People keep saying the news wants to be free. I’m not so sure: the other day I cornered the news and tried to get a straight answer to that $64 question.
I called that an outlandish comparison.
The vow. Global media mogul Rupert Murdoch this month: “Quality journalism is not cheap. The digital revolution has opened many new and inexpensive distribution channels but it has not made content free. We intend to charge for all our news websites.”
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The legitimizing legal theory. Brothers Daniel Marburger, a professor of economics at Arkansas State University, and David Marburger, a First Amendment lawyer in Cleveland, are championing a modest tweak of existing copyright law that they say will transform the battlefield.
The court didn’t buy it: “The right of the purchaser of a single newspaper to spread knowledge of its contents gratuitously . . . may be admitted; but to transmit that news for commercial use, in competition with complainant . . . is a very different matter. . . . Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant’s legitimate business precisely at the point where the profit is to be reaped.”
Largely because Brandeis offered what, “over time, many scholars and judges” considered the better analysis, the court’s ruling in the INS case steadily lost force, the Marburgers tell us. It was superseded almost entirely by the federal Copyright Act of 1976. An early draft of the act echoed the outcome of INS v. AP by listing “rights against misappropriation” as among those the states could individually choose to protect. But the Justice Department objected, grossly exaggerating the 1918 decision “as affording a boundless monopoly over uncopyrighted factual information of public interest that deserves to be in the public domain.”
