Posts about copyright

How (and why) to replace the AP

The Associated Press is becoming the enemy of the internet because it is fighting the link and the link is the basis of the internet. From Richard Perez-Pena’s New York Times story today:

Tom Curley, The A.P.’s president and chief executive, said the company’s position was that even minimal use of a news article online required a licensing agreement with the news organization that produced it. In an interview, he specifically cited references that include a headline and a link to an article, a standard practice of search engines like Google, Bing and Yahoo, news aggregators and blogs.

Them’s fightin’ words: quoting an article’s headline while linking to it would require licensing? This means we would have to get permission from and negotiate with sites before linking to them. That would kill the internet. It also would kill the Associated Press and the news organizations it cons into joining its dangerous crusade – make that its cartel – for no one will link to them and they will not be heard.

There has been much stupidity lately about how news should operate in the ecosystem in the internet – threats to try to extend copyright, the ominously named and ambiguously written Hamburg Declaration, the ACAP “standard” that would be a boon to spammers – but the AP’s shot across our bow is the most destructive and ignorant of them all. The AP doggedly refuses to understand the link economy of the digital age and its imperatives.

The AP would rather destroy the link economy. Oh, it probably won’t succeed, just because what it suggests is so impractical and illegal and ultimately undemocratic and unconstitutional. But like a bull in a knowledgeshop, it could do a lot of damage along the way, trying to rewrite the fair use that is the basis of the democratic conversation and rushing its members to even earlier graves by hiding their content from the readers it is meant to serve. Note well that most news organizations depend upon fair use every day when they quote somebody else’s story or comment on somebody else’s content. The AP is dangerous.

But that’s not the reason to replace it (it’s merely a bonus). No, the reason to replace the AP is because is that it is hopelessly, mortally outmoded for the digital age and its ownership structure – I blame its board of newspaper owners more than I blame its management – won’t let it be transformed for our new reality. We need a replacement that will better serve journalism and the public, not to mention the democracy.

The AP’s primary job is to distribute content. In a content economy, that worked well. In the link economy, what the AP does is a disservice to content because it cuts the links to the source by rewriting news. The AP also translates content from one medium to another, rewriting newspaper stories so they can be read on radio or TV; that, too, cuts the link to the source (and note that rip-and-read has been the worse enemy of original reporting since the invention of broadcast, long before the internet). And the AP adds some original reporting to the ecosystem but it can’t monetize that value in the link economy because to do so would compete with its owner/clients.

What we need is an infrastructure for a content marketplace online that rewards the creators of original reporting – not the copiers or the commodifiers (that is, the AP) – by exploiting the essential nature of how the internet operates, that is, the link.

I’ve called one fundamental example of this structure reverse syndication – and Politico has started implementing it. Look at it this way: In the old days – in the AP’s ways – Politico would have syndicated its story to other papers, which would have sold ads to earn the money to pay Politico. Now, of course, Politico’s story is just a link and a click away. So now another paper – say, the Chicago Tribune – can just link to Politico’s story. That rewards Politico for creating the story. But what about also rewarding the Tribune for adding value through the link, sending audience to Politico? It would be in Politico’s interest to pay the Tribune a share of its ad revenue for the article to encourage it to send more traffic and add more value. That is the missing piece.

Now imagine this Politico story sits out there on the internet with an ad on it and it is sharing that revenue with the Tribune proportional to the traffic the Tribune brings. Politico could sell that ad. But if the Tribune could get higher value, then it should sell the ad and share the revenue with Politico. Or a third party – oh, I dunno, Google – could sell the ad and share revenue with both. Whatever makes more money – that’s the question we should be asking; that’s what’s going to save the news business.

At the CUNY New Business Models for News Project, we are modeling the news ecosystem that we believe will emerge when a metro paper fades away. For our next project – when funded – I’d like to tackle this content marketplace infrastructure to look at what is needed: systems to track and pay and conventions to label content and draw audience to – and thus support – journalism at its source. With or without an AP, we need to improve the means by which original reporting is found and supported.

Another project I’d like to tackle is The New York Times’ favorite subject: how to support a Baghdad bureau in this new ecosystem. I don’t know that I have the answer or that there is one. Global Post is one try. There may be a need for support from charitable sources (the subject of my Monday Guardian column, which I’ll link to later). The AP and large, ambitious news organizations like The Times report from places where others can’t afford to go; we need to look at how to continue to do this.

That leaves the AP’s other role: translating content among media. Well, there’s an entrepreneurial opportunity. On Twitter, Reuters’ Chris Ahearn volunteered to step in. And online, there’s really no need to do that anymore; it takes all media.

Could the AP remake itself? Doubtful. Its owners won’t let it be run as a rational business – redefining rational for the link economy. It also isn’t structured to help its members remake themselves. I told the AP a decade ago, when I was still working for a client, that I wished it would start a national ad network for news sites, to help them succeed. But that’s just not the way they think.

I’ve also speculated with folks with money about buying the AP and remaking it for the digital age, without the handcuffs of its ownership structure. But every time, we come back to the gigantic wind-down costs that would entail, getting rid of parts of the operation that aren’t needed anymore. And that’s the problem: much of it isn’t needed anymore. Just ask the many newspapers that are canceling the service along with their $1-million-a-year bills. (See the Star-Ledger that was produced with a single AP pixel.)

So I think there are entrepreneurial opportunities to replace the AP and bring far greater benefit to content creators online – all content creators, not just the old news oligopoly. It’s time to break out the hammers.

(Disclosures: I am a partner at Daylife, a news aggregator. I was an advisor to Publish2, which also traffics in links. I was on the board of Moreover, which aggregates and creates feeds of headlines and links. I did all that because I see the potential of the link economy, by the way. I also wrote a book about Google – have I told you about that? – and have discussed many of these ideas with people there.)

: MORE: Note that the New York Times Company’s chief counsel does not think aggregation is a copyright issue.

: Note, too, that the “problem” of copyright violation is misdefined (a headline and a link is clearly not theft), and overstated (show me the millions of sites- other than spam blogs – that are copying whole articles), and wrongheaded in the idea that there’s a pot of gold here that will save the news business. It’s a big red herring. It’s a diversion from the real issue: the failure of the news industry to transform itself for the new economy. I guarantee you that if the AP goes ahead with this, it will pay lawyers more than it could ever earn. And it will hurt the industry and its brand in the process.

: Here’s a quick Marketplace story on the AP.

: TechDirt has some advice for Reuters: Go for it.

Politics makes….

When she pushed her dangerous agenda to change copyright law through Congress to protect her industry, company, and job, Plain Dealer columnist Connie Schultz got all huffy with me when I suggested that she should register as a lobbyist because she was trying to influence legislation in which she had a direct interest and benefit while being married to a U.S. senator.

Well, now she reveals in a puffy P-D video (at 4:50) that her husband will have to recuse himself from voting on her protectionist legislation – if, God and good sense forbidding, it ever comes to a vote – because he has a beneficial interest in it through her newspaper salary. Seems to prove my point, but nevermind. Note also that I asked her husband’s office to whether he was supporting the legislation and never got the basic journalistic (blogs are journalism, too) and governmental (they work for us) courtesy of a reply.

Schultz says that if she should have to register as a lobbyist, then so should I and other columnists and bloggers. Except, of course, I don’t have personal ties to Congress. Hell, I can’t even get them to answer questions.

At 20:55 in the video, Schultz says, “We’ve been hearing some things behind the scenes where the people who need to be paying attention to this proposal are.” Hmmm. Considering that this is legislation she’s trying to push and the people who matter in legislation are in Congress, one could be led to believe that she’s talking about lawmakers and one wonders whether she’s hearing these things, behind which the scenes. But she doesn’t say. So, nevermind.

Schultz also complains (at 23:40) that I didn’t pick up a phone to call her before commenting on what she said before all the world in her column. I didn’t see the need to call her; her opinions and relationships were clear. Again, I did try to report as I said in that post, asking her husband a question he did not answer. I’m told Schultz is writing her Sunday column on this and me again this week and she hasn’t picked up the phone, either. But nevermind.

Schultz is trying to say that I made this personal because I dared to bring up her marriage. That itself is a dodge. It’s not personal. It’s about our government and our laws – about our most precious law, the First Amendment. I believe she is proposing something very hazardous to the health of the First Amendment, the internet, and, ultimately, journalism as it must evolve online. I also think she should be scrupulously transparent not just about the fact that she is married to a senator – which she is – but also about every conversation about this legislation she has had with him and with other people in and around Congress – because she does have exceptional access.

Now, I hope we can return to the substance of the discussion and I hope she will respond to the my argument that the fundamental economics of media and journalism have shifted and that such attempts at protectionism would ultimately shut off newspapers and their journalism from the conversation that will distribute it. Let’s have a talk about the imperatives of the link economy.

(To repeat my relevant disclosures: I worked for almost 12 years for the parent company of the Plain Dealer, as president of Advance.net and, where I started the paper’s affiliated web site, Cleveland.com, gaining some resentment from staff at the paper because it did not control the site. I am a partner at Daylife, an aggregator but one of the sort – like GoogleNews – that Schultz has no problem with because it sends traffic to journalism at its source. I am directing the New Business Models for News Project at CUNY, where we are attempting to outline sustainable models for journalism. And I’m a blogger and twitterer who quotes from and links to journalism and believes that is a good thing.)

: LATER: Here’s Schultz’s next column, out through the syndicate. She doesn’t deal with the issues and discussion at all but tries to hide behind her own distortions to make this personal. She says I’m acting as if it’s news that she’s married to a senator. Of course, it’s not. But a columnist trying to push protectionist legislation to benefit her industry, company, and job while married to a legislator, yes, that’s news. And since I complained, it’s news that her husband will now recuse himself from voting on this dubious legislation. She and her idea are still dangerous.

First, kill the lawyers – before they kill the news

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?

Do as I do, not as I say

When Larry Lessig appeared on Colbert last week, the host said no one should remix the show. Of course, right on cue….

[via Laughing Squid]

Hey, Saul

I can’t not respond to Saul Hansell’s nanny nattering at me and other bloggers over the AP Affair.

What the AP and The New York Times’ Hansell don’t seem to realize is how hostile an act it is to send lawyer letters to individuals. They have armies of attorneys. We bloggers don’t. The mere act of sending us a letter can cost us money out of our own pockets. Sending a lawyer letter is an assault.

Saul tweaks me about having a conversation first: “Mr. Jarvis, in particular, often talks about blogging as a conversation. It seems like the A.P. wants to talk, and many bloggers would prefer a temper tantrum to a discussion.” Saul, I don’t think you’re cut out for a career as a playground monitor for you don’t have the most basic skill of the job: recognizing who started it. The AP sent its lawyer letters. It declared war.

And so, Saul, I’d say you should pose this to the AP: Why didn’t it start a conversation — an open conversation — before starting war?

I would have appreciated it very much if Saul had noticed my efforts at conversation namely this post in which I tried to explain to the AP our ethic of the link and suggest that they try it on. The AP’s Jim Kennedy called it constructive.

I think Saul misses an important point made in the blogosphere: that it’s not up to the AP to set the definition of fair use. They can’t rewrite the law. You may say that they are trying to create safe harbor by setting their own rules. From our view, they are trying to put up a fence where it cannot legally exist. All they can say is this is when they will and won’t sue or send their threatening letters. That’s not saying whether they’ll win or should. It’s not so much a safe harbor as slightly shallower water. See fellow big-media blogger Matthew Ingram:

But that’s kind of the point: the AP doesn’t have to offer a “safe harbor” to bloggers or other media sites under certain circumstances. The fair use exemption under U.S. copyright law already does that, whether the newswire likes it or not (and clearly it doesn’t). If it wants to get someone to say whether a few sentences excerpted on a blog qualifies or not, then it can go to court and try to get a judge to do so. But sitting down and trying to negotiate some kind of blanket pass for something that is already permitted under law seems like a mug’s game.

Finally, Saul says it’s silly to talk about boycotting the AP because bloggers don’t pay it (yet). That’s where Saul is farthest off the mark. He’s ignoring the value of links. More on that in the next post.