Constitutional Law

Copyright and the Demise of Newspapers

By David Ardia

Neil Netanel, a highly regarded legal scholar, has an interesting post on Balkinization entitled "The Demise of Newspapers: Economics, Copyright, Free Speech." Netanel, who has written extensively on copyright issues, posits that part of the reason for the decline in newspapers stems from Internet competitors that build on the content and value that newspapers create. He suggests that imposing a statutory license or levy on commercial Internet service providers and news aggregators might be a workable solution for ensuring that newspapers receive compensation for their investment in quality reporting.

While I think he gives too little credit to citizen journalists/media, equating them all with bloggers and asserting that they are largely "parasitic," his central points are mostly valid:

[N]ews and opinion blogs are largely (but certainly not entirely) parasitic on the institutional press. They copy, quote from, discuss, and criticize stories reported in the press far more than engaging in original reporting or linking to other blogs. And just like peer-to-peer traders of music and movie files, online readers copy and distribute stories from newspaper Web sites to their friends via email and social network sites. Especially for the young, trading copies of newspaper stories often substitutes for visiting the paper's Web site.

As Netanel correctly notes, news organizations (be they old media or new media) that do original reporting suffer from the classic public good problem: while they invest in investigating, reporting, editing, and fact checking their work, their competitors can simply use the finished product without making a similar investment in original reporting. One remedy to this problem proposed by the Pew Research Center's Project for Excellence in Journalism involves having news providers create a consortia to "charge Internet providers and aggregators licensing fees for content."

But this raises a host of concerns, which Netanel points out at the end of his piece:

To my mind, giving news providers a proprietary veto over online news aggregators', Internet providers', and bloggers' referencing of news stories would impose an unacceptable burden on speech. I argue in Copyright's Paradox that, all in all, holding such referencing to be fair use or otherwise noninfringing of copyright is the best solution. But I can see advantages to imposing some sort of statutory license or levy on commercial Internet service providers and news aggregators who profit from news providers' investment. Newspapers should not have a veto over who references their stories or how. But ensuring that they receive some compensation for their investment in quality reporting might be our only hope for maintaining that investment and the vital fourth estate benefits that flow from it.

You can read the entire post here. I also recommend reviewing the comments to his post, which has, as you would expect, elicited some good discussion.

Full post as published by MediaShift Idea Lab on May 08, 2008 (boomark / email).