Online Journalism versus Newspapers:

I greatly appreciate the invitation to guest blog on Volokh Conspiracy about my new book, Copyright's Paradox.

A central theme of my book is that copyright law is no less a part of national media and information policy than are the Telecommunications Act and the First Amendment. In particular copyright serves as a major battleground between digital and traditional media.

Media lawsuits against Google are a prime example. Newspapers have sued the multi-billion dollar upstart over Google News, book publishers have sued over Google Book Search, movie studios over Google’s YouTube, and adult magazines over Google Image Search. The outcomes will profoundly impact the shape of the media, how we receive and impart information, news, and opinion, and what types of speech are most salient to the public. Depending on how copyright law is configured, the new media may supplant the old or the traditional incumbents may stifle the new.

I will expand upon copyright's role in a later post. Here I want to focus on newspapers and ask whether we should care about their demise. In a recent article in The New Yorker, Eric Alterman surveys the evidence and concludes that "it no longer requires a dystopic imagination to wonder who will have the dubious distinction of publishing America's last genuine newspaper." As he demonstrates, a primary cause for newspapers' rapid decline in advertising, readers, market value, and, indeed, sense of mission is the Internet.

The Internet makes the daily newspaper look slow and unresponsive. Young people in particular (only 19 percent of Americans under 34 even claim to look at a daily newspaper) prefer to surf the Web and log in to social network sites for up-to-date, easily digestible news bites. Even aside from lost readership, the Internet erodes newspaper advertising revenue. Craigslist has wiped out classified advertising. Online news aggregators, like Google News, usurp much other advertising. And for newspapers, moving online is no panacea; newspaper Web sites benefit from the growth of online advertising, but not nearly enough to replace revenue losses from circulation and print ads.

Not all bemoan newspapers' decline. Many news bloggers and other self-styled online journalists trumpet their superiority over the mass media. Arianna Huffington, co-founder of the Huffington Post "Internet Newspaper," has been particularly relentless in attacking the mainstream news media for what Huffington characterizes as the media’s purported prolonged servile acceptance of the Bush Administration's invasion of Iraq and domestic war on terror. And in his seminal book, The Wealth of Networks, Yochai Benkler argues that peer reporting from a multitude of online speakers does better than traditional news media both at bringing information and opinion to the fore and engendering an activist, autonomous citizenry.

Peer reporting and opinion no doubt form an invaluable component of public discourse, both in and of themselves and for calling traditional news media to brook for its failings. But so-called “news blogs” are valuable primarily as media gadflies and commentators. They do not and cannot substitute for institutional news media in performing the still vital Fourth Estate function.

The blogosphere is largely parasitic on media coverage. Blogs from the Huffington Post on down engage in little original reporting and link to stories from the mainstream press far more than to other blogs. Online opinion also appears to be highly fractured and balkanized. Conservative and liberal bloggers, for example, rarely link to blogs across the political divide -– and even when they do, views from opposing camps can generally be found only by following a link; unlike newspaper op-eds and letters to the editor, they are not interspersed side by side.

Bloggers also lack the financial resources for investigative reporting and fact-checking that mass media enjoy. Even the relatively well-heeled, The Huffington Post removes erroneous blog posts only after the fact if it receives a round of reader complaints. It does not commit to reviewing posts before posting (except perhaps for the posts on its home page). There are exceptions, like the largely user-contribution-financed Talking Points Memo, but I don't see these as a scalable model to take the place of the institutional press.

I wholeheartedly (but sadly) agree with media critics that the press miserably fails to live up to its fourth estate ideal. But the judgment we must make in evaluating flawed instititions is always "As compared to what?" Even with its flaws, the institutional press has the ability to serve — and aspires to serve — fourth estate functions that individual bloggers do not and cannot.

So while bloggers make an invaluable contribution to public discourse, their contribution is different than that of the institutional press. I think we need both.

Copyright's Paradox:

The paradox referenced in my book’s title is that copyright serves both as an “engine of free expression” and silencer of free expression. Copyright law provides a vital economic incentive for the creation and distribution of much of the literature, commentary, music, art, and film that makes up our public discourse.

Yet copyright also burdens speech. We often copy or build upon another’s words, images, or music to convey our own ideas effectively. We can’t do that if a copyright holder withholds permission or insists upon a license fee that is beyond our means. And copyright doesn’t extend merely to literal copying. It can also prevent parodying, remolding, critically dissecting, or incorporating portions of existing expression into a new, independently created work.

Both sides of that equation are much more complicated than that simple description, as are the ways in which we might try to solve the paradox and what the First Amendment should, therefore, say about copyright law. (At least, I think they are much more complicated; that’s why I wrote a whole book about the copyright-free speech paradox!)

I’ll consider the “engine of free expression” side first.

Copyright’s economic incentive for the creation and dissemination of original expression is just one way that copyright promotes speech. Copyright’s effect is qualitative, not just quantitative. It supports a sector of authors and publishers who look to the market, not government patronage, for financial sustenance and who thus gain considerable independence from government influence.

Moreover, copyright does not further free speech merely by providing pecuniary incentives and support. It also symbolically reinforces certain values and understandings that underlie our commitment to free speech. By encouraging authors, copyright gives the law’s imprimatur to the social and political importance of individuals’ new original contributions to public discourse.

A basic understanding that copyright promotes what we today think of as “First Amendment values” has been central to copyright law since the Founding. The Constitution gives Congress the authority to enact a copyright law “To Promote the Progress of Science,” meaning learning in general. And the Framers were animated by a belief that copyright’s support for the diffusion of knowledge was essential to individual liberty democratic government. In his address in support of the first copyright law, the Act of 1790, President George Washington declaimed that copyright’s promotion of learning would help to secure a “free constitution … [b]y convincing those who are entrusted with public administration that every valuable end of government is best answered by the enlightened confidence of the public.”

It is for at least some of those reasons, that in 1985 the Supreme Court denominated copyright as “the engine of free expression.” But in the digital age does copyright law still serve as the engine of free expression? The Internet features a rich cacophony of original expression, much of which is distributed without any claim of copyright by its author (or at least without any effort to use copyright to prevent copying). Many Internet speakers are volunteers, happy to converse and express their views without any expectation of monetary remuneration. Others make their creative expression available for free to enhance their reputation or sell related products. Bottom line: If Congress repealed the Copyright Act tomorrow, we would still have more speech that we could possibly absorb in a lifetime available on the Internet.

So the claim that copyright is “engine of free expression” must rest on an argument about copyright’s incremental free speech benefits. If we are to believe that copyright continues to be necessary to promote free speech, we must posit that (1) the copyright incentive generates the creation and dissemination of original expression over and above the rich array of speech that would be available even without copyright and (2) this additional copyright-incented expression has independent First Amendment value.

As I argue in my book, copyright does have this incremental benefit. Many works require a material commitment of time and money to create. Examples include numerous full-length motion pictures, documentaries, television programs, books, products of investigative journalism, paintings, musical compositions, and highly orchestrated sound recordings constitute such sustained works of authorship. It is generally far too expensive and time-consuming to create such works, let alone create with the considerable skill, care, and high quality that the best of such works evince, to rely on volunteer authors. Nor are alternative, noncopyright business models necessarily more desirable than copyright. For example, we might not want our cultural expression to be populated with product placement advertising or devalued by treating it as a mere give-away for selling other products.

Many of these types of works have considerable First Amendment value. And, as I wrote in yesterday’s post in relation to the press, copyright’s role in support a sector of media that is both financially robust and independent from dependency on government subsidy also remains of great importance in the digital age.

So in sum, while copyright is no longer THE engine of free expression (if it ever was the sole engine), it remains a vital underwriter of free speech.

How Copyright Burdens Speech:

As I wrote in yesterday’s post, my book, Copyright’s Paradox, explains that copyright serves both as an “engine of free expression” and silencer of free expression. Yesterday, I focused on how copyright still serves as an engine of free expression in the digital age, albeit an engine of more modest proportions than the Supreme Court’s moniker suggests.

Today I look at the other side of the equation — how copyright law burdens speech. I will emphasize at the outset that the fact that copyright burdens some speech is NOT reason in and of itself to abolish copyright or to find that copyright law violates the First Amendment. Rather we must tailor copyright to minimize its speech burdens while still enabling copyright law to serve as engine of free expression. (I do argue in my book that copyright’s duration and scope have expanded so much that, in its current dimensions and configuration, copyright burdens too much speech.)

Very basically, if your movie, song, graphic, book, or blog is protected by copyright, I can’t copy from it in my own speech unless you give me permission (express or implied) or unless my copying falls within an exception to your exclusive rights, like fair use. So copyright law can effectively prevent me from speaking using the words, images, or sounds of my choosing.

If the government were to do that directly and because it didn’t like my choice of locution, say by forbidding me from distributing copies of the Koran or the Communist Manifesto on a street corner, it almost certainly abridge my First Amendment right to free speech. As the Supreme Court has held repeatedly, the government abridges speech in such cases even if the speaker could convey his message using other words.

Yet, like copyright’s role as engine of free expression, the question of when and how copyright law can truly be said to burden speech (let alone violate the First Amendment) is far more complex than might initially meet the eye. Perhaps the easiest cases – and the closest to what we usually think of as censorship — are those in which the copyright owner withholds permission and sues or threatens to sue for infringement because he wants to suppress the speaker’s message.

Here’s an example given to me by a reader of this blog: During the 2004 presidential campaign, opponents of John Kerry sought to highlight what they viewed as Kerry’s radical Left views by offering the public free PDF copies of the book “The New Soldier,” which Kerry co-authored in 1971 together with the Vietnam Veterans Against the War. According to a post on Free Republic, the book’s co-editor, a close friend of Kerry, used the notice-and-takedown procedures of the Digital Millennium Copyright Act to force Yahoo to shutdown the web site that offered the free copies as part of a concerted effort to suppress circulation of the book for political reasons.

But sometimes the copyright holder’s reasons for suppressing the allegedly infringing speech are mixed or entirely commercial. The Margaret Mitchell Estate sought to enjoin publication of Alice Randall’s racy sequel to Gone With the Wind from the viewpoint of a slave both because it objected to her message (perhaps) and because it wished to license only those sequels that furthered the approved image and economic value of the original work.

And often copyright holders are, in principle, quite willing to grant permission but insist on a license fee that exceeds the speaker’s ability to pay. Speakers may be unable to afford various goods, ranging from a computer to a printing press, needed for effective speech. Yet we don’t normally limit property rights in those to goods in order to give speakers an entitlement to own or use them. Why should copyright be viewed differently? Why, for example, should we support an interpretation of fair use that heavily favors noncommercial uses, like educational documentary films, when we don’t require owners of top-of-the-line movie cameras to make them available to documentary film makers?

Many commentators favor treating copyright differently because copyright law creates an artificial scarcity in a good – original expression – that, but for copyright law, would be available at the average cost of production. That argument gets us part of the way, but ultimately, I think, the answer lies in distributive free speech policy. Fostering expressive diversity (in the sense of speech from diverse and antagonistic voices, not product differentiation) is a cornerstone of American information, telecommunications, and free speech policy. The balance between copyrights and fair use should be struck to promote that goal.

The same is true when we examine media markets as a whole. As I have detailed in a recent post on Balkinization, major media markets are highly concentrated, at levels that are deleterious both to competition and expressive diversity. Copyright is relevant to that untoward consolidation because incumbent media regularly use copyright as a vertical restraint to stifle competition from new media. New media, like today’s YouTube, peer-to-peer file trading networks, Internet radio, and Google News and yesterday’s then-new recording industry, radio, and cable television, often seek to establish themselves in part by distributing incumbent media industries’ copyrighted works. But new media also are vehicles for greater expressive diversity, for breaking incumbent media’s stranglehold on the market and public discourse. So to the extent copyright gives incumbents a proprietary veto over new media’s use of copyrighted expression, copyright law tends to be an obstacle to expressive diversity and thus is rightly seen to impose a burden on speech.

Copyright and the First Amendment:

I argued in yesterday’s post that copyright burdens speech. Not all who posted comments agreed, but assuming I’m correct (and I’m not the only one to make that claim; others, including Eugene Volokh, have made similar arguments), what, if anything, should be done about it?

Sometimes the law burdens speech for very good reason, such good reason that we favor the law over the speaker. The obvious, regularly noted example is forbidding falsely crying “fire” in a crowded theater. Laws against defamation, false advertising, misleading securities filings, and incitement to immediate violence are others, as are prohibitions on using sound trucks in a residential neighborhood and blasting music above a certain decibel level at an outdoor rock concert.

Moreover, even if we do not believe that the burden on speech is justified (I realize, of course, that “we” is artificial since people often don’t agree – see the comments to my last post!), that does not necessarily mean that the First Amendment as currently interpreted forbids the speech burden. The First Amendment provides that “Congress shall make no law … abridging freedom of speech.” But First Amendment doctrine is highly complex and First Amendment protections far more qualified than the amendment’s sweeping, absolute language suggests.

For that reason, I distinguish in my book between First Amendment doctrine and free speech policy. For example, I think First Amendment doctrine provides that Congress may not abolish the fair use defense because that would constitute an unconstitutional abridgement of speech. But free speech policy – or First Amendment “values” -- might go further. In order for copyright law to best promote First Amendment values, including the value of expressive diversity, courts should interpret fair use broadly and Congress should limit copyright holders’ exclusive rights to prevent them from using copyright as a vertical restraint to suppress competition from new media. Courts and Congress should do that even if the First Amendment does not require it.

Courts have recognized that copyright can abridge speech, but they have almost never actually imposed First Amendment limitations on copyright. In Eldred v. Ashcroft, the Supreme Court held that when “Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” In so holding, the Court strongly suggested that the idea/expression dichotomy and fair use doctrine are critical free speech safeguards within copyright law, that without them, copyright would run afoul of the First Amendment.

As I argue in Copyright's Paradox, I think the Eldred decision is very poorly reasoned and perpetuates copyright’s anomalous treatment in First Amendment doctrine. After all, other legal regimes, including defamation, right to privacy, trademark, the right of publicity, and others, have built-in protections for speech, but courts have nevertheless constitutionalized them, imposing First Amendment constraints to make certain that they don’t unduly burden speech. First Amendment limits are especially warranted in copyright given that the idea/expression dichotomy and fair use doctrine are notoriously arbitrary and indeterminate. At the very least, the First Amendment should be applied to make sure that copyright’s internal free speech safeguards actually do their job.

Last September, the 10th Circuit Court of Appeals held that Congress’ restoration to copyright of certain works already in the public domain alters the traditional contours of copyright protection and thus must be subject to First Amendment scrutiny. The Court reasoned that the idea/expression dichotomy and fair use are inadequate free speech safeguards vis-à-vis removing works from the public domain. It remanded the case to the district court to determine whether the Restoration Act is a content-based or content-neutral speech restriction, and thus whether strict scrutiny or some form of intermediate scrutiny should apply.

Whether the Copyright Act is a content-based or content-neutral speech restriction under First Amendment doctrine is a complex question, which I have previously debated with Eugene. (I think it’s content-neutral.) But whichever the courts determine, it is clear that Copyright Act amendments that alter copyright’s traditional contours should be held to run afoul of the First Amendment when copyright’s internal free speech safeguards provide inadequate protection. As I argue in my book, the anticircumvention provisions of the Digital Millennium Copyright Act, which the legislative history refers to “paracopyright,” should be ripe for First Amendment challenge.

Blood Libel or Just Libel?

France’s public broadcaster, France 2, has sued blogger-media critic, Philippe Karsenty, for libel. The lawsuit centers on Karsenty’s allegation that the scene, which France 2 broadcast in September 2000, of twelve-year old Muhammad al-Dura crouching behind his father in a Gaza intersection moments before he was reportedly shot and killed by Israeli gunfire was staged by Palestinians on the street and that France 2 and its Jerusalem bureau chief, Charles Enderlin, are now covering up the hoax.

The France 2 broadcast, filmed by France 2’s Palestinian cameraman, Talal Abu Ramah, with Enderlin’s voiceover stating that the father and son "are the target of fire from the Israeli positions" and that the son was shot dead, helped to fuel the Second Intifada in September 2000 and became an incendiary icon throughout the Middle East and beyond. The incident was memorialized throughout the Arab world, including on postage stamps in a number of countries, and became a symbol of Palestinian martyrdom and Israeli killing of children. The France 2 broadcast appears in the background of the video of Daniel Pearl’s beheading taken by his killers.

Subsequent investigations have raised serious questions about the source of the gunfire and, indeed, whether Palestinian activists on the scene staged the entire incident in collaboration with the France 2 camera crew. Writing in Atlantic Monthly in 2003, James Fallows concluded that whatever else happened to al-Dura, he was not shot by Israeli soldiers and that the rest remains a mystery.

I recently saw Karsenty present his case, together with outtakes he has obtained from the France 2 broadcast, on a panel featuring former CNN senior vice president and general counsel, David Kohler, and former veteran CBS news correspondent, Murray Fromson. Viewing the outtakes, it seemed obvious to my untrained eyes that the incident was staged. The father and son remain frozen in crouching position, ostensibly to avoid Israeli gunfire, even as others run right past them. Other TV crews are filming just a few feet away from the father and son, directly in the alleged line of fire. And the son changes his position and raises his elbow after he was reportedly killed.

Nonetheless, a French trial court ruled in October 2006 that Karsenty had committed libel. It is clear from the decision (I assume the accuracy of an unofficial translation) that French libel law puts a far more onerous burden on the defendant than does US law and contains little of the free speech protections that, as I mentioned in yesterday’s post, US courts have imposed on defamation law to prevent the chilling of speech. The French court required Karsenty to prove the truth of his allegations – not just that the event was staged, but that France 2 and Enderlin are covering up the hoax – and that Karsenty’s proof “be perfect, complete and correlative to the defamatory allegations both in their substance and their impact.” The court also declined to view all the France 2 outtakes. In the United States, France 2 and Enderlin could not prevail unless they established that Karsenty published his claims knowing them to be false or with reckless disregard of the truth.

Karsenty has appealed and the French appellate court is due to issue its ruling on May 21. Karsenty is optomistic, in part because the appellate court did view the France 2 outtakes that, Karsenty believes establish that the al-Dura incident was staged.

The kind of media manipulation to which the al-Dura incident points is all too common in reporting from the region. Recall the initial Palestinian reports in September 2000 of an Israeli massacre of 3,000 Palestinian civilians in Jenin, broadcast without question by CNN, NPR, the BBC, and others, while the truth turned out to be 52 Palestinians killed, most of whom were armed combatants. (See here and here.) More recently, Hamas has staged and Western media reported electricity shortages in Gaza, replete with candles purporting to provide needed light while, as it turned out, screens blocked sunshine from streaming in through the window.

Certainly, some media outlets seem all too eager to transmit reports of Israeli atrocities. But the problem is far broader and deeper than that. Both broadcast and print journalists face tremendous pressure to produce under a highly competitive 24/7 news cycle. At the same time, many news organizations have sharply reduced their staff of foreign correspondents. As a result, they are increasingly reliant on local stringers and camera operators to report on local stories. In areas of conflict, it is inevitable that more than a trivial percentage of local reporters will be partisans and that video footage will be designed or doctored to favor one side or the other.

One hopes that major news organizations are able and willing to weed out the vast majority of questionable reporting, just as CNN refused to broadcast the al-Dura footage. But there are, of course, no guarantees. And, as I emphasized in an ealier post, fact-checking, like quality original reporting, costs a lot of money.

For their part, bloggers do an admirable job of exposing media failures. At the same time, for better or for worse, the Internet serves as an unfiltered outlet for the stories and footage that media organizations deem insufficiently trustworthy to carry.