PULITZERS LOST, WHAT A COST - Second in a series on the impact of thousands of job cuts at America's newspapers

What is the cost for society, for journalism and for journalists of the loss of thousands of jobs at American newspapers? This series tries to answer that question by asking journalists who have shown themselves capable of producing work of the highest caliber - winners of the Pulitzer Prize who are no longer at a newspaper - for their reflections on what happened to them, what it's meant and how they view the future.
Today's subject, Andrew Schneider, felt particularly uneasy about being singled out because he had won two Pulitzers. He stressed that he didn't think those awards made him any more worthy of coverage than any other journalist who had lost his job. I respect his view. But I think the loss of people of his stature shows how serious- and troubling - these times are. The fact that even people with track records like his are now on the outside, without a newspaper to support their journalism, tells us that individual communities and our entire nation are worse off because of the job losses in America's newsrooms.

Andrew Schneider won two Pulitzers in the 1980s. His newspaper, The Pittsburgh Press (now closed), was honored with the Public Service award in 1987 for reporting by Schneider and Matthew Brelis, which revealed the inadequacy of the FAA's medical screening of airline pilots and led to significant reforms. In 1986, Schneider and Mary Pat Flaherty won the Pulitzer for specialized reporting for their investigation of violations and failures in the organ transplantation system in the United States. Today he writes a blog at coldtruth.com.

1. Name, age, final paper.

Andrew Schneider, Far too old to be breaking in a new editor, Seattle Post-Intelligencer

2. What work did you win Pulitzer for, when?

1986 Specialized reporting – with the brilliant writer Mary Pat Flaherty, for a series on abuses in the organ transplant system. We documented that hospitals and surgeons moved wealthy foreigners to the head of the kidney transplant waiting list in exchange for new buildings, money and jewels.

1987 Public Service – with the outstanding photojournalist Vincent Musi and Matt Brelis for a series of stories on hundreds of commercial airline pilots who were being permitted to continue flying by the FAA’s Federal Air Surgeon over the objections of flight physicians, airline doctors and panels of medical specialists. We also examined drug abuse, smuggling and pilots who clandestinely went to fly-by-night addiction clinics so their airlines wouldn’t find out they had a problem as they were trying to resolve it.

3. Why did you leave your newspaper? When?

Hearst Newspapers closed it down Mar. 18, 2009

4 What are you doing now? Any reflections on life after newspapers?

I am studying the health effects of exposure to nanotechnology. I also created a public health blog called Coldtruth.com. My young public health intern, who bosses me around, e-mailed me with great excitement telling me that coldtruth.com made its first dollar from Google Ads. (We’re now up to about $10. Needless to say, our business model needs work.)

Being unemployed is a new experience. And now that I’ve experienced it, I’d like a job with another newspaper with an imaginative, gutsy editor who wants to do important public health investigations that are not being done elsewhere. I don’t think that’s going to happen.

5. What do you hope to do going forward? Will you stay in journalism? How?

I have lapel pins I was given several years ago. One says, “So many stories, so little time.” The other counsels: “Write til you die,” with a skull and crossbones over a keyboard. Yes, I hope to stay in journalism.

How? You always ask good questions, John. I think the days of getting a single paycheck from a single source are gone for many journalists. There are reporters, writers, editors, artists and photographers who will be collecting a bit from grants and donations to keep their blog alive, from miniscule ad revenue from Google, Yahoo and maybe some businesses, and adding a few bucks from the surviving newspapers, TV networks or national blogs that pay you for the work they use.

6. What has the downsizing of your former newsroom or closing of your former paper meant to the quality of journalism in your community? For example, are there types of stories not being told? You could use your own experience to provide examples here.

Seattle is fortunate. Like Denver, it had two newspapers; like Denver, the feistier, more edgy of the two was killed. The Seattle Times has a staff with some dynamite reporters, writers and photographers but, like all papers, there are certain types of stories each newsroom prefers.

There are now more than 160 fewer journalists covering Seattle. No one covers the port, for example, which has huge public health implications, not to mention security issues. Moreover, readers only get one version of a story so coverage is less nuanced. And without competition to push it, the Times faces the risk of becoming complacent.

7. What, if anything, do you think your newspaper should have done differently to prevent the downsizing or closure that cost you your job?

We cut the budget, the staff, the news hole, travel, research capabilities, the size of the pages and everything else that could be slashed, eliminated, gutted or downsized.

John, in the case of our closure, the paper would be alive today if the president of Hearst Newspaper division hadn’t retired. He was a journalist and he loved and respected the paper, and fought to keep it open. It wasn’t a week after he retired that the new top dog – a man who hated the PI for various reasons, especially demands by the guild, announced that the century-and-a-half old paper was no longer worth keeping alive.

8. What would you advise young people wanting to pursue a life in journalism today?

If you do not have a burning, all-consuming passion to use your talent as a reporter, writer, photographer or graphic artist to force needed change, keep corporations and government responsible, honest, effective and ethical and protect those others ignore, don’t even try.

God love ya if you do decide to give it a shot. There is great journalism that must be done. But bring your sense of humor and flexibility, because this is no longer your father’s journalism. At the Seattle marathon, a senior producer for seattletimes.com ran the 26 miles, filing reports for the blog, sending twitters, shooting and transmitting audio and video and still finished the race in less than six hours. Let’s hear it for journalism 2009.

Respectfully,

Andrew Schneider

Coldtruth.com

To conclude: If you know of others who should be interviewed for this series, please let me know.

PULITZERS LOST, WHAT A COST - First in a series on the impact of thousands of job cuts at America's newspapers

How best to get at the cost for society, for journalism and for journalists of the loss of thousands of jobs at American newspapers? This series tries to do it by asking journalists who have shown themselves capable of producing work of the highest caliber - winners of the Pulitzer Prize who are no longer at a newspaper - for their reflections on what happened to them, what it's meant and how they view the future. 

It should be emphasized that this series does not mean to underestimate the importance of the loss of the job of any journalist. But to get at the meaning of the departure of thousands of journalists from American newsrooms, I thought it best to focus on just a few, in the hope that doing so would be the best way to illuminate the story. To me, it's a sign of how serious the times are that even people with this type of track record are now on the outside, without a newspaper to support their journalism.

The series begins today with an e-mail interview with Deborah Nelson, co-winner of the 1997 Pulitzer for Investigative Reporting (with Eric Nalder and Alex Tizon) for a Seattle Times report on abuses in HUD's Indian housing program. As an editor, Nelson worked on two other Pulitzer-winning projects, a series on the deadly accident record of the Harrier jump jet at the Los Angeles Times and a series at The Washington Post on children who died while in the District's child welfare system. In her last newspaper job, Nelson was the Washington investigative editor for the Los Angeles Times.

 

Last paper: The Los Angeles Times

Pulitzer:  I shared the 1997 Pulitzer Prize for Investigative Reporting for a Seattle Times series on waste and corruption in the federal government's Indian housing program.  I also was a project editor on two series that won Pulitzers in 2002 and 2003: a Washington Post series on child protective services and a Los Angeles Times series on the Marine Harrier jump jet.  
 
Reason for leaving:  I left my job as L.A. Times Washington investigative editor in the fall of 2006 for a faculty position at the Merrill College of Journalism, University of Maryland.  I left for a mix of reasons.   First, mid-life crisis:  I was ready for something new after 30 years in newspapers -- at the LAT, Washington Post, Seattle Times and Chicago Sun-Times, among others.  Second, radical changes in the industry: I wanted to have a hand in shaping the future.  I didn't see the newsroom as the best place to have an impact at the time.   

My friends think I was prescient. Within a couple years, the LAT bureau was drastically downsized and eventually absorbed into a single, compact Washington bureau serving all Tribune papers.  The 8-person I-Team that I ran is gone, and so are all the reporters and researchers who were on it- - including three Pulitzer winners, only one of whom is still in newspapers. 
 
Now / life after newspapers:  I am teaching full-time and recently finished my first book, The War Behind Me: Vietnam Veterans Confront the Truth about U.S. War Crimes (Basic Books, 2008).  I'm often asked if I miss being in the newsroom.  Well, the newsrooms I knew are fast disappearing, so I try not to look back.  It's a strange feeling.   

 
Future:  From my foothold in academe, I hope to help create the new newsroom, which likely won't be as rooted in a physical place or at large institutions. I hope to help retool journalism education and to prepare the next generation of journalists -- by training them in the best of both traditional and emerging reporting techniques, by teaching them to be critical thinkers and encouraging them to be entrepreneurs.  We’ve got a new dean, Kevin Klose, who has ambitious goals for journalism education, so I’m in a good place to have an impact. 

I haven’t entirely abandoned the old world.  I'm starting work on my second non-fiction book and have a third on the runway.

 
Impact of downsizing on the quality of journalism: The downsizing of the L.A. Times Washington staff and collapse of other bureaus comes at a time when power has never been so concentrated in Washington, with significant direct impact on people’s lives.  Corruption will fill the vacuum. There are some excellent reporters still working in and around the nation’s capital, but not nearly enough to fulfill our watchdog role in a democracy.  So there’s urgency to the search for new models.

 
What could have been done differently to prevent the downsizing/closure that cost you your job:  Downsizing didn't cost me my job -- although it might have, if I'd lingered much longer.  And it certainly cost many of my talented LAT colleagues their jobs. Where did the news business go wrong?  I’d start with the growing obsession over the past couple decades with short-term earnings, and a corresponding neglect of the long view.  I remember feeling unsettled back in the early 1990s with how near-sighted the corporate financial model had become.  I didn’t have a business degree, but anyone with a driver’s license knows the importance of keeping one eye on what lies ahead.  Eric Nalder wrote this great lede on the Seattle Times’ Pulitzer series on oil tanker safety after the Exxon Valdez disaster.  He described standing on the deck of an oil tanker “as long as three football fields” with the lone crew member assigned to watch the distant horizon for small boats and icebergs – and discovering that the guy couldn’t see, that he suffered from double vision.   That kind of describes the last 20 years of the newspaper industry.  The iceberg was in view long before we hit it, but no one with any real vision was looking that far ahead.

 
Counsel for young people about pursuing journalism:  Do it-- but only if you are passionate about journalism, turned on by challenge and not averse to financial uncertainty.  I think we’ll see that sort of self-selection process in the coming generation of journalism students.  As a result, I predict future graduating classes will be more committed to their calling than any in our lifetime. From a purely journalistic standpoint, we’ve never had more exciting options for reporting and presenting news. The challenge, of course, is to develop effective and economically viable delivery systems.  They’ll have to/get to play a big role in creating those models. 

Final note: If you know of other journalists who should be interviewed for this occasional series, please let me know. The following are the questions I am asking all the participants in this series.

1. Name, age, final paper.
2. What work did you winner Pulitzer for, when?
3. Why did you leave your newspaper? When?
4 What are you doing now? Any reflections on life after newspapers?
5. What do you hope to do going forward? Will you stay in journalism? How?
6. What has the downsizing of your former newsroom or closing of your former paper meant to the quality of journalism in your community? For example, are there types of stories not being told? You could use your own experience to provide examples here.
7. What, if anything, do you think your newspaper should have done differently to prevent the downsizing or closure that cost you your job?
8. What would you advise young people wanting to pursue a life in journalism today?
Finally, is there anything else you'd like to say about your experience or journalism's future that we haven't covered in these questions?

Thank you. 

John Temple

A reminder from Afghanistan about how valuable a newspaper - even one used to wrap meat and vegetables - can be

New York Times columnist Thomas Friedman's Sunday column from Pushghar, Afghanistan contains an inspiring quote that reinforces why newspapers matter so much. 

The quote also is a reminder that newspapers are first and foremost about knowledge, an educational tool.

This is what Greg Mortenson, author of “Three Cups of Tea,” told him at the opening of one of his schools for girls in a remote Afghan village.

"When a girl learns how to read and write, one of the first things she does is teach her own mother. The girls will bring home meat and veggies, wrapped in newspapers, and the mother will ask the girl to read the newspaper to her and the mothers will learn about politics and about women who are exploited.”

How good are newspaper Web sites? A test of Eppy winner Azstarnet.com shows even the "best" may get a failing grade

Newspaper people often blame others - see Google, parasitic aggregators, etc. - for their troubles making enough money online. But could there be another problem in many cases? Could it be that newspaper Web sites in many - even most - cases aren't good enough to compete?

Mark Potts provides an excellent test for newspaper Web sites on his blog, recoveringjournalist.com.  Now you may quarrel with his standards, but I think it's fair to say that Mark is an expert in Web journalism. He was one of the co-founders of WashingtonPost.com and has a deep digital resume. I happen to think he's got a lot of good ideas about Web journalism.

I thought it would be an interesting exercise, since I no longer supervise a newspaper Web site of my own, to test one of  the best newspaper Web sites, as identified by the industry itself through the Eppy awards.  These awards, sponsored by Editor & Publisher and Mediaweek, honor "the best Web sites offered by newspapers, television, magazine and radio companies. " So to be fair, I didn't pick on an easy target. And I stayed away from the big guys - the NYTimes, WSJ, USA Today, which compete in a different league than most papers. I decided to apply Potts'  test to the Arizona Daily Star, Tucson's daily newspaper. That newspaper won this year for "Best News Web Site with fewer than 1 million unique monthly visitors." It is owned by Lee Enterprises, one of the country's leading newspaper companies and one that is paying attention to online journalism.

How did the Star do? It failed. It got a score of 41%, or 7 out of 17. Now, if I felt really generous and applied grade inflation, I could sneak it over 50% by reversing two scores that some might quibble with. Then it would get 9 out of 17. But the truth is I think I was generous giving it 7 passing grades. The score could easily have been lower. I think we can all agree, the results aren't very encouraging, especially for the "best news web site."

What follows is Potts' test with my comments and grade for each item. I understand that some may disagree with my thinking. But I tried to act like a new resident of Tucson using the Star's site to make my life better. I think that's reasonable. I think there's much that can be learned from this result. Perhaps that's for another blog post.

1. Without using search, find continuing, in-context coverage of a long-running local story.  I decided to see whether the paper had continuing, in-context coverage of spring training and the issue of whether the Rockies and Diamondbacks would leave Tucson. I clicked on the latest story, "Teams ink deal to leave Tucson," and when I did I found high interest - 64 comments - with links to two related articles and a "Did You Know" question about spring training, but there was no link to a site that would have everything from analysis of the economic impact of spring training on Tucson to history of spring training in Tucson, photos and video, etc. Grade: Fail.
2. Similarly, find a comprehensive package of information (even a collection of past stories) about a significant local icon or personality. Lute Olson seemed like a good choice, given his significance in Tucson as the longtime (and yes, former) coach of the University of Arizona Wildcats basketball team. So I typed his name in the site's search box and got one news story about Wildcats basketball. There was no link or refer to a page or site about Lute Olson or Wildcats basketball. It should be noted that only stories from the past week are free on this site, so perhaps that's the reason. Also, by this time I had clicked on the site enough that if I wanted to continue I needed to register, which I did. I did find at the top right hand corner of the page a small refer saying I could sign up for "Wildcat newsletters." I decided to go another route and go directly to the Wildcats basketball page to see if I could find a package of information on Olson. The drop-down menu on the navigation bar at the top of the page didn't have a clear link to Wildcats basketball. There's a pac10fanatic.com site, which was all schools and all sports. I tried it, but it didn't seem obvious what to do to find more on Olson there. So I tried "All sports." Strange as it may seem, I couldn't even find a basketball page, let alone a page on Olson. When I clicked on the columnists' page, I did find an Arizona Wildcats link, and it took me to a page that did have depth about UA sports. However, while there was a 2008-2009 basketball preview, it again wasn't obvious how to find out about Olson or the team taking shape for the 2009-2010 season. Grade: Fail.
3. Locate all the coverage and information on the site about a specific local town. Casas Adobes was the first suburb of Tucson, begun in the mid-1940s, according to Wikipedia. Remember, I'm acting as a new resident who doesn't know much. The 2000 Census pegged its population at roughly 54,000. I typed its name into the site's search engine and did get a community calendar, one event and a "moving up" feature. There were also yellow page listings for the community and local web info. However, when I clicked on the community calendar link, I didn't find anything guiding me to more coverage and information on the community. So next I went to the Local News tab on the navigation bar. While I didn't find the name of the community, I did see a "neighbors" tab, so I tried it. That didn't do anything for me, but I did learn there that I could subscribe to a newsletter for what appeared to be any ZIP code in the Tucson area. I clicked on 85643 and got a few headlines, but no collection of material on even that ZIP. Grade: Fail.
4. Starting on a story page (not the home page) quickly find other key information, e.g. the day's top headlines or most-read stories. (Remember, the vast number of readers don't enter your site from the home page, though print-focused newsies obsess about home pages.) I went to a hot, breaking news story about a Tucson man barricading himself in his house for four hours before surrendering. There was no list of the day's top headlines or of the most-read stories. Grade: Fail.
5. Find a list of the best local restaurants, or ratings and reviews of a particular kind of cuisine, preferably by locality (extra credit: user reviews). BTW: This is why Yelp is really hurting newspapers. I went to the Food tab in the navigation bar and then clicked on the reviews tab. I found a search box where I could search by name, cuisine type, location and cost scale, but there was no list of best local restaurants or list of best restaurants by cuisine. I tried to type  barbecue under cuisine type to see whether that would help. It wouldn't work. I had my choice of 9 types of cuisine, or "all." So I picked "Italian/Pizza." I got a long list of restaurants, with a single sentence summary of the review, but the list didn't indicate which were the highest ranked (there was no rating system at all) or where they were. So I clicked on one to see what I would get on the review page. I could find nothing there explaining what the paper thought was the best Italian restaurant or best for different types of Italian cooking. Grade: Fail.
6. Find a local movie listing, or better yet, a local theater listing and review (extra credit: user reviews). One click on the Entertainment tab of the navigation bar showed me there's a link for movie times. One click and I was there. Easy. It wasn't so easy for theater listings and reviews. There's no theater tab under the Entertainment tab of the main navigation bar. So I picked Events. That didn't seem to work. I tried Calendar. But the categories on that page didn't include theater. Let's give the Star credit for good movie listings anyway. Grade: Pass.
7. Find something a family can do for fun this weekend. I went to the Entertainment tab of the main navigation bar and picked Events, thinking that should help. There's a tab on the left side that says, "Get out." I figured that would work. The listings were limited, but I could have found something to do. However there's nowhere I could see on this site to find "family" events. Again, the Star barely makes the grade, but it does enough that I can say I can find an event for a family. Grade: Pass. (Barely.)
8. Find any location mentioned on the site on a map—wait, no, you're not allowed to leave the site. No MapQuest or Google maps! I decided to stick with the man who barricaded himself in the house before surrendering to police. There was nothing on the story page that would help me find the location on a map. No link in the story. No map accompanying the story. No indication that searching for location was possible. Grade: Fail.
9. Using the site's search function, search for a term you know appeared in the newspaper in the past 24 hours. I tried Supreme Court, given the prominence of the hearings for nominee Sonia Sotomayor. I found story links from Friday, Thursday and Wednesday and a link to "More." There I found a total of 10 stories. Grade: Pass.
10. Subscribe to your site's mobile alert function (you have one, right?) and see if it's truly useful. While you're at it, be sure to look at your site regularly on its iPhone or mobile version (you have one, right). Is it updated as frequently as the main site? There's a small link far down the home page on the left side. When I went to the site, it took me three clicks to get to a story. That's too long. I followed the story of the man barricaded in the house. Instead of continually updating one story, there are three stories on the recent updates page. I don't think that makes sense. But, the site does work, although nowhere near as nicely as major newspaper mobile sites. Grade: Pass. (Barely.)
11. Find something in the paper's archives. I looked up Lute Olson's retirement. There were 77 articles. I could read a few lines before deciding whether to pay for the full article. Grade: Pass.
12. How easy is it to e-mail a story, or print it out, or view it on a single page?  Easy. Grade: Pass.
13. Find a way to quickly contact a specific reporter, or an editor, or anybody at the paper. The bylines on stories are not clickable if you want to use them to e-mail the reporter. I could not figure out how to contact the reporter on a story page. I couldn't find a link on the home page to contact editorial staff. I did click on subscriber services and it took me to Tucson.com, which appears to be the umbrella site for the Tucson newspapers. There were no editorial contacts listed there, though. Then I realized that under the Home tab on the main navigation bar there is a contact us tab. That leads to a search box that allows you to browse by last name, department or to search by last name. I found a friend who works there. But I'm sorry, this takes too long. Grade: Fail. 
14. Find an ad you know is on the site. (This drives advertisers nuts, incidentally.) Display ads do not show up in the local search. I looked for the Ford ad I found on a business page. I couldn't find it. I could find no way to locate a directory of ads on the site. Grade: Fail.
15. How easy is it to place a classified ad online—or to buy any kind of ad? To place a classified ad, you're taken to tucson.com,  the business site for the the Star and the former Tucson Citizen. You need a different login and password for this site even though you're already registered on the Star's site. That, to me, is an immediate failure. Grade: Fail.
16. How easy is it to manage your print subscription online? It's doable. Grade: Pass.
17. Using the site's search function, search for just about anything in the list above. One of the top stories on the web site was that a Grand Canyon death was ruled a suicide. So I typed Grand Canyon suicide in the search engine. It didn't find the story. Then I typed, Grand Canyon. No news stories came up. One of the latest updates on the site has this headline: Man's drive over Grand Canyon edge ruled suicide.  Grade: Fail.
18. Now, try the same searches from Google. When I did the same with Google, the story that's reported on the Star's site is the fifth link in my first search under Grand Canyon suicide. It links to the San Jose Mercury News and 39 related articles. The Mercury News story is the same Associated Press story found on the Star's site. Clearly, Google is better at finding the topic than the Star's own search engine. Grade: Fail. But for purposes of this test, we won't count this one because it feels repetitive.

When is the newspaper industry going to stop blaming Google?

Newspapers and newspaper journalists pride themselves on doing their homework before they publish stories. It's one of the ways they and others in the "mainstream media" like to distinguish themselves from "bloggers." That's why I wish accomplished industry leaders like Howard Weaver would spend more time establishing his case in arguing that Google should share its wealth with newspapers and less time complaining about what he thinks it's doing to the industry.

Look, Weaver is right that he's one of the people in the industry who can say he understands competition. He's a winner of a newspaper war. I think I understand competition, too. But in my case, I didn't come out on top in a newspaper war. So perhaps his thoughts should be given greater weight than mine.

But does he do the industry any service when he provides a totally lame economic analysis, if you can even call it that, of the impact of Google on the newspaper industry and then calls for some form of redistribution of income to newspapers from Google? I don't think so.

Here's the core of his argument:

Google, Yahoo, MSN and AOL are making more money from online content than the newspaper industry makes from everything. Many billions of those dollars are tied directly to the distribution of news and news searches, and that’s the money news companies must find a way to get.

Let’s say those online giants – call them GYMA – make $15 billion a year from news and news-related content (searches, archives, etc). I think that’s a conservative guess.

If we could find a way to get just 10 percent of that – $1.5 billion – pumped into American newsrooms, the impact would be direct, immediate and dramatic. The layoffs could stop, and owners would have breathing room to address strategic questions instead of constantly bailing water to keep the boats afloat. Newsrooms could start hiring the kind of people they need to create the journalism of the future.

Would Weaver, if he were back in Anchorage, have allowed a reporter to guesstimate the revenue the online giants make from news? I don't think so. And if he had, would he not also have asked the reporter how much newspapers are making today as a result of the traffic the major search engines send their way? I think he would have. And would he also not have asked whether the cooperative owned by the newspapers known as the Associated Press is charging these online giants adequate rates to provide them content? I think he would have. And might he also have asked whether AP has charged what it should, or could? I think so.

Weaver is a fine journalist. But I don't think his current approach helps. Why doesn't the newspaper industry commission a serious economic analysis of the impact of these online giants on the bottom lines of newspapers?  That would be useful. It would be a good start to prove the negative impact and to quantify it. If it's true, of course.

Instead, there's still way too much whining about how somebody else is smarter than newspaper people and making more money from what they do. 

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 mediafire.com. 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.

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."

3 attachments — Download all attachments

Reviving nwspapers & news-content-originators - 7-8-09.PDF 2541K View Download

Responses to questions.PDF 62K View Download

Rewriting originators_ stories in one market affects ad rates in other markets.PDF 30K View Download