“Changing the Law to Save Newspapers” – at What Cost to New Media?

Yesterday Jennifer wrote about Intellectual Property laws, specifically US patent laws, as they relate to emerging and traditional media in the world of news. It spurred  discussion in the comments section below, Facebook, and Twitter.

Today, Jeffrey Neuburger posted a great article titled, “Changing the Law to Save Newspapers: Some Modest Proposals,” on the PBS MediaShift blog.  The article is from traditional media’s point of view, not surprisingly, some of these proposals infringe on emerging news distribution technologies such as SEO regulations for online news.

After reading this article I was struck by the question, “what is newsworthy content?”

We encourage you to read the below article and post your thoughts.

Below is a snippet. To read more, here is the full article:

Change Copyright, Tax and Antitrust Laws

A proposal by a pair of Washington attorneys to address the problems of newspapers would go further than either the Posner or Cardin proposals, at least in terms of scope. Bruce W. Sanford and Bruce D. Brown echoed Judge Posner’s concern about the survival of traditional journalism in a May article in the Washington Post. In Laws That Could Save Journalism, they opined that unless Congress makes changes in public policy “we will soon find ourselves with the remnants of a broken industry incapable of providing the knowledge necessary to manage life in a complex world.” To fairly place that statement and their proposals in context, it should be noted that both attorneys are former journalists with extensive experience representing traditional media clients, and Sanford is counsel to the Society of Professional Journalists.

Sanford and Brown also propose a change in copyright law, to prohibit “the taking of entire web pages by search engines.” Like Judge Posner, they don’t elaborate on that point, but presumably they are referring to the fact that when search engines “crawl” websites, they copy entire web pages to their servers in order to index the contents and provide results in response to web searches.

Search engine crawling and copying can, in most cases, be inhibited by deploying a “robots.txt” file on the content owner’s server containing directions as to what may be crawled and copied. Most search engines respect the directions set forth in a robots.txt file.

Two federal district courts have held that a content owner’s failure to deploy such a file gives rise to an “implied license,” effectively permitting the owner’s content to be crawled, copied and cached without giving rise to a claim of copyright infringement. But protecting content by the deployment of a robots.txt file is a double-edged sword, as online users are less likely to find newspaper content that is not indexed by search engines, as Sanford and Brown point out.

Echoing some of the proposals outlined at the Kerry hearings, Sanford and Brown also propose that regulatory restrictions on the ownership of media outlets be eliminated, that federal tax policy be changed to favor newspapers, and that antitrust law be changed to permit traditional news outlets to adopt collective pricing policies. But perhaps their most interesting suggestion is that the “hot news” doctrine recognized under New York law be “federalized,” that is, enacted by Congress as a federal law applicable nationwide. As we discussed in a prior post, under the “hot news” doctrine, uses of news content that are not protected under federal copyright law can be challenged under the state law of unfair competition, and the Associated Press has been successful in using the doctrine to challenge the use of its content by competitors. Federalizing the doctrine would make it easier for other traditional publishers to similarly challenge the use of their original content in circumstances not covered by the New York law.

No doubt anticipating criticism for proposing laws that would favor traditional publishers, Sanford and Brown point to a precedent: Online publishers were favored in 1996 with the enactment of Section 230 of the Communications Decency Act, which exempts online providers from defamation and other liability from content posted by third parties. The protection that Section 230 provides to online providers has generally protected them from costly judgments based on content that they have not originated.

Josh, from SaveTheNews.org, has responded to this post.

At SaveTheNews.org we have conducted an in-depth study of journalism policy and new models, outlined a national journalism strategy and recommended policy proposals that we think deserve more attention including: Strengthening media ownership laws, Creating tax incentives and revising bankruptcy laws to encourage local, diverse, nonprofit, low-profit and employee ownership, creating a journalism jobs program, developing an R&D Fund for Journalism Innovation, and transforming our public media system into a world-class noncommercial news operation utilizing new technology and focused on community service. And, as more news and information moves online we must work tirelessly to bridge the digital divide.

Any new laws designed to save the news need to take into account what our communities need, and put the public interest first.

We at New Media Policy Group agree. But what “interest” do we define as public?  As discussed in Jennifer’s article, shouldn’t news outlets enjoy some protection in return for being the original news creator and investing in finding the news?

This ongoing debate bounces back and forth from companies that distribute news traditionally and companies that distribute using new media technologies. Each group rallies their base of support which is seen as “public interest.”

The reality is that consumers of news are divided; but common ground can be met knowing that the public interest will always rest in quality and timely reporting. Traditional outlets will evolve to meet that demand. Policy must recognize that.

How do you consume your news daily? How does such solutions impact your consumption of news?