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The Sound of Ideas

Can Copyright Save the News?

Posted Tuesday, August 4, 2009

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Can Copyright Save the News? OK, say you've got a lemonade stand where you're selling at 50 cents a cup. Then your neighbor siphons off half your supply and starts selling it next door for 25 cents. Would you call that unfair competition? A local media attorney says that's exactly what's happening in the news business with websites "stealing" the content that news organizations paid employees to produce. Tuesday morning at 9, how a small change in copyright law might save the news business, at least until a new business model comes along.


Economy, Government/Politics, Other, Community/Human Interest


David Marburger attorney, Baker Hostetler
Daniel Marburger economist, Arkansas State University
Terrence Egger Publisher, The Plain Dealer
Staci Kramer Co-Editor & Executive Vice-President, PaidContent.org

Additional Information

Check out a recent profile of Marburger, the proposal itself, some of the criticism it has received, the authors' response to critics, and what local columnist Connie Schultz has to say about the controversy this has generated.

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Please follow our community discussion rules when composing your comments.

Steve L. Cadwell 8:28 AM 8/4/09

Doesn’t the Doctrine of Fair Use apply? I’m thinking of Zacchini v. Scripps as providing a guiding principle. 

E.g., “according to the New York Times, a new study suggests that X causes Y...” should be fine…

If Gawker rewrites the X causes Y piece, that would not be Fair Use, just as WEWS broadcasting the entire 15-second cannonball act goes over the line of Fair Use

Reading that X causes Y, a proper journalist would then go verify the claims, talk to original sources and write her or his own piece

Tim Connors 8:39 AM 8/4/09

The week after the Marburgers (hi Dave) were featured on On the Media, OTM did a story about new technical approaches to addressing the “copied article” type of free rider (if not the rewrite type).  Shouldn’t newspapers look to technical and business innovations to solve the underlying business problem? Here’s the OTM link:  http://www.onthemedia.org/transcripts/2009/07/31/05

Rosalie Brown 9:23 AM 8/4/09

In the early 1970’s I decided that the Cleveland Plain Dealer was not a valued source of information for me, and I haven’t read it since. Why? I worked at the Natural History Museum. Every news release to the CPD in its rewritten, edited, published form contained errors, omissions, misrepresentation, and showed an almost complete lack of understanding of science.  These articles appeared to be rewritten to simplify and emphasise the spectacular thus increase “sellability”. I decided that if information I understood completely could be so carelessly misrepresented, then I could not rely on the information in the paper for anything I knew less about, like international news. With me, you shot yourselves in the foot. You started with someone who subscribed to your paper then alienated me with shoddy work. Now you have competitors that have cut you off at the knees and a loss of classified income.
The fix, you want to change some laws.  Ill-conceived, but it’s your right.

Paul Egede 9:43 AM 8/4/09

The people did not know that Pittsburgh Press has been out of bussiness for 10 years or more. The Plain Dealer has extreemly bad sentence structure and missed spelt words than should be aloud. I teach writting and we use the paper for lessons.

David Marburger 2:55 PM 8/4/09

1.  Fair use applies only where the “borrowed” use is protected by copyright.  Factual information enjoys no copyright protection except as to the original way that the author describes those facts.  Facts dominate news reports, not clever prose, to fair use doesn’t come into play in any way that matters much.

Under the legal theory that we seek to restore fully, fair use could protect a news publication from allegations of copyright infringement, but the publication cd be liable under common-law unfair competition theory.  Fair use doesn’t apply to unfair competition; only copyright.

2.  Response to Paul.  I represented the Pittsburgh Press & in fact tried that newspaper’s last libel case—1995.  The Post-Gazette and the Pittsburgh Tribune-Review are competing dailies there now.  The Post-Gazette preceded the Press.  Dan & I are from Pgh.; we’re well aware of the Press’ demise.

David Marburger 3:00 PM 8/4/09

Supplement—response to Tim.  Newspapers sd look to innovating to solve their problems, but how can innovating do that if competitors can free-ride on the innovation?

We propose giving newspapers a foundation upon which they can innovate. Our proposal gives the newspapers an economic chance to innovate.

If the Little Red Hen innovates by adding cinammon to her bread, how does that help her if the law compels her to allow the other barnyard animals to take her loaves and sell them from competing roadside stands against her?  She’s increased her costs, and supplied her free-riding competitors with something even more valuable to them.

The compels her to subsidize them with her labor and enhanced innovation at no cost to them.

Raymond Ku 6:57 AM 8/5/09

I very much enjoyed your show on Can Copyright Save the News?  As someone who teaches on this topic, I just wanted to add a correction to the impression created by the Marburgers paper.  In it and during the show, they suggest that the principle’s embodied in the Supreme Court’s decision in INS v AP have been rejected by Congress.  Without getting into the technical details, this is not accurate.  While the U.S.
Supreme Court has not ruled on this specific question, in the leading case on this issue, National Basketball Ass’n v. Motorola, a federal court of appeals in New York ruled that state law claims of misappropriation similar to those raised in INS v AP are NOT preempted by the Copyright Act.  In other words, the remedy that they are asking for is not prohibited by copyright law.


Raymond Ku
Professor of Law, Co-Director, Center for Law, Technology & the Arts Case Western Reserve University School of Law

David Marburger 8:23 AM 8/5/09

Responding to Professor Ku:  Professor Ku states his proposition too strongly.

Our papers make clear that a few federal courts have ruled that the copyright act doesn’t abolish INS v. AP.  The ruling that Professor Ku cites is a federal court of appeals opinion in one of the 11 federal circuits—the 2d Circuit in New York City, which covers federal courts in Vermont, Connecticut, and New York state.

The prevailing view, however, is not the Motorola case.  The prevailing view is that the copyright act has abolished INS v. AP.

For example, the Restatement of Unfair Competition refuses to recognize INS v. AP as good law.  The Restatement of Unfair Competition is put together by the nation’s leading legal scholars and is relied upon heavily by lawyers and courts.  It is a treatise-like work that tries to coalesce the common law.

What we propose, in effect, is to have Congress declare that it did not abolish the common-law analysis of INS v. AP.  That means that originators of news don’t have to spend tens-of-thousands of dollars in legal fees just to try to persuade a court that the rights haven’t been abolished.  Our proposal would eliminate all doubt that INS v. AP is alive and well.


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