Stanford Center for Internet and Society

You know an industry is struggling when its establishment players start accusing everyone of stealing. It’s a familiar tale. Technology forces an industry to change, but rather than innovating and adapting, the powers that be lash out to protect the status quo at all costs. It’s a sign of desperation for a doomed business model, so it’s only fitting that Big Media embrace it now. And embrace it they have, threatening to sue everyone and anyone who “steals” their news, and advocating massive industry-wide collusion to ensure that their new “no free content” regime can survive.

There are a multitude of problems with this “Hail Mary” strategy, not the least of which is our pesky little Constitution. Leaving aside the obvious antitrust problems, the “no free content” regime is largely unworkable because ideas and facts are not copyrightable as a matter of Constitutional law. This means the hypothetical newspaper cartel could not use copyright law to prevent bloggers from subscribing to their service, gleaning the important facts in the day’s news, and incorporating the facts into stories on their own blogs. Likewise, bloggers could also take any of the copyrighted news material and provide commentary on it under the doctrine of fair use. Why would people pay for news when they could read summaries and commentaries about the same information for free? Unless the paid content is of significantly higher journalistic quality, they won’t.

Unfortunately, journalistic excellence has not been a priority for newspapers for a long time. After media conglomerates have eliminated local reporting beats, closed foreign bureaus, and abandoned investigative journalism in papers across the country, newspapers have largely failed to provide meaningful editorial content. Yet this week in The Nation, Michael Moran still points the finger of blame elsewhere. He says newspapers are simply victims of a "free-riding zeitgeist," and his piece is a call-to-arms for newspapers to cooperate to police the so-called scavengers of news. According to Moran, “Newspapers need to understand that the wave of the future is the same one that has been hitting the shore for centuries. You do something well, and you charge people as much as the market will bear for it.”

But Moran does not really believe in the market. His proposal of a newspaper cartel is a blatant rejection of competition, and he ignores the possibility that the decline of newspapers is a reflection of their market value after years of bastardizing the product. Instead, Moran blames the failure of media executives to claim sufficient property rights in the news. Never mind the legal and ethical problems with the concept of owning information, journalists should not be in the business of restricting the free flow of information. The Fourth Estate does not produce widgets to be sold to the highest bidder; it is a public watchdog serving a critical function in our democracy. That function is better served by disseminating information, not withholding it.