Why newspapers are doomed

They want to force us to return to the days when you had to get your news only through them:

Google Chairman Eric Schmidt tells newspaper publishers that the answer for journalism is to "invent a new product. That's the way Google thinks." But 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. Search engines have instead required copyright holders to "opt out" of their digital dragnets, and so far their market power has allowed them to get away with it.

It is unrealistic to demand new business models from the press without giving it the legal tools to succeed. Here are a few things Congress can do:

-- Bring copyright laws into the age of the search engine. Taking a portion of a copyrighted work can be protected under the "fair use" doctrine. But the kind of fair use in news reports, academics and the arts -- republishing a quote to comment on it, for example -- is not what search engines practice when they crawl the Web and ingest everything in their path.

The newspapers don't like the fact that they are now so dependent on a third party to get readers to their content. Without Google and Google News, it's very possible that the mainstream media would have actually collapsed by now because only a few newspapers have any real brand recognition on the Internet. Aggregation services like Google News actually do most newspapers a real favor by pulling links to their content up close to these major brands, and if anyone is hurt, it's brands like the New York Times whose content is linked next to hundreds of smaller newspapers.

Aside from Google's caching mechanism, there is no conceivable copyright violation that goes on when search engines index a news site. They don't republish the content, nor do they modify it for use in a way that could be said to making profit off of the content itself. Rather, it is well-understood that when Google and others index content, the service they are providing is one in which they help others find copyrighted materials.

It doesn't help the cause of these publishers either when it is brought to light that they periodically purge old content from their sites. In one case, the New York Times appears to be losing about $100k/month because it purged the writings of one of its contributors who didn't even want the content removed! The newspapers have not yet learned that storing old content is absurdly cheap, and that the more they make available, the more likely it is that search services like Google will be able to make their content valuable as a source of reference information.

-- Federalize the "hot news" doctrine. This doctrine protects against types of poaching that copyright might not cover -- the stealing of information not by direct copying but simply by taking the guts of the content. While the Internet has made news vulnerable to pilfering because of the ease of linking from one site to the next, the hot-news doctrine has limited use because it is only recognized in a few states.

Now that many news aggregator sites have taken "linksploitation" to a commercial level by selling ads wrapped around the links they post, Congress has the incentive it needs to pass a federal law protecting hot news. Such a law would give publishers an additional source of legal leverage outside of copyright to demand fair compensation for the content they create.

I don't see why copyright law wouldn't already cover the lion's share of their complaint here. If you have a 5 paragraph news report, and someone copies 4 paragraphs, unless they do so in the context of a massive rebuttal or some other form of protected commentary, that's clearly a copyright violation. Bloggers and others do not have a right (moral or legal) to reproduce such a large percentage of the original content, especially on ad-supported websites, while adding only at best a few lines of commentary.

Still, the newspapers have means at their disposal which they have not even begun to use before whining to Congress for more protections. They should make an example out of a few major bloggers who have a habit of reproducing whole swaths of content with minimal added commentary. All a hot news law will do is hurt their industry by giving some players an unfair advantage over others, while not addressing the core copyright issue. As is the case with the record industry, once you begin to focus on legislative remedies, you know you have a problem that is very close to home.