A Fellow at The Center for the Internet and Society argues that in trying to protect content, the news media can propose policies that hurt the very First Amendment that they are trying to preserve. -DB
Stanford Law School
Opinion
It’s nothing new for media organizations to employ lofty rhetoric about the role of the press in democracy to advocate special legal privileges. Likewise, it’s nothing new for content creators to try to limit the speech rights of others in order to garner more profit. What is fairly new, however, is for the press to use language about the importance of the First Amendment to argue for a copyright policy that would explicitly limit free speech. In other words, in order to save the First Amendment, we have to limit the First Amendment. Irony is dead. This week, Rupert Murdoch wrote an op-ed in the Wall Street Journal that exemplified this clever strategy. Aptly titled “Journalism and Freedom,” the article belittles the fair use doctrine and demands compensation for news content online, while going on to wax eloquent about the ideals of the Founding Fathers and the First Amendment. The problem is that the right he claims to value above all else, the freedom of speech, is precisely what prevents media companies like News Corp. from claiming ownership in the news. Facts cannot be owned, so while News Corp. can certainly prevent third parties from reproducing stories in full, it has no right to control the facts within those stories. This is not a peculiarity of copyright law; it is a protection of the First Amendment and an effort to create the informed citizenry Murdoch claims to cherish.
Near the end of the article, Murdoch argues that the government should stop regulating media companies because the Internet has exponentially increased competition. Standing alone, this argument makes sense. The monopoly of the mass media over information is diminished by limitless competition on the Web. But Murdoch’s aim to own news content would negate the pro-competitive effect of the Internet entirely by granting news organizations the right to control access and reproduction of the news of the day.
There are a host of logistical problems with any law that grants intellectual property in facts. Who really creates a fact? Can a news organization own someone’s quote? What if multiple reporters discover a fact simultaneously?
But at the end of the day, the most important problem with the concept of owning a fact is that it would undermine the First Amendment and pose a major threat to a healthy, functioning democracy. It is truly sad that the institution that has historically defended and benefited from the First Amendment more than any other is now leading the charge against it. That’s not just irony; it’s hypocrisy.