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.