Free Speech: The Washington Post vs Free Republic

There is an ever growing movement in America to change the meaning and intent of our Constitution, and the words of our founders, for the purpose of profit. This profit might be political capitol, ideology or money. One glaring example is the effort by America's major newspapers to create a monopoly out of "free speech" where one was never intended to exist. If it isn't written on their pulp, then it shouldn't count according to them.

Newspaper publishers have always had grandiose ideas about their worth. The other available forms of media haven't done much to extinguish this esteem. "All the President's Men" brought to America in book and film the destruction of an American president by gritty investigative jorunalists. Included of course was the glorification of the newspaper's publishers and editors. "Lou Grant" probably wouldn't have been possible were it not for the success of "All the President's Men." Like the aforementioned film, "Lou Grant" generally portrayed the print news media as "the real thing" and TV as somewhat phony and geared toward a dumber audience. If you see the irony already, I won't bother mentioning it. I suppose it is also noteworthy that both papers portrayed by the film and subsequent T.V. series are the very same newspapers that have initiated a joint copyright infringement suit against Free Republic: The Washington Post and the L.A. Times. (Actually the paper in "Lou Grant" was called the "Trib" but was filmed in the L.A. Times downtown L.A. facility).

In reality, history has never been too kind for Newspaper publishers or authors. While the media might be credited for some of the more notable events in history that are media-born(Spanish-American War, "Dewey Wins!", "Nixon Resigns!") it is the events themselves that are the discussion of historians as opposed to what was being written about those events by reporters.

Historians may rely on newspaper reports for clues. However, the real information does not lie within the ragged linings of bird cages across America but in the archives of American government institutions and libraries. The newspaper and the reporter are barely germaine to history.

Newspapers today have gotten too big for their britches. This is partly due to their consolidation by large media conglomorates in an effort to raise profit margins and partly due to the fact that they have been pampered by the very officials that they are supposed to be watching. At any rate, newspaper publishers today believe, erroneously, that anything they produce is to be considered manna from heaven and protected from criticism and competition. I'm of course talking about copyrights.

The constitution was never intended to give newspaper publishers and writers the kinds of protections they are today demanding.

Some of what today's newspaper publishers demand regarding their "intellectual property" appears to make sense. For instance, Reuters, AP and UPI make their living by supplying fodder to newspapers that can't afford to pay reporters to cover the globe.

These suppliers might hire their own reporters or use free-lance writers from around the world, but rely on a buisness model that would fail if any newspaper could use their work without paying a fee. Since they don't sell advertising, they have to make up for this fact by charging for access to their articles via subscription. Pirating a connection to the "wire" would be a means to steal the work product of the wire services. So it makes sense to afford these entities some protection but only within that specific context.

This buisness model has also spread to some of the more respected (and not so respected) newspapers who might happen to employ a particularly talented columnist or cartoonist. And it is definately true that one may consider those two specific groups as "artists" in the sense that they create original work. But I really object to the notion that any newspaper report is subject to copyright protection.

Originally in America, the idea of a copyright was to give artists and scientists the means to profit from their own labor and ingenuity. The copyright was meant to protect works of art, engineering and science and was intended to further and not limit the arts. It was never meant to protect Newspapers or dailies as their work product could never be construed as usefull for more than a day. This was the view of the courts and Congress.

In the USCC Ruling BAKER v. SELDEN, 101 U.S. 99 (1879) Justice Bradley quoted from a Circuit Court opinion to illustrate the intent of the copyright law.

The remarks of Mr. Justice Thompson in the Circuit Court in Clayton v. Stone & Hall (2 Paine, 392), in which copyright was claimed in a daily price-current, are opposite and instructive. He says: 'In determining the true construction to be given to the act of Congress, it is proper to look at the Constitution of the United States, to aid us in ascertaining the nature of the property intended to be protected. 'Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries.' The act in question was passed in execution of the power here given, and the object, therefore, was the promotion of science; and it would certainly be a pretty extraordinary view of the sciences to consider a daily or weekly publication of the state of the market as falling within any class of them. They are of a more fixed, permanent, and durable character. The term 'science' cannot, with any propriety, by applied to a work of so fluctuating and fugitive a form as that of a newspaper or price-current, the subject-matter of which is daily changing, and is of mere temporary use.'

Newspapers by and large report events as they occur on a daily basis. These events are already in the public domain. So the work product of a reporter is simply a regurgitation of things already transpired to an audience that may or may not be privy to those events. It is a widely held belief that "yesterday's newspaper" isn't worth anything to anyone. Yet, today's newspapers would like you (and their customer publications) to believe that what they have to offer is worth more than it really is. In the case of the wire services, what they are offering is not intellectual property but a service. A function of labor and certainly not "art" as intended by the founding fathers when they created the copyright laws. If what newspapers offered really fell under the jurisdiction of a copyright, then you and I (or our employers) could continue to charge for work we've already performed and for which we were remunerated last week. What a novel concept. (try it on your boss sometime).

Newspapers today are relying on a very broad translation of the copyright law as ammended in 1909 in order to come to the absurd conclusion that everything that they produce is subject to copyright. 347 U.S. 201, 210 4:

"That the works for which copyright may be secured under this Act shall include all the writings of an author."

This might tend to lend some creedence to their claims. However, the supreme court in Mazer v Stein (USSC 1954) opined that in reality this was merely a word change and did not magically broaden the copyright laws to extend to things other than usefull works of art:

Some writers interpret this section as being coextensive with the constitutional grant, [17] but the House Report, while inconclusive, indicates that it was "declaratory of existing law" only.

The supreme court in 1971 had also ruled that copyrights should only be granted to works that furthered the arts and sciences and did not apply to works that merely described readily available information:

'An author's 'Writing' or an inventor's 'Discovery' can, in the constitutional sense, only extend to that which is his own. It may not be broadened to include matters within the public domain. The congressional power to grant monopolies for 'Writings and Discoveries' is likewise limited to that which accomplishes the stated purpose of promoting 'the Progress of Science and useful Arts.' No distinction is made in the constitutional language between copyrights and patents and I would not create one by judicial gloss. Where, as here, a writer has published a book which compiles and applies infor- [404 U.S. 887 , 891] mation available to all men, should that writer have a monopoly on the ideas in that book through a copyright issued merely because the words used were the author's own?'LEE v. RUNGE , 404 U.S. 887 (1971)

It is often said that yesterday's news isn't worth the paper its printed on. The internet explosion however, has created a situation where yesterday's newspaper might in fact be worth something. Newspapers are quite interested in the financial profits they can acquire by selling access to their archives to the general public. However, these archives are available free of charge in your own public library. So it isn't the intellectual property of the author that holds the value. In general what's being marketed by on-line newspapers and archivists is access to that information via searchable index and in a format that is easily copied. Microfiche simply isn't convenient for copying or searching. If you've paid for access to an archived article as I have, you know that you've paid for the convenience of being able to remain in your seat. With prices in general holding at $3.00 to $5.00, one enjoys a savings in fuel and time by obtaining archived articles on-line.

Again it isn't the works of anonymous or named writers that is being marketed but the access to those works. The events that they describe are already in the public domain and any attempt to claim otherwise is not rational. The overwhelming body of case law on copyrightable material suggests otherwise. What the Washington Post and other newspapers and service providers are attempting to create is a monopoly on archives. And one might also argue that in the case of the action against Free Republic they are attempting to shut down public scrutiny of their work product.

The founders did not intend to protect newspapers (presumeably in existence to report public events) from criticism nor did they intend newspapers to hold monopolies on their work. Quite the contrary. Newspapers that hold monopolies on such information are far more likely to bow to the government tendency to only provide such information as would benefit their designs on tyranny.

It is our right as citizens to copy and use the work product produced by these newspapers. The term free speech holds many meanings to many people. In my view the word free not only indicates a freedom to express oneself but in the matter of political machinations and government activity, a right to possess information. Newspapers get their sole income from advertising. Subscriptions don't even approach covering the costs of printing and the staff needed to produce the product. The vast majority of their costs are covered by advertisers. And in that sense, even the articles themselves can be considered to be advertising. The writing is what generates an interest in the product and that interest attracts advertisers. However none of the writing can be considered to be protected from copy. The publishers may think so but that is because they've been watching too many movies. The constitution does not support such folly.