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newspapers and paper news: the legacy of the hot news doctrine and AP v INS

15 August 2010 in Uncategorized | Tags: , , , , , , , , , , , , , , , , | 4 comments

The facts do not owe their origin to an act of authorship.
—Justice Sandra Day O’Connor (Feist v Rural Telephone, 1991)

But does the hunt, the research, the interviews? Or perhaps its organization into a story for the dissemination to a reading public? And can these be made exclusive? These questions have bubbled up as the newspaper industry wrestles with what the internet is doing to their business.

The Cleveland Plain Dealer’s Connie Schultz has argued fervently about the rights of authors and their newspapers to capitalize on their product. She came out against “the aggregators” as though they were a malfeasant band of marauders bent on destroying the institution of journalism and by extension democracy. Citing Daniel and David Marburger, she claimed, “parasitic aggregators reprint or rewrite newspaper stories, making the originator redundant and drawing ad revenue away from newspapers at rates the publishers can’t match.”

James Moroney, publisher and CEO of the Dallas Morning News takes a similar approach. He invokes the ‘hot news’ doctrine and asks congress to apply it to the internet. Says Moroney, “perhaps it is time for congress to establish a principle of ‘consent for content’ for breaking news–similar to the ‘hot news’ doctrine recognized by a few states.”

Copyright law sufficed to protect the written word, fixed in a medium, but these claims demand remedy for a larger issue. They aim to protect the investment required to collect the facts and write a story, when it might easily be re-written and distributed by another. But they ask for monopoly control of the story itself — indeed, ownership of the collection of facts and ideas that might make up a breaking story on government corruption, for example. Justice O’Connor, however, finishes with little support for these views: “The distinction is between one of creation and one of discovery.” And discovery is not subject to property rights.

The viewpoints of Moroney, Schultz and the Marburgers have their origin in the nature of print. Print leads to a confusion between controlling the medium and controlling the content – that is, the mistaken idea that breaking a story equates to owning it. The Supreme Court compounded the confusion in 1918 with its decision to augment copyright protection with “quasi-property rights” for the facts and events that make up a news story — the hot news doctrine. It was a legal solution for the disruptive impact of a new technology: newswires. News was paper, and these rights formalized the metaphor. They derived from the physical qualities of the paper, attached property rights to the news and would provide a legal basis from which to make, in this case, the AP’s news exclusive. Theoretically, the AP could then exclude people from learning of it or reprinting it without permission. They wouldn’t just report the news, they would own the news. Read the rest of this entry »

information wants to be free, expensive

14 June 2010 in Uncategorized | Tags: , , , , | 2 comments

Information wants to be free….Information wants to be expensive, because in an Information Age, nothing is so valuable as the right information at the right time.

—Steward Brand

Before marshalling a quote, review the source. Sometimes the sound-bite doesn’t always match up with the what the author or speaker originally intended. Walter Isaacson reminds us of this lesson in his contribution to the Atlantic’s 14 3/4 review of the biggest ideas of the year. The often ignored final clause to the old saw, information wants to be free, warns: “information wants to be expensive.” But soon after Stewart Brand observed both sides of the information question in the Whole Earth Catalog in 1984, we collectively edited it down to a revolutionary, communitarian call to arms.

Isaacson laments that the rally-cry we’ve attributed to Stewart Brand never resolved the “tension between the two parts of Brand’s maxim.” Now, on the heels of the economic collapse in 2008 and enmeshed in an anemic recovery, the news industry in 2009 became less of a service and more of a question, as in: how can newspapers survive? Will journalism survive? Who will pay for it? For the answer, Isaacson returns us to 1710 and the Statute of Anne, when on April 10th, Parliament asked Queen Anne to assure an author the sole Right and Liberty of Printing their works. The Statute, according to Isaacson, “helped to encourage and sustain generations of creative people and hardworking hacks.” Though the Statute marks seminal moment in the history of copyright, one must not mistake it for an ancestor to today’s problem with the news industry. It underpins the age of the author, not the information age.

The Statute introduced the idea that an author could own their words and assign the right to make copies to booksellers – the copy right. Booksellers, as members of the Company of Stationers, had in many cases divested or abandoned the printing of the actual works and instead focused on amassing a portfolio of copy rights from authors, sourcing a printer, and selling the finished copies. On assignment, the copy rights would last fourteen years, following which, the rights would revert to the author. With the Statute, the author became an economically significant entity in the publication of books and letters. It was a revolutionary step. If a bookseller wanted to publish a work, they would have to negotiate for the copy right with the author, and so we can celebrate with Isaacson the role it played in encouraging and sustaining authors.

Though the author technically owned the right of copy, the only way to exploit that right was through the Company of Stationers. These booksellers acquired literary property from authors, but with the what amounted to a guild-system, they were also the only ones fully capable of publishing and exploiting the property. They maintained the register of copy rights, certificate of copy right, and storage of nine fine volumes, a process that was eventually abandoned. These were practices that had grown familiar with the Star Chamber Decree and the  Licensing Act in the seventeenth century, both of which effectively delegated regulation and censorship of the press to the Company. Without the booksellers and the Company, the authors had no real alternatives for publication. It was no wonder that many members of the Company would refuse to return copy rights to their owners after fourteen years and effectively enjoy a perpetual right.  The Statute may have introduced the author as a meaningful economic actor, but the system maintained the Company’s role as a regulator of the press.

The Statute offers a telling moment in the history of the press and the author, but today’s problems in the news industry don’t emerge from issues of authorship. There is no longer a Company of Stationers. Anyone can be a publisher, and that is part of the problem. The Company provided as much a means of control and regulation as an engine for publication. Today’s inheritors, however, have looked on with fear as the internet enabled nearly anyone to assimilate, analyze and present the news of the day and its analysis. They can’t control or regulate publications and the press in the same way they might have in the 18th century. Nor does the Statute’s protection of an author’s creative output shield them from having another consume, digest and regurgitate the salient facts and ideas of a given work. Afterall, the Spectator harvested as much in its daily rehashing of manners, mythology, and literature. Today, there is little one can do to stem the tide of commentary, analysis and alternatives that have washed over the shores of the mainstream press. While the Statute provides an ancestor to the age of the author, it remains a silent bystander to the conditions of information age.

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