OWN direct sources, but protecting the published work of AN originator of a news item.

        Reporters and publishers are not originators – the folks who have first hand knowledge of the facts are.

        > This protection FOR 24 hrs, as sited for financial and other expenditures, is perfectly reasonable.

        And the first thing that such reasonable people will do is pay sources to not tell someone else, to keep their exclusive.

        Sources will soon figure this out and start demanding payment.

        The end result is that all “news” will be like Brangelina baby pictures, for sale to the highest bidder.

        As to “financial and other expenditures” (what, your souls?), I note that the phone companies pay more per digit for the facts that they generate (phone number and name associations require the whole phone system), yet we’ve decided that their facts can not be copyrighted.

        Note that you’re demanding control over facts that you don’t even report, ie when TMZ reported the hospital had confirmed that Micheal Jackson was dead, they didn’t report “TMZ has reported ….”.

      • Andy Freeman

        > Otherwise, the marketplace of ideas will end up just like the financial marketplace did without any regulation or rules.

        The financial marketplace did not end up without any regulation or rules. (However, it is the case the the less-regulated sectors have fared much better than the regulated ones.)

        As long as journalists consistently make basic errors of fact in areas that I can check, why should I believe them in other areas?

    • http://thomshouse.net Thom

      Re: “alleged First Amendment lawyer”… When someone proposes to grant newspapers a 24-hour monopoly on breaking news, I think that knocks his or her status to “alleged First Amendment” attorney or anything else.

      …except maybe “First Amendment vandal.” That seems well-confirmed.

      • Edward Craig

        Given consolidated radio’s reaction to Michael Jackson’s death (i.e. none, for 8-12 hours) this is a curious precedent to cite.

      • JorgXMcKie

        re: consolidated radio’s reaction: perhaps that’s because most of it is not live but computer driven and they didn’t have anything about Jackson cued up.

  • Rob Levine

    >>>She should be registered as a lobbyist.

    Pot, kettle, black.

    • http://www.buzzmachine.com Jeff Jarvis

      Rob,
      Grab the stick and pull it out.

      • Rob Levine

        No need to get personal, Jeff. It simply seems to me that you also devote quite a few columns to telling policy-makers what they should and shouldn’t do. How is that different from the column you’re criticizing? Perhaps the opinion expressed there serves the interests of person who wrote it – but perhaps your opinion serves your interests.

        I’m not getting personal myself. Although I frequently disagree with you, I think you have only the best intentions at heart. What I don’t understand is why you believe that no one is allowed to disagree with what you say without having some kind of sinister motive.

        • http://www.buzzmachine.com Jeff Jarvis

          Rob,
          You did get personal. And please don’t condescend on my intentions. You know quite well that exercising one’s free speech right to speak to power is one thing, having a personal relationship with a member of congress while doing so is quite another.

        • Rob Levine

          For someone who’s in favor of the First Amendment, Jeff, you seem to have a very low tolerance for differing opinions.

          Every day I see the work of my staff summarized on scores of blogs, and I can’t imagine what kind of future we’ll have if this is allowed to continue. Personally, I do NOT favor the solutions suggested in the Plain Dealer column – I think it’s unworkable and I think it sets a poor precedent. But I think it’s reasonable to have a conversation about how to protect the value of original reporting. Copyright law is intended to encourage creativity. I don’t believe a 24-hour hold on news would do that. But I don’t believe the structure we have now does that, either.

          I also have enough faith in my ability to make a logical argument that I can criticize the idea without criticizing the person who offered it.

        • http://journalismschool.wordpress.com/ Chris Anderson

          Rob:

          Let me repeat for you what I said above. People who comment on, reframe, talk about, provide more context to, disagree with, want to debate, provide more information about the news, are the targets of this legislation. Believe it or not, Rob, this is what most bloggers / evil “aggregators” / inhabitants of the web do.

          I’m sorry you have such a low opinion of people who might want to talk about the work of your staff, add to what they write, and even disagree. Fortunately, the framers of the constitution did not have such a low opinion of conversation. In fact, its what they specifically wanted to protect with the First Amendement: not “original reporting,” which, at the time of the writing of the constitution, did not even exist.

          I’m sure you might also want to go back to the days where newspapers were both profitable *and* existed in a conversational vacuum, but (at least for now) those days are over.

        • http://www.buzzmachine.com Jeff Jarvis

          Chris,
          I agree. And the irony in Rob’s case is that he has critics who have just that sort of discussion about copyrighted works.

        • http://www.buzzmachine.com Jeff Jarvis

          Rob,
          Then why didn’t you make your arguments? Instead, you simply made a personal attack. And you’re surprised when it is returned in kind?
          I think you’re looking at the internet the wrong way: When your staff’s work is discussed, that’s good. Would you rather it be ignored? What are you doing to take advantage of that conversation? In the link economy, it falls to he who receives the links to monetize them. You may not like that but it’s just the reality of this new media economy. Plenty of people didn’t like the reality of the old economy – that a few monopolists owned the presses and all access to the public – but we had to deal with it. Now they have to deal with this new reality. Trying to change the Constitution and our essential rights is not the way. I hope we agree on that.

        • Rob Levine

          I merely pointed out that, just like the Plain Dealer columnist has an outside interest here, you do, too. Just as she favors a particular legal structure, so do you. (Incidentally, I don’t really agree with either of you.) I don’t see that as an attack – just a statement of fact.

          To be clear, I am not talking about anyone discussing my staff’s work: I’m talking about people rewriting it and making money from it. Some link to us, some don’t. But it’s not possible to monetize those links at a level that will support original reporting because the supply of space for online advertising is rising so much faster than the demand for it. This is getting worse, not better: online CPM is falling off of a cliff.

          In that context, I hardly think it’s unreasonable to talk about ways to protect original reporting. My preferred solution would be some kind of statutory license that would allow “para-sites” to use original reporting within some sort of compensation structure. We do this already with radio, which pays royalties to songwriters but does not need to ask permission to play their songs. So far, the Republic has survived.

        • http://www.buzzmachine.com Jeff Jarvis

          Please link to examples, Rob.

        • Robert Levine

          Jeff,
          Here’s a story we ran:
          http://www.billboard.biz/bbbiz/content_display/industry/e3i0849a35b3cfeb859d3a3d3c3250cd836

          Here’s a Web site that stole it:
          http://www.grindefx.com/variable-pricing-bad-for-publishers/

          Please note; This is NOT a discussion. This is a theft. The Huffington Post did the same thing to us (blaming that damn intern again) and I was asked by management not to address it in public. There are more examples on the way.

          @Phillep Harding says:
          >>>If your staff cannot stay ahead of it’s loss of value, perhaps they, and you, should be replaced by someone who can.

          It’s inherently illogical to make theft legal and then blame the businesses victimized by it. Also, before you talk about replacing me, please hire a copy editor.

        • Paul Davis

          Rob – I just dont understand the logic in thinking like this any more.

          The links are monetised as surely if the user clicks back onto your site you generate revenue from this? Even if they are not direct they are effectively advertising your site and hopefully this user will use your site in the future and therefore you generate revenue?

          To me it seems that you are stuck in time between the print and online mediums. You are trying to generate revenue directly from the content rather than looking at ways the content can help genrate and deliver revenue.

        • Robert Levine

          >>>Rob – I just dont understand the logic in thinking like this any more.

          Jesus, Paul, did you LOOK at the story? They STOLE the entire thing! How can ANY company compete with another company that is a free rider on its work? It’s impossible.

          Also, when you say “to me it seems?” You have absolutely no idea who I am, what I do and how the company I work for generates revenue. As it happens, we generate most of our revenue from other sources, as you would have found out by doing a Web search or asking.

        • Andy Freeman

          > They STOLE the entire thing! How can ANY company compete with another company that is a free rider on its work? It’s impossible.

          It’s unclear why the appropriate response to actual copying is to ban linking, which isn’t copying at all.

          The war over linking is likely to be lost. Do folks who are actually concerned about copying really want to tie themselves to that mast?

        • Robert Levine

          I DID NOT suggest banning linking! Never have, never will. I know this thread has gone on for some time, but please try to understand where I’m coming from.

          I favor stronger enforcement of existing copyright laws and _exploring_ adjusting them to make sure original work retains its value. I do NOT agree with the columnist Jeff points to (but I would not mock her as he did, either), since I think there are more effective ways to deal with this.

        • http://LincolnParishNewsOnline.wordpress.com Walter Abbott

          Perhaps not exactly on point, but some similarities can be inferred…

          http://library.oxfordjournals.org/cgi/pdf_extract/s6-IV/2/135

          The Earliest Evidence for Ecclesiastical Censorship of Printed Books in England

          by John B. Gleason

        • Andy Freeman

          > I do NOT agree with the columnist Jeff points to (but I would not mock her as he did, either), since I think there are more effective ways to deal with this.

          And yet, you went off on someone who, to your way of thinking, inappropriately criticize said columnist. You could have let Jarvis’ crudity (from your point of view) dangle out there alone, but no, you had to join him.

          There’s logically nothing unsound about pointing out any bogus argument. However, different choices have different rhetorical consequences. Are you getting the best results that you can get?

          > I favor stronger enforcement of existing copyright laws and _exploring_ adjusting them to make sure original work retains its value.

          And you’re persuading us monkeys that said “exploration” is a good idea by ….

        • http://www.buzzmachine.com Jeff Jarvis

          So fine, when someone steals your entire story, go after them. That has nothing to do with linking and commenting. Apples, kumquats. No one here is arguing in favor of wholesale theft. We are arguing against using that as an excuse to cut off other legitimate, fair use.

        • srp

          I can tell you your biggest problem right away: When I clicked on your page (the billboard.biz link), my IE browser hung up for over 30 seconds before I gave up and came back here. When I clicked on grindefx, the page loaded in less than one second.

          Since I wasn’t able to read the original page, I can’t tell how much of what grindefx produced is unfair use and how much is reasonable summary.

        • Phillep Harding

          Mr Levine, I am not in the news business. There is more to the world than your profession, and more professions than yours.

          The business model you carry in your head is flawed.

          The value of news is as ephemeral as a meal. Like a meal, the long term value of news lies in how it affects the reputation of the news staff/chef.

          No individual meal or news report has long term value. You losing control of it is nothing, so long as get first credit and keep producing. /That/ is what is going to build your reputation. Reliable, high quality production.

          You are like a chef who produces a masterpiece dinner, then refuses to let it out of the kitchen for fear the waiters will get the thanks for the meal.

        • http://baltimorerealestate.citybizlist.com/ Jay

          I wish this comment board wasn’t so long or filled with useless posts (perhaps like mine) because Rob points to the crux of the issue here. I think most of us can agree that GrandeFX.com is stealing. I’ve actually had my name appear as the author for a story on another Web site – sans permission – with no links. It’s incredibly frustrating. As a player in the new game, I almost always agree with Jeff, but was disappointed in his reply to this, which was dismissive of this issue.

        • http://www.everywritersresource.com Richard

          I understand what you are saying about copying an article outright, but how much of the problem is this really? Even if there was no linking on the internet at all, many newspapers, and news companies would still be in trouble. It is made out here to sound like this will fix the problem, but most of this is secondary. The law says they can’t do this now, it doesn’t stop them.

        • http://rowanprice.com Rowan Price

          The example Rob provided of “people rewriting it and making money from it” [referring to Billboard staff's work], is an example of theft. It’s not theft of facts, which is impossible — as Jeff points out, but of proprietary content. Even if more than just the title were rewritten, GrindEFX would still be guilty of theft in this case. They don’t discuss, paraphrase facts, or react. They add no value.

          As others have alluded to, though, that kind of theft-by-duplication is the weak straw man on which this proposal is propped up. Laws already exist for that.

          It’s silencing the discussion of news stories, and the republication of facts, that is so blatantly unconstitutional.

          Based on my reading of their proposal http://bit.ly/save-news-trash-rights, the Marburger cabal appears charmingly naive as to the basics of Internet technology and business, so I don’t necessarily ascribe them sinister motives or matrimonial subterfuge (…though I’m awful curious if they really think Google News publishes links to their news headlines as a public service?)

          Even if it’s well-intended though, this proposal is toxic to our civil liberties (as well as to newspaper earnings). For the sake of our rights, and for the viability of journalism, let’s hope this fiasco of a proposal is put to rest quickly.

        • http://www.buzzmachine.com Jeff Jarvis

          Oh, and repeating and discussing news – a la, Michael Jackson is dead – doesn’t count.

        • Mike Manitoba

          Unfortunately, Rob, you’re sermonizing to a largely deaf congregation.

        • http://journalismschool.wordpress.com/ Chris Anderson

          Actually, Mike, I have both researched and written eloquently about “original reporting” and how important — and threatened– it is. And though I have tremendous respect for his point of view, Jeff and I disagree about any number of things and agree on many others.

          What I cannot abide is a notion that to “save” “original reporting” we should collude, limit, tax, or copyright out of existence the linking to, discussion of, and conversation about news. And despite multiple attempts, both Rob and Connie have mustered only feeble responses when it comes to showing that this not their goal, or at least the desired outcome of what Connie proposes. The saddest thing is, this stems from a deep ignorance from what people and institutions actually *do* online. And to be frank, I know as much about that as anybody does.

          I haven’t been a repeat commentor on *any* blog for years, probably– but this ridiculous “we need to change the link structure of the internet” meme has really gotten out of hand, and needs to be aggressively confronted.

        • Andy Freeman

          > To be clear, I am not talking about anyone discussing my staff’s work: I’m talking about people rewriting it and making money from it. Some link to us, some don’t. But it’s not possible to monetize those links at a level that will support original reporting because the supply of space for online advertising is rising so much faster than the demand for it. This is getting worse, not better: online CPM is falling off of a cliff.

          One huge problem with that argument is that the folks that Levine is complaining about have almost nothing to do with the fall in online advertising rates. As he points out, those rates are falling because the amount of advertising space available is growing much faster than the total advertising spend. However, the folks that he’s complaining about have a very small fraction of the available advertising space. As a result, completely eliminating them can’t increase the rates because eliminating them doesn’t significantly affect the amount of available advertising space.

          > We do this already with radio, which pays royalties to songwriters

          Actually we don’t. Radio plays royalties to songwriters when it plays their songs.

          Levine is asking for something different. He’s asking to be paid whenever someone publishes something “inspired by” what he writes. To put it another way, there are thousands of “silly love songs”, but McCartney only gets royalties for the one that he actually wrote.

          However, the music analogy that Levine has accepted does work (albeit not the way that Levine wants). If he thinks that his stuff is being “oversampled”, he’s free to do exactly what other performers do in that situation….

        • Andy Freeman

          > For someone who’s in favor of the First Amendment, Jeff, you seem to have a very low tolerance for differing opinions.

          Jarvis’ “very low tolerance” consists of telling folks that he really doesn’t like what they’re saying. In what universe is that a First Amendment issue?

          The First Amendment doesn’t distinguish between your right to publish something and Jarvis’ right to criticize said something in whatever terms he feels appropriate.

        • Kevin Miller

          “For someone who’s in favor of the First Amendment, Jeff, you seem to have a very low tolerance for differing opinions.” —Rob Levine

          That is the FIRST thing I noted as I waded through this so-called discussion on the first amendment—but perhaps that is why mr. jarvis thrives so, in this medium he claims to represent.

          Connie Schultz is a Pulitzer Prize winning writer. Mr. Jarvis…not so much. For him to denigrate her on the basis of her marriage shows why the internet can be a sickening place…led by the likes of Mr. Jarvis. Yeah, we get it…THAT is what the 1st Amendment is all about, Mr. Jarvis…the freedom to…attack.

          Remember “rip and read” news during the era when radio dominated? Guess what, Mr. Jarvis…they PAID AP/UPI for the privilege of having the news available to read on the air. Oh, um…I guess that does not matter, right? Except for the fact that those who PAID for the service also kept honest-to-God journalists employed.

          Local TV news would NOT exist if it were not for local newspapers…but there is a huge difference: the TV stations never PAY for the privilege of “ripping and reading” the stories…they just STEAL them.

          Just like the ‘Net.

          So before you wave your Black Magic wand and tarnish a REAL journalist…perhaps you should look in the mirror, Mr. Jarvis. Journalism and newspaper journalism MAY be a dinosaur, but your own words portend the disaster that awaits us.

        • http://none david holmberg

          kevin: great response to jarvis. i’m a reporter in new york just starting a possible book project on the state of journalism in the digital era, the reality of the blogesphere’s challenge, the impact on small and mediuum sized papers as opposed to the major markets etc. Could you give me your e-mail address? I’m looking for critics of Jarvis and Jay Rosen and that crowd.

          Thanks.

          David Holmberg

      • JorgXMcKie

        Rob, perhaps you could enlighten me op just which US legislator Jarvis is married to, to make that pot, kettle thing pertinent? (God, I hope it’s not Patty Murray.)

      • Tom Feeney

        Jorg … What is it about what Schultz is doing that makes her advocacy more akin to lobbying than Jarvis’s? Seriously? Schultz is married to a congressman. If she wanted to lobby Congress, I would think she could do so quietly over dinner. Instead, she makes her case in a public forum & Jarvis responds in a public form.

        I’ve never met the woman, but I can’t imagine how her marriage to a congressman poses even the faintest conflict here. It’s too bad Jarvis decided to muddy the waters with that silly claim.

    • Andy Freeman

      > >>>She should be registered as a lobbyist.

      > Pot, kettle, black.

      Actually, the folks who pay her should be charged with bribing a public official and her husband should be charged with accepting said bribes.

      However, to her credit, she apparently does occasionally mention her “in”. Most journalists don’t.

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  • Kent Dunston

    Every member of Congress depends on some sort of version or service that “re-capsulizes” the daily news. Freedom of the Press…does not impose a trust or monopoly on behalf of the reporter. The Press is free to report…period.

  • invitedmedia

    under this “proposed legislation”, mj’s family might just as well have broke the story themselves and milked it for all they could the “first 24 hours”… since everybody is a media company these days.

    • http://LincolnParishNewsOnline.wordpress.com Walter Abbott

      Yes, we are. Matt Drudge said this very thing eleven years ago.

      http://www.libertyroundtable.org/library/essay.drudge.html

      Anyone With A Modem Can Report On The World
      Address Before the National Press Club
      by Matt Drudge, June 2, 1998

      • Don

        Slackers who style themselves as investigative journalists ought to take a peek at Lincoln Parish News Online to see the future now. Great job Mr Abbott!

  • http://EmpireReport.org perry norwood

    I tell you what: these newspaper folks have simply been hanging out with the advertising folks too much.

    It makes me seethe to read “exploit the full commercial value of their product” … since when was it OK for the ombudsmen (and women) of our communities (newspapers) to frame every single argument around profitability?

    Without a doubt, the news is back up against the wall. And frankly, I love watching the trainwreck.

    ~norwood

  • http://stevebuttry.wordpress.com Steve Buttry

    Jeff,

    I think you overstate what the Marburgers are

  • http://stevebuttry.wordpress.com Steve Buttry

    Whoops! Posted prematurely. Must have hit the wrong key. I’ll try again:

    I think you overstate what the Marburgers are proposing. They specifically say they are not opposed to “pure aggregators” such as Google, who post only a headline and brief excerpt, linking and sending traffic to news originators. What the Marburgers and Schultz overstate, though, is the threat to newspapers from these “parasitic aggregators” and the benefit that legislation could bring. Yes, these aggregators should not rip off content produced by newspapers or other content providers. I wouldn’t oppose a law that stopped that ripoff. I just don’t think the law is worth the effort it would take to pass it. The fact is that radio and television stations have been violating existing copyright law for years and newspapers are powerless to stop them. And I have no confidence that new legislation would stop the rip offs for long, either.

    My complaint is that newspaper companies are wasting far too much energy on protectionist measures like this rather than truly innovating to develop successful business models that don’t need protection from Congress. Because the truth is that getting sweetheart deals from Congress puts the press in bed with politicians in far more troublesome ways than Schultz’s marriage to a senator.

    • http://www.buzzmachine.com Jeff Jarvis

      Steve,
      But news IS information. The only thing you can copyright is the form. If you write a great story telling us that the governor had a tryst that information is going to be discussed and ANY effort to cut off that discussion – especially for the sake of trying to protect a dying monopolistic business – is constitutional abhorrent.

  • http://journalismschool.wordpress.com/ Chris Anderson

    In fact, Jeff, its worse than you think. If you go into the 51 page report, on page 11 you will read this:

    “‘Pure’” aggregators link readers to a newspaper publisher’s website, but do
    not rewrite or summarize a publisher’s original reports: Another kind of aggregator, which we call a “pure” aggregator, provides readers
    with a list of headlines for stories that originate on other sites, maybe a partial or complete lead sentence, and maybe a small “thumbnail” photo that appears with the story on the original site … In its present form, we see Google News as a pure aggregator; a parasitic aggregator might be Newser or The Daily Beast.”

    In other words: pure link engines (as Steve Buttry notes above) would not be the target of this “legislation,” or whatever it is. People who “rewrite or summarize a publisher’s original reports” would. In other words: people who comment on, reframe, talk about, provide more context to, disagree with, want to debate, provide more information about … They are the targets:

    The people who want to discuss, talk about, and reframe the news.

    Obviously, this is both deeply unconstitutional, as well as nuts.

    • http://www.buzzmachine.com Jeff Jarvis

      Right, Chris. Isn’t what they are trying to prohibit the very essence of what the First Amendment is there to protect? Shocking.

  • http://www.yelvington.com/ yelvington

    So, who exactly are these nefarious evildoers who are undermining the very Republic by rewriting, aggregating, or whatever other heinous Internet deeds they are committing?

    Examples, please. Specific examples citing specific “infringements” with numbers of (a) “lost” readers and, (b) “lost” revenue.

    Without specifics, these claims are hollow. And such weasel language is coming from people who ought to know better.

    As for the Marburger proposal, it’s bad law that would violate human rights in order to solve a “problem” that actually has little or nothing to do with the economic crisis facing some newspapers and all overleveraged companies.

    • http://www.buzzmachine.com Jeff Jarvis

      Right, Steve. Everytime a Murdoch or WSJ exec or the folks here talk about these horrible blood-sucking examples, let’s see them. As Brian says, none of us would condone wholesale copying. But repeating the essence of news is exactly what is to be protected. So is commenting on it. I repeated Schultz’s contentions and commented on them. Does that make me a violator? Where is their line? Indeed, my post would have been stronger if I had quoted her more to argue with her specific points. But I didn’t. If I had, would they come after me?

  • http://blog.syracuse.com/postscript Brian Cubbison

    The link economy has a set of ethics too, which looks down on certain practices such as hotlinking or copying large chunks of someone’s html. Sites like Digg and Fark have accused sites like Ebaum’s World of taking other sites’ photos and videos and slapping on their own logos, with no credits and no links. Link farming and spam blogging are other bad practices in the link economy. Newspapers would do better by starting with an understanding of these grassroots ethics and work from there. By starting at the other end, big media organizations come across like the proverbial oil companies shutting down the guy who invents a way to get 100 mpg.

  • Rob Levine

    @ Jeff, I have examples in the office and I’ll post some Monday.

    @Chris (BTW, which Chris Anderson are you?) first, I have no “goal,” and I don’t particularly think policy-makers are listening to me. Second, I said that I _disagree_ with Connie, and the statutory license I favor would not limit discussion of news at all. Third, although you may disagree with what I say, you’d have a very hard time proving my opinion comes from a deep ignorance of anything.

  • http://www.davidsanger.com David Sanger

    What seems strange about this is that it proposes that “news” is published by a “newspaper” but won’t show up in Google or any other search engine, nor be quoted or discussed by anyone. The most likely consequence then is that almost no-one will know about it.

    Seems like the newspapers will be the ones to suffer most.

    Also since news is on the front page there’d be no links to the front pages of the newspapers either.

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  • Isaac

    A question for Connie Schultz:

    Would you object to this scenario: While eating cereal before work, a social studies teacher reads an exclusive story in the Cleveland Plain-Dealer about a city councilor skimming money from city accounts. The teacher then discusses this story with 100 students less than 24 hours after the story has been broken. Those students do not buy or even see the story in the paper.

    This teacher is doing the same thing as an online aggregator.

    People talking about your work is good. Yeah you may not get 100 percent of the traffic related to the story you broke but it builds your brand. You do that enough, it will pay off. There’s so much competition online that you have to earn your audience every second. You can’t wait for them to come to you because you’re a monopoly…

    Like it or not online aggregators are here to stay. You can try to legislate against them but it just won’t work. Plus, the major aggregators — google, yahoo, drudge, digg, huff post, fark — play pretty fair. Look at your sites traffic reports. If you’re quibbling about Newser and the Daily Beast, it’s pretty much over.

    The question is how can your newspaper site maximize its value and minimize the traffic that flocks to aggregators instead of cleveland.com. Well, maybe it should make its stories as easy to skim as Newser. Or maybe it should offer enough services that cannot be duplicated in a few rewritten paragraphs, such as:

    - Discussions on stories, blogs, etc. that are beneficial to readers and actually adds something to the story. That means trolls are quickly taken care of.

    - A way for me to tell what the crime trends are in my neighborhood over the last month, year, two years, etc.

    - Where can I find the best steak in town according the paper’s critic or the residents of Cleveland?

    My guess is that it will much cheaper to implement the items I just listed plus lots more than paying lawyers and lobbyists for your solution.

    • Paul Evans

      Unfortunately, as 24/7 WallStreet recently reported, Cleveland and other Advance Internet served properties are their own worst enemies. Their web sites are so bad they actually prevent people from finding either news or anything else they might want. I’d hate to see what would happen if that became a legal imperative rather than just plain stupid.

      BTW, according to 24/7 WS Cleveland.com got a D+. http://247wallst.com/2009/06/15/rating-the-top-25-newspaper-websites-2009/

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  • Matt

    Here’s how a similar debate is playing out in the UK.

    http://paidcontent.co.uk/article/419-moreover-may-sue-newspaper-biz-over-online-copying-levy

    Slightly different approach than the proposal under dissection here. Specifically licensing aggregators who scrape, store, categorise, distribute and CHARGE is logical. It’s simply an enforcement of T’s & C’s found on most newspaper websites.

  • http://blogs.computerworld.com/machlis Sharon Machlis

    I’m guessing most of “the lawyers” — the ones who were actually paying attention in Con Law class, at least — do not agree with this notion any more than most of us journalists who make our living creating online content do.

    Copyright law already deals with the misappropriation of original content. It’s called “fair use.” No Web site should be lifting entire stories and republishing them. That is indeed theft.

    But a headline, summary and link? That’s marketing for your content! If that’s a problem for your business model, then so are all those newspaper boxes allowing people to walk by and look at headlines and multiple paragraphs of stories, before putting any money in to read.

  • http://yourblogs.miamiherald.com Dave Mastio

    Exactly why is it that newspapers can’t become the best aggregators of all that is happening on the web in their community and on the topics that their readers care about most?

    If you can’t outlaw them, join them.

  • http://www.themediahubnetwork.com Tom Carrese

    Litigation isn’t the answer to newspaper woes. If advertisers want to reach an aging readership; and who’s to say there aren’t more advertisers that should be reaching the baby boomers, but that’s another story, found on page 4, so you’ll have to buy the paper to read on…

    How about hire competent writers and editors, produce a killer product and stand by your sources? Maybe then,

  • http://www.theringleader.blogspot.com AJ Lynch

    Newspapers as presently business modeled = The Pony Express. Newspapers today are NO MORE more than reliable delivery services. By that, I mean they can put a product (even a shitty one) in my driveway 365 days a year. They should re-invent their business around that reliability.

    Connie Schulz is disingenuous in her reply to Jeff. Connie and her hubby, Sen. Brown, have never had an original idea in their lives. But they don’t need one since they just parrot the far left liberal talking points.

  • Terry Pack

    Connie Schultz’ motivation here has little to do with the 1st amendment, which is why she finds it so incredibly easy to ignore it.

    This is purely about financial considerations for a medium that is dying due to it’s inability to evolve with technology. Ms. Schultz’ craving for a dollar will not tolerate our free society’s needs for fast, free information. This is the same greed that populist tripe like Schultz rails against, the thirst from money that does not come from labor or creation but from bullying and monopoly.

    Beware the soft tyranny of the lawyers knocking on your door when you dare whisper words of news that Connie Schultz first claimed right to. And Connie had best be prepared to withstand the wave of guerrilla reporting that will shut down her dead-tree medium for good if she has any success in her attempts to proclaim herself the overlord of information.

  • http://www.knightdigitalmediacenter.org/leadership_blog Michele McLellan

    Jeff, You make good points here, as you often do. Why do you need to belittle people in the process? For this reader, it diminishes, rather than strengthens your credibility.

    • http://www.buzzmachine.com Jeff Jarvis

      I think they are doing something terribly dangerous to our profession and country and I also think they’re willfully ignorant of the realities of the new world. Is that belittling? I think it is legitimate criticism. I can’t imagine a First Amendment lawyer proposing this but he did.

      • http://www.knightdigitalmediacenter.org/leadership_blog Michele McLellan

        I think ideas are fair game for belittlement or worse and you are very effective at it (I mean that in a good way). I just don’t see the need to belittle people or question their motives in the process.

        • http://www.buzzmachine.com Jeff Jarvis

          You say what you will on your blog and I will say what I will on mine. Some people are so dangerous as to warrant belittling and ridicule.

        • Rob Levine

          >>>Some people are so dangerous as to warrant belittling and ridicule.

          That’s why I’m here, Jeff. Quis custodiet ipsos custodes?

        • Jim Carty

          Very nice, Rob, and well-deserved.

          The basic philosophy behind copyright is essentially that someone who produces content should have the right to control and profit from that content. I doubt there are very many who’d argue with that contention, so it’s surprising to me that there’s so much pushback to the suggestion that banning linking – which will never occur on a widescale basis, incidentally – has so few people aghast.

          Well, actually it’s not that surprising, because the fact is there’s a certain segment of folks who produce nothing and whose sites would disappear without newspapers. I strongly believe this sight would be one of them, incidentally.

          The simple fact is, there are sites right now that essentially ban linking by erecting a pay wall. No one obviously finds that offensive.

          On the whole, though, Mrs. Schultz suggestion isn’t the scary threat that Mr. Jarvis has trumped it up to be (most likely in an effort to remain relevant), it’s simple silliness. Newspaper sites rely on linking and Google News to attract traffic, just like anyone else. Even if you offered them the chance to “protect” their content, I highly doubt they’d opt in.

          And, if they did, no American government would ever attempt to prevent sites from “discussing” the news. It’s pure Chicken Little grandstanding to even suggest it would.

        • http://LincolnParishNewsOnline.wordpress.com Walter Abbott

          I’m not so sure about that. Once the ambulance chasers (http://www.urbandictionary.com/define.php?term=ambulance+chaser) get involved, there’s no telling where it will go.

          Quite a bit of this debate is something that the “legal community” has ginned up from thin air in an effort to manufacture business. Imagine the amount of litigation that would result in extending copyright protection to “news.”

          Hell, why stop there? Extend copyright to the English Language itself. No one could speak on any subject without first consulting a lawyer.

          Oh, wait…

        • http://www.jonathanboho.com Jonathan Boho

          >> On the whole, though, Mrs. Schultz suggestion isn’t the scary threat that Mr. Jarvis has trumped it up to be (most likely in an effort to remain relevant), it’s simple silliness.

          It is silly, sure. But the implications of something like this becoming law are too big to simply blow it off. Altering copyright law just to protect wire services and newspapers is a dangerous and drastic move.

          In principle, it purports to protect original works of journalism. But in practice, this proposal would solely punish mid-size blogs and aggregators who link to original works. Because it is impossible to sue everyone, just as the RIAA can’t sue all who share music, it will be arbitrarily and punitively enforced — a club to be used when someone does something a media company does not like.

          And the protections will not go the other way. Blogs do a great deal of original reporting these days. While newspapers and wire services rarely link to outside blogs (to their disadvatage, I say), they regularly do not credit blogs for their original reporting. Realistically, how would most bloggers have the funds to sue a massive media company who uses a blogger’s work to create their own?

          Besides, as you mentioned, there are already things newspapers can do to prevent linking (make a paywall, add code to their stories to ward off Google bots) without changing the law. But they don’t dare. They don’t mind “linking” at all, they just want to be able to initmidate and sue people when they like. So while I agree that this idea is unlikely to become law, I also don’t mind Mr. Jarvis’ tone when denouncing it, either. It deserves all the derision it gets.

        • http://www.everywritersresource.com Richard

          “The basic philosophy behind copyright is essentially that someone who produces content should have the right to control and profit from that content. I doubt there are very many who’d argue with that contention, so it’s surprising to me that there’s so much pushback to the suggestion that banning linking – which will never occur on a widescale basis, incidentally – has so few people aghast.”

          This is true, but it has become a paradox on the internet. The only way you profit from your material is to share it. I think that’s what this site is pointing out. It is the way the internet works that people are speaking out so loudly for. The internet was made on a sharing model, and now people are making money just fine off that sharing.

          Newspapers are built on a Gatekeeper model, and they are trying to make money the wrong way on their content. They could make more money by selling that content to other bloggers than they could selling it to their readers. Where are the cheap and automated content sharing newspapers?

        • http://www.buzzmachine.com Jeff Jarvis

          How collegial of you.

        • http://none david holmberg

          no, you’re the one who’s dangerous.

  • http://www.thewomblog.com Machine Gun

    Connie Schultz is a twit of the first order. I’m a Clevelander and have had some run ins with her in the past. Basically, she is a Gloria Steinem feminist who views men as the enemy and a Great Society Liberal who thinks big government is the answer is to every question.

    • JorgXMcKie

      If men are the enemy, how did she end up married to Sherrod Brown.

      Oh. nevermind.

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  • Phillep Harding

    Mr Levine, you produce a consumable and perishable product.

    If your staff cannot stay ahead of it’s loss of value, perhaps they, and you, should be replaced by someone who can.

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  • http://www.soapboxincluded.com Brandon Mendelson

    I agree with your position on linking, but I think you might be taking their argument to the extreme (at least, I think so, I have not read as much as I should from the Judge’s opinion and I apologize if I am mistaken.)

    That said, I think their proposed actions are meant to prevent blog from monetizing other people’s content, that is, to build an entire post around a paper’s content, charge for advertising, and then send people to the paper’s website for additional reading.

    In that specific case, I feel you can prove the advertising revenue going to the blog is harming the newspaper because even if people do click through to the paper, how many of them have already formed their opinion and decide not to read the article? Or better still, not to bother acknowledging the paper’s advertisers?

    In this case, I do agree some restrictions could help. I acknowledge it’s not a fix by any means, but there are far too many blogs building media empires off of other content providers, and I argue they are in direct conflict with the paper’s in terms of online advertising dollars.

    • Andy Freeman

      > In that specific case, I feel you can prove the advertising revenue going to the blog is harming the newspaper because even if people do click through to the paper, how many of them have already formed their opinion and decide not to read the article?

      I didn’t see a particular movie last week because of a review in a newspaper. The theater, their advertisers, and the movie distributors didn’t get some money as a result.

      Unless you’re going to argue that the newspaper owes those folks money, you don’t get to argue that someone commenting on a newspaper article owes the newspaper money.

      > Or better still, not to bother acknowledging the paper’s advertisers?

      Are you really arguing that seeing discussion of the newspaper’s contents leads folks to ignore said newspapers advertisers?

      That’s not “better still”, that’s even more lame than “you can’t talk about us unless you pay us”.

      At some point, a significant fraction of the traffic drivers are going to give newspapers what they want, namely no links. We’ll see how their biz model works then.

      > I argue they are in direct conflict with the paper’s in terms of online advertising dollars.

      It doesn’t matter whether they’re in conflict, direct or not. Newspapers only own what they produce. They don’t own what someone else says about what they produce.

  • Dmitry

    This amendment will finally take out “news” from “newspaper” completely, as I see it. I think this will be mostly a good development, as this will allow multiple points of view to florish.

    Here is my view of situation. Most of the stories I follow appear on the net first, and in “newspapers” only later, if at all. As bloggers invest their time and all as well as any mewspaper, they will immediately enjoy the same protection, and, since they wastly outnumber and outperform collectively any newspaper, this will remove the last chance for newspapers to report any new news at all.

    It is newspapers that are “aggregators” these days. Who ever reads NYT or WP about Iranian uprising when you have twitter and many other blogs? Only those who want liberally digested aggregation of old news.

  • http://threedonia.com JohnFNWayne

    Newspapers could already hold back their material, just offer it behind a subscription wall. Why papers continue to offer their printed product for free online is a mystery to me. It’s no coincidence ad revenue and circulation numbers have dropped as a result. Of course, papers would have to deal with the falling site visits, which would impact advertisers, which would …

    But that’s only part of the problem. The real deal is finding a profit model that actually works, be it free or paid. As of now, papers are making just a percentage of what they used to make through ad and classified revenue. Making money on the internet is hard, especially when trying to fund an entire news corporation off of it. A select few have figured out how to do it.

    And by the way, Connie, quit mopping the floor with your husbands hair.

  • MARK SIMON

    HELLO,

    I am a group manager with Next Media in Hong Kong, we are several times bigger than Ms. Schultz’s paper, nd unlike her I actually work on the business side.
    –
    Her column is so dumb that I just can’t fathom a long winded answer to rebuke her. Folks, the world changes. Adapt. — Sad

  • mad-as-H

    Writing about a dying industry in a dying city? Subscribers – cancel your subscription and help speed up the process.

    Progressive liberal policies have killed the newspaper business, not technology, not too many “free” eyeballs.

    Content sells. Propaganda dies (in a democracy).

    Her husband is a progressive who wants to get into my wallet. She has the same attitude – she just wants to get it through a different route.

    I think this is a ploy by MSM to gin up support for Obama to rescue the newspaper industry.

    DON’T BUY ANOTHER LIBERAL LIE!

  • Skippy McGraw

    You know, in the Army there is an important saying… Never give an order you know will not be obeyed. It breaks discipline and control.

    The logic behind it is simple. People who are used to obeying orders will continue to obey orders. If you order them to do something that they will not, under any circumstances, obey… they will lose the habit of obeying your orders.

    The same holds true for any other system of rules.

    When you make laws that you CANNOT enforce, all you do is build contempt for the lawmaker, and indeed the rule of law itself.

    Rob and Connie, You’re probably far, far too stupid and arrogant to understand this, but you can’t possibly enforce what you’re proposing. You may as well try to legislate that the sky be colored plaid.

    Before you propose a law, you should have a full and complete understanding of how you would enforce it. What would you do with people who broke it? How would you find them? How many police officers would you need, to police it? What sort of training and facilities would they require? What is thei

    Now, this being the internet, the answers to the first two of those questions are:
    “Nothing” and “You cannot”

    Look to Iran for a good example of a government trying to control the internet. Doesn’t seem to be working out so hot for them, does it?

    The simple fact of the matter is… the internet exists, and it’s a great way for people to do whatever the hell they want with information. The only way to make a profit on it, is to make YOUR BRAND so easy to find, so easy to use, that people WANT to come to you.

    You can’t control it. You simply cannot. Mere human action can no longer control the flow of information. It can shape it and guide it, yes… but never control it. It would require a nuclear war to break the internet. A war sufficient to EMP all the existing electronic devices, a war sufficient to kill everyone who can design or build new electronics, and a war sufficient to destroy our power- our SPECIES- forever.

    Now, Rob, Connie? You don’t HAVE that kind of firepower. And you never will. You don’t have a stick big enough to get The Internet to do what you want. And that means that your puffing and posing is a joke that everyone is laughing at except for you.

    Making a law that will be broken and can’t be enforced is tantamount to declaring yourself a buffoon. You can do so if you want, but you will not be taken seriously.

    An iron fist in a velvet glove, is a euphamism oft used regarding rulers. You’ve quite forgotten your velvet glove today, Connie, Rob. You have nothing that makes anyone wish to be your friend, to come to your newspapers. And your iron fist is rusted and useless… You cannot FORCE us to your whim, either.

    Make yourself appealing, and you will gain an audience. Make yourself a clown, and you will still have an audience… but only one of those who wish to mock you. As do we all.

    • Don

      It would require a nuclear war to break the internet.

      The Pentagon actually built ARPANET (the foundation of the global Inet) to withstand nuclear war. They deployed the first four nodes hundreds of miles apart in the West anticipating a most likely USSR nuclear attack on the densely populated East.

      At every juncture it seems probable that technicians chose a resilient distributed solution over a centralized alternative. The DNA of the Inet works around points of failure.

      Frustrated control freaks (eg mass media) play the part of the buffoon in trying to appropriate a distributed system. The UN’s ploy of hijacking the Domain Name System to try to control the Inet is stupider than seizing the White Pages to try to control a phone system.

  • JT

    The Plain Dealer is likely the next newspaper to go the way of the dodo. Most of the news in their daily publication is culled from the New York Times or Washington Post. Aside from sports and Op-Eds, some of which are also culled, their is very little news to report that the paper could even claim for 24 hours. This is an idiotic idea from a columnist desperate to be acknowledged. Sorry, Connie, reality has passed by you.

  • http://blog.syracuse.com/postscript Brian Cubbison

    A 24-hour embargo on linking to newspaper news is completely unworkable. It has provoked over-the-top reactions on both sides: The talk about saving journalism is really about saving journalism careers — middle class jobs that support families with mortgages, health care and tuitions. In other contexts, it’s not a bad thing, but let’s not confuse it with saving journalism or democracy. The talk that they’ll come to get you for discussing the news in the classroom or on the street corner is another over-reaction. It’s not like the BBC tax van is coming after you for talking about Billy Mays or the Mets-Yankees game.

    There are many players in this:

    The local blogger who writes with insight and links to helpful sources (the purest form of the link economy, from the days before it was an economy);

    the sports blogger who quotes extensively from a beat writer then adds a line of snark (still OK but sometimes you’d like to say, “back off dude, you’re pushing it”)

    link bloggers, a time-honored practice, who raise the question, “Is curating a form of Fair Use comment?”;

    high-volume link bloggers who become aggregators like Drudge or groups like Fark.com or Lucianne.com (despite the tiresome off-target complaints, these really are the sites that would not exist without the traditional media they mock or despise);

    mostly automatic aggregators like Google News and its rivals that tend to drive traffic through their links, unless users are sated by the headlines;

    web designers who create pages out of someone else’s feeds and sell ads against that, not so much curating but harvesting (but hey, the feeds are out there to be used, just like videos that have embed codes are there to used);

    web sites like Rob’s example that, lacking the feeds, build a business model out of paraphrasing someone else’s work, on a par with radio and TV reading from the morning paper (or national newspapers appropriating without credit the story ideas of local reporters for the evocative “gritty streets of Sometown” piece;

    all manner of link farms, spam blogs and SEO abuses that are the funny money of the link economy …

    Links are the web. Without links, there would be no web, and it’s right to defend the link economy. (When it became an economy it became less about sharing and spreading the conversation.) I still think newspapers would do better if they worked on a mutual level within the link economy to help nurture a grassroots set of ethics. It would emphasize sharing, adding value, giving credit where it’s due and calling out exploitation.

  • Alex Schmidt

    why is rob getting reamed here?

    might i suggest an answer: amidst the talk of “the new link economy,” outright theft of content is conveniently avoided. it’s a prickly issue that doesn’t square too nicely with the bucolic view of the internet future so often put forth.

    jeff, if your goal is to create support and consensus for _your_ view of the internet future, you might want to start checking what’s making you so mad and try to be more open to civilized discussion (just as you so often request of your own readers). you may be losing folks with the vitriol…and the vitriol seems to be clouding your argument.

  • Karen

    I would pay to view the Daily Aggregator website. You couldn’t pay me enough to view the Plains-Dealer website.

    These old-fashioned journalists (Ms. Connie S) are really pathetic. I would laugh at her but her column was old news by the time it was exerted. Her hubby will be voted out in 4 years.

  • willem

    Ok, Robert. They stole it. Somebody stole your content. Welcome to the commons and the law. Did you enforce it? Was your opportunity to enforce meaningful? Was there any prosecutorial entity willing to enforce on your behalf? Can you afford to scale your legal offensive or do you need the government to do it with taxpayer dollars?

    I see this matter differently. I see corporate media’s chickens are coming home to roost. The provincial piety and dishonest memes promulgated over the last 40 years come at a cost. That cost has arrived.

    The corporate media has presided over several decades of runaway legalism; a culture of prohibition and precautionism run amok. And many in the media rooted for more. Now there are precious few resources to actually prosecute the flood of lawbreakers created by the collective promiscuity of our legislatures. Now it is as if we are all a lawbreaker at some moment in our day. My G-d man, look at the institutional catastrophe of compulsory schooling. Look at the web of actionable criminality cast over the simple act of becoming a modern parent. That is not even the tip of the iceberg.

    What is happening to your industry is just one of the many recent deconstructions of our national tradition; particularly, the replacement of private, individual rights with “human rights” and “social justice” to be meted out by lawyers and bureaus of officious elite.

    Passing more laws is pure folly. You can’t meaningfully enforce the laws now on the books.

    Need to read up on Li Si.

    His doctrine and legacy are about to destroy your livelihood, and perhaps our nation as well if the multi-decade trend of runaway legalism is not reversed and primacy returned to individual liberty, private property and the pursuit of happiness.

  • JQP

    “Kill All Lawyers”? Hmm. Very responsible bloggerism… Do these include pro-bono lawyers, human-rights lawyers, environmental lawyers, ACLU?

    I am not a lawyer, and internet law is nascent to say the least…

    Would be the equivalent of “kill all bloggers, and we may get less ego-driven, flash-in-the-pan-news, geek-worship, latest unnecessary gizmos, hidden-marketing”

    • http://www.buzzmachine.com Jeff Jarvis

      Oh, for God’s sake, has no one read Shakespeare? Jeesh.

      • Jim Carty

        Well, actually Jeff, if you yourself had read Shakespeare, you’d know that within context the quote is seen by many as complimentary of lawyers:

        http://www.howardnations.com/Shakespeare.pdf

        The accolade is spoken by Dick the Butcher, a follower of anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government. Shakespeare’s acknowledgment that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers” is, indeed, a classic and well- deserved compliment to our distinguished profession.”

        Your hand-wringing hysteria here is pretty comical, incidentally.

        But, let’s be honest – I’d be nervous too if I was a guy who “masterminded” Newhouse’s completely failed Internet strategy and then made good selling myself as some sort of new media guru.

        Eventually, even newspaper execs have gotta see the emperor has no clothes.

  • Rob Levine

    @ everyone, I didn’t design the Billboard site and I realize it has a long way to go.

    Now,
    >>>He’s asking to be paid whenever someone publishes something “inspired by” what he writes. To put it another way, there are thousands of “silly love songs”, but McCartney only gets royalties for the one that he actually wrote.

    Now THAT is a good point (I don’t agree with it, but it makes very good sense). Here’s my response: I’d look at some stories as “cover versions” of other stories – if they contain the same information, make no substantial critique and add no new perspective. (I’m not suggesting rules here, just giving an example of how I think.) And I’d look at other stories as different songs entirely, as you suggest.

    Please note that I would NOT bias this toward “old media,” so it would help _anyone_ who did original reporting – big or small, pro or blogger. For example, if CNN sources TMZ’s report that Michael Jackson is dead but doesn’t add any new information or sources or a substantial comment or critique, it doesn’t seem unreasonable to me to treat that as a “cover version” of the same song. If CNN engages in substantial discussion of the original story, I think that’s another song entirely. I don’t know where, exactly, to put the boundaries, but I think the original intent and body of case law on the fair use exception to copyright law would offer some valuable guidance.

    • Andy Freeman

      > Here’s my response: I’d look at some stories as “cover versions” of other stories – if they contain the same information, make no substantial critique and add no new perspective. (I’m not suggesting rules here, just giving an example of how I think.)

      Levine seems to think that certain facts deserve copyright protection because obtaining them cost money.

      The phone infrastructure is easily over one dollar per phone number digit. I don’t know Levine’s costs, but I’d guess that phone costs are significantly higher than his per character of output.

      Yet, phone numbers are not copyrightable. Neither is a listing of names and phone numbers.

      > For example, if CNN sources TMZ’s report that Michael Jackson is dead but doesn’t add any new information or sources or a substantial comment or critique, it doesn’t seem unreasonable to me to treat that as a “cover version” of the same song.

      Except that it isn’t a cover version. Cover is well-defined – its the notes, the expression. Different notes, different song, even if the message, the facts, are exactly the same.

      Copyright doesn’t cover facts, it covers expression.

      I realize that Levine needs a valid argument, but redefining “cover” to suit his purposes won’t fly.

      When CNN reports “Michael Jackson is dead”, others are free to repeat that fact. That’s how it should be.

      In Levine’s world, the first reporter to get the news from the hospital could pay the hospital to not tell anyone else and thereby “own” the fact that MJ had died. That’s abhorent.

      Of course, the likely result from Levine’s desired law is that all sources will start charging reporters for facts. Apart from the basic evil of such a system, it would have a seriously negative effect on Levine’s biz model.

      Does Levine really want to live in a world where every bit of news is like Brangelina’s baby pictures?

      > I don’t know where, exactly, to put the boundaries, but I think the original intent and body of case law on the fair use exception to copyright law would offer some valuable guidance.

      Fair use is about expression, namely when it can be copied without permission. The case law on Levine’s concern, facts, is quite clear – you can’t copyright facts.

      You can, however, patent the use of facts to accomplish certain goals.

    • Andy Freeman

      > For example, if CNN sources TMZ’s report that Michael Jackson is dead but doesn’t add any new information or sources or a substantial comment or critique, it doesn’t seem unreasonable to me to treat that as a “cover version” of the same song.

      Suppose that TMZ reports “The hospital has confirmed that Michael Jackson is dead”.

      Which of the following does Levine think that TMZ owns?

      (1) “TMZ has reported that the hospital has confirmed that Michael Jackson is dead.”
      (2) “TMZ has reported that Michael Jackson is dead.”
      (3) “Michael Jackson is dead.”

      Note that (1) and (2) are facts that TMZ didn’t report.

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  • Karl Idsvoog

    It seems Mr. Jarvis didn’t understand what Marburger and Marburger were proposing. They have no objections to aggregators who PAY for content. If I subscribe to the Associated Press, I can rightfully use AP materia. Their objection is to parasitic aggregators.

    I’m currently writing a book with Dave Marburger on Open Records Law in Ohio, and of any attorney in the U.S., Dave Marburger has been the champion of access to public records.

    • http://www.buzzmachine.com Jeff Jarvis

      Apples and oranges, Karl.
      I’m not talking about the AP, a membership organization that gets rights to members’ content; I know that well.
      Neither am I talking about access to public records.
      I am talking about trying to cripple the First Amendment and fair comment in the corporate interests of dying monopolies, such as his clients.

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  • http://InvestmentWires.com Sean Hanna

    Rob:

    That example is pure copyright infringement. Go ahead and file a suit, it is already illegal.

  • http://ldopa.net Jeff

    I think it might be more useful to determine why people are choosing to enjoy their news over at the Daily Beast and Newser rather than make broad, sweeping, and ultimately unenforceable changes to copyright law.

    We’re still in the Wild West phase of all this; a good analogy is the time before the iTunes Music Store, when users could scrounge music mp3s from all sorts of places. Apple saw that users out in front of the trend were doing this already and repackaged Napster et. al. for the general public, created a compelling music player for people to use along with them, and a business model was born.

    • Robert Levine

      >>>I think it might be more useful to determine why people are choosing to enjoy their news over at the Daily Beast and Newser

      I don’t think it’s news they’re enjoying! While you’re sharing theories, Simon Dumenco has been reporting about what kind of content gets the most hits on the Huffington Post. You can find his answers here –
      http://adage.com/mediaworks/article?article_id=137437
      -and they involve scantily dressed starlets. (Not that there’s anything wrong with that!)

      Huffington mostly makes money on blather – but not much of it since, her site isn’t profitable. Neither are YouTube, Facebook and – soon – MySpace. And yet you continue to make money telling your consulting clients to imitate them. I guess the New Economy is alive and well after all . . .

  • Jake Random

    While Mr. Jarvis greatly overstates the threat this proposal represents to the First Amendment, I agree that it’s no solution to the problem.

    But as a working reporter, I am damned tired of seeing my work stolen daily by bloggers. I’m fine with those who link, but thousands do much more. They cut and paste entire stories, doing violence to not just copyright law, but to my ability to make a living.

    Enough.

    I hope newspapers will form an association and fund it sufficiently to aggressively pursue legal action against bloggers who steal our work. And against radio and television stations who do the same. I heard a radio “reporter” read a story of mine so faithfully yesterday that I thought he’d read my byline.

    We don’t do this (just) for fun, people. This is how we make a living.

  • http://www.socialmediacommando.com Joe Mescher

    Horrifying….

    It reminds me of a comment I read yesterday to the effect that “Hitler was elected in a free and fair election.”

    Traditional Media: Erect a Pay Barrier if you must, but don’t threaten Bloggers with the equivalent of an ‘Online Berlin Wall’.

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  • L.Higgs

    As a journalist, what I object to is working for Goggle and the other big for-profit aggregators for free. Their corporate officers have been quoted saying they’ve never had plans to hire reporters, so what does that tell you?
    As for “linking” that is little compensation for someone elses’ work, excuse me, someone elses’ copyrighted work. And doesn’t the “hit” go to the aggragator? And the revenue for the targeted local ads that come up in the right hand rail, which are only there because of someone elses content.
    So they get several bites out of someone elses apple.
    I’m not letting the news industry off the hook for failing to come up with an internet business model that works. But that doesn’t justify theft.
    I’m not in favor of a 24 hour “cooling off” period before another agency can report the news, that is 19th century. But we’re talking about 21st century FOR Profit websites who’s stock trades at three figures and uses the content provided by companies who’s stock trades in single figures.
    To me that’s like stealing car from a dealer, but promising to put a sign on the side advertising the dealership.

    • Andy Freeman

      > But we’re talking about 21st century FOR Profit websites who’s stock trades at three figures and uses the content provided by companies who’s stock trades in single figures.

      Google only uses content to help people find it.

      However, you’re free to block that usage today, without anyone else’s cooperation.

      If you don’t want Google to help people find your content, ban them with your robots.txt and by checking the referer when someone visits.

      > To me that’s like stealing car from a dealer, but promising to put a sign on the side advertising the dealership.

      Except that it’s not, because Google doesn’t distribute your content. It merely points people to it. When they click, you get all the money that you can make from the person visiting your site.

      No, you don’t get any money when they don’t click. When do you think that you should and why?

      Frankly, I think that google should charge the commercial enterprises that it crawls. Why shouldn’t you pay for referrals?

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  • Derek

    Some more scenarios that undermine the legitimacy of Posner’s proposal:

    - Educators have wide latitude to utilize copyrighted material. This particular take on copyright law would mean that whether or not linking to an article constitutes a violation of law would depend on who is doing the linking. Educator Blogger = Legal. Personal Interest Blogger = Illegal.

    - How about reciprocity? The traditional media frequently include commentary or content from the web (profile photos from social networking sites, links to viral videos, photos from blogs, comments from Twitter users, etc.) in their coverage – particularly in the case of breaking news. Does this mean that they owe money to the denizens of the blogosphere each time they do that?

    - Search engines like Google and Yahoo (as well as archival tools like the Internet Archive and Versionista) cache web content to make it available to users in the event that the original source goes offline or is unavailable (or for comparative/historical documentation). This proposal would ostensibly make them vulnerable to lawsuits from the news outlets for doing so (unless they went through and secured the permission of every single news outlet they cached content from).

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  • http://www.mcnblogs.com/thehotblog/ David Poland

    The problem I have with both sides in this is the extreme position. Just because the web exists and it has gone a certain way does not make it good or legal. The idea that linking is damaging to news organizations is, as JArvis suggests, idiotic. But there are many “aggregators” (like “blogger,” the term is used so broadly as to become meaningless in a debate) who take enough of the copyrighted material and repurpose it so that the link to the copyrighted content is never clicked and only the aggregator gets the benefit. This is not circumstance. It is intentional. Some suggestions I have made… http://www.mcnblogs.com/thehotblog/archives/2009/06/eye_off_the_pri.html

  • http://www.obvious.com Obvious stater

    Jeff is right.

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  • Ken Landis

    Why all the argument? We all know what’s going on here: Newspapers (and everyone whose living depends on them) are growing increasingly desperate. These are the death throes. Ever watched a rat writhing in pain as the poison slowly eats it from the inside? Well, we’re all watching it here.

    The “death of newspapers” has its ups and downs. Can the Internet take over all the democratic functions the print press used to serve? I don’t know. But it’s ironic that these companies whine about society losing this great democratic service they provide and then they run to the government to try to save themselves.

    The Founding Fathers are weeping in their graves.

    -Kelly

  • http://blogs.chicagoreader.com/chicagoland/ whet moser

    This doesn’t seem that complicated:

    1. Stealing a whole story = copyright violation. Sic ‘em.

    2. Excerpting for the purpose of commentary = that’s fine. An important right. Sunday morning news shows do it, lit crits do it, as they should be able to. It adds richness to the blogosphere.

    Here’s where it is complicated:

    3. Taking a small “fair-use”-size chunk WITHOUT the purpose of commenting on it. That’s what HuffPo does,* and a lot of people think it’s BS. They just throw it up there (eg “Quick Read”) and sell ads off it.

    I think it’s BS, and I think it strains fair use to the breaking point.

    But I don’t think we have to change the laws to do anything about it. Why change the laws to suit publishers when they won’t freaking take advantage of the ones on the books?

    That’s

    *Obviously they do actual reporting and normal blogging too.

  • http://www.everywritersresource.com Richard

    They are mixing up copyright infringement and freedom of speech. That is the real evil behind this. I like newspapers. I think everyone should read newspapers, but it is shocking that the very people who have shouted the loudest over the 1st amendment are now fighting against it? I don’t know if I’m allowed to post this, edit out if I’m not, I totally agree with your take: http://www.everywritersresource.com/writingsense/?p=33

  • http://www.everywritersresource.com Richard

    If you meant I got personal, you are correct. It is my right and it is personal. Having the relationship to push something through congress is secondary, in my opinion. But I take your point. There is a lot happening here that I believe is very dangerous. Thanks for call attention to the issue.

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  • http://www.davidsanger.com David Sanger

    For a totally different take, the Guardian is developing an API to encourage widespread use of their content.

    Chris Thorpe talks about the Guardian’s Open Platform Initiative:: The Future of Newspapers http://bit.ly/2jTTWO

    “what we want is for people to invent new business models on our content and then we will then partake in the business models with them”

    “what the Guardian is saying is ‘we’ll give our content and then you find new ways to monetize it’ “

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  • GrindEFX

    @ Robert

    GrindEFX act as a hub for music business news and articles. 90% of of what we post is written by our authors. The other 10% is articles we find from elsewhere on the web, such as the article you linked to.

    When we do post articles from other websites, it is our practice that we send a trackback to the original source so that readers know where it came from.

    In this case there has been an oversight and a trackback link was not provided. If you look at the bottom of the article Billboard are credited, and this is usually where the link to the original source would be.

    I apologise a trackback was not sent. But i argue that it is stealing as we gave credit to the original author and in no way implied it was our work.

    To avoid things like this in the future i have already told my staff to resist posting content from other sources.

    Again i am sorry for not providing a trackback, this was an error. But we take our website very seriously and are not out to “steal” anybodys work.

    We have people post our articles on their websites everyday, and i dont have a problem with it as long as we’re credited. It’s extra promotion. For example Mike Masnick recently wrote about an article i wrote on our website on TechDirt.com, this doubled our traffic for that day and i’m sure gave us at least one or two new readers.

    I hope this clears things up a bit.

    Have a good weekend.

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    I think lawyers are great because all they want to do is help you. Lawyers aren’t trying to help the people you are against in the court they are trying to help you. There are a lot of lawyers to choose from but I think the best lawyers are William R. Christoph because they can help you. They are the best lawyers I have ever seen.

  • http://www.toblerlaw.com Tobler Law

    Thanks for the post! Nothing like killing the free flow of information that keeps this country on top of the world.

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