Category: Information

Paywalls, vinyl, and other dead issues.

It’s been a longstanding bias of mine that the generation we call digital natives—the kids who’ve grown up practically hard-wired to the network—will steadily gravitate toward classic, analog, and tangible media and experiences, not merely as a fadish expression of hipsterism, but as a natural result of maturing tastes and dwindling leisure time.  One of the first posts I wrote for this blog, What I’d tell my own kids about piracy. Why scarcity is a good thing. made a case for the value of limiting one’s choices rather than indulging in a kind of media gluttony implicit in the presumed need to seek out illegal channels as though the legal ones had nothing to offer.  People shared that post a fair bit, homing in on the assertion that whatever is worth your time is also worth your money.

We are, of course, seeing some trends toward “old” experiences, like a renewed interest in vinyl records, which will not likely replace streaming and digital downloads but may indicate that fans are discovering (or rediscovering) that there can be more to enjoying recorded music than just hearing it.  Even the process of browsing in a store for LPs is one that I always considered a satisfying sensory experience prior to the invention of the CD. Like turning pages in a large picture book, with each album displaying about 160 square inches of cover art in contrast to the squinty 25 afforded by a CD jewel case.  I always liked that flipping through albums was a mostly silent activity other than faint woofs of air as one leaned each record forward. By contrast, the grating clack-clack of sorting through small plastic cases always sounded and felt to me more like work.

Once home with a new vinyl album one must perform a few steps in collaboration with a mechanical object, some motion which beg a gentle touch that imbues the preparation with an almost ritualistic quality, complimenting the sense of time set aside to listen actively to new music.  For all the convenience of digital access, it doesn’t always satisfy the human need to experience life beyond the perfunctory.  Fast food is convenient and cheap, too; but there’s a reason it doesn’t replace fine dining just as there is a reason a fine meal assumes a certain presentation and atmosphere to complement the meal.  And for experiences—yes, even content—that are truly desirable, people are willing to pay when that is the only way to have them.

Certainly, The New Yorker magazine is fine-dining as publications go, and it turns out that its readers are very much willing to pay for it—even online.  According to Jeffrey A. Trachtenberg at the Wall Street Journal, when The New Yorker began experimenting with a paywall that would go up once a visitor had accessed a limit of six free stories in a single month, readership increased rather than declined.  “Instead of deterring readers, the number of unique visitors rose to 9.7 million in October 2015 from 5.5 million a year earlier, the month before the paywall was implemented, …” reports Trachtenberg.

I can’t say I’m surprised that, despite the conventional free-culture “wisdom” that’s been shouted at the market for nearly two decades, we find evidence that consumers are not only capable of recognizing the qualities they want in “content” but are even willing to pay for it.  Granted, the readership of The New Yorker is a devout audience that has been cultivated for more than a century, and it is currently the only property in the Condé Nast portfolio to so far experiment with a paywall. But for the same reasons a new vinyl store opened in my local mall while other retail is shuttering, the market may yet prove that there is no one new, digital model that entirely disrupts and replaces all that has come before.  Just maybe the producers and consumers of high-value journalism, music, film, TV, etc. will be best served by various combinations of new and old that are a little more complex than just putting stuff out there, signing up for an digital ad service account, and selling merch on the side.

In contrast to The New Yorker, the equally venerable publication The Atlantic was the first to “go digital”, according to this 2011 article by Lauren Indvik for Mashable.  In January of  2008, The Atlantic dropped its paywall and developed a holistic, digital strategy for both publication and advertising.  As Indvik describes, the The Atlantic’s history as a platform for editorial made it a natural for the web, but the road to profitability involved a comprehensive and creative strategy to develop advertising “experiences” for premium brands across print, digital, events, and mobile.  “Digital has proved tough terrain for many traditional advertisers, who have been forced to compete against highly targeted search and display networks, such as Google’s,” writes Indvik.

Of course, the success of both The New Yorker and The Atlantic are entirely dependent upon the quality of the work on the page, even if the two entities commoditize distribution through different models.  And the only way to maintain that quality is either a sustainable high-value ad strategy or direct sales to consumers, or some combination of the two.  This was true before the free-culture rhetoric disrupted common sense, and it’s still true.

As New Yorker editor David Remnick says in the WSJ article, “Information doesn’t want to be free, it wants to get around freely.”  Or, as may be inferred from the renewed interest in the vinyl experience, maybe the creative and informative experiences consumers value cannot be described so homogeneously as “information” the way many tech-utopians chose to interpret part of Stewart Brand’s famous quote in order to justify devaluation of the work itself. Maybe consumers don’t demand that everything be free, just that it be good.

In a related story (as reported in The New Yorker of course), Kodak drew considerable crowds at this year’s Consumer Electronics Show in Las Vegas with the introduction of a contemporary version of the Super 8 camera.  Amid a bevy of entrepreneurs offering “smart” devices that consumers may prefer to leave “dumb”, Kodak’s debut of a new way to make old home movies on celluloid is an unexpected move that may actually work. Read the full story here.

Wikileaks Ethics in Journalism

In a recent OpEd in the New York Times, media ethicist Kelly McBride generally stands by the principle that journalists should not pay sources for information; but she also wants pardoxically to propose that sometimes the ends justify the means.  Specifically, she is referring to an initiative (ploy, stunt?) by Wikileaks to crowd fund a “bounty” for a leaker to provide the full text of the Trans Pacific Partnership agreement. But more broadly, McBride seems unaware that there can be no exception to this rule of journalistic standards, if it is to remain a rule at all.  Because in the course of investigating hard news, when don’t the ends appear to justify the means?  Surely, there are reporters out there risking their lives to uncover stories that are more grave and more time-sensitive than a trade deal, even a very big trade deal.

But that central contradiction is not the only reason I think McBride’s OpEd misses the point in its analysis. What she says is that, in general, paying for information is still wrong but that extreme situations call for extreme measures until some balance is restored between transparency and secrecy.  She writes, “Right now, the bounty may be the best shot we have at transforming the TPP process from a back-room deal to an open debate. But we need a better system to discourage unjustified secrecy, to protect sources and to encourage public-interest whistle-blowing.”  Although earlier in the piece, McBride acknowledges, “It’s true that trade deals, which are usually about tariffs and the price of goods, are traditionally negotiated in secret. But the TPP exceeds agreements like Nafta in scope and scale and involves far-reaching foreign policy decisions.”

The funny thing to me about the TPP kerfuffle is that everyone is complaining both about how bad it is and about how secret it is without noticing that the latter complaint casts considerable doubt on the former.  And thanks to the headline-rich, substance-poor nature of social media, even the tidbits of information out there are being manipulated by players with their own agendas, including such mundanity as just making click-bait.  As a result, many of my friends now take as gospel rumors about possible proposals or outcomes of this deal that are entirely unfounded.  For instance, McBride sets up her larger premise, establishing the TPP’s obvious badness with this almost parenthetical statement:  “Chapters already leaked suggest that the deal restricts fair use of copyrighted material, expands medical patents and weakens public policies that govern net neutrality.”  From such statements, we are left to wonder what other nefarious proposals lurk within the TPP and to conclude, yes, the ends justify Wikileaks’s means of offering to buy a leak.

But what if many of those highly publicized assumptions based on earlier partial leaks are false or at least very misleading?  Certainly, the statement about restricting fair use is fallacious, either by design or by ignorance, and we don’t need the full text of TPP proposals to know why.  For one thing, trade deals generally do not change domestic law in the U.S.; and to imply that ratifying the TPP might alter our application of fair use is inconsistent with history and with the process presently being applied.  Second, trading partner nations cannot necessarily apply U.S.-style fair use because (hold onto your hats) they have different legal systems. (I hear they speak different languages, too.)

But here’s the insidious detail in the big picture:  McBride writes what seems like a reasonable editorial with a premise that takes for granted a false assumption like this one about fair use, unaware perhaps that this widely-spread rumor is actually a modification of an Internet-industry-backed effort to “export U.S. fair use doctrine” through FTAs to our trading partners. These companies would favor replicating our liberal application of this doctrine and even imply that U.S. copyright holders are against such a provision, but this is a mischaracterization. It is more accurate to say that our trading partners don’t have the constitutional foundation to apply doctrine as we do.  I know that’s a too complex and wonky to make a good Facebook meme or grabby headline, but that’s the point.

So, even with this one tiny matter about which much corn has been shucked, we’re witnessing a giant game of Telephone.   Silicon Valley-funded organizations say “export fair use doctrine” to start the game, and this translates to “TPP will harm fair use” by the time the message comes full circle in the form of an OpEd in the New York Times.  So, is it really logical to believe that more leaked text about even more complex issues and filtered through even more vested interests will help us make more informed decisions?  I have more than a few doubts.

Meanwhile, the TPP isn’t classified; it’s embargoed.  Journalists committed to their principles are familiar with the need to embargo a story, perhaps to ensure someone’s safety prior to publication, and it would be a shame if that kind of judgment call were inappropriately reclassified as censorship just because we now have these machines that confuse our right to know with our right to know right bloody now.  The scale and scope of the TPP are unprecedented, but the level of secrecy is not. Negotiating trade deals through real-time public referendum would be like trying to play poker while everybody’s kid brothers run around the table shouting out who’s holding which cards.  What is also unprecedented (and frankly fascinating) is that the TPP is the first trade deal to be negotiated in the age of social media, which provides what I will continue to insist a fairly opaque form of transparency at best.

In fact, I suspect one of two outcomes would be the result of Wikileaks’s brand of un-alloyed “transparency” in this case:  one would be a collapse of trade deals altogether, but the other would be truly unprecedented secrecy indeed.  As journalist Christopher Dickey points out in this 2010 piece about State Department leaks by Wikileaks, “To avoid this kind of massive leak in the future, documents will get higher classification and less distribution, and a lot of the most important stuff may not be committed to the keyboard at all.” Oversight through the filter of  representation and principled journalists is imperfect, but a much bigger question than the one McBride is asking is whether we want to be a nation that does imperfect things as a republic or a nation that doesn’t do anything because we choose to embrace the near anarchy of direct democracy?

To be sure, I feel, as many of my fellow progressives do, that we have ceded far too much power to corporations overall, allowing deregulatory trends to foster wealth consolidation, poor environmental policy, weaker labor rights, and downgrades in education, medicine, infrastructure, and other foundational enterprises.  If we hope to address any of these issues, we need to find the political will to do so through domestic policy, investment, and the representation we choose to elect. In the meantime, it doesn’t seem helpful to perpetuate confusion about what trade deals can and cannot do to our domestic laws, let alone to cite that confusion as a reason for serious journalists to abandon their hard-won principles.  Frankly, I think we have enough hacks.

TVEyes Warping Fair Use Principle

Once again the Electronic Frontier Foundation has taken up the cause of industry in the guise of public interest, principally with the ultimate goal of distorting fair use doctrine beyond its intended purpose.  I am speaking about the case of FoxNews v TVEyes, which as Terry Hart points out in this post on Copyhype, re-treads some familiar ground regarding the copyright interests of news producing entities and the fair use claims of news monitoring services.  I recommend Hart’s blog for more in-depth historical context; but suffice to say that in the early 1990s, bills proposed by Senator Orin Hatch that would have amended copyright law to add news monitoring to the list of fair use purposes never made much progress. But, as Hart writes, “…the lack of legislation did not jeopardize the broadcast news monitoring industry. Nevertheless, little has changed in the discussion of fair use and news monitoring from the early 90s to the current litigation involving Fox News and TVEyes.”

Last fall, a federal judged ruled in this case that copying “broadcast content for indexing and clipping services to its subscribers constitutes fair use.”  And this July, oral arguments will be heard as to whether or not other services (like subscribers downloading, storing, and emailing clips) might also be judged fair.  The EFF, along with the Technology Law & Policy Clinic at NYU School of Law, has filed an amicus brief on behalf of TVEyes, while several leading news organizations have filed a brief on behalf of Fox.

To be clear, plenty has changed technologically in the news monitoring world, but Terry Hart’s point above is that the fair use argument being made today in favor of TVEyes is fundamentally the same as the arguments that failed in Congress twenty years ago — namely that there is a public and First Amendment-serving purpose to news monitoring that should qualify the enterprise as a fair use of copyrighted material.  And be it far from me to second guess a federal judge, but it seems that technological changes have only weakened this argument, not strengthened it, particularly when we look at the specific business model of TVEyes itself.

News monitoring services have been around since before television, first in the form of clipping services for print, and later as video systems monitoring broadcasts of “hard news” that was captured and stored on tape. This enabled customers to order a specific broadcast clip for educational, documentary, reporting, and other communications and investigative purposes.  We used these services in the 1990s during my corporate communications days. You paid a service a small fee to do a search and then received a VHS tape with the clip(s) you needed.  Today looks very different.

Presently, TVEyes copies, stores, and indexes round-the-clock broadcasts from 1,400 channels, and this includes programming that exceeds traditional models for “hard news” monitoring, capturing entertainment programs like magazine-format shows and documentaries.  Moreover, TVEyes is a fairly elite, B2B service; and it seems to me that fair use exceptions in the name of the public’s right to information ought to be limited to those uses that actually serve the public. But you and I do not use TVEyes, and we never will because a subscription costs $500/month.  So, as a business, TVEyes is not even a consumer-focused service, but an industry-focused service used by professionals who need to be ahead of the proverbial curve when it comes to breaking and overlapping news stories.  Such professionals include news organizations like the Associated Press, major corporations, government agencies and NGOs, and of course high-level investors who are skilled in the dark arts of predicting how a traffic jam in Malaysia might affect their position in shoe laces or something.

Clearly, this $6,000/year service is not for the general citizenry that has a right to be informed. In fact, it’s interesting that one argument being made today on behalf of TVEyes — as it was twenty years ago for news monitoring in general — is that there is “so much information out there”, that these services are invaluable.  And they are invaluable for the types of clients that need and can afford them. Meanwhile, the public-serving aspect of the fair use argument here seems to overlook this free technology we all have called the search engine.  Yes, there is more information produced more rapidly by more sources than ever before; but the average citizen also has more free tools to search, index, and access that information than ever before.  Isn’t that what Google congratulates itself for doing at every opportunity?  And setting aside the chicken-and-egg quality of these phenomena, the bottom line is that you and I can search news items all day long on just about any subject we can imagine, which has nothing to do with the high-priced and  specialized service provided by TVEyes.  The logic being applied is akin to saying that because the public has a right to know what happens in the financial markets, Reuters should not have to honor licensing deals for any of the content it aggregates to its elite Reuters Insider service that it sells at a premium to investment professionals.

There is absolutely nothing wrong with TVEyes. It’s a sound business and clearly provides a service that many companies and institutions consider well worth the subscription fee.  But as a for-profit entity providing a high-level, B2B service for institutional clients, it should not be allowed to profit from the use of assets produced by Fox or any other entity without paying reasonable licensing fees.  More importantly, it is dismaying to see fair use doctrine distorted on the basis that the general public is in any way served in this case. It moves the needle of legal precedent closer to the Internet and tech industry goal of monetizing the totality of works without paying the individuals or entities who produce them.  This neither serves any beneficial social practice nor any larger ideological principle.  It’s just an old-fashioned land grab and a big middle finger to the evicted. Fair Use is not what we mean when we say “FU.”