Posts about twitter

Hard economic lessons for news

I’m working on a talk that I hope will become the canonical link to my essential message about the business rules and realities of news. I continue to be astonished at the economic naiveté I hear in discussions of the business of news. (Look at this comment thread and and this one.) Here is my answer, the basis of a talk — to be delivered in tweets, in the model of John Paton — and a lesson for my classes. Work in progress. Thoughts so far; please join in….

RULES FOR BUSINESS MODELS

* Tradition is not a business model. The past is no longer a reliable guide to future success.

* “Should” is not a business model. You can say that people “should” pay for your product but they will only if they find value in it.

* “I want to” is not a business model. My entrepreneurial students often start with what they want to do. I tell them, no one — except possibly their mothers — gives a damn what they *want* to do.

* Virtue is not a business model. Just because you do good does not mean you deserve to be paid for it.

* Business models are not made of entitlements and emotions. They are made of hard economics. Money has no heart.

* Begging is not a business model. It’s lazy to think that foundations and contributions can solve news’ problems. There isn’t enough money there. (Foundation friend to provide figures here.)

* There is no free lunch. Government money comes with strings.

* No one cares what you spent. Arguing that news costs a lot is irrelevant to the market.

* The only thing that matters to the market is value. What is your service worth to the public?

* Value is determined by need. What problem do you solve?

* Disruption is the law of the jungle and the internet. If someone can do what you do cheaper, better, faster, they will.

* Disrupt thyself. So find your weak underbelly before someone else discovers it. Or find someone else’s.

* The bottom line matters more than the top line. Plan for profitability over revenue, sustainability over size.

REALITY CHECKS FOR NEWSPAPERS

* Circulation will continue to decline. There can be no doubt.

* Cutting costs will reduce product quality and value, which will further reduce circulation, which will further reduce ad revenue. A vicious, unstoppable cycle.

* Low-cost competitors and abundance will continue to reduce the price of advertising.

* Local retail will continue to consolidate, further reducing ad revenue. Blame Amazon.

* Classified categories—real estate, auto, jobs, merchandise—will continue to become more self-sufficient. They will need market mediators less and less.

* There’s a cliff coming: the end of a critical-mass of circulation needed to maintain inserts. That will have a big impact on newspapers’ P&Ls and will take away a primary justification for still printing and distributing paper.

* Some readers are not worth saving. One newspaper killed its stock tables, saved $1 million, and lost 12 subs. That means it had been paying $83k/year to maintain those readers. In creating business plans, the net future value of readers should be calculated and maximized.

* Once fixed costs are sliced to the bone, they will rise again. Cutting alone does not a business strategy make.

* “The newspaper model is broken and can’t be fixed.” Says John Paton.

DIGITAL RULES

* Scaling local sales is the key challenge. Google will pick low-hanging fruit from the 6 million businesses that have claimed their Places pages. Facebook’s fruit will be businesses that use its free Deals. Each will use distant sales. Groupon and Patch will attack the challenge with the brute force of local sales staff.

* There will always be new competitors. For content, attention, advertising, and advertising sales.

* You no longer control the market. You are a member of an ecosystem. Play well with others.

* Abundance will drive down prices in digital even more than in print. That’s the lesson Google tries to teach media (and government).

* The question about pay walls is whether they are the *best* way to make the *most* money. It’s not a religious matter. It’s a practical question of whether circulation revenue will net more than equivalent advertising, whether one can afford to give up audience and growth, what the costs are to support pay.

OPPORTUNITIES

* Scaling local sales is the key opportunity. I think the answer will lie in productizing services for local merchants (across all these platforms — not just selling them space in a media site but also helping them with Google Place pages and Foursquare and Facebook deals and Twitter specials) and establishing new, independent, entrepreneurial sales forces. The key challenge then will be holding down the cost of sale and production.

* There is huge growth potential in increasing engagement. Facebook gets roughly 30 times the engagement of newspaper sites, Huffington Post’s engagement is also a multiple of newspapers’. If we are truly community services, then we must rethink our relationship with the public, becoming more a platform for our communities, and that will multiply engagement and, with it, audience, traffic, and data. We have not begun to extend and exploit the full potential of the value news organizations can have in relationships with their communities: more people, more value, more engagement equals more value to extract.

* There are still efficiences to be found in infrastructure. If the presses and the distribution and sales arms of papers are not in and of themselves profit centers, they should be jettisoned and their tasks outsourced. If other tasks — including editorial tasks — can be consolidated, they should be.

* Journalists should do only that which adds maximum value. That’s not telling the public what it already knows. It’s not exercising ego. It’s not production. It is reporting, vetting, curating, explaining, organizing, teaching…. Do what you do best and link to the rest.

* There is growth to be found in networks. The more members there are in the ecosystem, the more content there is to link to (without having to go to the cost of creating it), the more opportunities there are for free promotion (links in), the more opportunities there are in aggregated and joint sales. See our work on new business models for news in the local ecosystem at CUNY.

* There are efficiencies to be found in collaboration. Working with the community and with other members of the ecosystem enables a news organization to specialize and increase value and to do more with less.

* There are other revenue streams worth exploring. Local bloggers are making considerable shares of their revenue in events. Newspapers are going into the real estate business and are also selling merchandise.

* We have not begun to explore new definitions of news.

: Note: I rearranged a few of the rules and combined two into one for better organization.

: Was mit Medien translates these rules into German. And translated again.

Tweeters: I want a witness tag

A proposal:

It would be terribly useful if there were a separate convention for tweets from witnesses to major events so their reports can be separated from the discussion that follows. How about !jpquake for witnesses vs. #jpquake for discussion?

Moments after the tragic earthquake hit Japan, folks are reporting on TV, people turned immediately to Twitter to tell friends and family and perhaps the world what was happening to them and to use it to get information and services.

But, of course, in only moments, people around the world talking about the event and the hashtag gets overrun with folks who are talking *about* the event than *from* it. That’s all good and wonderful as well. But I want a way to separate the two.

If witnesses used the !tag, it would also be possible to identify and compile a Twitter list of them. This would be helpful in stories where personal security is an issue. Witnesses in Bahrain would be unwise to use geocoding. But the !tag would merely reveal what they are already revealing in their tweets: that they are there. Somewhere.

Note importantly that the !tag would help people in the middle of a major event — people who need information and services — to also filter out the noise of our discussion from outside.

As for reading !tag tweets, I’d want to filter out retweets and just get the originals.

I also would like to run !tag tweets through translation engines. I suggested that to Ubermedia’s Bill Gross and he and his crew had great ideas on that in return.

The challenge in all of this, of course, is inducing millions of people to add this behavior. Thoughts?

: See also: Doc Searls on how the net turns TV news into newspapers (read: stale).

: Somewhat related: I wish TV news would carbon-date its B-roll. In a disaster such as this, I get loop fatigue: The same video shown again and again and again. It’s understandable why they need to do that and fine that they do. But we don’t know the current state of the story if we keep seeing images of the state of things hours ago. So TV — which ought to be in the fresh news business — should show us how fresh its images are. I know they’re likely loathe to do that. But this is news.

: UPDATE: On yesterday’s TWiT at SXSW, Leo Laporte made an excellent suggestion: appending the ! onto a hashtag. So a witness would use #jpquake! while the observer would use #jpquake and one could search for one or both. Brilliant, Leo. Others had suggested #!jpquake but that messes up the search. This appends a claim to be a witness.

Many people have asked in the comments (over and over) why geotagged tweets aren’t enough. Two reasons: First, many (most?) people don’t enable geotagging; I see very, very few geo tweets in my feed. Second, in rebellions against repressive regimes, pinpointing one’s location exactly is perilous. The ! convention claims location as much as writing about an event as a witness or participant does, without giving the authorities one’s exact location.

Public Parts: atomize & reform

I’ve been rewriting the introduction to Public Parts — both because it needs it and because of events in Egypt and elsewhere. This segment, from the end of the introduction, is related to the post below. I thought I’d share it with you as it adds some more thinking on the same topics:

* * *

Technology is forcing us to question centuries-old assumptions about the roles of the individual and society: our rights, privileges, powers, responsibilities, concerns, and prospects. That describes nothing so much as the process of modernization. In ancient times, Richard Sennett says in The Fall of Public Man, “public experience was connected to the formation of social order”—that is, the end of anarchy. In recent centuries, being public “came to be connected with the formation of personality”—that is, with our individuality and freedom. Ancient and authoritarian regimes told people what they must think and do; modern societies enable and ennoble citizens to do what they want to do, alone and together. Publicness is a progression to greater freedom but that freedom is often used to collect into new societies.

Society splinters and splits and then reshapes in new forms. Think of us as atoms in molecules. Centuries ago, our molecules were villages and tribes; location defined us and often religion guided us. In Europe, Gutenberg empowered Luther to smash society apart into atoms again, until those elements reformed into new societies, defined by new religions and now nations. Come the industrial revolution—for which Gutenberg himself was the first faint but volatile spark—the atoms flew to bits again and reformed once more, now as cities, trades, and economies. We atomize. We reform into new molecules. We don’t evolve so much as we blow up in wrenching bursts of violence, breaking strong, old bonds and forcing us to feel disconnected until we can connect again. This is not a debate about whether we are meant to be alone or together, whether our natural state is independent or social, private or public. We are meant to be both; we just change the formula, given chance and necessity. We like to think that we finally find the right balance and discover our natural state. And then technologies come along and ruin our dear, old assumptions and order. That is what is happening today.

The net is everyone’s printing press. I don’t mean it’s a medium; I just said it’s not. I mean it’s our tool of disruption, the catalyst that breaks old bonds once again and sets us loose to explore our natures anew. This transformation takes trivial form: we no longer all watch the same, shared news with the same, one-size-fits-all viewpoint. R.I.P. Uncle Walter. Clearly, this transformation also takes earth-shattering form: revolutions, dead industries, economic upheaval. We atomize. We reform. We want to be apart—too far apart, some fear. See the book Bowling Alone, in which Robert Putnam worries that we are becoming disconnected from family, friends, neighbors, and society. But then we want to be together. That book inspired entrepreneur Scott Heiferman to found Meetup.com, a platform that lets groups organize meetings in person around whatever interests they have, from dogs to dance, sci-fi to society. Atomize. Reform. We can now find the publics we wish to join based not on the gross labels, generalizations, and borders drawn about us by others—red v. blue, black v. white, nation v. nation—but instead on our ideas, interests, and needs: cancer survivors, libertarians, Deadheads, vegetarians, single moms, geeks, hunters, birders, even privacy advocates.

Publicness is an emblem of epochal change. It is profoundly disruptive. Publicness threatens institutions whose power was invested in the control of information and audiences. That’s why we hear the incumbents protest this change and warn of its dangers. Publicness is a sign of our empowerment at their expense. Dictators and politicians, media moguls and marketers try to tell us what to think and say. But now, in a truly public society, they must listen to what we say. So if they are to survive and prosper, companies, governments, and institutions must learn to deal with us at eye-level, with respect for us as individuals and respect for the power we can now wield as groups—as publics. Many will not survive and will be replaced by entrepreneurs and insurgents, both good and bad.

The progression toward a more public society is apparent and inevitable; resistance is futile. But the form our new society will take is by no means predestined. We are at a critical moment with many choices. We who hold the tools of publicness hold keys to the future. We must decide how to use them. Rather than baying at the moon and cursing the tide, we would be wise to find opportunity and advantage, to decide the kind of future we want to build. . . . Now is the moment and we are the people to give shape to our next society. In each of our roles as individuals, parents, employees, employers, citizens, officials, and neighbors, each of us is deciding how private to be (safe, protective, closed, sometimes solitary, often anonymous) and how public (open, collaborative, collective, and vulnerable).

I remember watching the drama of Egypt’s revolution play out on Twitter. Silly little Twitter. It was supposed to be made for nothing more than sharing the narcissistic trivia of our lives as we each answered the simple question: What are you doing now? As if the world should care, right? During the Egyptian revolt, I tweeted how jarring the contrast could be between the very everyday updates of people I knew—meals, dates, travels, shows, complaints, cats—flowing next to the messages of courage, fear, exhilaration, and determination I saw from the brave people of Cairo’s Tahrir Square, strangers I was coming to know and respect by the minute.

@ghonim—Google executive Wael Ghonim, who was credited with helping spark this revolution using a Facebook page—had been held prisoner by Hosni Mubarak’s police; his followers and fans would believe he was free only when they saw him say so in a tweet. He used the tool to deliver news, inspiration, and support: “Pray for #Egypt. Very worried as it seems that government is planning a war crime tomorrow against people. We are all ready to die.” On the night 17 days into the 18-day revolution when the people of the square believed the dictator Mubarak would leave—but he did not—@ghonim had tweeted, “Heading to Tahrir” and “Revolution 2.0: Mission Accomplished.” The next morning, Mubarak was not gone. The work of the revolution not yet over, Ghonim told his followers and the media that he would not be speaking through the press but through his Facebook page, his tool of publicness. And then Mubarak did leave. “Welcome back, Egypt,” he tweeted. “They lied at us. Told us Egypt died 30 years ago, but millions of Egyptians decided to search and they found their country in 18 days.”

At every minute in this momentous story, it was evident how precarious the next minute would be, the one after that only more so. Mubarak might or might not leave sooner or later. The army could shift this way or that. Thugs with rocks could return to the square. Authorities could use the internet themselves to spread misinformation and find and arrest the protestors. Out of habit, I watched the news progress on TV, but most of the time, even Al Jazeera English had only a telephoto shot of the square from a safe distance with commentary that could do little more than repeat itself. TV could hear few voices from the square.

On Twitter, a virtuoso of the form, @acarvin—National Public Radio social-media strategist Andy Carvin—spent hours and days constantly curating the best he could find from the people who were on the ground. He passed on news and debunked rumors and asked the people who were there what was really happening. He quoted—retweeted, that is—people like @sandmonkey, a brave blogger who six years before began to use these tools to share his ideas and experiences in Egypt with the world. Early in my blogging days, I had learned much from him. After the protestors’ victory he blogged, “Tonight will be the first night where I go to bed and don’t have to worry about state security hunting me down, or about government goons sent to kidnap me; or about government sponsored hackers attacking my website. Tonight, for the first time ever, I feel free … and it is awesome!” Sandmonkey replaced his cartoon avatar on Twitter with a picture of the real him and published his name, Mahmoud Salem.

Even as you read this [the book is coming out in the fall of 2011], months after the revolution began, it is, of course, far too soon to know how this story will turn out. There is no script and not even a dramatis personae of leading actors. @ghonim, who brought many people to Facebook, Twitter, and the square, demurred as a leader, vowing on Twitter that he would return to his normal life at Google when this work was done. What kind of society Egypt can build and maintain post-Mubarak teeters on so many risks, needs, and warring interests, but also on so many new opportunities. Just as Egypt’s society of the future could go many ways, so could ours and other societies yet to emerge.

The new age has its doubters. Young curmudgeon Malcolm Gladwell says, “surely the least interesting fact about them is that some of the protestors may (or may not) have at one point or another employed some of the tools of the new media to communicate with one another. Please. People protested and brought down governments before Facebook was invented.” Well, I have no doubt that the tools of publicness played a role in helping a true Egypt of the people rise from silence to be heard at last. These tools enabled them to share their information, their frustration, and their dreams. That is why Mubarak shut down the internet and mobile phones completely, because they were a threat—and the fact that any one man could do that must worry us all. But even Mubarak had to turn it back on, because the internet is that vital to life now. Yet in the end, Gladwell is at least right about this: the tools are only tools. The revolution is the people’s. As a blogger reminded us on Al Jazeera English, Twitter did not fight Mubarak’s police. Egyptians did. Facebook will not create the new society. But here’s where Gladwell’s wrong: This new society used Facebook to help shape itself.

“What kind of world would make the values of both publicness and privacy equally accessible to all?” asks Michael Warner. That is our challenge: to find a new balance between us as free individuals and as members of a public who freely join together to build better, more open, more generous, and more accountable companies, markets, communities, governments, schools, relationships, and lives. There is a need for privacy, its cautions, and its advocates, to be sure. But publicness also needs its advocate. That is this book.

Gutenberg of Arabia

At the critical climax of the Egyptian revolution, one of its sparks, Google’s Wael Ghonim, told his followers on Twitter that he would not speak to them through media but instead through the Facebook page he created, the page he’d used to gather momentum for the protest, the page that had gotten him arrested, the page that was one of the reasons that Hosni Mubarak hit the kill switch on the entire internet in Egypt (here’s another reason). After Mubarak left, Ghonim said on CNN that he wanted to meet Mark Zuckerberg to thank him for Facebook and the ability to make that page.

After the Reformation in Europe, Martin Luther thanked Johannes Gutenberg. Printing, he said, was “God’s highest and extremest act of grace.” Good revolutionaries thank their tools and toolmakers.

There’s a silly debate, well-documented by Jay Rosen, over the credit social tools should receive in the revolutions, successful. abortive, and emerging, in Egypt, Tunisia, Iran, and elsewhere in the Middle East. Jay compiles fine examples of the genre, which specializes in shooting down an argument no one we know has made: that Twitter carries out revolutions. (I would add the Evgeny Morozov variation, which incessantly wants to remind us—not that anyone I know has forgotten—that these tools can also be used by bad actors, badly.) No one I know—no one—says that these revolutions weren’t fought by people. As a blogger said on Al Jazeera English, Twitter didn’t fight Egypt’s police, Egyptians did. Who doesn’t agree with that?

This same alleged debate—curmudgeons shooting at phantom technological determinists and triumphalists—goes on to this day over Gutenberg, too. Adrian Johns, author of The Nature of the Book, accuses premier Gutenberg scholar Elizabeth Eisenstein, author of The Printing Press as an Agent of Change, of giving too much credit to the printing press. He does not buy her contention that print itself was revolutionary and “created a fundamental division in human history.”

Like Jay, I’m a befuddled over the roots of the curmudgeons’ one-sided debate. Why do they so object to tools being given credit? Are they really objecting, instead, to technology as an agent of change, shifting power from incumbents to insurgents? Why should I care about their complaints? I am confident that these tools have been used by the revolutionaries and have a role. What’s more interesting is to ask what that role is, what that impact is.

I was honored to have been able to call Eisenstein to interview her for my book, Public Parts. Her perspective on the change wrought through Gutenberg was incredibly helpful to my effort to analyze the change that our modern tools of publicness are enabling. When I asked her about the internet, she demurred, arguing that she’s not even on Facebook. (Though I do love that when she’s researching, her first stop is Wikipedia.)

At the end of our conversation, Eisenberg raised the Middle East, observing that “they sort of missed Gutenberg. They jumped from the oral phase to this phase.” She was quick to add that it’s facile and wrong to say that the Middle East is still in the Middle Ages; she’s not saying that, merely observing that “they skipped Gutenberg, for better or worse.” She said this before the Egyptian and Tunisian revolutions and I was not sure what she meant.

Today, it occurs to me that Facebook, Twitter, and YouTube may be the Gutenberg press of the Middle East, tools like his that enable people to speak, share, and gather. Without those tools, could revolutions occur? Of course, curmudgeons, they could. Without people and their passion, could revolutions occur? Of course not, curmudgeons. But why are these revolutions occurring now? No, curmudgeons, we’ll never be able to answer that question.

But it does matter that the revolutionaries of the Middle East use—indeed, depend upon—these social tools and the net. That is the reason why we must protect them, for by doing so we protect the public and its freedoms. If you follow Gladwell, et al, and believe that the social tools are merely toys and trifles, then what does it matter if they are shut down? That is why the curmudgeons’ debate with themselves matters: because it could do harm; it could result in dismissing the tools of publicness just when we most need to safeguard them.

In the privileged West, we have been talking about net neutrality as a question of whether we can watch movies well. In the Middle East, net neutrality has a much more profund meaning: as a human right to connect. When Mubarak shut down the internet, when China shuts down Facebook, when Turkey shuts down YouTube, when America concocts its own kill switch, they violate the human rights of their citizens as much as if they burned the products of Gutenberg’s press.

In the midst of the Egyptian revolution, I realized that many of us in the West—and I include myself squarely in this—act under the assumption that progress in digital democracy would come here first, because our technology and our democracies are more advanced. Then it became clear to me that such advances would come instead where they are most needed: in the Middle East.

This is why I keep calling for a discussion about an independent set of principles for cyberspace so we can hold them over the heads of governments and corporations that would restrict and control our tools of publicness. I keep revising my list of principles, from this, to this, to this, to this:

I. We have a right to connect.
II. We have the right to speak.
III. We have the right to assemble & act
IV. Privacy is a responsibility of knowing.
V. Publicness is a responsibility of sharing.
VI. Information should be public by default, secret by necessity.
VII. What is public is a public good.
VIII. All bits are created equal.
IX. The internet shall be operated openly.
X. The internet shall be distributed.

This, to me, is a far more fruitful discussion than whether Facebook and Twitter deserves credit for Egypt and Tunisia. The revolutionaries deserve credit. They also deserve the freedom to use the tools of their revolutions.

There is no hot news. All news is hot news.

The most dangerous defensive tactic parried by legacy news organizations today is their attempt to claim ownership of “hot news” and prevent others from repeating what they gather at their expense for as long as they determine that news is still hot. It is a threat to free speech and the First Amendment and our doctrines of copyright and fair use. It is a threat to news.

The old companies — NY Times, Advance, Gannett, Belo, McClatchy, Scripps, AFP, AP, Washington Post, et al — are lining up against the new companies — Google and Twitter — on hot news as they file briefs in the TheFlyOnTheWall.com case. I’ve just read both briefs and will give you highlights in a moment.

Hot news also makes an ominous appearance in the Federal Trade Commission’s thinking about rescuing legacy news companies as it proposes a constitutionally abhorrent doctrine of “proprietary facts.” And hot news is a factor in the dissemination of Rolling Stone’s story about Gen. Stanley McChrystal, which the Times’ David Carr writes about today, scolding Time and Politico for reproducing the story because RS hadn’t (and because it was so hot).

Hot news refers to a 1918 case, INS v. AP, in which one wire service — barred from transmitting news from Britain in the war — rewrote the others’ news for its clients three time zones away. It was cited in the Fly case, in which brokers — Barclays, Merrill, Morgan Stanley, et al — complained that the web site repeated its analysts’ recommendations. Now news companies want to use hot news to restrict aggregators and others; Google and Twitter are trying to cut them off at the pass.

Hot news is ridiculously obsolete. What’s hot today? As Tom Glocer, head of Thomson Reuters, said, his news is most valuable for “miliseconds.” Hot news limitations should be repellant to journalists, even desperate ones, because every journalist builds on the facts revealed by others. It should further be repugnant to them as it constitutes a form of court-supervised prior restraint. Hot news restrictions would be suicidal to news organizations — even though they foolishly think it would protect them — because it would restrict everyone’s ability to spread the news via links and send journalists audience. Hot news should worry every citizen because the free flow of information is vital to a democracy.

The architecture of news and media — how it is gathered and shared — has changed utterly since 1918 … and 1998. That’s what makes the Rolling Stone story instructive. McChrystal’s quotes leaked and spread instantly, having significant and instant impact on news and the affairs of state. The fact of the quotes was hot news indeed. As I asked four days ago, under hot news, would the magazine have been able to prevent others from repeating these facts? Ridiculous, no? Because Rolling Stone did not publish its own story online and because it was so hot, Politico and Time published PDFs of it — even though Time is a party to the Fly brief — which Carr perhaps rightly scolds them for. But maybe he should also scold Rolling Stone for not recognizing the importance of its news and recognizing the opportunity in sharing it. Once Rolling Stone did put the story on the web, the other publications linked to it. The link economy works when given a chance. So does the First Amendment.

“Once facts are made public,” says the Google-Twitter brief, “they belong to the public.” Once McChrystal’s quotes were known, they were part of the democratic dialog. To restrict us — anyone — from repeating them is to steal from the public. (That is a key argument in my next book.) “The reporting of truthful information,” says the brief, “is one of the most protected forms of speech under the Constitution…” These parties aren’t just fighting about old and new media. They are fighting about the nature and value of the public sphere.

The two briefs illuminate the worldviews of the two camps all too clearly. The legacy companies’ brief argues that hot news is “necessary to protect the news industry’s incentive to gather and report news….” It complains about “free riders” who may repeat their news at lower cost. “One of the greatest concerns among news originators,” they say, “is inexpensive technology that allows easy aggregation of news.” The legacy companies nowhere even acknowledge the economic value of links to their news.

The news companies complain about newspapers going bankrupt, not acknowledging that fate came as the result of high debt and mismanagement. They even have the balls to whine that news is a “low-margin business under economic pressure” (though not long ago, it was a high-margin monopoly). They say they are not going after occasional use of others’ facts — since they all do it — but instead the “systematic” (read: computerized) gathering of their news. They do not acknowledge the tools — robots.txt — that allow them to cut off aggregators. It’s an intellectually disappointing, morally weaselly attempt to get anticompetitive aid from the courts while blithely ignoring the profound constitutional implications for news and the democracy.

The Google-Twitter brief issues many calls to the importance of free speech and news in a democracy that only a few years ago the news organizations would have been saluting. It cites a 1991 case, Feist Publications v. Rural Telephone Service, in which the court said that “[t]he first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.” Thus even competitors “remain free to use the facts contained in another’s publication to aid in preparing a competing work.” Says the brief: “Central to Feist is the rejection of the notion that ‘sweat of the brow’ can itself create intellectual property rights. ‘The primary objective of copyright is not to reward the labor of authors but to “promote the Progress of Science and useful Arts.”‘” Hot news, they argue, “attempts an end-run around the Copyright Clause.”

Google-Twitter remind the court that news organizations all use each others’ facts: TV stations repeat newspapers’ reporting without attribution and now newspapers do the same to TV. Indeed, the brief says Feist establishes that “the freedom to use facts — even to “free-ride” on facts gathered by others through great effort — is constitutionally protected. Friend Spencer Reiss just told me how he moved mountains to cover Nelson Mandela’s release from prison in time for a hard Newsweek deadline only to find that his editors in New York got what they needed from TV. That is our news ecosystem; it’s not new, only bigger and faster.

“In a world of modern communications technology,” the Google-Twitter brief says, “where anyone with a cell phone may disseminate news throughout the world even as it is occurring, the notion that a single media outlet should have a monopoly on time-sensitive facts is not only contrary to law, it is, as a practical matter, futile.” They worry that news organizations would pay sources not to cooperate with competitors and that judges would become “super-editors” determining the hot time period of, in their example, news about the Times Square bombing.

Worse, even the fear of litigation would “chill the lawful dissemination of important news by fostering uncertainty among news outlets as to how long they must ‘sit’ on a story before they are free of a potential ‘hot news’ claim.” During last week’s damaging storms in the New York area, I saw a Long Islander complain that by keeping its news behind a wall, Newsday was ill-serving the safety of its community. Says Google-Twitter: “Breaking news may involve a threat to public health or security, but the district court’s opinion, if affirmed, would stifle the dissemination of such crucial facts — a particularly dangerous outcome in circumstances where the time-sensitive nature of the event is the precise reason why the facts should be widely disseminated as quickly as possible.” If Newsday has a better forecast than a competitor, could it keep the fact of a warning of danger to itself?

In the U.S. and Europe, news organizations are trying to extend copyright and limit fair use but the Google-Twitter brief is eloquent in objection. “Under Feist, this Court has repeatedly confirmed that facts must remain in the public domain, free from any restraint or encumbrance.” It quotes another case: “[A]ll facts — scientific, historical biographical, and news of the day … may not be copyrighted and are part of the public domain available to every person.” Another: “[R]aw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.” Another: “[A]llowing the first publisher to prevent others from copying such information would defeat the objectives of copyright by impeding rather than advancing the progress of knowledge.” Do news organizations truly want to oppose the progress of knowledge?

Says the Google-Twitter brief: “The modern ubiquity of multiple news platforms renders ‘hot news’ misappropriation an anachronism, aimed at muzzling all but the most powerful media companies. In a world of citizen journalists and commentators, online news organizations, and broadcasters who compete 24 hours a day, news can no longer be contained for any meaningful amount of time.” This fight sn’t just about a few huge companies. This fight is about our rights.