Friday, July 10, 2009

More on the copyright issue: Read how the lawyer behind Connie Schultz's column explains what happened and what he thinks

The debate over whether changes in copyright law could save newspapers is complex, in part because it seems that Cleveland Plain Dealer columnist Connie Schultz may have mischaracterized the thinking of David Marburger, the lawyer behind the ideas she put forth in her column that prompted a full-scale pie fight over the issue. I'm sorry if this seems too twisted, but I think the best way to explain is to share Marburger's correspondence with me and provide links to his writings that I've uploaded to First, I posted a response from Marburger to my blog post on Schultz's column in which he clarified his views, making them seem, at least to me, different from the way Schultz had presented them. The following were his three main points:

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.

In response, I asked him: "From what you've written here, I'm not sure she's on the same page as you on a number of points. Am I correct?"

Marburger then sent me back an explanation of what he think happened and why he's concerned about the way bloggers, including me, have characterized his thinking. Before posting that explanation, he asked me to also publish the following:

"I must say that Connie was not calling for a statutory moratorium on rewrites for 24 hrs. Her column was worded as saying that Dan & I specifically recommended that, and my note below explains the origin of her statement. Her column endorsed our 60-page theory, which is pretty analytical. Our analysis calls for restoring common-law unfair competition and unjust enrichment principles by amending the copyright act so that the act clearly doesn't preempt those common-law principles. Neither Connie nor anyone at The Plain Dealer has called for Congress to adopt a prospective statutory moratorium on rewriting factual accounts originated by others."

The following is "the note below" he mentioned in the above statement.

"My brother & I are quite dismayed that so many knowledgeable people think that we advocate a statutory 24-hour moratorium on rewriting original news reports. It is vital to us that correct information be published so that those who are in a position to implement our analyses can assess them for what they really are.
Connie is on the same page with us. The 24-hour thing came from my being too inarticulate in an interview with her. Even though I work with journalists constantly & was one myself, I forget that journalists and lay people equate the "law" with statutes that legislators pass. And since she's married to a legislator she probably equates "law" with statutes quite naturally. Remember that negligence, personal injury, libel, invasion of privacy, fraud, and other commonplace legal rights are common law. No statute involved at all. Unfair competition, too, is common law.
So when Connie asked me what I ideally wd do, I didn't explain the rather dramatic distinction between making a legal argument in a common-law suit to redress a wrong versus imposing a prospective 24-hour moratorium via the overly rigid rules laid down by statutes. I said instead to Connie(paraphrasing): "I'd argue that competitors should have to wait to free-ride until most of the commercial life of a daily news story has elapsed, which is like a day." By that, I failed to explain that I would make that argument in a court case if I were asserting the common-law unfair competition theory to redress a wrong that already had occurred -- which is all that my brother & I seek to restore.
I think that Connie may have interpreted my generalized words to mean that we want to see a statutorily-mandated 24-hour moratorium on rewriting original news reports. As I said, we are dead-set against that because a statutorily-imposed moratorium wd be prospective and inflexible -- not based on real life situations that arise. I don't think that Connie or anyone at the Plain Dealer advocates a statutory 24-hour moratorium per se. What they advocate is legal recourse for direct competitors exploiting commercially the substantial journalistic services of a news originator. We seek to restore that recourse.
By their prospective, inflexible, rigid nature, statutes often empower people way, way more than they should. As we explain in our analyses, the common law is what news originators and society need in circumstances like these; not statutes."

It sure seems to me like there was something lost in the translation between Marburger and Schultz and that his ideas should be judged on their own merits, separate from whatever Schultz has written.

To that end, here's a link to the articles by Marburger and his economist brother, Dan, that provide their thinking in great detail.

I apologize for any confusion I may have created over this issue, but I think ultimately my exchanges with Marburger are leading to more clarity on their thinking on how to help newspapers through these difficult times. I thank him for being so responsive.


  1. John - there's no question that your asking questions helped clarify these issues. That's one of the biggest boons to participating in and adopting an approach that embraces the dialectic that gets going through online interactive information sharing. As a lawyer and as a journalist, I really appreciate the effort you've made here, and the sharing of the information. Now the issue is getting it to everyone else who still thinks the 24 hour moratorium is what was intended.

  2. "embraces the dialectic"
    Nice the Marxists out early this morning.

  3. From David Marburger:

    John: I'm one of the co-authors of the economic and legal analysis that your blog is talking about.

    I think "mischaracterized" is a loaded term -- it suggests blame or fault, which I suspect you don't mean to convey. Given the context of amending the copyright statute, anyone not already immersed in my area of law everyday would use words that connote "statute" or think "statute" when talking briefly about what we conclude and recommend.

    In fact, a young lawyer in our office read my brother's and my analysis a couple of weeks ago. He thought that we wanted Congress to pass a statute that would require free-riders to disgorge ad revenue and give news organizations injunctions, and he asked me what such statutory language might say. He wasn't already conversant with common-law unfair competition or the pre-emption provisions of the copyright act, and so I explained to him that we weren't calling for Congress to pass statutes like that.

    I explained that the common-law already allows those kinds of remedies for unfair competition without any statute, and that they apply to every business except the reporting of daily news. The problem is that the copyright act effectively impedes -- if not actually blocks -- those common-law remedies and common-law unfair competition itself from applying to the business of reporting daily news.

    It is the nuances of the complex interactions between economic principles, the unique and unprecedented qualities of the internet, and both statutory and common law that have converged to bring about the demise of the daily news business.

    If those nuances were so obvious and simple that everyone could describe them fully enough during a coffee break, the problem would have been identified and solved years ago.

    Yet it is those nuances that, in the end, explain in large part what has happened, and what can correct it. Now, let's get to the details; let's get to the merits.

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