Sunday, July 26, 2009

David Marburger's War on Fact-Sharing

For David Marburger, who complains that "parasitic aggregators" drain the value out of newspapers like water out of a bathtub drain, the economics are thus: the substance(1) of a news story is a product which derives its value from scarcity and for which the originator needed to expend effort and expense to develop. In this line of thinking, a quote obtained from the subject of an journalist's interview is the property of journalist's newspaper. To Marburger someone who cites the newspaper and includes the quote in their own blog post is free-loading, because the blogger didn't have to go to the trouble and expense of interviewing the subject. The blogger gets "unjust enrichment" and the spread of that quote and the other information in that report deprives the newspaper of scarcity from which its value is derived. To him that seems wrong, and the solution is to extend and expand copyright protection to the substance of newspaper reports, rather than just the exact form of the report which is already protected. I think that's fairly stated.

What that means, though, is that if TMZ reports that Michael Jackson is dead of apparent cardiac arrest and we live in a world where Marburger's law is in effect, the L.A. Times can't then post "Michael Jackson is dead of a heart attack, according to TMZ" because until the L.A. Times finds out on their own, through their own sources, they are gaining "unjust enrichment". The issue of credit being given to the source is of little consequence here, because if the L.A. Times post that cites the TMZ article is substantively comprehensive, containing all the facts brought to light in the TMZ article, there is not much incentive to go to the TMZ web site. Once the cat's out of the bag that MJ has died, the value of the TMZ article drops precipitously.

It's true that TMZ would not get returns commensurate to their investment after having developed contacts within the hospital that they could get to confirm the death sooner than anyone else. They probably spend quite a bit of money having people stake out celebrities like MJ so that as soon as anything happens to them, TMZ can be the first to react. However, the fact that MJ died was not something TMZ developed. TMZ did not conspire to kill MJ so they could get a bunch of traffic to their web site. MJ died, that was the reality, the fact, and it wasn't going to change regardless of whether or not there was a journalist there to report it. We were going to find out about this celebrity death whether or not TMZ reported it at 5:20, or the L.A. Times reports it via their own sources at 6:10, or an EMT blogs it sometime later. TMZ does not own the facts of MJ's death. Nobody can.

So, what does TMZ deserve for being fleet footed enough to report it most of an hour before anyone else? What could they sue for in terms of damages when they bring their lawsuit against Susie Q. Blogger for her post at 7:15 that MJ has died? How will TMZ lawyers know that Susie Q. got her facts from the TMZ post, rather than the L.A. Times one, or the EMT's post at 6:45, or that she didn't hear from a friend of a friend who works at UCLA Mercy before she heard about it from TMZ but is not a professional journalist and didn't cite her source in the blog post? What does TMZ do about the hundreds of thousands of Twitter and Facebook posts that are up instantly, from posters from all over the world? They aren't motivated by enrichment, unfair or otherwise. Does TMZ have to file individual suits against all hundred thousand posters, or just against Twitter and Facebook who do gain enrichment by providing the posters the forum. If so, can TMZ fairly deprive Facebook and Twitter of their profit by forcing them to revise their user agreements and implementing a moderation system which would kill them as useful services. What about Susie Q.'s work in piecing together facts from various sources to flesh out a more complete picture of what is happening, along with her personal perspective about which her audience of 15 friends and family members is interested? What does she deserve for her work? A lawsuit?

If Marburger would look at the above and suggest that the problem is only that Susie Q. is copying and pasting, more or less, the TMZ article and posting it on her own blog, then he should be dismissed out of hand. The copyright laws as written protect TMZ against plagiarism. If she can change it enough that it's not covered by copyright as currently written, then all that's left is the unalterable facts, to the best they are known, at the time it is written, and which can not be reasonably thought of as intellectual property deserving of protection.

Maybe the problem here is not copyright, as Marburger suggests, but rather that the technology of the day has made it so that there is never the scarcity of information upon which content originators can and do solely rely for gaining readership. Instead, the real problem is that breaking news is losing its value and the news business is failing to adjust. Perhaps it's not important for TMZ to stake out MJ's house because getting a jump on the competition can not practically produce value, and so it's a bad business decision to spend the cash on the stalker reporter and bribes at the hospital. Just because you expend money and effort does not mean you deserve anything.

By the way, the professional news business is losing its importance as more and more news comes from non-professional sources. These days, it doesn't take a reporter or a newspaper to get the word out to the world when you want to blow the whistle on a corporation or a government scandal -- you can do it in 140 characters in about 20 seconds. If the news is coming out of Iran via Twitter, what's a newspaper good for anyway? What social benefit is Marburger looking out for anyway? What have newspapers done for us lately? Buggerit.

  1. substance -- "As long as their Online competitors are free to help themselves to the core of the newspapers' best and most expensive journalism, newspapers will continue to close and go bankrupt,", "Idea for protecting newspapers draws national spotlight, bloggers' ire, by James F. McCarty/Plain Dealer Reporter, July 22, 2009 21:23PM. Also, in an interview on NPR's, On the Media Marburger says that a headline and a link to the originator's article is not "substantive" and therefore not objectionable. Clearly he means the substance of the news report, the facts, since he acknowledges that the articles are commonly rewritten when reposted on other web sites.

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