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SESSION ONE: Saving Journalism from Itself?

These pages are notes taken by Bill Densmore of the Donald W. Reynolds Journalism Institute while attending and participating April 9, 2010, in a one-day seminar at Harvard Law School: "Journalism's Digital Transition: Unique Legal Challenges and Opportunities." The event was organized by the Online Media Legal Network of the Berkshire Center for Internet & Society at Harvard. There are three panels; we'll build a page on each. THE CONFERENCE AGENDA HAS DETAILS ON PARTICIPANTS AND OVERVIEW TOPICS.

Moderator is Christopher Bavitz, assistant director, Cyberlaw Clinic, Berkman Center

Five panelists are:

  • Michael Grygiel, of Hiscock & Barclay LLP, outside counsel to GateHouse Media
  • Sam Bayard, deputy director of the Online Media Legal Network at Berkman.
  • R. David Hosp, of Goodwin Proctor LLP, outside counsel to The New York Times, and a published novelist
  • Bruce Brown, Baker and Hoesteler, Washington, D.C., former journalist at The Washington Post before law school. Would like to see an expansion of the hot news doctrine. Otherwise there is a "systemic free riding." He thinks the Hot News doctrine can be federalized. He thinks that would be consistent with keeping the Internet a vibrant speech area. He's not online.
  • Joseph Liu, Boston College Law School professor. "We should rightly worry about the viablity of the news ... but maybe we should be less worried about the viability of newspapers ... only to the extent they are necessary."

Discussion narrative

  • Grygiel: There are court cases that make clear the structural importance of the news media. His concern is that "if we don't have ... it is the working institutionalized press that still performs that function . . . ad hoc more off-of-the-cuff commentary is of a different order." To get that news -- training, discipline, hard work, investment of training and effort.
  • Hosp: The traditional media had somewhat of a monopoly on distribution. That's receded. How do we protect and monetize journalism where the barrier to entry is low. But there is a new barrier to entry -- "the value is in the accuracy, the value is in the hard work done underlying the reporting itself." He thinks trademarks "will play more and more of a role in terms of adding value to people who produce the news . . . if it is coming from The New York Times are you more likely to trust it? . . . Fox . . . CNN." He thinks there will be more branding in terms of ideology. That's driving viewership and eyeballs.
  • Brown: The Gatehouse Media got started the tension between copyright and aggregation. Some thing that codification of "hot news" is a problem because it locks in a test. His partner, David Marburger in Cleveland, has written about the issue. When institutional press pushes these legislatively "we need to broaden how we think about some of these issues and couch them as issues that will protect any industry." He says investment banks are interested in expanding the "hot news" doctrined, and the Motorola case is about a sports franchise.
  • Bayard: Is what ails the news industry really -- the economic problem -- aggregation and blogs? Or is there a bigger problem we have to face as a society?
  • Liu: Other industries who have faced this -- music industry and BitTorrent -- has been a more immediate problem. But for the newspaper industry the issues are more complex -- pealing away of classified revenue by Craigslist and others, for example.
  • Hosp: You can see in how the disputes arise. There are no legacy consensus positions that segments of the industry take. For example in the Gatehouse Media case, New York Times, a pillar of the journalism community were the defendant (as The Boston Globe) in the case brought by Gatehouse Media, another newspaper company, over The Globe website's linking to Gatehouse stories. "The disputes end up being so factually driven that it is sometimes difficult to draw out larger principles from them."
  • Brown: In the Washington Post newsroom, among former colleagues, some want to turn off Google from indexing the Post, and others are calling up and emailing Google every day trying to get their stories search-engine optimized.
  • Bayard: It's hard to separate the investigative, analytic blog from the free-riding scraper when determining which should be entitled to a Fair Use exception.
  • Brown: "When people throw out an example like that it doesn't reflect the reality of how (a "hot news" doctrine) would be used.
  • Bayard: A problem with the "hot news" test is there is too many guessing about peoples' intentions and their output.
  • Hosp: When you look at fair use and hot news, the big issue is what's the economic impact. Evaluating what that impact is going to be is going to be very difficult on a case-by-case basis. the Fly On the Wall Case is not an example of linking at all. It will be hard to analyze.

Liu: The economic impact of linking is important, but, " ... it's not like you are taking the news and reselling it, you are just linking to a page . . . where is the misappropriation there?"

  • Grygiel: The short and long answer to economics, he doesn't think there is anything inherently problematic and unlawful with linking. "But who is making the money now? . . . Google and Google News are certainly making a lot of money. I think in a large, global sense that certainly frames the economic question, if not answering it."
  • Liu: Is there a business model that you could sell ads on the individual page that you could make up enough money for the loss of links to your home page?
  • Brown: Another consideration -- new aggregators can sell advertising less than newspapers, and that pushes down the cost of advertising. That's a problem for journalism. He thinks someone said there was a study that about 55% to 60% of Google users say they are staying at Google, not clicking through, so the ads they are seeing are Google-sold ads. And even when they do click through, newspapers are having a hard time monetizing.
  • Brown: He agrees that if a "hot news" statute surpressed the transfer of news, that would be a disaster.
  • Bayard: It might not just be news organizations asserting the claim. What if the political activist who sot the Acorn video could say you can't report this because he originated the video?
  • Grygiel: The question Sam is getting at: If you look at the Fly on the Wall case, there is considerable tension on news organizations to report facts. There is a lot in this decision. It doesn't address the accurate reporting of financial information.
  • Hosp: In dealing with new technology, coming to a conclusion about whether there is or is not economic impact or harm "is virtually impossible."
  • Liu: Copyright infringement is a "vague, amorphous tort," and that is illustrated by the Fly in the Wall case. Judges have such discretion in applying the elements of misappropriation. Hot news creates only a quasi-right to be used against competitors, not an actual right.
  • Bayard: In Fly in the Wall, are the banks now going to have to sue Bloomberg, too? It's not just blogs at risk now for alleged misappropriation, it's the news organizations, too. He thinks taking the INN-AP case ("hot news") from 1918 and applying it to the current situation is questionable -- then you had head to head competitors.
  • Liu: Not it's not clear who are competitors with each other.
  • Brown: There is a law professor who has written an article about The AP lobbying Congress for a "hot news" law. Densmore note: (I'm checking with Brown to find out if he means this is going on now, or happened long ago -- I think he means long ago)
  • Grygiel: Hot news misappriation and copyright law do different things. Hot news is to protect the effort of producing a valuable commodity (news) so that a competitor can strip it out. "That's the added ingredient that you get here that you don't get in a copyright case." Justice O'Connor, in once case Grygiel cited (need cite) says she doesn't care about the "sweat of the brow."
  • Hosp: Doesn't know now how you can compare "hot news" to the present. Other than the fact that Fly in the Wall determined that "hot news" as a doctrine is alive and well. "I have some questions about whether the hot news doctrine should be applied in this context at all." (the context of financial markets analysis).
  • Moderator: What would a hot news statute say?
  • Brown: Talked about codifying hte Motorola factors. Give news gatherers 24 hours. That takes away too much from the trial judge's discretion, however.
  • Bayard: The Motorola factors are amorphorous. Federal appeals court judge Richard Posner wrote about it.
  • Grygiel: The ability to economically gather news: "If that is usurped in a meaningful way then you are really infringing on editorial judgement." To him, there's a big difference between publishing a raw-factual headline, as opposed to "Ford to City: Drop Dead." Which is editorial expression. Crafting headlines that draw the reader in -- he can argue that should be subject to copyright protection.
  • Hosp: He disagrees. In a perfect world, that should be protectible. But under the current copyright regime it probably isn't. He agrees headlines can be creative, and some that are just raw facts. What is the work? The work is the article, not the headline. He thinks there's an argument that titles are not protectible. "The leads is a more interesting question."
  • Grygiel: "If you can show me definitely a case that says headlines are not subject to copyright protection, I'd like to see it." He notes the data that half of Google News readers don't click through to the underlying story. "In a real world I think that is going to cross-pollenate the copyright discussion the minds of a judge."
  • Brown: Hot news is not available in Massachusetts. IN the Gatehouse-NYTimes case would it have been a better fit?
  • Hosp: They sought a claim about whether it was being asserted.
  • Grygiel: Other aspects of the Massachusetts law got to the same issues -- MGL Sec. 93(a) is essentially hot news?
  • Hosp: In the international sphere it is a nightmare.

Questions and answers

  • From the audience -- how does 50% clickthrough from Google News relate to the extent to which people do or don't turn the page from the front page to a runover? To what extent is curation news gathering? Should we be more favorable to curation?
  • Liu: In the Fly in the Wall case the judge asks the question, are they adding real value. In some sense Google just culls stuff, "but they have enormous value." The ideas of gathering, curating, there is a lot more building than people realize, he thinks.
  • Grygiel: If you mean curatorial function -- a blogger nothing a link to an underlying article with a little commentary -- is that fair use -- he thinks absolutely, there is very much added value there . . . on the other hand, he says, suppose the Huffington Post put up a widget that pulled the last five stories by Christine Brennan (a sports writer at USA Today). "I have serious misgivings about whether that would qualify as fair use."

Does any of this lead to sustainable business models?

That's a question of Steve Meyers of Yale University

  • Brown: Talks about how Washington, D.C., is in a newspaper war -- except no newspaper involved -- it is Albritton vs. the Washington Post. Some people who are looking at what Albritton wants to launch says the business model won't work because, unlike Politico, which has been a big success for Albritton, it doesn't have the niche value. They are not going to charge for local news. "They say it is not a business, that there is no way it can succeed . . . I've talked to some people who have been closely involved in the development of the site and thinking about jumping over . . . . " Not having a print product is not going to work, they believe.
  • Brown: If the industry could collaboration on pricing, be able to put up pay walls, that might work. But the revenue from that still might not be sufficient. If you had some other tools, you might be able to equalize.
  • Bayard: A different observation: Clay Shirkey has a convincing argument about the crisis that newspapers and others are undergoing. Aside from specifics, his proposal for the way forward for journalism (not necessarily newspapers) is that we need lots of experimentation by relatively small players rather than a save of the incumbent larger players. For the sake of argument, if the way forward is this aggressive experimentation, small players, "I think expanding copyright protection ... can only put a damper on that kind of experimentation."
  • Hosp: It is less the legal issues available that are the problem but figuring out how to monetize online content. The legal tools are there, the question is even with those, wtih so much free content being available, is it going to be, how much can you monetize it and "is it going to sustain the infrastructure."

Question: Hypothetical: If you were advising CEO of a major news company, upset about Google "stealing" their content, would you advise the company to sue Google?

Grygiel: He thinks it would be a tough case.

  • Brown: He would recommend taking on Google. They settle most of their cases. The news industry doesn't have enough clout with a company that has its own foreign policy. But he thinks firing a shot across their bow would focus some of the issue . . .
  • Bayard: You can opt out.
  • Brown: "The reality is their is one search engine on the planet that matters." Forty percent of all advertising is going to Google. Even Murdoch may have no choice but to stay open to Google. There is huge boosterism in the press for Google. "What I want to know is why that braintrust at Google can't figure out a way to help that industry that built" the grist for the search function.
  • Hosp: Is Google News more of a potential competitor?
  • Brown: Google is able to capitive us. There is a challenge in quantifying the value that journalism creates for Google in some precise, quantifiable way. Eric Schmidt (Google CEO) said in WSJ op-ed that news organizations really don't add that much. "That's the company's answer." . . . .

Grygiel: There was just a Google Library class action filed.