Omln-copyright

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.

• BACK TO TOP OF THESE NOTES
• The hash tag for today's seminar on Twitter is: #jdt

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.