Panel #1: Tenet = Professional journalism must be saved.
Moderator: Ann Grimes, Stanford University: What does “professional journalism” mean? Freedom of the press belongs to those who own one, said AJ Liebling; but now many of us do, so many people think that anyone can be a journalist. Is that true? Standards of ethics: primary purpose is to inform people and enable them to make judgments. Bring independent scrutiny bear to the forces in power, including government. Avoid impropriety/conflicts of interest or appearances thereof. Truth and accuracy. Present all sides fairly. Correct mistakes promptly and prominently. Respect the rights of people involved in the news. Persons publicly accused should be given opportunities to respond; promises of confidentiality should not be given lightly and should be honored.
Panelists: Phil Bronstein, San Francisco Chronicle
Value of professional journalism is specialization in information collection & presentation. Trained to be skeptics in the extreme. Know how to go beyond opinion, solve mysteries. Use data to create something more useful. Free press produces results, which is why people in power fear investigations. You need an organization willing to spend millions of dollars defending its reporters against, say, Bush administration investigations, or claims by the Catholic church when the sex abuse investigations go on. Wikileaks did a great job getting & posting the Iraq shooting video, but you need contextualization from folks like Mark Bowdoin. Wikileaks is not yet proved sustainable; we don’t have a replacement for professional journalism. Jefferson deplored the state of newspapers in his time, but still lauded their necessity. (Newspapers are the worst form of journalism except for anything else that’s been tried?)
Grimes: Can networked production take the place of the existing system?
Dan Gillmor, Arizona State University: No one is talking about deleting professional journalism; we’re moving into an ecosystem that is much more diverse and in the end much healthier for reasons that biologists would explain about ecosystems: monocultures are dangerous. Rather than collapse, what he sees is birth/growth. We are going to lose some things we’ve had, at least temporarily. But the accountability in journalism that people talk about was never even close to pervasive. We may have a better chance of getting accountability at many levels. Baseball analogy: we’re at the top of the second inning. So concern about what we’re losing must be balanced with recognition of opportunity.
Joan Walsh, Salon: It’s not either/or. The business model may be dying, but we have some ideas. Salon broke a number of stories, including ones on Walter Reed—arrogant mainstream media (Washington Post) thinks it doesn’t need to credit other sources.
John Nichols, The Nation: Can’t figure out what a professional journalist is. Journalist is a person who finds out something other people might not want you to know. Platform superiority debates are just silly.
Whether you’re going to have journalism for the past century has been defined by whether it’s going to help a rich guy make money. So we have ads or other forms of begging for money. Problem: the ads have left the field. Smartest people in the world go around trying to figure out how to get the last remaining dollars from the papers, TV, etc. The notion that the ads can come back is absolutely comic. Must construct post-commercial journalism.
Jefferson & Madison weren’t excited about a commercial media system. Jefferson prefers newspapers to government, but he has a reason: we need different voices so that citizens can govern themselves, as opposed to Europe where the rich have always controlled the poor. So the Founders massively subsidized journalism, with postal subsidies worth $34 billion in today’s dollars; 90% of the postal system was newspapers. This produced diversity, democracy, dissent: subsidy went to everybody, including dissenters. Virtually every other developed country does something like this; we’re the only ones clinging to a commercial media system. Britain spends $80/person, Canada $27/person, and those are the stingy ones. The most free countries in the world, ranked by the Economist, are the places with the highest journalism subsidies. Commercial media is also most free in countries with the greatest media subsidies: Scandinavian countries, etc. If you wait around for a rich guy to give you journalism, you will have neither journalism nor democracy.
Gillmor: Nichols is right about the republic, but disagrees about subsidies, which have gone largely to creating media institutions in a market where there are high barriers to entry because of infrastructure. The equivalent subsidy: build out broadband everywhere and let other people light it up—like postal system and roads. But does not want to let the government pick winners. And we will have some ad-based models still. Would much rather see subsidy for laying the groundwork and letting others build from that.
Bronstein: expresses worry about the single big favor that journalism had, the antitrust exception, which was a disaster in terms of allowing consolidation.
Walsh: It always comes back to rich guys, in the nonprofit sector or the government—because it’s the government allocating the money (not the taxpayers—us—paying for it).
Nichols: The money just isn’t there in many of the creative, hopeful models we see. We use the word “subsidies” because it scares people. But we have subsidies right now, all over. $400 million, a tiny amount, to community/public broadcasting in small towns. When we talk about subsidies, there are all sorts of ways to do it: supercharting public broadcasting ‘til we at least get to Canada’s pathetic levels. Supporting the generation of young journalists—Write for America, sending journalists into underserved communities to work with public radio etc. There are lots of models around the world that are working now for vibrant democracies. It’s about barriers to entry, yes, but the entry he’s worried about is putting food in journalists’ mouths. Why take 90% of solutions off the table and wait for the rich guy?
Bronstein: worries that subsidy would stifle innovation.
Nichols: we agree that the models are exciting, but what they are generally having trouble answering is the question of where the money will come from, and you seem to agree. Isn’t worried about stifling journalism with subsidies; it’s the lack of money that stifles—we see the press doing lousy jobs all over. We need radical solutions. If you put democracy on hold—wait around until we figure out what to do—that’s a problem.
Bronstein: recall that journalism was solidly blue-collar for most of the twentieth century, deeply underpaid. And now we’re used to being solidly middle-class. We’ve been detached from reality in several ways. We’re going to have to become blue-collar workers, perhaps in the extreme. And at the same time the professionalism needs to be higher.
Q: Copyright previously supported the marketplace of ideas through the exchange of tangible goods. With digital media, the creative products are public goods; people expect them to be free. Subsidies might be a different way of funding; the demand/interest is there, but people don’t pay on a per unit basis. What role for copyright?
Nichols: Gene Baker (sp?) has a great idea—giving every citizen a voucher to direct at any source s/he wants, in return for making the information public domain a day after publication. Buy out of copyright up-front rather than hoping to get money back over long time. That’s just one subsidy notion.
Walsh: we are trying lots of experiments: partnering with nonprofits, raising money for specific projects, getting people to give us money (I am actually one) because they love us (and because they/I want to read Salon without the ads) even without a pay wall.
Nichols: St. Petersburg Times model: a trust owns the paper. Profit-seeking but not necessarily profit-making: sustaining itself at a low profit.
11:15 a.m. – 12: 45 p.m. Panel #2: Tenet = Information wants to be free.
Moderator: Anthony Falzone, Stanford Law School
Me: I’m here as a pointy-headed legal academic and amateur journalist on matters IP-related. When I was given the title of this panel, I only agreed to come on if I could attack it. Information doesn’t want to be free. Information doesn’t want to be in chains. Information doesn’t want anything. People want things, and shape institutions to do those things. Reifying information will do us no good and may do us damage, especially when “information” may not be the best way to describe what we want from our institutions.
People can get and retransmit the news really easily. They can put the news up on their blogs and run ads on their blogs or run ad-free blogs; either way, they may provide enough news that people don’t click through to the original reporting website. If people had gone to the original website, they might have clicked on the ads, making some money for the site operator and thus contributing to the payment of actual reporters. This kind of copying looks like “free riding,” and so one impulse is to say that there ought to be a law: a right of original reporting entities to prevent others from copying their reporting, at least from a little while. In its present incarnation this is known as misappropriation, specifically misappropriation of hot news. There are proposals to modify the doctrine by adding some new rights too.
Holmes dissenting in INS v. AP, “Property, a creation of law, does not arise from value, although exchangeable--a matter of fact.”
Why I am cautious about property rights as remedies for the problems of journalism: rights aren’t value. We’ve seen this already in the news business with NYT v. Tasini. Tasini won a copyright infringement claim, under current law, such that the NYT’s business practices for the years since 1978 with respect to freelance articles were determined to have been infringing. What the plaintiffs wanted: continued presence in the database, with continuing royalty. But having a copyright right didn’t help them with that, because no law required the NYT to keep their infringing articles in the database, and in fact the ordinary consequence of an infringement finding would be removal. The database was sufficiently valuable without the freelance articles, and the presence of the articles in the database conferred benefits on many freelancers—so the NYT was actually able to propose a different trade: you waive your copyright claims against us and we’ll keep your articles in the database. And the fact that this was a rational deal for many individuals illustrates the challenge: you can have a right, but it won’t matter if the person you want to pay you for that right doesn’t value it as much as you do. Settlement even now contemplates a one-time payment and continued presence in the database, without royalty.
Same pattern in photographers’ litigation against Google Books: photographers want to be in the settlement and get continuing royalties. But Google thinks the database is sufficiently valuable without them: proposes not to put pictures in the books made available under the settlement unless the publisher owns the rights. Again, it’s clear that no extension of copyright is required to give the photographers the rights. The problem is lack of economic power.
If the problem is monopoly, leading to the Hobson’s choice of “be in our index for free or be out,” then that’s what legal reform should address. But even if Google turns into a common carrier, it’s still going to be hard to tell Google to pay—we don’t generally make our common carriers pay for the traffic they carry. So Google is still free to say that it will either index your news or it won’t.
A related concern is that, now that everyone’s producing information, it is extremely difficult to target a right in information that would help the institutions we think of as news organizations without substantial inefficiencies in other areas.
Already, we’ve seen that sports organizations and an investment bank have been key hot news plaintiffs: these allies suggest the challenge of constraining rights and the problems with the fit between propertization of information and survival of newspapers as we know them. The NBA is happy to see itself as a competitor to the NYT, as is the investment bank—an example often used of a real threat is the Acorn pimp guy, who is even kind of a journalist and would likely be happy to use hot news to constrain who can report on him. An example from patent: NPEs, using patents not really as intended but nonetheless as allowed by the law. People are really, really good at thinking of business models that depend on leveraging legal rights, even when those lead to overall inefficiencies.
Information doesn’t want to be free: but putting a price on it may just leave a lot of it on the shelf.
Alan Murray, Wall Street Journal: Pro journalism is in jeopardy. Economic dilemma not unique to journalism. Marginal cost of distribution is zero, so the neoclassical pricing model doesn’t work. Erroneous decision made 15 years ago by ad-fat organizations to give news away free. Most people now realize internet ads only won’t work, and maybe shouldn’t—advertisers are interested in audience, not quality journalism. But unfortunately people are giving away too much free. It will be a jarring change to use a pay wall, and until then professional journalism is in jeopardy.
Josh Cohen, Google News: Digital distribution has challenges all over, agreed. Nature of the content. He thinks the decision wasn’t just not to charge—competitive advantage in means of distribution. Buffalo: one source of Washington/foreign coverage. The internet blew the doors off of that little monopoly model. Pay walls, when there are other sources a click away and maybe with better information, are hard to maintain. Local monopoly (cross-subsidization) is now gone. Some publishers, like WSJ, can do a pay wall, but you need to provide unique value.
Falzone: there were certainly glory days for newspapers. What made them glorious? Is free content the only thing causing problems? If not, then we need multiple solutions.
Cohen: We need to discuss aggregation/indexing—there is a difference between showing a link and copying a whole article.
David Marburger, Baker Hostetler: To get the news to you, TV station has delivery costs even without journalists: transmitter; FCC license (which is hard to come by), other capital costs. Same with newspaper, which has unions running presses and delivering papers by truck. Far exceed journalistic costs. Cleveland Plain Dealer had 450 journalists last year, then fired about 150. Online, you don’t have those capital costs—can’t you compete with news organizations all over the country? We aren’t seeing digital journalism running the institutional press out of business that way because it doesn’t make money. All the competitors see they can take whatever the NYT puts online and rewrite the best stuff very inexpensively and put it out in the marketplace at the same time, competing with them for advertisers and readers. I can trade on their reliability. It will drive them out of business. The reason you don’t see 300 journalists being hired is that there’s no point in investing in creating one’s own reliability brand. That’s why there’s an enormous influx of online news websites that don’t originate much of their own news. Virtually no influx of originators of news with variety and range of the WSJ. There is an influx of non-news originators who deal in news content. But they compete against each other driving down ad rates, so it’s not worth it. (This is not consistent with my experience, but maybe I am missing this incredible proliferation of news sites that don’t originate any of their own news. And I do read Slate’s Slatest.)
Cohen: Overly simplistic to say that there’s a WSJ and a bunch of free riders. Underestimates innovation. There are some rewriters out there, but also innovation. Ad rates are lower, but there are a number of different causes, including greater measurability v. smoke & mirrors over how ads were priced in the past. Other causes: classifieds, 40% of revenue.
Murray: if you could through legal means put aggregators out of business, it wouldn’t have much effect on ad rates. Advertisers can find cheaper ways to find audience than via quality journalism. Also, the Plain Dealer puts its stuff online for free, which means there’s no incentive to compete anyway, even without the aggregation. WSJ shows people pay for valuable and unique content, even when subject to aggregation. We have 1 million subscribers.
Marburger: billboards used to be nondigital. If every billboard is digital, ad rates go down. Supply and demand: oversupply of ad space.
Then we fought and I didn’t get much down. Maybe the liveblog would be of use.
Cohen advocated reimagining the format of news, reaching readers in new ways—allowing contributions, rejiggering the website so it’s a fundamentally different experience than the printed paper.
Marburger: so I have an innovative format and it attracts readers, people will see that I’m getting readers. If the law allows other people to simply lift it, why won’t they do it?
Cohen: innovation is broader than the idea. (What’s the “it” being lifted?)
[cue more fighting]
Google News delivers a billion clicks to news sites a month—gets value from news sites, but also gives value to them.
Murray: it’s hard for any one of us to say we’ll pull out unilaterally. If a bunch of us do, then Google may have to rethink its willingness to pay.