Alan Mutter spun a memorable catchphrase earlier this year when he called publishers' decision to distribute content on the Web for free their "Original Sin."
In Mutter's view, feeding the masses content at no charge for the last 15 years has helped to wreck their publishing business model. As he wrote in 2004, "If a newspaper gives away its costly and valuable product for free on the Internet, it may win friends and influence people in cyberspace, but it won't gladden the advertisers who pay the freight back here on Mother Earth."
If giving it away helped cast publishers out of the garden of profit, the man who has a plan to return the publishing industry to grace is Steve Brill. Brill, founder of the American Lawyer and Court TV, announced this week with partners Gordon Crovitz and Leo Hindery Jr. a plan to build efficient pay walls around publishers' content with their new company, Journalism Online. According to PaidContent.com's Staci D. Kramer, Journalism Online will release at least one e-commerce product by the fall.
Brill's strategy appears to be similar to those expressed in his November memo, Kramer adds, with micropayments for individual articles and all-day passes for a flat fee—as well as monthly and annual passes for publications that sign up with Journalism Online.
While I wish Brill and his clients the best of luck, this thing can't possibly smuggle newspapers back into the garden. Even if Brill recruits 95 percent of the top newspapers and magazines in the country, welds digital-rights-management security bracelets onto all content, and assassinates hackers who redistribute copy without authorization, the idea can't work.
Here's why. Let's assume, quite generously, that Journalism Online convinces 95 percent of the best publications to join its program and that all content is walled in. The exceptions would be a few free pieces for readers to taste, as in the model currently favored by the WSJ.com and FT.com, which are paid sites.
What's to prevent such Web enterprises as the Huffington Post, Nick Denton's Gawker enterprise, or some startup (Shafer and Manjoo?) from purchasing the most expensive all-tiers pass from Journalism Online and rewriting or otherwise encapsulating the best and most noteworthy walled-in articles in real time—and then selling ads against it? This is essentially what Henry R. Luce and Britton Hadden started doing in 1923 as they rewrote newspapers on a weekly basis for Time magazine. It is what the Week continues to do today.
What legal recourse will Journalism Online and its hypothetical client/partners at the New York Times, Newsweek, Esquire, The New Yorker, and Fortune, et al., have if Gawker's rewrite aces observe both copyright law and the "hot news doctrine"?
While you can copyright a news story, you can't copyright the news itself. In fact, under the fair-use provisions of the Copyright Act, reproducing portions of copyrighted work for the purposes of criticism, comment, news reporting, teaching, scholarship, and research are all considered "fair use." It's hard to imagine the New York Times waging a successful legal battle against the condensation of its top news stories as long as the condensers go about their work artfully. Such a news digest could give its distillations of Times stories extra legal protection by enveloping them in criticism, making them available to teachers, and adding a wee bit of their own reporting.
Publishers might try to beat back the news distillers by invoking the "hot news doctrine" devised by the Supreme Court in 1918 to prevent William Randolph Hearst's International News Service from rewriting and reselling the contents of the Associated Press. The decision essentially bestowed upon content creators a special set of property rights, subject to a lawsuit if:
i) a plaintiff generates or gathers information at a cost;
ii) the information is time-sensitive;
iii) a defendant's use of the information constitutes free riding on the plaintiff's efforts;
iv) the defendant is in direct competition with a product or service offered by the plaintiffs;
v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.
Joe Mullin, writing about a current hot–news-doctrine case in his blog, The Prior Art, reacts to the five-part test this way. "Personally, I can't see how all five of these don't apply to any news organization that's writing a story that follows a 'scoop' by a competitor." He continues:
It's quite common for editors to ask reporters to "match" a story that has been published or broadcast by a competitor by re-tracing the facts, and often the sources, of the "scoop." As long as it's all re-reported and re-written, that's fair game. But the criteria of a "hot news" claim are still met; because newsgathering still costs money, the information is still time-sensitive (that's why we're rushing to get the second-day story), and it could still be thought of as "free-riding" if the second news outlet is just publishing a do-over of the themes, sources, ideas, in the first article—and such second-day stories could reduce the incentive to get scoops. (Although "substantially threaten" might be a reach.) It's all a bit theoretical, since individual scoops aren't really worth that much money, but it does seem like "hot news" misappropriation claims could allow any scooper to sue the still-competing "scoopee."
In other words, any success Brill and his clients have in shutting down the Gawkers of the world that distill their contents will only generate legal blowback that they'll live to regret.
Brill, like so many journalists, overestimates the value any one, two, three, or four news articles may have to the average or even above-average reader. The greatest value overestimate on record was pointed out to me in the mid-1990s by Suck.com co-founder Joey Anuff, who noted that LATimes.com was charging readers more to read an archived review of a movie than it cost to rent the movie itself!
Other Brill blind spots: Long before the nasty old Internet arrived to teach readers that the news was "free," the newspaper industry had already spoiled its customers by heavily subsidizing the product with advertising. If we're talking original sin, we should talk more about this ancient newspaper "transgression." The cash you pay for a subscription to the Washington Post covers only a fraction of the paper's $120 million-plus editorial budget. And while the idea of "free" media may startle Brill, broadcasters have done exceedingly well for themselves with the business model for many decades.
Still other Brill blind spots: He obviously knows the media landscape has changed since the original sin was committed, so he can't possibly think that readers are willing to return to 1995. People were losing their taste for newspapers then! National circulation had been falling for a half-decade. And because Brill won't get 95 percent of top publications to throw in with him at the beginning, his initial clients will suffer a first-user disadvantage: If the Washington Post takes most of its act behind Journalism Online's wall and the New York Times doesn't, Times readership will grow and the Post's will decline, and the Post's new direct-from-online-reader revenues probably will not make up the difference from losses in online advertising.
Brill's approach to getting back to the garden by walling it off from the free Web contains just a whiff of the notion that the news should be secret—and if not secret, then closely held, confidential information—and read by only those who pay full freight. His ideas run against the long-standing views of an industry that has always wanted its market power measured by how many people read newspapers, not by how many buy them, as illustrated by this Washington Post's media kit page, where the paper boasts of having 1,599,900 daily readers, even though circulation stands at just 633,100.
Maybe Brill's business model should find a way to start billing the millions of free-riders who pick up pre-read copies in coffee stores or family members who share newspapers at home.
How many New York Times articles would Shafer-Manjoo have to summarize each day to satisfy a just-give-me-the-facts readership on the Web? The June 8, 2007, edition of the eight-page TimesDigest (discussed in a previous Press Box column) contained 12 news stories, two editorials, one editorial column, two sports stories, a weather column, the crossword puzzle, a stocks box, and nearly a dozen shorts, so I'm guessing about a dozen. Maybe Manjoo and I could tweet our summaries to the Web? Send your reflections via e-mail to email@example.com. (E-mail may be quoted by name in "The Fray," Slate's readers' forum; in a future article; or elsewhere unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)