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Posted
July 10, 2009

New Attacks on the Web Commons

Publishers want to outlaw unauthorized Web links, neuter search engines.

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.