A Free Press Needs to Be Expensive


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As a follow-up to my last post, I see that the Electronic Frontier Foundation has (not surprisingly) also accused the News Media Alliance (NMA) of petitioning the incoming administration to “weaken fair use doctrine” and, by extension, threaten press freedom itself.  Granted, in contrast to Mike Masnick’s ad hominem style on Techdirt, when EFF obfuscates, they usually write a more sober, mature-sounding article, but readers should not be mesmerized by the parlor trick.  Because they’re still not telling the whole truth.

At a time when Americans are suddenly realizing that professional journalism may be more important—and more under siege—than ever, both citizens and advocacy groups like EFF should remember that good journalism is expensive.  If we don’t want news to devolve entirely to the glib gotchas of Twitter, then somebody has to invest in the reporters, researchers, editors, etc. who develop the skills and experience to cover stories with integrity.  In order to make those investments possible, to say nothing of profitable, publishers have to retain the right to protect and exploit the products of this labor through distribution models of their choosing.  So, while fair use doctrine is unequivocally necessary for journalism, this reality is not in conflict with the need for news publishers to protect their copyright interests at the same time.

Frankly, in light of the fact that the anti-copyright policies advocated by EFF and similar organizations have played a substantial role in creating information havoc, like the fake news problem, I think when it comes to the press, these groups ought to be rubbing gravel in their hair—or at least sent to their rooms to think about what they’ve done. Years of blind—and greedy—advocacy of anything goes under the ambit of the First Amendment is a major reason why real journalists have to compete with bogus ones,  and why news organizations continue to have their investments threatened by various platforms and tech interests that appropriate their work.

In the EFF’s version of accusing the NMA of trying to weaken the fair use doctrine, they  set up a straw man and then point to a bunch of unrelated “evidence” to support the accusation.  As stated in my last post, the NMA’s white paper does not seek any revision to the fair use principle, but it does call into question the relatively recent, broadening interpretation of the “transformative” standard within fair use analyses.  The EFF article might give readers the impression that this standard is a well-grounded and longstanding legal principle, but that simply isn’t the case.

If we bracket the “transformative” standard between the first major application in Campbell (1994) and the most high-profile, current case, Google Books (2016), we see that we’re dealing with two very different meanings of the word “transformative.” ”Transformativeness” in Campbell entails a use to create a new expression while “transformativeness” in Google Books entails a use to create a new service that is not an expression. While both uses can be valuable, and even described colloquially as “transformative,” it is misleading to suggest that the case law in which this standard has been applied is consistent, given the divergent meanings of the term.

It is the application of the latter standard that is of concern to many rights holders, including news publishers. This is because the latter interpretation substantially alters the original intent of fair use, which is to favor the First Amendment, to a more generalized standard of “creating some new thing,” which may not be a form of expression at all. It is also worth noting that most uses by journalists have always been protected by fair use principles that existed prior to the introduction of the “transformative” standard by Pierre Leval in his 1990 Harvard Law Review paper.

The truly insidious part of this story is that the EFF has been directly responsible for morphing fair use doctrine in both the courts and the court of public opinion.  With its decade-long boondoggle in Lenz v UMG, and its chronic implication that fair use is the antithesis of copyright (rather than an important component of copyright), the EFF fails to recognize that its advocacy in this regard can be more harmful to free expression and a free press than the concerns it claims to address.  While the organization defends the role of aggregators and other platforms that make uses of works they did not author, the EFF ignores some of the very negative results of this policy, which have become starkly manifest in recent weeks.

For instance, the violent assaults on a Washington, DC pizzeria as the consequence of fake news is not exclusively a story about criminal instigators and idiot readers. It is symptomatic of a disease caused when serious journalism is given equal footing with the ravings of every crackpot or miscreant with a keyboard.  This trend has been toxic for the press, and it is naive to think that defending every use and every expression on First Amendment grounds has not been an aggravating factor in this case.

In some instances, news aggregators do not merely provide access to news, but they often strip news of context or substance by repackaging segments in a manner that may be good for driving traffic but do disservice to the goals of journalism.   Press freedom is utterly meaningless unless we support a professional press, and the News Media Alliance is correct to observe that relatively recent distortions of the fair use principle have played a role in threatening that professionalism.

© 2016 – 2017, David Newhoff. All rights reserved.

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  • EFF was originally, and probably still is sponsored by Intel. Cheap software sells more hardware…

  • It’s becoming painfully obvious that journalism is hurting for a viable business model. Among websites, it certainly seems that the more journalistic the site’s content is, the more aggressively the site is monetized. This reflects the fact that journalism is expensive; probably far more expensive than most other types of content. What’s really painful to me as a consumer of content is that the monetization gimmicks that are favored right now are the ones that put journalism in direct competition with clickbait, and so it seems that every legitimate news organization operating on the web has a website heavily littered with Taboola and/or Outbrain crap. This means that the legitimate news sites are themselves the main purveyors of clickbait and chum, or at least links to such non-information. Perhaps if there were more digital restrictions management (DRM) inherent in HTML5 and the other protocols of the web, there would be ways to make content simply inaccessible without payment, and for those willing and able to pay, the experience would be reasonably civilized. The thing is, with news media, what you’re selling to your audience is the chance to be informed about what’s going on in the world. If you want that product to be rivalrous (as opposed to being a free good with attendant free rider problems) then I would think you would need not only to block unpaid access or unlicensed copying, but even distribution of the information. If it’s possible to get informed about recent events at the water cooler, then you still have a free rider problem. Perhaps accessing news should require not only DRMed technology, but also a non-disclosure agreement.

    • Sorry I missed this comment earlier. You make good points. I think there are several factors that challenge quality journalism today. Some of these are functions of adapting to new business models, but some are about adapting to changing habits of readers (or non-readers as the case may be). It is unfortunate that even the top-tier publications have to be supported by all that Outbrain junk at the bottom of a serious article; it’s like seeing an ad for Chia Pets in The New Yorker. But it’s not merely the business models (i.e. revenue streams) that are challenging, it’s also the fact that so many of us now approach news via filters like Facebook, which puts serious journalism in direct competition with clickbait, jokes, personal comments, etc. This changes user habits in ways that are beyond the control of news organizations no matter how they charge. On the upside, habits appear to be changing as several publications have reported positive consumer response to enforced subscriptions for their services.

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