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New Attacks on the Web Commons
Publishers want to outlaw unauthorized Web links, neuter search engines.
Posted by David Bollier
Fasten your seat belts – the corporate media and their ideological friends are starting to realize that online commons represent a more potent threat to their profitability than they had realized. Now they’re mad as hell and want to do something about it – like outlawing unauthorized Web links, charging news aggregators, and neutering search engines.
In the early days of the Web, newspaper were intoxicated by the possibilities of reaching vast new audiences at little expense, and so they jumped in, hoping to develop viable business models along the way. Now that such hopes are dimming – in part because they realize that no business model will be as lucrative as their existing local monopolies – publishers are looking once again to copyright law to preserve their antiquated business models.
Newspapers and other media companies are muttering that they should have started charging Web visitors to view their content years ago. Now people expect Web content to be free, goddammit! Determined to make up for lost time, media companies want to convert the sharing culture of the Web into a regimented marketplace. Instead of celebrating the efficient, socially convivial ways that the Web generates value, publishers cling to their faded, 20th Century fantasies of reinventing a permission-only, cash-driven social order on the Web. It’s silly, I know, but these guys are desperate.
Photo by Jonah G.S. via Flicker, licensed under a Creative Commons Attribution, NonCommercial license.
In a move that U.S. publishers will surely seek to emulate, European publishers are calling upon the European Union to ramp up copyright protection for the Web (even more than they already have). As reported in today’s New York Times, publishers are complaining that “widespread use of their work by online news aggregators and other Web sites was undermining their efforts to develop online business models at a time when readers and advertisers are defecting from newspapers and magazines.”
As the publishers wrote in a letter to Viviane Reding, the European media and telecommunications commissioner, “Numerous providers are using the work of authors, publishers and broadcasters without paying for it. Over the long term, this threatens the production of high-quality content and the existence of independent journalism.”
I have a simple suggestion for these aggrieved publishers: Take your stuff off the Web!
You knew that the Web was an open platform based on pervasive web linking when you put your articles up there. And now you have the audacity to complain that news aggregators are actually linking to you?! You should be gratified that someone actually wants to read your “content” instead of the more interesting, idiosyncratic and yes, often more trustworthy work of independent journalists, bloggers and news aggregators, who add value in their own ways.
It seems that publishers want to sabotage the most basic premise of the Web as a cultural platform for sharing in order to salvage their archaic, out-flanked business models. There’s a reason why people are rejecting many elements of conventional media culture: it insists upon wall-to-ceiling control over all aspects of commodified, predictable and mass-audience-oriented works.
Yet that’s exactly the regime that publishers want to fortify. As the Times reports:
German publishers want to create a so-called neighboring right for publishers, similar to protections that already exist for music publishers and other content owners. The right would give publishers greater control over secondary use of their work that generates revenue.
Publishers have not said publicly what they would do with such a right, but executives say one possibility would be to try to get business users to pay for access to online content. Under such a practice, businesses would have to pay for special licenses; fees would be collected by a new organization modeled on the “societies” that gather royalties on behalf of musical copyright owners. Private individuals would not be allowed access to news sites without such a license.
European publishers also want Google and news aggregators to adopt a new technological system known as the Automated Content Access Protocol to “manage the relationship” between online publishers and search engines. Talk about fixing what ain’t broken! One reason that the Web has been such a explosive cultural phenomenon – such an historic break from 20th Century mass media – is because it effectively bypassed corporate media gatekeepers and empowered individuals to create and maintain culture on their own terms, from the bottom up.
Now publishers want to re-insert themselves into the “value chain” so that they can control our Web relationships with each other and then monetize it. You know that the corporate establishment is being driven nuts by the Web when they keep grasping at straws like this.
It might be easy to dismiss the European publishers except that 1) international copyright initiatives are often used by American corporations as a way to bringing regressive new rules to the U.S. through the “backdoor” (witness how WIPO policy initiatives have been used in this regard); and 2) the corporate media, especially newspapers, can’t stop their hang-wringing and vituperations about how Google has destroyed journalism and how micro-payment schemes need to be instituted.
The madness has reached such an extreme that one of the most respected conservative jurists, legal scholars and authors, Richard Posner of the U.S. Court of Appeals, has actually suggested that it should be illegal to link to copyrighted works on the Web!
Yes, Posner wrote on his blog: “Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.”
This is scary, very scary. Even as the Web becomes the default space for culture and communication, Judge Posner wants any conversation or quoting or cultural re-use to require permission by copyright holders in advance! Does Posner envision thousands of bloggers emailing him to ask for permission to link to his blog post (which, like any other work, is “born copyrighted”)? That’s an odd position for a free marketeer to espouse when it would be so grotesquely inefficient.
In a copyright case, Oliver Wendell Holmes once wrote how problematic it is for judges to become arbiters of culture. Judge Posner is a case in point.
Does Posner really want copyright law to trump our free speech rights and eliminate our historic fair use rights under copyright law? (For more commentary on Posner’s proposal, see TechCrunch. ) Posner accuses news aggregators of being “free riders,” but one could say that newspapers themselves depend upon “free” access to other information in order to produce the daily news. Erecting tollbooths for every exchange of information in our society is not the way to go, especially for a medium like the Web that was founded as a commons.
The market has its place on the Web, of course, but only by respecting the different value-proposition of the commons. And in fact, many companies reliant on open-business models are succeeding on the Web. A number of blogs and websites are hiring their own journalists and providing their own original reportage and commentary — but with a very different cost-structure than newspapers. This is known as competition. Why we should need to tell this to a leading “free market” champion such as Judge Posner (and economist Gary Becker, who shares Posner’s blog) is beyond me.
Unfortunately, in the long history of capitalism, incumbent businesses are usually more intent on enclosing that which has value and which competes with them, than on respecting it. Which is why, if the Web is to survive as a commons, we must nip in the bud the new round of market enclosures that are being plotted right now.
POSTED 10 JUL 2009
Reader Comments Write Your Own
This may not be as ominous as it at first seems, and the "free market" (so-called) may actually come to the rescue.
Suppose this idea takes hold, and that all major news/content sources require payment to view their content, and it becomes illegal to link to such content without permission. I doubt very much that anyone will bother to write for permission before linking (from, say, a blog or Tweet). The consequence is likely to be that very few people will ever link to such content. Fewer still will read it, if required to pay before viewing.
The final outcome will be that these content outlets will suffer further income erosion because they 1) don't get any direct traffic, since no search engines or bloggers can point to their content; and 2) don't receive any income from advertising, since no one ever sees the ads, because no one can read the content. The "free market" goes where the content doesn't have such draconian restrictions, and these outlets will continue to complain that there's "no money in the web."
Will // 12 Jul, 2009
Great article... thanks!
mortenbn // 13 Jul, 2009
1. They get their laws
2. People have to pay to use their content
3. People don't like paying for stuff they got free previously
4. People use alternative (free) sources
5. ???
6. No Profit!!!
Adam Piper // 13 Jul, 2009
Perhaps Google and the other search engines could remove his site from their indexes.; if no one can find them then there\\\\\\\'s not a problem... Oh wait...
David // 13 Jul, 2009
The new electronic interdependence recreates the world in the image of a global village.
Marshall McLuhan, "Gutenberg Galaxy", 1962
The medium is the message.
Marshall McLuhan, "Understanding Media", 1964
Almost 50 years have gone by and they still don't get it. If the medium is the message as Mcluhan proposed, then it's not about their content. HTTP is the medium. The links are the message. How can someone own the news? They don't own it, they themselves are only re-transmitting realtime information.
"I see it", Saul Tigh - BSG, 2007
Canayjun // 13 Jul, 2009
Best way to counter-attack this is to vote PirateParty :)
Anonymous Legion // 13 Jul, 2009
“It’s not so much “fasten your seatbelts” as “check your seatbelts are compatible with your 21st century vehicle”. To set the record straight, publishers generally and ACAP (Automated Content Access Protocol) specifically are not asking anyone for a change in the law. Rather, ACAP is, in a transparent and open way, creating tools so that copyright and licences can work in a machine-to-machine way without needing a human somewhere in the middle. This reflects the reality of the internet where so much depends on computers being able to operate autonomously on a massive scale, for example when search engines create their indexes. What ACAP is asking of regulators is for recognition that ACAP is just as valid a way of writing a licence as a contract on paper written by a lawyer, and so is one of the solutions to the digital rights conundrum. We want them to encourage search engines and other aggregators to use this tool to demonstrate commitment to their oft-stated acknowledgement that content belongs to the content providers and it is for them, the rightsholders, to decide how and on what terms third parties should use it. Members of the ACAP community also want to use it to facilitate other machine-to-machine functions unrelated to search, such as permissioning use of content by other third parties. ACAP is not just about money, but about making content widely available in the existing copyright framework which has driven the immense growth in the creation and availability of content for hundreds of years. Copyright is the cornerstone of innovation and progress in publishing as well the other creative industries. ACAP is one step towards making it continue to work in the 21st century." www.the-acap.org
ACAP // 14 Jul, 2009
The Anonymous Apologist for the ACAP system -- Automated Content Access Protocol -- as a tool to apply strict copyright controls to most aspects of the Web, is being disingenuous. The "immense growth in the creation and availability of content" in the Internet era has not been fueled by copyright (which generally requires advance permission and payment). It's been driven by the free access and "shareability" of content on open platforms.
The EU gambit proposed by "creative industries" would radically alter the premises of how content is accessed and distributed on the Web by requiring permissions and/or market transactions in most cases (via automated copyright controls). The legal norms of fair use and the public domain, which require no permission or payment, would be severely threatened if not eliminated by such a system. Needlessly to say, this does not make content "widely available," as Anonymous Apologist claims. It seeks instead to clog the circulatory system of the sharing economy that is now challenging the alleged innovation and productivity of traditional copyright industries. It would try to capture and control the socially created value of the Web Commons, by privatizing and monetizing content distribution.
If regulators recognize ACAP-based controls over copyrighted works as a legally valid "contract" (funny, don't WE have to be sovereign negotiators for any "contract" to exist?), then copyright industries will in effect be allowed to assert property rights over Web content that is currently openly accessible and shared: hardly a great breakthrough in "making content widely available."
Again: if you don't want your copyrighted works on the Web because of the open access it generally entails, take them off! Or put them behind a paywall. But don't subvert the entire premises of the Web Commons in order to protect archaic 20th Century notions of cultural production and market structure. Try innovating.
David Bollier // 15 Jul, 2009
This will be an ongoing debate. However there are those of us who work in media that rely on the web as one of our marketing tools. Writers, photographers, designers etc.... Yet our work is either plagerised or we are expected to supply content for free on web use to publishers who then want to charge for access to the content. If one is a freelancer the issue compounded, especially from an earnings point of view.
Dino // 21 Jul, 2009
OK, I have to ask: is this a April Fool or something?
Do those guys know that a "Automated Content Access Protocol" already exists and is respected by Google? It's called "robots.txt".
Fabien // 12 Jul, 2009