BLACKHEART Cleveland

The PD is on six month death watch, a period set by Connie Schultz herself.

That is six months from now, which is a lifetime in an industry that, in the last six months, has slashed thousands of salaries and jobs. How much more time can we waste before we’re no longer an industry worth saving?

Schultz cites a paper proposing a change in the law written by the PD’s own attorney, David Marburger, even quoting Marburger, obliquely noting the somewhat important fact that he’s on the PD’s payroll.

David Marburger is a First Amendment lawyer at Baker Hostetler who has represented newspapers, including The Plain Dealer, for nearly 30 years.

In the very same edition of the paper, Marburger is also described as on the payroll, in another story on the Sunday front page.

Attorney David Marburger, who often represents The Plain Dealer on issues involving open meetings and public records…

Let’s look at Mr. Marburger’s paper.  Largely, it’s a litany of predictable MSM whining about the internet.  His proposal, as Connie describes it.

Ideally, news originators’ stories would be available only on their Web sites for the first 24 hours.

Stop laughing, and let’s go to the rationale, then you can laugh as hard as you want.  Marburger hangs the entire 51 pages on a case from 1918.

In 1918, the United States Supreme Court affirmed an injunction barring a for- profit news wire service from competing with the Associated Press in much the same way.   The International News Service allegedly rewrote uncopyrighted AP news dispatches arriving in New York, and sold them via telegraph and telephone to newspapers in the western states.   That enabled the INS dispatches to arrive out west at about the same time that AP’s original dispatches got there. Describing INS as misappropriating AP’s “quasi-property,” the Court decided that INS was unfairly competing with AP by free-riding on AP’s substantial journalistic costs. The injunction was not permanent.   It lasted only long enough for AP to exploit the highly-perishable commercial value of its own news reports before INS could exploit their substance.  That case is International News Service v. Associated Press, 248 U.S. 215 (1918).

Marburger himself even notes later in his paper that “courts generally have treated the INS ruling as weak, unreliable precedent.”  Not weak enough for the PD!  But weak enough to be wiped out by Congress explicitly in 1976, which Marburger dutifilly notes.

When Congress revised the copyright act in 1976, it added a provision — § 301 – that abolishes all state laws that function as copyright does.    A draft of the statutory revision had preserved the INS theory so that it was not subject to the copyright act’s pre-emption of state laws.   But the Justice Department objected, exaggerating the effect of the INS decision by arguing that it gave news organizations a “boundless monopoly” in factual information of public interest that the copyright act placed in the public domain.   The House then struck the exception.

The Justice Department seemed to think in 1976 precisely as Connie Schultz did yesterday in her piece!

Marburger anticipates the rebuttal: “Newspapers want to monopolize the truth.”

Marburger, having duly gutted the First Amendment with his proposal relying on a non-precedent, then posits the miracle world in which his clients CONTROL ALL NEWS PAY ME FOR IT NOW MOTHER FUCKER.

If used strategically by newspaper publishers and others who originate news reports, our recommended change to the copyright law would pressure aggregators to contract with originators of news reports to avoid the legal consequences of unjust enrichments suits.

Marburger is not essentially, but precisely proposing a state creation of a state news agency, enforced by law, forcing every other person on earth who wants to link to that news in the first 24 hours to pay for it.

The rest of Marburger’s paper reads like an autopsy of how the internet killed newspapers’ flawed business model, not news or newspapers, before the death even happens yet.   It’s as if the PD knows how fucked they are, is predicting it, and wants Congress to pass a law to stop their business from dying.

What Marbruger proposes isn’t just offensive on its face, it’s utterly unenforcable, as Marburger himself notes.

The injunction would last for a sufficient period of time to enable the originator to exploit the brief commercial life of its news reports before the aggregator can, and thus recoup the originator’s investment in journalistic services.

The goal, however, is not to indulge those remedies.  It is to create substantial legal and economic pressure on the aggregators to compete fairly with news originators in the market for advertising revenue.  Eventually, that should lead to contracts, not lawsuits.

Get that?  Marburger admits that enforcing his new law after the fact is kinda impossible, it’s the FEAR of being sued that will FORCE the internet aggregators to enter into CONTRACTS with his CLIENT.  This is a fantasy land. If you want to see what that fantasy really looks like, here’s the full PDF, download it, put on some early Syd Barrett Pink Floyd, sit back, burn one, and enjoy the trip!

This is what happens when you’ve spent your career cloistered in some other world.  A Pulitzer prize winning columnist Connie Schultz, who happens to be married to a US Senator, openly campaigns for federal legislation designed by her employer’s attorney, whose status as such she barely notes, whose proposal relies on ancient long overturned precedent to create a federal fiat ordering people to contract with her employer so she doesn’t lose her job.  All the while urinating on the First Amendment.

You couldn’t make this up if you tried.  That cat’s something I can’t explain.