Posts about copyright

Publishers’ political blackmail

Senator Amy Klobuchar’s oxymoronically titled Journalism Competition and Preservation Act — it might better be named the Journalism Lobby Blackmail Bill — was just dealt a kick to the kidneys by a confused Ted Cruz amendment. It is delayed but not dead. It is still wrong-headed and dangerous and here I’ll examine how.

As ever, Mike Masnick does stellar work picking apart the bill’s idiocy and impact in detail. In summary, the JCPA would require big internet companies — Google, Microsoft, Apple, and Amazon, though perhaps not the incredibly shrinking Facebook — to negotiate with midsize newspaper publishers. Freed from antitrust, the publishers may band together and demand payment for linking to their news. Yes, linking to their news. The value platforms bring in terms of promotion, distribution, and audience is not a factor in these negotiations. If agreement cannot be reached, talks go to a co-called arbitration process and the platforms can be forced to carry and pay for publishers’ content.

Stop right there. That government would force anyone to carry anyone else’s speech is a clear violation of the First Amendment. Compelled speech is not free speech. Keep in mind that the extremist right in Congress is dying to concoct ways to force platforms to carry their noxious speech; Klobuchar et al are paving a way for them. That government would force anyone to pay to link to others is a fundamental violation of the principles of the internet. Links are free. Links are speech. That government would insert itself in any way into journalism and speech is simply unconstitutional.

Let us now consider the wider context of this legislation and where it goes wrong.

Newspaper publishers do not deserve payment

God did not grant newspaper publishers the revenue they had. They chose not adapt to the internet; I spent decades watching them at close range. Competitors offered better, more efficient and effective vehicles for advertisers, who fled overpriced, inefficient, monopolistic newspapers at first opportunity. Readers, whose trust in news has been falling since the ’70s, also fled. Welcome to capitalism, boys.

Today, most newspaper chains in America are controlled by hedge funds. I briefly served on digital advisory boards for one American and one Canadian company controlled by the hedgies and witnessed what they did: selling every possible asset, cutting costs to the marrow, and stopping all investment in innovation. The JCPA offers no real means of accountability to assure that platform money would go to journalism serving communities’ needs, not straight into the pockets of the hedgies. (The JCPA shares that problem with Rupert Murdoch’s similar blackmail bill in Australia.)

Journalists should not be lobbyists

I am appalled that legacy journalistic trade organizations — led by the News Media Alliance (née Newspaper Association of America, recently merged with the former Magazine Publishers Association)— have turned into lobbyists, cashing in news’ political capital and engaging in conflict of interest in the name of protectionism. Newspapers exist to stand independent of power in government, not beggars at its trough. Journalists themselves should rise up to protest what their publishers have ganged together to do: to sell their souls.

Newspapers have a long history of antitrust

This shameful behavior of publishers is not new. When radio emerged as print’s first competitor, papers did everything possible to prevent it from competing in news. Here are a few paragraphs recounting that episode from my upcoming book with Bloomsbury, The Gutenberg Parenthesis.*

In Media at War, Gwynth Jackaway chronicled American newspapers’ opposition to broadcast in a tale of defensiveness and protectionism that would be reprised with the arrivals of television and the internet. “Having been presented with a new technology, contemporary actors voice their concerns about how the new medium will change their lives, and in so doing they reveal their vulnerabilities,” she wrote…. Newspaper publishers tried to disadvantage their new competitors, strong-arming radio executives to agree to abandon news gathering, to buy and use only reports supplied by three wire services, to limit news bulletins to five minutes, and to sell no sponsorship of news. Their agreement also prohibited commentators from even discussing news less than twelve hours old (a so-called “hot news” doctrine the Associated Press would try to establish against internet sites as late as 2009). The pact fell away as wire services and station-owning newspapers bristled under its restrictions.

Print publishers tried other tactics. They threatened to stop printing radio schedules in their newspapers, but readers protested and radio won again. They lobbied to have radio regulated by the federal government and then unironically maintained that radio companies under government control would be unreliable covering government. The newspaper press tried to have radio reporters barred from the Congressional press galleries. They called radio a “monopolistic monster” and lobbied for a European model of government control of the airwaves. They blamed radio for siphoning off advertising revenue, though the Great Depression was more likely to blame for newspapers folding or consolidating in the era. They also lobbied for the government to limit or ban advertising on radio.

All their protectionism was cloaked in self-important, sacred rhetoric, with publishers accusing radio of manifold sins. Radio, they said, spread loose statements and false rumors: fake news. Radio “filched” and “lifted” news from newspapers. Radio seduced the public with the human voice to exploit emotions, to “catch and hold attention,” and to excite listeners. Will Irwin, a muckraking print journalist, wrote in his book Propaganda and the News: “The radio, through the magic inherent in the human voice, has means of appealing to the lower nerve centers and of creating emotions which the hearer mistakes for thoughts.” Radio was “a species of show business, with overtones of peddling and soap-boxing.” Editor and Publisher maintained that “the sense of hearing does not satisfy the same intellectual craving as does the sense of reading” and the editor of American Press claimed that “most folks are eye-minded. They get only impressions through their ears; they get facts through their eyes.”

“Using the doomsday approach that so often accompanies the invocation of ‘sacred’ values,” wrote Jackaway, “they warned that the values of democracy and the survival of our political system would be endangered” if radio took on the roles of informing the electorate and serving a marketplace of ideas….

“Never,” said Jackaway, “is there the admission that public opinion might be manipulated by the printed word as well as the spoken word, or any recognition that by attempting to control radio news the press was actually infringing upon the broadcasters’ freedom of expression.”

Sound familiar? This is the same industry that today wants to be excused from antitrust law and Klobuchar et al are doing its bidding.

Government must not license and limit journalism

The JCPA sets a definition for news organizations eligible for its benefits and thus defines and de facto licenses journalists. Beware: What government giveth government may take away.

To avoid accusation that the bill would transfer money from big tech to big media, the JCPA sets a limit of 1,500 employees. It also sets a floor of $100,000 revenue. Thus, many are excluded. In our entrepreneurial program at CUNY’s Newmark Journalism School, we train independent journalists to serve communities and markets; they are too small. Our Center for Community Media and its Black, Latino, and Asian Media Initiatives work with a wide array of news organizations serving communities; many of them are too small. LION, the wonderful association serving local news organizations, says 44 percent of its members are too small.

These newcomers and publishers of color are the real innovators in journalism, not the old, tired, failing, incumbent newspapers. They are left out of the JCPA. The JCPA is aimed at companies whose papers are, in the immortal words of Goldilocks, just right — that is, the ones controlled by the hedge funds who pay the lobbyists.

The help platforms should give

I am all for technology companies helping the cause of news. In full disclosure, my school receives funds from various of the technology companies to fight disinformation, to independently study the internet, to train journalists in the new skills of product, to train community news organizations in business innovation. For years, I’ve attended Newsgeist, an event started by the Knight Foundation and Google, and there I began what is now the tradition of running a session asking, “What should Google do for news?”

Forcing payments from technology companies as this bill and others elsewhere would do is no business model. It’s blackmail. What we need instead is help to develop new models. Google does that with subscriptions and YouTube players offering monetization. Facebook used to do that in various programs but has thrown up its hands and given up on news (I frankly do not blame them). Apple and Microsoft send audience to news. Jeff Bezos saved The Post. We need more of this kind of help. JCPA does nothing to make news sustainable.

Should news even be copyrighted?

The legislation in the U.S., Australia, and Canada, as well as Germany’s Leistungsschutzrecht, Spain’s link tax, and the EU’s resulting Article 15 are all attempts to extend copyright.

In The Gutenberg Parenthesis, I also write about the origins of copyright. Note well that at the start, in the Statute of Anne of 1710 and in the first American copyright laws, news was explicitly not included. Not until 1909 in the United States did copyright law include newspapers, but even still, according to Will Slauter in Who Owns the News?, some still debated whether news articles, as opposed to literary features, were protected, for they were the product of business more than authorship.

The first, best government subsidy newspapers received was a franking privilege from the Post Office, starting in 1792, which allowed publishers to exchange editions with each other for the express purpose of copying each others’ news. This, too, from my book: “Newspapers employed ‘scissors editors’ to compile columns of reports from other papers. Editors would not complain about being copied because they copied in turn — but they would protest and loudly about not being credited…. It is ironic that newspapers — which since their founding in Strasbourg in 1605 have been compiled from news created by others — today complain that Google, Facebook, et al steal their property and value by quoting headlines and snippets from articles in the process of sending them readers via links. The publishers receive free marketing.”

I came to learn that copyright was created not to protect creators. Instead, copyright turned creation into a tradable asset, benefitting the publishers and producers who acquired rights from writers.

Just as a thought experiment, instead of extending copyright as so many legacy publishers in league with legislators wish to do, let us imagine what journalism might be today without copyright.

Without copyright, news organizations might not concentrate, as they do now, on the notion of journalism as a product to be restricted and sold to the privileged who can afford it. They are returning news to what it was before the printing press, when it was contained in expensive, exclusive newsletters called avvisi. Meanwhile, disinformation, lies, and propaganda will always fly free.

Without copyright, journalists might see news as a service that individuals and communities could choose to support — as they do public radio, The Guardian, and countless newsletters — because it is useful to them.

Without copyright, journalists might then concentrate on creating service of original value rather than employing digital scissors editors to rewrite each others’ stories into trending clickbait to make their own content to fill their own pages to attract their own SEO and social links to feed ever-decreasing programmatic CPMs.

Without copyright, they might turn all that wasted journalistic labor and talent loose on watching, reporting on, and holding accountable the politicians they are instead now lobbying.

Without copyright and the Gutenberg-era notions of content, property, and product, journalists might also feel freer to collaborate with the public, rather than speaking and selling to the public. Journalists might come to center journalism in the community rather in themselves, as we teach in our Engagement Journalism program at Newmark.

Without copyright, journalism might no longer be seen as a widget to be used as a wedge but instead a contributor to the quality of public discourse.

Do I want to get rid of copyright for news? Actually, yes, I do. I know that is not going to happen. But I can at least beg my legislators — I am looking at you, Cory Booker — not to extend and mangle copyright in the service of hedge funds and failed newspaper monopolists. Instead, let us find ways and means to support collaboration and innovation to improve news.


* The Gutenberg Parenthesis is scheduled to be published by Bloomsbury in June. You can be assured I would be sending you to a preorder link now if it existed, but it won’t until November. Watch this space.

News Publishers Go To War With the Internet — and We All Lose

Around the world, news industry trade associations are corruptly cashing in their political capital — which they have because their members are newspapers, and politicians are scared of them — in desperate acts of protectionism to attack platform companies. The result is a raft of legislation that will damage the internet and in the end hurt everyone, including journalists and especially citizens.

As I was sitting in the airport leaving Newsgeist Europe, a convening for journalists and publishers [disclosure: Google pays for the venue, food, and considerable drink; participants pay their own travel], my Twitter feed lit up like the Macy’s fireworks as The New York Times reported — or rather, all but photocopied — a press release from the News Media Alliance (née Newspaper Association of America) contending that Google makes $4.7 billion a year from news, at the expense of news publishers.

Bullshit.

The Times story itself is appalling as it swallowed the News Media Alliance’s PR whole, quoting people from the association and not including comment from Google until hours later. Many on Twitter were aghast at the poor journalism. I contacted Google PR, who said The Times did not reach out to the person who normally speaks on these matters or anyone in the company’s Washington office. Google sent me their statement:

These back of the envelope calculations are inaccurate as a number of experts are pointing out. The overwhelming number of news queries do not show ads. The study ignores the value Google provides. Every month Google News and Google Search drives over 10 billion clicks to publishers’ websites, which drive subscriptions and significant ad revenue. We’ve worked very hard to be a collaborative and supportive technology and advertising partner to news publishers worldwide.

The “study” upon which The Times (and others) relied is, to say the least, specious. No, it’s humiliating. I want to dispatch with its fallacies quickly — to get to my larger point, about the danger legacy news publishers are posing to the future of news and the internet — and that won’t be hard. The study collapses in its second paragraph:

Google has emerged as a major gateway for consumers to access news. In 2011, Google Search combined with Google News accounted for the majority (approximately 75%) of referral traffic to top news sites. Since January 2017, traffic from Google Search to news publisher sites has risen by more than 25% to approximately 1.6 billion visits per week in January 2018. Corresponding with consumers’ shift towards Google for news consumption, news is becoming increasingly important to Google, as demonstrated by an increase in Google searches about news.

And that, ladies and gentlemen, is great news for news. For as anyone under the age of 99 understands, Google sends readers to sites based on links from search and other products. That Google is emphasizing news and currency more is good for publishers, as that sends them readers. (That 10-billion-click number Google cited above is eight years old and so I have little doubt it is much higher now thanks to all its efforts around news.)

The problem has long been that publishers aren’t competent at exploiting the full value of these clicks by creating meaningful and valuable ongoing relationships with the people sent their way. So what does Google do? It tries to help publishers by, for example, starting a subscription service that drives more readers to easily subscribe — and join and contribute — to news sites directly from Google pages. The NMA study cites that subscription service as an example of Google emphasizing news and by implication exploiting publishers. It is the opposite. Google started the subscription service because publishers begged for it — I was in the room when they did — and Google listened. The same goes for most every product change the study lists in which Google emphasizes news more. That helps publishers. The study then uses ridiculously limited data (including, crucially, an offhand and often disputed remark 10 years ago by a then-exec at Google about the conceptual value of news) to make leaps over logic to argue that news is important on its services and thus Google owes news publishers a cut of its revenue (which Google gains by offering publishers’ former customers, advertisers, a better deal; it’s called competition). By this logic, Instagram should be buying cat food for every kitty in the land and Reddit owes a fortune to conspiracy theorists.

The real problem here is news publishers’ dogged refusal to understand how the internet has changed their world, throwing the paradigm they understood into the grinder. In the US and Europe, they still contend that Google is taking their “content,” as if quoting and linking to their sites is like a camera stealing their soul. They cannot grok that value on the internet is concentrated not in a product or property called content — articles, headlines, snippets, thumbnails, words — but instead in relationships. Journalism is no longer a factory valued by how many widgets and words it produces but instead by how much it accomplishes for people in their lives. I have tried here and here and in many a meeting in newsrooms and journalism conferences to offer this advice to news publishers — with tangible ideas about how to build a new journalistic business around relationships — but most prove incapable of shifting mindset and strategy beyond valuing content for content’s sake. Editors who do understand are often stymied by their short-sighted publishers and KPIs and soon quit.

Most legacy publishers have come up with no sustainable business strategy for a changing world. So they try to stop the world from changing by unleashing their trade associations [read: lobbyists] on capitals from Brussels to Berlin to London to Melbourne to Washington (see: the NMA’s effort to get an antitrust exemption to go after the platforms for antitrust; its study was prepared to hand to Congress in time for its hearings this week). These trade associations attack the platforms without ever acknowledging the fault of their own members in our current polarization in society. (Yes, I’m talking about, for example, Fox News and other Murdoch properties, dues-paying members of many a trade association. By our silence in journalism and its trade associations in not criticizing their worst, we endorse it.)

The efforts of lobbyists for my industry are causing irreparable harm to the internet. No, Google, Facebook, and Twitter are not the internet, but what is done to them is done to the net. And what’s been done includes horrendous new copyright legislation in the EU that tries to force Google et al to have to negotiate to pay for quoting snippets of content to which they link. Google won’t; it would be a fool to. So I worry that platforms will link to news less and less resulting in self-inflicted harm for the news industry and journalists, but more important hurting the public conversation at exactly the wrong moment. Thanks, publishers. At Newsgeist Europe, I sat in a room filled with journalists terribly worried about the impact of the EU’s copyright directive on their work and their business but I have to say they have no one but their own publishers and lobbyists to blame.

I am tempted to say that I am ashamed of my own industry. But I won’t for two reasons: First, I want to believe that the industry’s lobbyists do not speak for journalists themselves — but I damned well better start hearing the protests of journalists to what their companies are doing. (That includes journalists on the NMA board.) Second, I am coming to see that I’m not part of the media industry but instead that we are all part of something larger, which we now see as the internet. (I’ll be writing more about this idea later.) That means we have a responsibility to criticize and help improve both technology and news companies. What I see instead is too many journalists stirring up moral panic about the internet and its current (by no means permanent) platforms, serving — inadvertently or not — the protectionist strategies of their own bosses, without examining media’s culpability in many of the sins they attribute to technology. (I wish I could discuss this with The New York Times’ ombudsman or any ombudsman in our field, but we know what happened to them.)

My point: We’re in this together. That is why I go to events put on by both the technology and news industries, why I try to help both, why I criticize both, why I try to help build bridges between them. It’s why I am devoting time and effort to my least favorite subject: internet regulation. It is why I am so exasperated at leaders in my own industry for their failure to recognize, adapt to, and exploit the change they try to deny. It’s why I’m disappointed in my own industry for not criticizing itself. Getting politicians who are almost all painfully ignorant about technology to try to define, limit, and regulate that technology and what we can do with it is the last thing we should do. It is irresponsible and dangerous of my industry to try.

Geeks Bearing Gifts: The Link Economy and Creditright

Here (after a delay … sorry) is another free chapter from Geeks Bearing Gifts. This one explores the idea that we need a marketplace that values not just content but also the creation of an audience for it, and how that might occur. This is a critical topic as we look at distributing news off media’s own sites and through Facebook and other platforms and streams. You can read the entire chapter here; a snippet:

There have long been two creations of value in media: the creation of content, yes, but also the creation of a public — an audience — for it. In legacy news media, the two were usually attached: the creator and the distributor were one in a vertically integrated enterprise (read: a publication). We often debated whether content or distribution was king. The answer didn’t much matter because they were inseparable; they shared the throne. Now these two tasks are — like so much else online — unbundled. Anyone can make content. Anyone can distribute content: its creator (inside or outside an institution), a reader who recommends it, an aggregator or curator who collects it, a search engine that points to it.

Media people tend to believe that content has intrinsic value — that is why they say people should pay for it and why some object when Google quotes snippets from it. But in an ecosystem of links online, new economics are in force. Online, content with no links has no value because it has no audience. Content gains value as it gains links. That formula was the key insight behind Google: that links to content are a signal of its value; thus, the more links to a page from sites that themselves have more links, the more useful, relevant, or valuable that content is likely to be.

The problem for us in the media industry is that we have no marketplace to value the gathering of links and audiences. Our systems are still built primarily around extracting the value of content: paying creators to make it; buying or subscribing to publications that contain it; or syndicating it from one publication to the next. These models are being made obsolete. Huffington Post and Twitter can get thousands of writers — including me — to make content for free because it brings us audience and attention. Selling content is difficult when you compete against others who offer content for free. And syndication is all but outmoded, for why should I buy a piece of content if instead I can link to it for nothing?

Consider an alternative to syndication. I’ll call it reverse syndication. Instead of selling my content to you, what say I give it to you for free? Better yet, I pay you to publish it on your site. The condition: I get to put my ad on the content. I will pay you a share of what I earn from that ad based on how much audience you bring me. That model values the creation of the audience. When The New York Times complains about Huffington Post summarizing its articles, perhaps The Times would be better off offering Huffington Post this deal: Take our stories but keep them intact with Times branding, advertising, and links. We’ll give you a share of what we earn for each story based on the size — and perhaps quality, as measured in attention and demographics — of the audience you bring to it.

For that matter, why should media always force our readers to come to us? Why shouldn’t our content go to them? Before Gutenberg’s press, scholars had to travel to books; after Gutenberg, the books traveled to the scholars. We’ve long had home delivery for newspapers, magazines, and TV, so why not extend that service to content on the web? For years, I had wished for a means to make articles and blog posts embeddable on other sites, just like YouTube videos. If content could travel with its business model attached, we could set it free to travel across the web, gathering recommendations and audience and value as it goes, and thus ending at least part of the fight over the question of whether aggregation is theft.

Read the rest here.

If you can’t wait for the rest of the book, then you can buy it here.

Oh, those Germans

warover

German publishers warring with Google — and the link and the internet — have now completed their humiliation at their own hands, capitulating to Google and allowing it to continue quoting and linking to them. How big of them.

The pathetic sequence of their fight:

1. German publishers under the banner of a so-called trade group called VG Media and led by conservative publisher Axel Springer called in who knows what political chits to get legislators to create a new, ancillary copyright law — the Leistungsschutzrecht — to forbid Google et al from quoting even snippets to link to them.

2. In negotiations in the legislature, snippets were then allowed.

3. The publishers went after Google anyway, contending that Google should pay them 11 percent of revenue over the use of snippets.

4. Google, being sued over the use of the snippets, said it would take down the snippets from those publishers this week.

5. The publishers said that for Google to take down the snippets they were using to blackmail Google amounted to Google blackmailing the publishers. And you thought Germans were logical.

6. The publishers went to the government cartel office to complain that Google was using its market power against them.

7. Officials laughed the publishers out of the cartel office.

8. Now the publishers have said that Google can use its snippets for free while this legal matter is being ironed out.

Of course, the publishers never wanted the snippets taken down because they depend on those snippets and links for the audience Google sends to them … for free. It is all their cynical game to try to disadvantage their new and smarter competitor. Those who can, compete. Those who can’t, use their political clout.

Enough. Genug.

I have written a much longer essay about the damage these German publishers are doing to Germany’s standing that I am trying to place in a print publication — so I can speak to the print people. I’ll link to it when that happens. Here’s the lede:

I worry about Germany and technology. I fear that protectionism from institutions that have been threatened by the internet — mainly media giants and government — and the perception of a rising tide of technopanic in the culture will lead to bad law, unnecessary regulation, dangerous precedents, and a hostile environment that will make technologists, investors, and partners wary of investing and working in Germany.

LATER: Ah, there’s another chapter already.

9. Like Japanese soldiers stuck on an island thinking the war continues, Axel Springer has declared that Google must take down snippets from four of its brands: Die Welt, and the auto, sport, and computer subbrands of Bild. Note well that they didn’t do that with superbrand Bild, their largest newspaper and the largest in Germany. They need the eggs. So as it loses its argument that Google is a cartel, the German publishers’ cartel crumbles.

Learning the true value of content from Aaron Swartz

I must confess that at first I did not understand what the pioneers of rethinking content’s value—Lawrence Lessig, Joi Ito, Cory Doctorow, Aaron Swartz—had to teach me. When Lessig took to the courts—playing the net’s Quixote to battle Hollywood’s imperialistic expansion of copyright—I wondered whether his side was overreaching by implying that all creation is born of what came before.

I was in the content business. I believed in the value of content and authorship and ownership. So I posted a mock copyright notice under the content on my young blog:

It’s mine, I tell you, mine! All mine! You can’t have it because it’s mine! You can read it (please); you can quote it (thanks); but I still own it because it’s mine! I own it and you don’t. Nya-nya-nya. So there. COPYRIGHT 2001… by Jeff Jarvis.

But I soon learned. I placed a Creative Commons license on my blog. I came inevitably to see the wisdom in Lessig’s mission and the value in the tools he and Swartz and their allies created.

But I still thought I was in the content business. Well, I don’t anymore.

That lesson came in good measure from Aaron Swartz’s actions, particularly his freeing the whale from JSTOR’s tank. Even Lessig in his eloquent and powerful lament over the grave of his friend, can’t endorse what Swartz did when he downloaded countless academic articles. Alex Stamos, the expert witness who would have testified at Swartz’ trial, still calls it “inconsiderate.”

I took Swartz’ action not as a protest but instead as an object lesson in the true value of content. We from the content business think our value is encased in our content. That is why we sell it, build walls around it, protect it (and, yes, I will still happily sell you mine). Inside the Gutenberg Parenthesis, that is the only model we have known.

But the net has taught me that content gains value as it travels from person to person, just as it used to, before Gutenberg, when it wasn’t content but was just information.

Google and Facebook have taught me that content’s worth may not be intrinsic but instead may lie in its ability to generate signals about people, build relationships with them, and deliver relevance and value to them. In that, I think, is a new business model for news, one focused on value delivered over value protected, on service over content. For content is merely that which fills something—a page or a minute—while service is that which accomplishes something for someone.

Lessig and company have taught me that content’s value can lie in what it spawns and inspires. Locked away, unseen, unused, not discussed, not linked, it might as well not exist.

David Weinberger has taught me that knowledge confined in a book at a single address on a shelf is limited.

And Aaron Swartz has taught me that content must not be the end game for knowledge. Why does knowledge become an article in a journal—or that which fills a book or a publication—except for people to use it? And only when they use it does content become the tool it should be. Not using knowledge is an offense to it. If it cannot fly free beyond the confines of content, knowledge cannot reach its full value through collaboration, correction, inspiration, and use.

I’m not saying that content wants to be free. I am asking whether knowledge wants to be content.