Could Changes in Copyright Law be Newspapers' Savior?

By: Mark Fitzgerald With individual newspapers and professional associations chasing after all manner of notions of how to build a business model that successfully bridges the transition from print to digital, a seemingly simple idea is taking hold among some legal thinkers -- rewriting copyright law.

The idea received a major push over the weekend from Pulitzer Prize-winning columnist Connie Schultz of The Plain Dealer in Cleveland.

Schultz reviewed the ideas of David Marburger, a First Amendment attorney at the firm Baker and Hostetler, and his brother Daniel, an economics professor at Arkansas State University. Their idea focuses on how to protect the originators of news such as newspapers from aggregators who link or rewrite that content, and may sell advertising against it.

"You have all these free riders like Daily Beast and Newser and local television stations aggregating your stories online while diverting readers and advertisers from your site," David Marburger told Schultz. "And they're doing it for a fraction of the cost of the newspapers that generated the original copy. And it hit me: All those theories out there on how to prop up newspapers -- why isn't anyone saying this? Why aren't we talking about how this free-riding by aggregators affects the market rate for everyone? "

The Marburgers propose changing federal copyright law to give the original newsgatherer a period -- they'd like it to be 24 hours -- in which the news item would be available only on the originator's Web site.

David Marburger notes that there is precedent for this change in copyright law. In a 1918 decision, the Supreme Court ruled the International News Service (INS) engaged in unfair competition by copying or rewriting Associated Press stories for publication by papers in Western time zones. The high court said INS could not use the AP stories during the period when they still had commercial value.

Richard Posner, a federal appeals court judge in Chicago, reaches much the same conclusion in a blog he maintains with Gary Becker, the Nobel laureate and economist.

"Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion," Posner wrote.

Both Posner and the Marburgers believe the very fate of the newspaper business hangs on solving the problem of free-riding aggregators.

"If the copyright law doesn't open the way for originators of news to stop the free-riding, newspapers will die," David Marburger told columnist Schultz. "No exceptions."