Yesterday we wrote about Google and Twitter's amicus brief in the infamous FlyOnTheWall hot news case, and the folks over at the Associated Press were kind enough to send over a link to the amicus brief from a huge coalition of newspapers. Basically, every big US newspaper or newspaper organization signed on to this one, including the Associated Press, AFP, the NY Times, the Washington Post, Gannett, McClatchy, Belo, Scripps, Time, and the Newspaper Association of America (just to catch everyone else). Considering that the AP has been leading the charge to bring back hot news, you can probably guess where this one is going:
The short summary? "We don't care about TheFlyOnTheWall or Barclays or this specific case, but we're scared to death that you might make a ruling that says the hot news doctrine should go away."
I'm still sort of amazed that any serious news organization supports the hot news doctrine, because it's almost guaranteed to come back and bite them if it is regularly used again. All of the newspapers above rely on rewriting news from other publications to some extent, whether they admit it or not. If they really support this, they're going to run into trouble themselves, even if they're apparently unwilling to admit it. It's incredibly short-sighted.
Also weird is the claim that these newspapers "rely" on hot news today. They don't. Sure, the hot news doctrine has technically been around for about a century, but it's barely been used at all in the last few decades. It was, for all intents and purposes, a dead doctrine that many considered not worth keeping around (pdf). To claim that these organizations have relied on the hot news doctrine is ridiculous, because it's barely been showing up in court until recently.
Either way, it looks like lots of parties who are concerned about "hot news" have realized that TheFlyOnTheWall case has become ground zero for whether or not "hot news" is actually allowed.
It looks like Google and Twitter have decided to weigh in on the closely watched lawsuit between TheFlyOnTheWall.com and Barclays, which has helped bring back the hot news doctrine, which creates an monopoly right on news reporting. This is quite worrisome for a whole variety of reasons, and as the appeals court considers the case, Google and Twitter have filed an amicus brief worrying about the implications of allowing the hot news doctrine to stand:
"News reporting always has been a complex ecosystem, where what is 'news' is often driven by certain influential news organizations, with others republishing or broadcasting those facts -- all to the benefit of the public," the companies said in the filing.
Google and Twitter argued that upholding the district court's decision would give those who obtained the news first strong incentives to block others from obtaining the same information.
Hoping to show how silly the concept is, they argue:
"How, for example, would a court pick a time period during which facts about the recent Times Square bombing attempt would be non-reportable by others?"
While I do worry about courts when it comes to copyright cases, the "hot news" doctrine is so far out there that I'll be surprised if the courts don't put it to rest for good. It's difficult to see how anyone can defend the hot news doctrine, and I'm hopeful that the courts will recognize that it has no place in the law.
We were recently tipped off to a case in the federal courts that raises all sorts of legal issues about some questionable interpretations of the law -- many of which we've discussed here recently. It involves a Utah company, named Public Engines, suing a competitor, named Report See. Public Engines, it appears, contracts with various police departments around the country to get crime data from them, and then they put that data online in various formats. Its main business tends to be working with law enforcement and providing them software and services around that data. But, it also presents the data publicly on the site CrimeReports.com. Apparently, law enforcement agencies pay Public Engines to provide data to the site. Public Engines claims it does work on that data, to "de-identify" it and make it appear in a more user-friendly format. As the company notes, it does not add any editorial on the site and does not include any advertising or seek any additional business from users. The service is basically provided totally free of all that -- but the company makes money from the law enforcement agencies, who pay to take part and to use Public Engines' software.
Along comes Report See. It operates a similar site, called SpotCrime.com. However, its business model is different. It seeks to get the data for free -- combing various other sources and working out deals with law enforcement itself. Its business model is to sell advertising on the site, as well as to work out partnerships with different media properties, who wish to use the data SpotCrime has collected.
You can probably see where this is headed. Report See, not surprisingly, found the publicly available CrimeReports site to be a treasure trove of good data, and began scraping it to include in CrimeSpot. Public Engines took issue with this and demanded Report See stop. Apparently, the company initially agreed to do so, but then soon began scraping the site again. From there a technical one-upmanship battle appears to have ensued. Public Engines kept trying to block the CrimeSpot scraper, and Report See kept adapting its scraper. Also, somewhere along the way, Report See started going to the same law enforcement groups that Public Engines worked with, asking for access to the same data, and pointing out that, as public records, the data should be available under various public records access laws.
And, now, we get to the lawsuit. Public Engines pretty much tries to throw everything at Report See, some of which seems pretty questionable. The one thing that surprised me, actually, was that Public Engines didn't toss in a copyright claim. Thankfully, it seems to have realized that would have gone way too far. But it's other arguments are still pretty problematic.
First, Public Engines pulls out a Computer Fraud and Abuse Act claim. This is the anti-hacking law that we recently discussed, as many lawsuits (and a few judges) have tried to stretch way beyond its intended purpose. The CFAA is supposed to deal with actual malicious hacking -- that is breaking in to a computer system that has been secured. This is a public website we're talking about here. Claiming a CFAA violation is silly and an attempt to extend the law well beyond what it was intended to cover. Allowing CFAA claims on public websites is really problematic.
Second, Public Engines says there's a breach of contract. But, you might point out, Report See and Public Engines have no contract. Indeed. But Public Engines claims that the terms of service on its website represent a valid contract. Again, it seems like Public Engines is stretching the law to claim that a contract has been made here. Even though it notes there's a link to the terms on every page, it never made Report See agree to the contract, and even so there are still some questions about whether or not any "clickthrough" agreement is really binding.
Third, Public Engines pulls out a Utah statute on "anti-cyberterrorism." No, I'm not kidding. Apparently, Public Engines is claiming that by accessing the website without authorization (see the two points above) and then "obtaining CrimeReports.com's intellectual property" in a way that "led to a material diminution in the value of Public Engines' intellectual property," Report See is violating this anti-cyberterrorism law. My question: what intellectual property? Remember, Public Engines knew better than to include a copyright claim. And that's because it holds no copyright on the data. So what intellectual property has actually been obtained here? Public Engines skips over that.
Fourth, Public Engines pulls out a Lanham Act false advertising claim. Again, this appears to be a stretch of the law's purpose. The point of this law is to stop someone from advertising a product as being from Coca-Cola, when it's really Bob's soda. That's to avoid harm to the consumers (remember, the Lanham Act is really about consumer protection) who bought Bob's soda thinking it's Coca-Cola. But here, there's no "confusion" or issue where consumers are likely to be tricked in a damaging way. The data is the same. There's no harm done. The "data" is not "owned" by Public Engines or CrimeReports. It's factual data.
Given all of these points, you had to guess that the next claim from Public Reports was (you guessed it!) our favorite insanity and recently back-from-the-dead legal craze: hot news, which is showing up in all sorts of lawsuits these days, and is an incredibly troubling restriction on free speech and freedom of the press. Remember, Public Reports knows that it has no copyright claim on this data. It's factual data from public agencies about crime. It would have an incredible chilling effect to suggest that such data is covered by the hot news doctrine.
Public Engines still isn't done yet. Its sixth claim is for "interference with a contract," because of Report See's attempts to go to police agencies directly. This, again, seems silly and beyond the scope of the law. It's perfectly normal and basic competition to approach customers of competitors and to try to get deals yourself. That's how business works. Claiming that no one else can try to get this data from law enforcement agencies is ridiculous.
Honestly, the only legal claim that I thought the company might have that made any sense at all, was about the claim that Report See had promised to stop scraping its site, and then changed its mind. But even that might be a tough sell. Of course, we've seen judges make all sorts of crazy rulings on nearly every one of the issues above, and given that it's a local court (Public Engines filed it in its home court), who knows what might happen. But if the court buys any of these arguments it could set really bad and chilling precedents.
Now, you may ask, what should Public Engines be doing in this situation, since it clearly is going through a lot of effort to collect and format this data. That's all true, but it can still compete pretty easily against Report See. If you compare CrimeReports to SpotCrime, you'll quickly realize that CrimeReports is much nicer and much more user-friendly. It's also not weighed down with annoying advertisements everywhere. Anyone who is interested in using such a tool would almost certainly gravitate to CrimeReports over time. It's just a better site, and since it apparently gets the data first, you'd figure it's also more up-to-date.
In other words, CrimeReports should be able to compete effectively in the marketplace. It's disappointing that rather than doing so, it broke out the lawyers.
Separately, this is now the second case we've seen in just the past few weeks that has tried to combine both a hot news claim and a CFAA claim -- and in both cases, these were attempts to stretch the doctrines and the law well beyond intended purposes. It would be nice if the courts quickly realized what's happening and fixed things (either that or Congress came in and got rid of hot news and clearly limited the CFAA -- but don't expect that to happen).
In the end, though, this really does come down to a simple question. Just because one company went through the trouble of collecting factual data from public agencies can it stop others from using it? The US has, on purpose, rejected any sort of "sweat of the brow" concept for protecting intellectual property. It does not, for the most part, recognize "database rights" for this reason. Public Engines is basically trying to replicate a database right by misusing a variety of other laws and doctrines. If we're serious about protecting First Amendment rights, it would be good to see the courts smack down such attempts to stretch the law.
You may have seen the story we recently had about a woman suing Google after she got hit by a car while following Google Maps' walking directions. In that post, we linked back to Danny Sullivan's post about this story at Search Engine Land (where he noted that Gary Price had tipped him off to the news). In our post, we recommended people read Danny's full writeup, highlighted some of the points he made and added a bit of our own analysis. Of course, it's a hot story, and so lots of other publications wrote up their own versions of it as well, and Danny is now pointing out that the vast majority of mainstream publications did not credit him at all with breaking the story -- some of whom even used the images that Sullivan created in their own stories without credit.
Of course, the one I find most interesting is the Associated Press. The story published by the AP basically repeats a lot of what Danny put in his report, but fails to mention that Danny had the story first, and did a lot of the journalistic legwork in understanding what the story was about. Now, I've gone over this issue before in the past: and I don't see any legal reason why others should be required to cite their sources, but do believe it's the neighborly thing to do, and tends to lead to goodwill back in your direction as well.
But, when we're talking about the AP, this is an organization that has sent DMCA notices and threatened a blogger with legal action for linking to AP stories along with a headline and a short (35 word) excerpt. This is the organization that has claimed it was planning to sue others for creating similar stories and specifically sued All Headline News for supposedly rewriting its stories. This is also the same AP that thinks it gets to define fair use, and that means that any use of 5 words or more is not fair use. This is the same AP that claims that creating an entirely new artistic work based on an AP photograph is, in no way, fair use.
Yet, this AP has no problem making use of Danny's original reporting, without even so much as giving him credit?
Lots of folks are extremely concerned about the district court ruling back in March that effectively brought back the "hot news" doctrine, which is a creation of the courts (not Congress) that creates a copyright-like restriction on reporting news based on the reporting of others. The ruling seems to go against the basic principles of the First Amendment, but a bunch of publications who should know better have been excited about it, and at least two other hot news lawsuits have been filed.
However, Paul Alan Levy alerts us to the news that the Second Circuit has stayed the original injunction against FlyOnTheWall.com until the appeal has been heard. This isn't really all that surprising. It's not uncommon for an appeals court to issue a stay on an injunction until it gets to hear a case. However, in the short-term, it's good news that FlyOnTheWall.com is not currently restricted from reporting on news, and sets up the case in the appeals court as one to watch -- and one where there should be a lot of different folks weighing in on both sides.
In the last year, there's been a sudden resurgence in interest in the concept of "hot news," a doctrine that most people thought was dead and buried, which allowed a judicially-created form of intellectual property on factual information that was deemed to be "hot news." There's no statute that covers this. Just a court decision. And that was a century or so ago. But... the concept started showing back up in court recently, and in March a ruling came down, blocking a website from reporting on news for two hours, using this doctrine. With that on the books, other "hot news" lawsuits were quickly filed.
However, one such recent lawsuit seems to stretch the concept of hot news so far that you can only sit back and admire the audacity of including it in the lawsuit, while fearing the results should a court actually buy it. Thomas O'Toole has the details of what is likely to be a very interesting lawsuit on a few different factors, beyond just the hot news claim (but we'll get to those other issues, so read on...).
The case apparently involves an employee at Goldman Sachs (or potentially multiple employees) who got the username and password of another account holder on a database put together by a company called Ipreo Networks, called "Bigdough." Bigdough is apparently a database of contact info on 80,000 financial industry people. The Goldman Sachs employee(s) logged in with someone else's username/password and downloaded a bunch of information.
This sort of thing happens all of the time. People share logins all of the time. Violating it is basically a terms of service violation, but here the company has broken out the big guns. Yes, it's claiming that the contact info in its database represents "hot news," and Goldman accessing it is a violation of the "hot news" doctrine. Think about that for a second. Contact information. "Hot news?" And, of course, the whole purpose of the "hot news" doctrine is about another publisher republishing the information -- something that Goldman Sachs didn't do here at all. The whole "hot news" claim here seems to stretch the (already questionable) concept way past the breaking point. Hopefully that part gets tossed quickly. Otherwise, imagine what else will suddenly be called "hot news."
But that's not all that's interesting in this case. As O'Toole notes in his report, there are two other interesting legal questions, having to do with the use of someone else's login. First, there's the question of whether or not Goldman Sachs is liable here, even if the actions are just that of a rogue employee (or group of employees). O'Toole points out that the legal standard to get GS on the hook here is pretty damn high. The second question, of course, is whether or not just using a login that someone shared with you is a violation of the Computer Fraud and Abuse Act (CFAA). We recently discussed how there are also a growing series of cases trying to stretch the CFAA to make all sorts of activities classified as "unauthorized access." CFAA was really designed as an anti-hacking law -- which was about people really breaking in to a computer system. If someone simply shares their login credentials with you, does that really count as criminal hacking? If that's the case, an awful lot of people may be guilty of doing so.
So, this should be a fun one to follow. Three separate interesting legal questions, and in all three cases, Ipreo appears to be trying to stretch the law beyond its intentions, so hopefully the court recognizes this. If you want to see the full filing, it's below:
Well, you had to know this was going to happen. In the last year, there had been an awful lot of talk about a previously considered obsolete concept of "hot news" -- which created a copyright-like protection for factual information, without any statutory basis. It's a very troubling concept that shouldn't have any real basis in the law, but does exist due to a nearly century old Supreme Court case. Lots of news publishers have started making noises about "hot news," and in March we had the first ruling that blocked a publication from reposting factual information under a "hot news" claim. Once that ruling was made, you had to know that more lawsuits would follow pretty quickly.
And off we go. What's interesting here is that it appears that it's Rupert Murdoch testing the waters this time. Murdoch, of course, has been making odd claims about Google "stealing" content, while also suggesting that fair use doesn't exist. But rather than take on Google in court, it looks like Murdoch is targeting easier prey. Murdoch-owned Dow Jones is suing Briefing.com for copyright infringement and hot news appropriation. You can read the full complaint below:
Basically, the complaint is similar to TheFlyOnTheWall complaint from last month that successfully claimed "hot news." Dow Jones claims it puts out info over its wire service, and minutes later Briefing.com seems to put out similar news, often using the same headline. Of course for the most part, headlines are not copyrightable, but are they covered by hot news? We may find out soon enough. The whole thing is silly of course. If Dow Jones can't compete against some company copying its headlines and summarizing its stories, it must not be adding very much value. Suing over this is basically an admission of that very fact.
Either way, my guess is that this particular lawsuit has little to do with Briefing.com -- or even Dow Jones and its newswires. This is Murdoch testing the waters on hot news. Of course, he may come to seriously regret doing so, given how many of his own sites probably violate the same hot news concept.
In the last few years, there's been a push by some companies to bring back the immensely troubling "hot news doctrine," that appears to violate everything we know about the First Amendment and copyright law. Basically, the "hot news doctrine" says that if someone reports on a story, others are not allowed to report on their reporting for some period of time -- on the theory that it somehow undermines the incentive to do that original reporting. Last year, we wrote about the very troubling implications of allowing the hot news concept to stand. Beyond the free speech implications, it also has the troubling quality of effectively creating a copyright on facts -- which are quite clearly not covered by copyright. On top of that, it's not necessary in the slightest. As anyone who is actually in the online news business knows, getting a scoop gets you traffic -- even if others report the same thing minutes later. Being first gets you the attention. You don't need to artificially block others from reporting the news.
Unfortunately, with various publications struggling, some have picked up on the hot news doctrine as a way to somehow block competition. Tragically, it looks like a court has now adopted the hot news doctrine in one case. Paul Alan Levy alerts us to the news that a judge issuing an injunction against TheFlyOnTheWall.com, a website that would publish summaries of Wall Street research. The Wall Street firms said this undermined their business model -- and the court agreed. It passed an injunction saying that TheFlyOnTheWall had to hold off publishing any news about any Wall Street research report until either 10am (if the report is released early in the morning) or for two hours after it's released if it comes out during the day.
These totally arbitrary restrictions are highly troubling from a free speech standpoint and seem effectively random. This seems like yet another case of a company being upset by interference with its business model, which should be a reason to change the business model -- not run to the courts.
But what's most troubling of all is that now all the publishers who have been salivating over the hot news doctrine have a legal ruling to point to. Can you imagine how the world would work if you couldn't blog about or mention a particular piece of news for a few hours because the Associated Press got to it first? It's hard to see how this could possibly stand up to a First Amendment analysis, and it's quite troubling that the judge found the way she did.
The Marburger brothers, who first got some attention when a newspaper columnist in Cleveland misrepresented their "plan" to save newspapers, have been working hard to get their story straight. But a more detailed look at their plan shows that it's quite lacking and nothing more than artificial protectionism for an obsolete business model. Furthermore, they seem to be fighting a phantom that isn't there -- claiming that piracy is some sort of problem when there's no evidence that it's a significant problem at all.
But they're still at it -- and it should come as no surprise that newspapers are more than willing to give them column space for it. The LA Times has allowed them to publish a condensed version of their plan as an op-ed, where they go on and on about free riders, but fail to show what the actual problem is. They name one (count 'em) actual "free rider" in the site Newser, which takes popular stories and shrinks them down to a summary and a link. The thing is, Newser doesn't get a huge amount of traffic -- and it appears to be dropping. And, let's see... compared to just LATimes.com, Newser.com is a tiny blip, and they're moving in opposite directions. LATimes is increasing in traffic, and Newser is decreasing.
You want to know why?
Because what Newser provides isn't particular worthwhile. If a "free rider" destroys your business by summarizing your news article in two paragraphs, you don't have much of a business. Fortunately, most news sites do provide at least some more value than a two paragraph summary, which is why Newser doesn't get much traffic. So, again, we have to ask David and Daniel Marburger to explain to us where is the actual harm here? Why should we change copyright law to deal with a problem that doesn't seem to exist?
A few weeks back, I wrote an article based on a column written by Connie Schultz of the Cleveland Plain Dealer, where she discussed and endorsed a proposal by two brothers (David and Daniel Marburger) -- one a First Amendment lawyer and the other an economist -- supposedly on ways to change copyright law to protect newspapers. I found this troubling for a variety of reasons -- not the least of which is the idea that a First Amendment lawyer and an economist together would agree to a protectionist policy that limits free speech! The story itself got lots of attention when Jeff Jarvis called attention to the fact that Schultz happens to be married to U.S. Senator Sherrod Brown, leading to a counter attack from Schultz, but not necessarily a clear discussion of the actual proposal. I don't care one way or the other about Schultz, but I was interested to receive an email from one of the Marburgers suggesting that Schultz greatly misrepresented their analysis. I had based my own analysis on what Schultz had written, and they suggested that the full report was quite different. They sent over a copy and said that I could share it with the readers here as well, so click on through to read it (if you'd like to download it, you can go directly to the Scribd page, where there's a download option:
It's true that the Marburgers' suggestions are a lot more interesting, nuanced and (frankly) less ridiculous than Schultz's distortion of what they put forth. And yet, it still has some significant problems. Most specifically, the paper makes a mischaracterization in the assumptions that aggregators who merely "offer truncated rewrites of newspapers' reports" somehow "are close substitutes for those that newspaper publishers and others originate." There's been scant evidence to support that. In fact, most of the aggregator behavior we see is a link to the original story with a very brief snippet (often computer generated). If that brief snippet and the headline acts as "close substitutes" to the original report, the problem is not with aggregators. The problem is with the original reports not providing enough value beyond that brief summary. But much of the Marburgers' ideas are based on this idea that aggregators are a substitute, rather than a distribution channel. That's a problem.
To be fair, they do attempt to distinguish between "pure aggregators" that just do snippets and "parasitic aggregators" that do much more. But their examples of "parasitic aggregators" is also quite odd. It's basically any competitor who has real staff that writes a story that competes with the original reporting. That's not an aggregator. It's competition. And if someone who was not on the scene can actually add so much value to the news that the original reporter doesn't provide enough value, the problem is in the original publication for doing a poor job in providing enough scarce value beyond the basic facts. However, the Marburgers conveniently conflate these two types of "aggregators" despite the fact that it doesn't make much sense. Later in the paper they admit that a "pure aggregator" like Google News is not doing anything wrong, and shouldn't be impacted, but the first third of the paper does not make that clear, and many readers naturally assume that the aggregators being discussed include Google News.
Furthermore, the report (again mistakenly) assumes that the aggregators are siphoning away advertising dollars from the newspapers -- but again, there's little evidence there. Instead, we've seen that aggregators don't tend to make very much money at all from news aggregation, and -- if anything -- it simply acts as a loss leader. Since much of the proposals seems based on the faulty idea that aggregators are getting unfair "profits" from aggregating the news, this is equally problematic. The "pure" aggregators that the Marburgers' discuss tend to use news aggregation as a loss leader, so it's not taking away much ad revenue. The "parasitic aggregators" (i.e., actual competitors) are simply other news sites -- and the ones named (The Daily Beast and Newser) are so tiny that if they're taking away any revenue from newspapers, it's at best a rounding error. Honestly, the newspapers aren't complaining about The Daily Beast. They're complaining about Google News, which the Marburgers eventually absolve, but that's deeply buried in the report.
Next, the Marburgers continually, incorrectly, focus on aggregators "free riding" on the content of newspapers. This is incorrect. It is a relationship where benefit goes in both directions. If you believe the Marburgers' view, then the newspapers are, in fact, "free riding" on all of the traffic that aggregators send them. They're also "free-riding" on whoever they write about and whoever they quote, since they don't pay those people either. In fact, this is a big part of the problem. The Marburgers only focus on the flow of value in a single direction, quoting an analysis from 1942 suggesting that "free-riding" in the news would cause trouble in the industry. But that ignores the realities of the market, and that smart publications can learn to benefit and profit from traffic sent to them for free. It's not about free-riding, it's about learning to capitalize on promotion.
Oddly, the Marburgers then use the fairy tale of the Little Red Hen, to suggest that a market involving free riding is not a free market. This is wrong. There may always be some kind of free riding. Nearly all products and markets give off some externalities that involve free riding. While formerly assumed to be a small part of the market, these days economists are learning that externalities can often be a very large part of the market -- and unlike what the Marburgers' claim, that's not necessarily a bad thing if you take the time to understand the larger market. It's only a problem if you so narrowly define your market as the single product that gives off the externalities -- which is a major flaw in the Marburgers' analysis. They assume, incorrectly, that the "free-riding" does not lead to any externalities that can be monetized back by the newspapers. That's wrong. And, from this, the Marburgers simplify the world of news production to an unrealistic level, that may prove their point, but does not represent the actual market.
So while the Marburgers appear to have spent a lot of time detailing how newspapers make money, they incorrectly assume that this is the only way to make money from newspapers. On top of that, they seem to assume that newspapers cannot fund reporting -- but there is little evidence to support that. Almost all of the newspapers currently discussed as being in "trouble" are actually still profitable (i.e., they can fund reporting from advertising), but are in trouble because they cannot meet their debt obligations (i.e., management took out too many loans that they can't repay). And, from that, they get to their questionable challenges concerning how to "remedy" a situation that does not appear to actually need a remedy.
Their real focus is not actually on "aggregators" so much as it is on direct competitors who don't have a reporter on the scene, but tend to write an analysis based on what original reporters have written. Of course, that's almost as expensive as the original reporting, in that it still requires human bodies to write up the news -- and it's always (by definition here) delivered late. Anyone who's spent time online playing with traffic stats of news reporting pretty quickly learns that the first publication to break a story is much more likely to get the majority of the traffic. Sometimes that fails, but in the long run, if you're first, you're more likely to get a substantial amount of traffic. Furthermore, having actual reporters on the scene should give the original source better material with which to add more value to the community on the site. The failure to do so isn't because of "parasites" but because of a weak understanding by many newspaper execs of the importance of community.
As for the specific proposals, then, Schultz incorrectly stated the Marburgers' proposal to be:
Aggregators would reimburse newspapers for ad revenues associated with their news reports.
Injunctions would bar aggregators' profiting from newspapers' content for the first 24 hours after stories are posted.
But that's not true. The Marburgers don't have any problem with real aggregators. Instead, their concern is with a few relatively small online sites that often do rewrites/summaries of news stories. This is an amazingly small market that doesn't actually make that much money already. So the idea that they're siphoning off very much does not appear to be supported by much evidence. Furthermore, the second point isn't quite accurate either. The change the Marburgers are pushing for is more about adding some sort of economic hardship to these competitors such that they're more likely to form an economic relationship with the newspapers that originate the news stories.
But this, too, is not a particularly good solution, and makes little economic sense to me. Putting barriers into a market almost always makes that market less efficient, not more, and leads to less production, not more. Furthermore, in a world where anyone can be a reporter, forcing every publication to do a deal with every other publication is a legal nightmare. The false assumption the Marburgers seem to make is that all "real" news will be published by a small group of big name newspapers (The NY Times, The Washington Post, USA Today etc.) and everyone else will pay them for their "journalism." Also, it's worth noting that the Marburgers appear to not necessarily focus on changing copyright law to officially state all of this, but merely adjust copyright law to allow common law to make this happen.
So, while Connie Schultz' description of the Marburgers' paper was wholly inaccurate, the paper itself has many problems and does not seem like a reasonable suggestion either. It's based on too many faulty assumptions that do not appear to be accurate.
