Yesterday I attended the IP and the Internet conference put on by the Intellectual Property Law section of the California Bar. While there were many good presentations at the conference, perhaps the one that sparked the most discussion was Bruce Brown’s presentation “Using IP to Preserve Journalism in the Online World”.
One of the main themes of the discussion was on changing the law to protect hot news misappropriation. As the discussion progressed it became clear to me that the focus was on protecting the business model by changing the law rather than trying to see how the business model could adjust to the technology and potentially regain profitability without changing the law. In my opinion, changing the law should always be a last resort which is only attempted after all other business models have failed.
During the conversation I conceived a business plan which I believe has potential to increase online revenue for newspapers. I would like to see the journalism industry try this and other ideas before lobbying to change any laws.
My plan:
Assuming search engines derive value from linking to “hot news” newspaper stories, publications will be able to incentive licensing by editing their robots.txt files according to a hot news standard.
For example, if the Chicago Tribune writes a story on hot news and marks it as un-indexable in the robots.txt file for 6 hours (at the end of which it is no longer hot news and the Tribune edits the robots.txt file to allow for indexing.) Since search engines derive revenue from directing users to hot news (rather than users browsing directly to newspaper sites) search engines ought to be willing to pay for a license to index the content. If the stories have commercial value this should be a win-win.
An obvious problem is that hot news travels extremely quickly online and the Boston Herald could easily undercut the Tribune’s leverage by quickly writing a similar article and not forbidding indexing. Thus the Herald would receive most of the traffic that would have gone to the Tribune from the search engine and the search engines would continue to be a source to find hot news.
There are two potential solutions to this problem. If a highly desirable paper attempts this model and is able to license, than it will be against other newspapers financial interests to not use the same model (especially since we already know the current model isn’t working). Conversely if search engines are unwilling to license to index so long as one paper does not implement this method then newspapers would need to collaborate to implement this business plan. Such collaboration may or may not require an anti-trust exemption.
Either way I believe this model shows promise for generating more revenue for newspapers without rewriting IP law.
Unfortunately this seems to ignore the question of what the right amount of IP Protection is. While it is not surprising that a group of businesses would call for tougher IP laws, I wonder whether they should be. It is often assumed by businesses that tougher IP laws will help them. However, anyone working in the current patent field will tell you that tougher IP can be a detriment to innovation. Every IP protection results in a loss to the public domain. In many cases the loss is outweighed by the benefits to society of the intellectual property. However in some cases it is not. For example in some scientific discoveries another party would have discovered the same thing weeks later. Yet the patent system often rewards the first discovery with full patent protection. This can lead to a net loss to society and a lossed business opportunity (assuming the discovery would have still occurred without patent incentive …)
One of my coworkers over at 