Saving Newspapers by Changing the Law

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In an arti­cle enti­tled, Lawyers: To Save Newspapers, Let’s Destroy Pretty Much Everything Else Good, the always-​​interesting Techdirt reacts to a recent Washington Post opin­ion piece about “sav­ing” news­pa­pers, and argues, “It’s time to stop hav­ing Congress keep pass­ing laws that stop inno­va­tion in hopes that legacy indus­tries mag­i­cally come up with faster horses.”

The arti­cle Mr. Masnick is react­ing to, Laws that Could Save Journalism, is in Saturday’s Washington Post. It was writ­ten by Bruce W. Sanford and Bruce D. Brown, two lawyers with a great deal of expe­ri­ence in the laws impact­ing the news industry.

Mr. Sanford is an attor­ney at Baker Hostetler and is gen­eral coun­sel to the Society of Professional Journalists and has advised many media clients, as well as worked on First Amendment and libel cases through­out the coun­try. Mr. Brown is also an attor­ney at Baker Hostetler, focus­ing on media law, pri­vacy, news­gath­er­ing and copyright.

They begin by say­ing that mas­sive changes are needed in the law to save journalism:

Unless Congress embarks on far-​​reaching change in pub­lic pol­icy to main­tain the via­bil­ity of jour­nal­ism as it evolves online, we will soon find our­selves with the rem­nants of a bro­ken indus­try inca­pable of pro­vid­ing the knowl­edge nec­es­sary to man­age life in a com­plex world. Journalism does not need a bailout, but it does need a sort of “recov­ery act” to bring the legal land­scape in line with today’s pub­lish­ing technologies.

They have a very good point when they say, “Google’s prod­ucts (and profit) would look a lot dif­fer­ent if, for exam­ple, the law said it had to obtain copy­right per­mis­sions in order to copy and index Web sites.” In fact, it seems very likely in this sce­nario that Google would not exist at all, and we may never have had the Internet rev­o­lu­tion (with both its pos­i­tive and neg­a­tive aspects) at all.

After sug­gest­ing a num­ber of other pro­tec­tion­ist changes, they pro­pose loos­en­ing antitrust laws to “pro­tect the pub­lic interest:”

As noted in the Kerry hear­ing, pub­lish­ers need col­lec­tive pric­ing poli­cies for their Web sites to finally break out of the expec­ta­tion of free con­tent that is afflict­ing the indus­try. Antitrust immu­nity is nec­es­sary because most indi­vid­ual news sites can’t go it alone by walling off their con­tent for fees — read­ers will sim­ply jump to sites that are still free.

A tem­po­rary antitrust shel­ter would serve the pub­lic inter­est by enabling the indus­try to take steps today to pre­serve for tomor­row the jour­nal­ism that ben­e­fits us all.

The arti­cle strikes me as a mis­guided attempt to main­tain the sta­tus quo in the face of com­pe­ti­tion from new com­peti­tors. Buggy whip mak­ers tried des­per­ately to cling to the old ways when the auto­mo­bile began to cut into their busi­ness, and the music indus­try has been fight­ing the same sort of los­ing bat­tle for years.

This is not to say that I believe jour­nal­ism does not deserve pro­tec­tion and sup­port, even gov­ern­ment pro­vided sup­port, dur­ing the cur­rent climi­ate of shift­ing busi­ness mod­els. It is easy dur­ing such rad­i­cal shifts to lose the good with the newly inef­fi­cient, and jour­nal­ism is too crit­i­cal to our soci­ety to allow it to fall by the wayside.

But is it really going away? Blogging serves the role of early news­pa­pers and pam­phlets in this coun­try. They too were quickly writ­ten and widely dis­trib­uted, often out­side of tra­di­tional busi­ness enti­ties. (Think of Thomas Paine, Benjamin Franklin, or the Federalist Papers.) Why should the exist­ing cor­po­rate struc­ture of the news­pa­per need to exist merely to pro­tect jour­nal­ism and the free press? This is cor­po­rate pro­tec­tion­ism at its finest, buried under an hon­est desire to pro­tect and pre­serve jour­nal­ism and the First Amendment.

While I am cer­tainly not a lib­er­tar­ian pro­po­nent of the glory of the free mar­ket, I do believe that mar­kets are key indi­ca­tors of via­bil­ity, and often bet­ter than the gov­ern­ment at select­ing more effi­cient and more opti­mal out­comes that ben­e­fit soci­ety as a whole. Changing the laws to pro­tect news­pa­pers from mar­ket forces is, I think, the wrong approach. Business must adapt. Permitting them to do oth­er­wise merely cre­ates GMs and Chryslers. On the other hand, chang­ing laws to pro­tect the con­cept of jour­nal­ism — that I could sup­port. I bet such sug­ges­tions would look very dif­fer­ent from those pro­posed by Sanford and Brown.

Techdirt has more point-​​by-​​point rebut­tals, as does Public Knowledge.

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