I first heard about this on NPR, and it boggled my mind as to how the AP could ever think this would work. Techdirt, of course, has a nice write-up of the issue and the problems:

DRM has failed in almost every instance it’s been tried. Not only does it fail to actually prevent copying, it tends to piss off legitimate users and limit value rather than enhance it. And yet… people keep trying. But, honestly, I can’t think of anything as pointless as the latest move from the Associated Press which appears to be an attempt to DRM the news. That’s not what they call it, but that’s what it sounds like

via Associated Press Tries To DRM The News | Techdirt.

I get the frustration on the AP’s part. The world is changing, and they haven’t figured out to prevent that. They can try for legal changes, try DRM, or adapt. Adapting is hardest, but the only way to succeed long term.

Honestly, legal changes are the next best thing in terms of buying time to adapt. DRM-like approaches tend to frustrate and annoy even legitimate users. If your product is valuable, someone will go around your limitations. If they don’t – you’re dead, because the market just decided your product isn’t worth it.

How to adapt, though, is not clear.

According to Rob Salkowitz of Internet Evolution, in the so-called Hamburg Declaration issued July 9, publishers argued that services like Google are “using the work of authors, publishers and broadcasters without paying for it”:

Numerous providers are using the work of authors, publishers and broadcasters without paying for it. Over the long term, this threatens the production of high-quality content and the existence of independent journalism. . . .

Universal access to our services should be available, but going forward we no longer wish to be forced to give away property without having granted permission.

We therefore welcome the growing resolve of federal and state governments all over the world to continue to support the protection of the rights of authors, publishers and broadcasters on the Internet.

Salkowitz points to Google’s simple response:

“We agree,” wrote Cohen on Google’s European Public Policy Blog on July 15. “If a webmaster wants to stop us from crawling a specific page, he or she can do so by adding '<meta name="googlebot" content="noindex">' to the page. In short, if you don’t want to show up in Google search results, it doesn’t require more than one or two lines of code.”

He points out that, basically, if newspapers want to go back to the “old way” for themselves, they can. No need to change the law to prevent Google from indexing their content. But of course, this isn’t really want publishers want.

In truth, publishers get value from Google – value that is necessary for them to compete and market themselves today. So they need Google or services like them. This makes their attacks on Google a distraction from the real issues for them, which really involves a business model that can’t compete well in today’s marketplace.

There are a number of choices, two of which seem most obvious: change the law or change the model. Unsurprisingly, publishers want to change the law.

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Michael Nielsen wrote a stellar piece dealing with disruptive changes that doom old business models – specifically, newspapers and science publishers, to mention his examples. He does a particularly good job at explaining how this could happen even without anyone doing anything wrong or stupid.

The problem is that your newspaper has an organizational architecture which is, to use the physicists’ phrase, a local optimum. Relatively small changes to that architecture – like firing your photographers – don’t make your situation better, they make it worse. So you’re stuck gazing over at TechCrunch, who is at an even better local optimum, a local optimum that could not have existed twenty years ago

via Michael Nielsen » Is scientific publishing about to be disrupted?

He goes on to describe the impact he sees ahead for scientific publishers, a group fighting against new trends like open access that is ultimately doomed by new economic and business realities enabled by the Internet and other disruptive technologies.

Highly recommended.

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Judge Richard Posner has recently suggested that copyright law might need to be expanded to protect the news industry, including barring linking to copyrighted content or paraphrasing it. I view such protectionism as effectively enabling “rent seeking” by the established news industry. Ultimately, such acts harm society more than they help it. Certainly, at times legal intervention is important to improve markets (banning monopolies, establishing and enforcing safety standards, regulating financial institutions), but this is one case where I am more in favor of a libertarian/”let me market decide” approach. Perhaps this is because I am more confident that alternatives to traditional newspapers will emerge to provide new venues for professional journalism, even if the exact form that will take is still unclear.

Posner, and many in favor of expanding copyright and intellectual property, are generally obsessed with the “free rider” problem: people other than the original creator (or owner) scooping up their labor and profiting by it., without adding any additional value. Free riders undercut the incentive to create.

Jeff Jarvis thinks Posner’s view of free riding in this context is backwards:

Schultz and the Marbergers complain about what they call the “free-riding” of aggregators, et al. But they simply don’t understand the economics of the internet. It’s the newspapers that are free-riding, getting the benefit of links.

These newspaper people are the ones trying to act as if they own the news and can monopolize it. Those days are over, thank God.

via First, kill the lawyers – before they kill the news.

I think, though, that Posner’s free rider worry is a indeed concern to be aware of, just as worrying about those who may seek to exploit welfare systems are cause for concern. But an over-obsession with this problem can lead to overly restrictive policies that stifle innovation and hamper new ideas, new approaches, and keep society stuck in place. This is good if you are a “have,” and bad if you are a “have not” – or if you’re an entrepreneur with a new idea.

I am not the only this troubling. There has been a vigorous reaction his idea that expanding copyright laws to protect newspapers “might be necessary” to avoid a duopoly on “news and opinion”:

Imagine if the New York Times migrated entirely to the World Wide Web. Could it support, out of advertising and subscriber revenues, as large a news-gathering apparatus as it does today? This seems unlikely, because it is much easier to create a web site and free ride on other sites than to create a print newspaper and free ride on other print newspapers, in part because of the lag in print publication; what is staler than last week’s news. 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.

via The Becker-Posner Blog: The Future of Newspapers – Posner.

Economist Gary Becker instead argues that, while “the printed newspaper business is doomed,” this does not mean the end of independent and accurate news sources:

Although the printed newspaper industry is doomed, and will be missed by those of us that remember newspapers in their heyday, they are being replaced by good substitutes in the form of blogs, social networks like Facebook and Twitter, online news gathering by various groups, including newspapers, and other electronic forms of communication.

via The Becker-Posner Blog: The Social Cost of the Decline of Newspapers – Becker.

Mike Masnick at Techdirt responded to Posner’s idea by saying:

Wow. Now Posner has always been a stronger believer in the need for intellectual property to “solve” the “free rider problem,” but this is still stunning. He’s usually a lot more balanced in recognizing the downsides to greater IP protectionism. Here, he seems to ignore it completely, while also brushing off the ability of other sources of information to step into the void created by newspapers. Right before the statement above, he oddly assumes that there’s no way to support news production in an online only situation. His mistake, though, is assuming that it needs to have the same type of profits as monopoly newspapers used to have. For such an economically literate person, this is a surprising statement.

via Judge Posner Recommends Extending Copyright Law to Protect Newspapers | Techdirt.

And Erick Schonfeld of TechCrunch is highly critical as well:

Of all the misguided schemes put forth lately to save newspapers (micropayments! blame Google!), the one put forth by Judge Richard Posner has to be the most jaw-dropping. He suggests that linking to copyrighted material should be outlawed.

via How to Save the Newspapers, Vol. XII: Outlaw Linking.

As I suggested above, I am not in favor of Posner’s idea, but I do share some of the worry that quality journalism might be threatened, at least in the short term. I, however, do not blame “linking” or “paraphrasing,” but rather a combination of a rapidly changing business landscape with a certain reluctance by newspapers to adapt. Change is not easy, and protectionism always seems easier to hold on to what one already has. But radically changing long-establish legal precedent around the copyrightability and protection of “facts” is not the best way forward in the long term. A similar push against change backfired on American car manufacturers; I predict a similar fate for newspapers even if the law is changed to “protect” them.

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Mike Masnick responds to the complaint of some people that providing “free” information, tools, and so on (open source, for example) is not a sustainable business model going forward because “everything is free” cannot work:

No one is suggesting any business model where “everything is free.” Everyone’s been focusing on ways to take some stuff as being free and use it to make other stuff more valuable and worth paying for. And it’s working. So why is Baptiste pretending that people are pushing “everything is free”? It’s because the new business models upset the apple cart for an organization like CISAC, which wants to create a big collective licensing deal (collective licensing is easy, compared to actually giving people a reason to buy).

His real fear isn’t that “everything is free,” because that’s not happening at all. His real fear is that the new business models don’t require groups like CISAC.

via Dear Free Haters: No One Has Said ‘Everything’ Is Free | Techdirt.

This is a typical sort of argument I hear from entrenched business interests who have a model of operation that has worked (music, Hollywood, newspapers) appears threatened. Instead of adapting, these interests attempt to legislate greater legal protection (extending copyright as long as possible, for example) and set up “straw-man” arguments like “everything is free can’t work” to justify these protectionist approaches (generally termed “rent seeking” in economics).

I am sympathetic to some level of protection through copyright for example, but not to protecting a business model simply because it worked before. Innovation requires adapting, and as we’ve seen with GM and Chrysler, a changing world will eventually catch up to your business, and the result isn’t pretty.

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