Saving Newspapers by Changing the Law

Please note that this post is from 2009. Evaluate with care and in light of later events.

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In an article entitled, Lawyers: To Save Newspapers, Let’s Destroy Pretty Much Everything Else Good, the always-interesting Techdirt reacts to a recent Washington Post opinion piece about “saving” newspapers, and argues, “It’s time to stop having Congress keep passing laws that stop innovation in hopes that legacy industries magically come up with faster horses.”

The article Mr. Masnick is reacting to, Laws that Could Save Journalism, is in Saturday’s Washington Post. It was written by Bruce W. Sanford and Bruce D. Brown, two lawyers with a great deal of experience in the laws impacting the news industry.

Mr. Sanford is an attorney at Baker Hostetler and is general counsel to the Society of Professional Journalists and has advised many media clients, as well as worked on First Amendment and libel cases throughout the country. Mr. Brown is also an attorney at Baker Hostetler, focusing on media law, privacy, newsgathering and copyright.

They begin by saying that massive changes are needed in the law to save journalism:

Unless Congress embarks on far-reaching change in public policy to maintain the viability of journalism as it evolves online, we will soon find ourselves with the remnants of a broken industry incapable of providing the knowledge necessary to manage life in a complex world. Journalism does not need a bailout, but it does need a sort of “recovery act” to bring the legal landscape in line with today’s publishing technologies.

They have a very good point when they say, “Google’s products (and profit) would look a lot different if, for example, the law said it had to obtain copyright permissions in order to copy and index Web sites.” In fact, it seems very likely in this scenario that Google would not exist at all, and we may never have had the Internet revolution (with both its positive and negative aspects) at all.

After suggesting a number of other protectionist changes, they propose loosening antitrust laws to “protect the public interest:”

As noted in the Kerry hearing, publishers need collective pricing policies for their Web sites to finally break out of the expectation of free content that is afflicting the industry. Antitrust immunity is necessary because most individual news sites can’t go it alone by walling off their content for fees – readers will simply jump to sites that are still free.

A temporary antitrust shelter would serve the public interest by enabling the industry to take steps today to preserve for tomorrow the journalism that benefits us all.

The article strikes me as a misguided attempt to maintain the status quo in the face of competition from new competitors. Buggy whip makers tried desperately to cling to the old ways when the automobile began to cut into their business, and the music industry has been fighting the same sort of losing battle for years.

This is not to say that I believe journalism does not deserve protection and support, even government provided support, during the current climiate of shifting business models. It is easy during such radical shifts to lose the good with the newly inefficient, and journalism is too critical to our society to allow it to fall by the wayside.

But is it really going away? Blogging serves the role of early newspapers and pamphlets in this country. They too were quickly written and widely distributed, often outside of traditional business entities. (Think of Thomas Paine, Benjamin Franklin, or the Federalist Papers.) Why should the existing corporate structure of the newspaper need to exist merely to protect journalism and the free press? This is corporate protectionism at its finest, buried under an honest desire to protect and preserve journalism and the First Amendment.

While I am certainly not a libertarian proponent of the glory of the free market, I do believe that markets are key indicators of viability, and often better than the government at selecting more efficient and more optimal outcomes that benefit society as a whole. Changing the laws to protect newspapers from market forces is, I think, the wrong approach. Business must adapt. Permitting them to do otherwise merely creates GMs and Chryslers. On the other hand, changing laws to protect the concept of journalism – that I could support. I bet such suggestions would look very different from those proposed by Sanford and Brown.

Techdirt has more point-by-point rebuttals, as does Public Knowledge.

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