TEMPLE TALK: Lawyer behind ideas in controversial Connie Schultz column on copyright law speaks out

Thursday, July 9, 2009

Lawyer behind ideas in controversial Connie Schultz column on copyright law speaks out

David Marburger, a lawyer who along with his economist brother provided the basis for a controversial Connie Schultz column with the headline "Tighter copyright law could save newspapers," responded to my blog post about her point of view. Her column became infamous because Buzz Machine blogger Jeff Jarvis took her to task and a personal fight ensued.

Mr. Marburger feels what I wrote was like someone writing a review of a book without ever reading it. He outlines his views and shares the documents on which they're based. I'll try to post links to those pdfs, as well. But in the meantime, I'll let his words speak for themselves. I'd be interested in what others think and may weigh in again after reading the documents he provided.

The following is his entire e-mail, which he gave me permission to post.

"John: I'm one of the co-authors whose analysis has been the subject of Connie Schultz's column and your own remarks. It is quite clear to me that you have not read our analyses, and that you are relying only on Connie's account of them.

1. We do not advocate a statutory 24-hour moratorium on rewriting news reports originated by others. Like you, we'd vigorously oppose that.

2. We do not think that linking to originators' news sites, as Google News does, is bad; on balance, we think it's good for any news originator.

3. We oppose the "pay wall" concept that many newspaper publishers endorse. For reasons that we summarize in our analyses, we think that it would be futile in the long run.

My brother Dan & I implore you to actually read what we've written. I feel as though you've written a book review slamming a book that you never read.

Our economic analysis applies uncontroversial, well-established economic free-rider and substitution theory and established legal theory to the news business as its exists online.

Our recommended statutory change to the copyright act is a single sentence. In substance, it would say: "The Copyright Act does not preempt statutory or common-law unfair competition or unjust enrichment, regardless of whether the contested publication infringes copyright." That is not literally what it would say because technical legal language has to gel with the way Section 301 of the Act already reads, but that is close to what it would say literally.

To call that a flawed theory, as you do, is quite mistaken. It should be entirely uncontroversial. We merely seek to restore the free-market to the news business by restoring unfair competition rights under the common law, which the news business enjoyed in the early 20th century, but lost over time.

The way the copyright act functions today is anti-free market. That is, it compels those who expend substantial sums in journalistic services to allow others to commercially exploit those services as direct competitors in real time on the same medium -- without the originator's consent and without compensating the originator. In other words, today's copyright act functions to compel originators of news to subsidize their direct competitors.

That is not free market economics; it is closer to Russian Revolution-style economics. It never threatened the survival of news originators until the internet became popular. We explain all of that in our analyses.

We also explain that restoring unfair competition rights would allow aggregators, bloggers who function as free-riders, and news originators to survive profitably.

Again, we implore you to read the very non-radical analyses and recommendations that we make. Caution: One is 60 pages long and takes about 90 minutes to absorb. The other two are much shorter, and take 30-45 minutes to absorb. But please take the time to read these.

We're also pleased to answer questions or criticisms. We've done this without compensation and at no one's request. At my firm's standard rates, these analyses would have cost well over $100,000.

Feel free to quote from or post this e-mail and to post our attached analyses.

Some background about me. I have a journalism degree from Syracuse Univ. - 1976. I worked in all-news radio in Pittsburgh from 1976 to 1982. When I left KQV radio, I was Senior News Editor. I've been a lawyer at Baker & Hostetler since 1983, and have devoted virtually my entire law practice to representing newspapers, television stations, and advertising companies. I did a lot of work for E.W. Scripps -- the Pittsburgh Press, the Cincinnati Post, WCPO in Cincinnati, and WEWS in Cleveland.

My brother is a fully tenured professor of economics with an MBA -- he teaches at Arkansas State Univ. We're both in our mid-50s.

I expect to retire in a few years, and I don't want the originators of news to be underproducing news by then or to be out of business. Without lots of compensated journalists attending trials, city council meetings, combing through public records, and interviewing whistle blowers, not only will news be underproduced, but oversight of our friends and neighbors in government will be underproduced too."