At a meeting about public access to federally-funded research that I attended earlier in the year, a publisher strenuously asserted that it was not the role of the government to drive a business out of the market. He was right of course, but so were a group of us who replied that neither was it the role of the government to prop up a business that otherwise could not survive.
I was reminded of this exchange when I looked at the “Discussion Draft” from the Federal Trade Commission on “support[ing] the reinvention of journalism.” Unfortunately, the policy recommendations floated in this document have very little to do with reinventing journalism, but a lot to do with propping up the traditional business model of newspapers. Most of the ideas put forward here, and they come not directly from the FTC but from those the FTC has discussed the issue with (a telling process of selection in itself), are about how to keep that status quo in news publishing from collapsing under its own weight and under the pressure created by new opportunities for disseminating news offered by the Internet. Rather than looking at how journalism must change, the FTC has offered a set of proposals for how to protect the current set of badly mismanaged news organizations from the Internet.
There are lots of critiques of these proposals, including ones found here and here. My favorite comment, from Kent Anderson of the “Scholarly Kitchen” blog, notes that the FTC does not “acknowledge how newspapers and other traditional media exploit free information tools like Facebook and Twitter to lazily learn about news through their desktops.” So, in the great tradition of “what’s mine is mine and what’s yours is also mine,” newspapers seek to prevent others from disseminating news on the Internet while wanting to benefit from that dissemination whenever it can save them money.
Google released an extensive, and deadly accurate, critique of the FTC proposals, which can be found here.
What concerns me most about the FTC proposals and the ideas coming out of the news industry is that copyright law need to be revised to provide news organizations with additional protection. Sometimes they suggest that fair use should be amended to exclude the possibility of a fair use of news coverage. Worse, they often suggest, including to the FTC, a statutory version of the so-called “Hot News” doctrine.
The “Hot News” doctrine provided some protection for organizations that first reported a news event from those who would re-use the reportage, sometimes even exploiting technology to “scoop” the original reporters. What technology, specifically? The telegraph. You see, the hot news doctrine dates from a 1918 Supreme Court case and has had very little traction in the modern world. In that case, International News Service v. Associated Press, the Supreme Court upheld a injunction restraining INS from “appropriating news taken from [AP] bulletins… for the purpose of selling it to defendants clients.” In spite of a recent attempt by AP to revive the doctrine, I want to suggest that there are at least four good reasons that “hot news” should have no place in copyright law.
First, we should recognize that the original decision by the Supreme Court was not a copyright ruling, but involved unfair trade practices. These state law protections apply only between business competitors and would not prohibit non-profit distribution of the news by “citizen journalists” and those who post news stories to their Facebook sites. Incorporating hot news into copyright would have the potential to do just that, expanding the protection for news way beyond what the Supreme Court authorize almost a century ago.
Second, times have changed a lot since 1918. In the INS v. AP decision, the Supreme Court spilled a lot of ink discussing the economics of news gathering in order to justify the limited protection they were upholding. Those economics have changed so drastically, as Anderson’s comment illustrates, that the foundations of the hot news doctrine have really been undermined.
Third, further erosion of those foundations came from the Supreme Court in 1991, when the ruled, in Feist Publications v. Rural Telephone Service, that no copyright could be obtained merely through “sweat of the brow.” If the hot news doctrine were imported from unfair competition law into copyright, we would be importing a sweat of the brow doctrine that is at odds with the structure and underlying principles of the Copyright Act.
Finally, it is simply contrary to fundamental principles of democracy for the law to constrain ordinary citizens from talking to one another about the news of the day. News is a unique category of information because of its importance to a democratic society. While the opportunities to exchange information and ideas about the news that exist today can be used for good or for ill, it is not the place of the government to constrain those opportunities, even in the name of propping up newspapers’ foundering business models.