The future of news, books, and all that…

I wanted to address and post a couple of links about the future of books and news reporting. How are they related? I think they are both about the transition from print to online format, and they both make me wonder what to do about it.

The first is the court’s rejection of the Google books settlement. If you’re not familiar, the gist is that Google got sued for copyright infringement based on its scanning of books and making snippets available in Google books search. David Post has a nice discussion about the policy concerns that might have driven the rejection.  We do agree on one thing: the world would be a better place with services like that proposed in the settlement in place.

That said, to me this rejection was a no-brainer. After all, this was a class action settlement. To allow the settlement to a) grant essentially exclusive licenses, b) grant rights in the face of great opposition from many class members, and c) to grant rights explicitly where class members are known to be unreachable (these are orphan works, after all), I just don’t think it works.

It is perhaps here that I disagree with Professor Post. His take is that backward looking concerns, that the alleged infringer Google should not be granted a license to reproduce orphan works, is that IP is about promotion of progress in the arts, and that this settlement would do that. In theory, I don’t really disagree with that. Indeed, I would argue that Google (or anyone else) copying such works should probably be considered a fair, library type use.

But I do think that if Google wants that right, it has to fight for it, perhaps through a declaratory relief action (ironically, if the works are truly orphan, it’s not clear who Google could sue), or perhaps by actually trying this class action and defending its actions with respect to orphan works. I’m all for that. It’s not like Google doesn’t have the money to pay for a trial. I don’t think, however, that the right vehicle to obtain such rights is a settlement with those rights holders who might have a real infringement claim. I also don’t think that findable authors who might receive a royalty can represent unfindable authors. Perhaps this means that the class is too diverse to be certified, and that there are really multiple classes. Pam Samuelson makes the point, for example, that academic authors are different in kind from other authors.

Thus, I view the court’s statement that Google, as an alleged infringer, should not be rewarded with a license as a matter of equities, not a matter of policy about what should happen. I think the court could live with a decision on the merits that Google can do what it was doing without giving Google more than it was doing. Of course, that was the genius of the proposed settlement, but apparently also its downfall.

On a related note, about a year ago I wrote a blog post that supported the use of the misappropriation (or “hot news”) doctrine. My justification was that it is expensive to gather news, and that fewer and fewer organizations were doing it. My theory is that hot news will hopefully keep that from dwindling more.

I was happy today to see some data on this point, courtesy of fivethirtyeight (a great blog, I think). The study was in response to the likelihood that the blog would go behind the NY Times paywall, and whether that was justified. The findings are quite interesting. In short, it appears that there just aren’t that many primary source of news gathering. The AP and NY Times cover more than 20%, and the top 9 represent 50%. It’s not a scientific study, but it is definitely eye-opening and worth a read.

Of course, this doesn’t mean that hot news is the solution, but it makes me feel better about it, and about my anecdotal view that real news gathering is at risk and cannot be replaced by the blogosphere. I would also be interested in seeing the breakdown 20 years ago – maybe there were never that many sources, though slashing of news budgets implies otherwise.

4 thoughts on “The future of news, books, and all that…

  1. From FiveThirtyEight
    >A very small number of news outlets account for
    >a very large share of the English-language
    >reporting that is of national or international
    >interest.

    If another of our concerns is local, the we haven’t even touched the tip of the iceberg. Go back twenty years and count the number of local news gatherers (newspaper, tv, radio). I’m guessing the trend is rather strongly downward.

    It might be interesting to compare news sources from 100 years ago against today.

    That said, I’m not sure hot news is the answer news organizations want (or more importantly, will accept). They look around at all kinds of other “IP-ey” kinds of products taking advantage of every revenue stream they can grab, they’re going to want to get them some. Claiming rights primarily to hot news might undercut rights to ongoing, long-tail income streams (which over time for an organization like the NY Times Co. could be substantial, no?).

  2. Not my regular topic of research, but I suspect that in the grand scheme of things, the underproduction of news per se is not the sum of the challenge.

    Any comparison of the production of news today with the production of news 100 years ago should take into account that 100 years ago, there were not multiple 24-hour tv news channels, nor CSPAN, nor the modern merging of news and entertainment.

    Gathering certain news is extremely important to civic discourse, but in the age of the modern administrative state and modern campaign financing and strategy, I think we need to be clear about the exact incentives we’d be creating by any specific legal reform designed to aid the news industries.

    So like Rob, I’m skeptical about hot news.

  3. I realize that hot news is not the best answer. The better answer would be to directly fund unbiased news gathering. Hot news won’t incentivize research in important but non-lucrative reporting.

    I do think, though, that to the extent original reporting becomes more lucrative as compared to parroting, then there will be more original reporting. I don’t think the costs associated with hot news- the inability to have quickly disseminated information- are as great as opponents surmise. This is especially so in the age of so many 24 hour news outlets and websites who could very well pay for the content they repeat since so many readers are just waiting to see it.

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