Changing the Law to Save Newspapers: Some Modest Proposals

As newsroom staffs continue to shrink and newspapers go out of business at an alarming rate, the difficulty newspapers have experienced in gaining economic traction online has been blamed on blogs and websites that link to content on newspaper sites. According to some, this kind of "free riding" is responsible at least in part for the distress in which newspapers find themselves. A number of proposals have surfaced, in the U.S. and abroad, to change the law to "even the playing field" between new media and old.

Outlaw Linking

It is perhaps ironic that one of the proposals to change the law to benefit newspapers comes from a judge who happens to blog. Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit is also a professor at the University of Chicago Law School and a brilliant and prolific scholar. When Judge Posner speaks, people listen. And recently, when Judge Posner spoke, or rather, blogged, on the subject of the future of newspapers and what should be done about it, people not only listened, they talked back -- loudly.

In a June 23 blog post entitled "The Future of Newspapers," Judge Posner looked at the state of the newspaper business. True to his membership in the law and economics school of legal thought, he focused on the economic factors behind the current distress, suggesting that competition from free online news outlets is forcing newspapers into a spiral of decline. Newspapers are slashing staff to cut costs in response to shrinking advertising revenues, thereby damaging the quality of their content and further depressing demand.

Judge Posner suggested that the solution to the problem as he outlined it may be to change copyright law to prohibit linking to or paraphrasing newspaper content:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly newsgathering operations that news services like Reuters and the Associated Press would become the only professional, non-governmental sources of news and opinion.

Those are the last sentences in the post, and Judge Posner doesn't elaborate further on the issues that his suggestion poses. As commentator Eric Schonfeld noted, Judge Posner's post does not address the issue of "fair use" or the related First Amendment issues that would be implicated by such an expansion. Although the doctrine of fair use is embodied in the federal copyright statute, it is well recognized that free speech limitations on state regulation underpin the doctrine. See, for example, Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). It is not clear how much, if at all, the statutory definition of fair use could be trimmed without running afoul of the First Amendment.

Schonfeld describes Judge Posner's suggestion as "misguided," and other online commentators have piled on, variously characterizing it as bizarre, extreme, unpragmatic and just plain bad.

At the moment, Judge Posner's suggestion is merely that -- a suggestion. But at least one proposal has made it into legislative form.

Let Them Become Non-Profits

In May, Senator John Kerry convened a hearing on the future of journalism before the Senate Subcommittee on Communications, Technology, and the Internet.

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Among other presenters, Arianna Huffington, co-founder and editor in chief of the Huffington Post, defended her enterprise and news aggregators generally. She argued that restricting access to content is the wrong approach for traditional news outlets and that news aggregators are not the sole cause of newspapers' economic problems. Her solution is new revenue models.

"The great upheaval the news industry is going through is the result of a perfect storm of transformative technology, the advent of Craigslist, generational shifts in the way people find and consume news, and the dire impact the economic crisis has had on advertising," she testified at the conference. "And there is no question that, as the industry moves forward and we figure out the new rules of the road, there will be -- and needs to be -- a great deal of experimentation with new revenue models."

Among the topics of discussion was a proposal by Sen. Ben Cardin for legislation that would allow newspapers to transition to non-profit entities, thereby qualifying them for exemption from certain taxes. The catch is that, as non-profits, newspapers would have to refrain from endorsing political candidates. His proposal is pending as S. 673 (111th Cong., 1st Sess. 2009); it has been referred to a committee and no further action has been taken on the bill since its introduction in March.

Change Copyright, Tax and Antitrust Laws

A proposal by a pair of Washington attorneys to address the problems of newspapers would go further than either the Posner or Cardin proposals, at least in terms of scope. Bruce W. Sanford and Bruce D. Brown echoed Judge Posner's concern about the survival of traditional journalism in a May article in the Washington Post. In Laws That Could Save Journalism, they opined that unless Congress makes changes in public policy "we will soon find ourselves with the remnants of a broken industry incapable of providing the knowledge necessary to manage life in a complex world." To fairly place that statement and their proposals in context, it should be noted that both attorneys are former journalists with extensive experience representing traditional media clients, and Sanford is counsel to the Society of Professional Journalists.

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Sanford and Brown also propose a change in copyright law, to prohibit "the taking of entire web pages by search engines." Like Judge Posner, they don't elaborate on that point, but presumably they are referring to the fact that when search engines "crawl" websites, they copy entire web pages to their servers in order to index the contents and provide results in response to web searches.

Search engine crawling and copying can, in most cases, be inhibited by deploying a "robots.txt" file on the content owner's server containing directions as to what may be crawled and copied. Most search engines respect the directions set forth in a robots.txt file.

Two federal district courts have held that a content owner's failure to deploy such a file gives rise to an "implied license," effectively permitting the owner's content to be crawled, copied and cached without giving rise to a claim of copyright infringement. But protecting content by the deployment of a robots.txt file is a double-edged sword, as online users are less likely to find newspaper content that is not indexed by search engines, as Sanford and Brown point out.

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Echoing some of the proposals outlined at the Kerry hearings, Sanford and Brown also propose that regulatory restrictions on the ownership of media outlets be eliminated, that federal tax policy be changed to favor newspapers, and that antitrust law be changed to permit traditional news outlets to adopt collective pricing policies. But perhaps their most interesting suggestion is that the "hot news" doctrine recognized under New York law be "federalized," that is, enacted by Congress as a federal law applicable nationwide. As we discussed in a prior post, under the "hot news" doctrine, uses of news content that are not protected under federal copyright law can be challenged under the state law of unfair competition, and the Associated Press has been successful in using the doctrine to challenge the use of its content by competitors. Federalizing the doctrine would make it easier for other traditional publishers to similarly challenge the use of their original content in circumstances not covered by the New York law.

No doubt anticipating criticism for proposing laws that would favor traditional publishers, Sanford and Brown point to a precedent: Online publishers were favored in 1996 with the enactment of Section 230 of the Communications Decency Act, which exempts online providers from defamation and other liability from content posted by third parties. The protection that Section 230 provides to online providers has generally protected them from costly judgments based on content that they have not originated.

Mandate the Automated Content Access Protocol

In July, European publishers issued a call for legal assistance in the form of the Hamburg Declaration. The document calls for "strongly urgent improvements in the protection of intellectual property on the Internet." While the Declaration itself is short on specifics, the press release accompanying the Declaration referenced the Automated Content Access Protocol, a proposed industry standard that would enable content owners to specify to search engines through metadata embedded in the content not only how their content could be crawled and copied, but also how it could be displayed in search engine results. The proposed standard has been criticized as a "robots.txt on illegal steroids." The Declaration calls up EU regulators to "back it up," i.e., mandate search engines to implement the standard.

Conclusion

As the debate rages over both the root causes of traditional journalism's economic troubles and possible legal solutions, the online world marches on. It is impossible to say whether any of these proposals for legal change will make it to the statute books. And even more impossible to predict is whether any of these potential laws will have an effect on the upheaval caused from the shift of content from traditional to online forms.

Jeffrey D. Neuburger is a partner in the New York office of Proskauer Rose LLP, and co-chair of the Technology, Media and Communications Practice Group. His practice focuses on technology and media-related business transactions and counseling of clients in the utilization of new media. He is an adjunct professor at Fordham University School of Law teaching E-Commerce Law and the co-author of two books, "Doing Business on the Internet" and "Emerging Technologies and the Law." He also co-writes the New Media & Technology Law Blog.

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Personal Branding Becomes a Necessity in Digital Age

In 2007, Atlantic Media’s director of digital strategy Scott Karp was named one of the 40 most influential people in publishing by Folio magazine. But Folio wasn’t honoring Karp for his work at Atlantic, which publishes the Atlantic Monthly magazine, but was instead fawning over the work Karp did at his personal blog, Publishing 2.0, which covered how technology is changing the publishing business.

Karp is a great example of someone who worked at a company but also developed his own personal brand, something that’s been in vogue since Tom Peters famously touted The Brand Called You at Fast Company magazine. With blogging, Twitter and social networks as springboards, personal branding has spread like wildfire through media and technology companies, allowing people like Matt Cutts (Google), Robert Scoble (Microsoft, PodTech, Fast Company) Xeni Jardin (Wired, NPR) and Scott Monty (Ford) to expand their influence.

Karp says he built his brand at Publishing 2.0, using it as a soapbox of ideas and a forum to discuss them through comments.

“My blog became resume, business card, references, network all in one,” Karp told me. “I would go to conferences, meet people, and find they already ‘knew’ me through my blog — an odd but useful form of micro-celebrity.”

Through his blog, Karp met fellow blogger Robert Young, who ended up co-founding Publish2 with Karp, a startup that helps journalists share ideas and links.

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At a time when people jump from job to job (or get laid off from job after job), personal branding is becoming more than just a hobby — it’s a necessity. Matt Cutts, who heads the web spam team at Google and runs a popular personal blog, has become much more than a faceless programmer at the technology giant.

“When you’re considering switching jobs, even a personal website with a small portfolio of sample work can be invaluable,” Cutts said. “People will search for you online, so it’s important to take part in that conversation, and having your own website can be a great way to put your best foot forward.”

Dan Schawbel, author of “Me 2.0” and publisher of the Personal Branding Blog thinks that good companies and publishers will give workers the freedom to create personal brands.

“I read a survey last year that showed that college graduates would spend an average of 1.6 years at their first position, after college, before moving on,” he said. “That number is going to shrink in the future, so companies should focus on results and let their employees own their brand. Smart companies will look at employees as their greatest asset and by allowing them to engage in social media, they will be that much stronger.”

Balancing Personal with Corporate Brands

Personal branding in the media obviously predates the digital age, with newspaper columnists going on TV and TV anchors writing books. But now, there’s a chance for many more reporters, editors, marketers and salespeople to use simple digital tools to create their own following online. And the media companies that encourage that — without too many restrictions — will end up reaping the benefits.

One of the more tech-enlightened newspaper editors, John Robinson of the Greensboro (N.C.) News & Record, says that when a columnist or blogger builds a “tribe” of followers, it helps the paper.

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“Newspapers should encourage columnists and bloggers to build their own brands online,” he told me. “Trust and integrity are two of the coins of the online realm, in my opinion. We know now that it’s no longer good enough to tell people that Joe the columnist is trustworthy. People will determine whether Joe is trustworthy by what he says, what he does, who he associates with, how he talks with others, who he links to, what he links to and who he’s friends with and follows. People develop that sense of Joe over a period of time watching him and talking with him.”

Jeremy Zawodny was a prominent engineer at Yahoo (now working at Craigslist), but built his own personal brand on an independent blog that gained notoriety — and also caused trouble within Yahoo.

“When I got started it was a rocky road,” Zawodny told me. “Several years ago, having a public blog on which I wrote about my employer (Yahoo at the time) rubbed some people inside the company the wrong way. That led to a fair amount of criticism and backlash. In the end, after several uncomfortable meetings and discussions and some careful wording on sensitive topics, everyone agreed that it was a positive thing in the long run. One thing that fell out of that was a set of company guidelines so that others would not have to navigate the minefield that I did.”

Scott Monty, who leads social media efforts for Ford Motor Co. and has a successful blog and Twitter feed (more than 26,000 followers), says people should be careful not to overshadow their brands.

“If you’re employed by a notable brand, it should always be brand first, self second,” Monty told me. “Your personal brand will benefit from the halo effect of your company’s brand. If you want to promote your own brand, you should should either (a) go into business for yourself, or (b) figure out a way to do it separate from your company.”

Kathlyn Clore is associate editor for the European Journalism Centre and described herself to me as “20something journalist” who has a personal blog. She said she has limited what she writes about reporting work she has done, and is wary about blogging taking away from work.

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“The biggest issue for me has been colleagues asking suspicious questions about work-related goals and intentions when they saw me begin blogging about professional topics in January of this year,” she said. “It probably raises the most eyebrows if I’m seen to be dedicating time to my own site/brand/portfolio of work when perhaps I could have been doing something for the journalism centre for which I do most of my work. I’m sure that’s true for others.”

Keeping Talent On Board

Even at a time when people are less likely to quit due to the economy, companies are better off keeping their talented workers happy rather than upsetting them with limits. Branding expert Schawbel notes that some media companies are better than others when it comes to tolerating personal branding.

“Media companies such as Fast Company have completely ripped apart their old website and turned it into a community, while other companies, such as the Wall Street Journal have placed their employees in chains,” he said. “For instance, [the Journal’s] social media policy states that ‘business and pleasure should not be mixed on services like Twitter.'”

Tom Regan was a longtime editor at the Christian Science Monitor, but now is a Monitor columnist and freelancer due to an editor who didn’t give him enough room to be creative. He says that smart companies that give people space to be themselves have a better change of keeping them on board.

“If a writer believes they are building something up, and the company has nurtured it, then I don’t think most people would go,” Regan told me. “It’s when they feel that they don’t have that environment that they say, ‘The hell with this, I’m going to do this on my own.'”

Publish2’s Karp told me that media companies need to value personal branding above all else.

“In a digital media world where corporate industrial assets like printing presses, delivery trucks, etc. are declining in value, people — reporters, editors, bloggers — are the greatest asset that publications have,” he said. “They should actively cultivate that asset by helping personal brands flourish…You could define social media as the shift from publication brands to personal brands, as media shifts to the social web. At some point a publication brand without personal brands will have very little value to the people who consume that brand.”

Advice on Personal Branding

Here’s a roundup of advice for people who want to create a personal brand online:

“Grab a domain name and work on burnishing your personal reputation online. It’s definitely not the case that everyone needs a blog, but having one place that acts as a face to the world can really help. There’s room for a resume/CV, but also for some writing samples that show off your abilities.” — Matt Cutts, Google (from his Letter to a young journalist post)

“The importance of building your brand online today is an opportunity to survive this print industry crash, and protect yourself by having an asset you can leverage to get your next writing job, whether you want to be a freelance writer or work as an employee. Personal branding has become mandatory recently, not just something to do to get ahead.” — Dan Schawbel, Personal Branding blog

“In the future, personal brands will be everything. As newspapers and media companies get smaller and break apart, journalists will be known as much by their personal/professional brand as by the company they work for. Many will be their own company. The quicker you establish a digital brand — I recommend shooting for integrity, trust and authority — the better.” — John Robinson, Greensboro News & Record

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“The microphone is always on. Remember that whatever you do, it reflects on you and your company, if you connect those elements of your life. And in this era, you need to be very careful, as search engines can log all sorts of things. Remember: Whatever happens in Vegas…stays on Google.” — Scott Monty, Ford Motor Co.

“I would go so far as to say that journalists without personal brands, like journalists without digital and web skills, are going to be less and less employable. If you want to be a cog in the machine, it’s probably not a good idea to be a journalist in a social media world.” — Scott Karp, Publish2

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What do you think about personal branding? Should companies and publishers be more supportive of workers who create their own brands online? Share your thoughts in the comments below.

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The New (Lower) Cost of News

What does journalism cost? That’s a question that’s being batted around a lot lately as the economic case for and against traditional newsrooms gets made in the press, on the web, and certainly across well-polished boardroom tables.

In an article on J-Source, Kirk LaPointe, managing editor of the Vancouver Sun, argued that when the cost of news is sliced and diced a lot of pricey items like infrastructure, IT, HR, salespeoples’ salaries, legal fees, marketing, etc. aren’t tossed into the mix.

He’s right, running a regular old-school newsroom is expensive and goes far beyond journalists’ pay envelopes. The Globe and Mail’s cleaning staff wages, for example, are probably the same as the salaries of everybody at This Magazine, twice over.

Spelling Out the Low End

But, to me, LaPointe isn’t making a case for how expensive news gathering must be. He’s just itemizing the upper limit. So, to balance that model out, let’s examine the low end: Rabble.ca.

I’m on the board of Rabble and get to see the balance sheets, which I will share with you now. Last year Rabble ran its entire national news operation on a budget of $203,140.41. That’s all in: salaries, travel, marketing, IT, redesign — the whole frugal ball of wax.

The nine folks who get paid most often get paid for just one day of work per week. They all get the same salary, from editor to podcast network producer to publisher. And, they all work a ridiculous number of volunteer hours and, more often, days per week. Many more folks across Canada volunteer serious time each week posting to blogs, consulting, doing graphic design or the hundreds of other tasks that make an online news site tick, day after day, year after year.

All that effort doesn’t get counted in the balance sheet. If it did, it would be under the tab marked “Gift Economy” or perhaps the one marked “Cognitive Surplus.” Neither of those categories, I’d wager, appear on the spreadsheet LaPointe used to calculate the costs of doing the news business in the old school way.

It is clear that the model outlined by LaPointe is failing and is not sustainable — for all sorts of reasons, only some of which reside with the newsrooms themselves. A centralized, non-virtual newsroom with infrastructure, delivery and production costs isn’t cutting it in many markets. It just can’t generate the kinds of return on investment shareholders want to see these days.

It’s also clear that the Rabble.ca model isn’t sustainable, or, at least, fair and scalable. Staff and volunteers contribute willingly to the gift economy that makes rabble run. But, that is a fragile well to drink from for a sustained period, especially during an economic drought. And, while we have depended upon the kindness of non-strangers, the gift/reward ratio needs to tilt a little more in their favor.

Finding the Sweet Spot

So, there are sustainability issues on both ends of the economic scale: traditional newsrooms at one extreme, Rabble-style models at the other. But I’d argue the sweet spot, that marvellous, magical mix of altruism, recognition, ego-satisfaction and cash-for-effort that can sustain a news venture is much closer to the Rabble side of the spectrum.

So, if you want to find a model for a workable future news organization, it’s probably in our neck of the woods. And, I think it’s going to be far easier for Rabble and its supporters (and future supporters) to slide Rabble up the scale a bit towards the sweet spot than it will be for newspapers with all their baggage to become frictionless enough to slide down.

I don’t argue with LaPointe’s view of the true cost of traditional newsrooms. But, there is a big difference between what news has cost and what news has to cost.

And, biased though I am, I think Rabble and other news organizations that depend on the power of the crowd and the gifts of the like-minded and which have harnessed and focused the renewable energy of concerned citizens are closer to a modern media model than anything else I’ve seen. I think we need to think about news the way some of us have come to think about produce.

We should grow our own and think local. We should cover ourselves, take civic responsibility to inform ourselves and our neighbors and not depend on large, expensive and unwieldy newsrooms to do it for us. Many of them have clanked and bellowed ungently into their good nights.

That doesn’t mean we should undervalue, or ignore the experience and expertise that goes into longer form, longer-to-do investigative journalism. Far from it. Part of the additional funding news sites like Rabble need should be earmarked to hire shop-worn journalists to do what they do best. But, there is a lot of day-to-day journalism we can all participate in.

This is the media age of the small and agile. We’re cheap, but, goddammit, we’re worth it.

Wayne MacPhail is director, emerging-media at rabble.ca. He has been a print and online journalist for 25 years and was managing editor of Hamilton Magazine and was a reporter and editor at The Hamilton Spectator until he founded Southam InfoLab, a national future information products facility for Southam Inc. in 1991.

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This article was originally published on J-Source. J-Source and MediaShift have a content-sharing arrangement to broaden the audience of both sites.

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MediaShift Looking for Editor, Salesperson, Marketer, Correspondents

I want to update readers on some contract job openings here at PBS MediaShift. Even with the harsh economic downturn (and maybe because of it), I feel like the time is right to actually expand what we’re doing here rather than pull back. These kinds of lulls often create openings to make something new or build upon what you’ve got.

So I’m going to be hiring a few contract workers over the next few weeks to help bring in more sponsorships, underwriting and foundation grants both for MediaShift and for a new undisclosed project that I believe will be a great complement to MediaShift and Idea Lab. The job descriptions are below. Before I post these to other sites online, I wanted to give MediaShift readers and community members a chance to apply first.

Also, beyond these contract jobs, I am also looking for some correspondents on MediaShift. Those are detailed below the jobs. If you are interested in any of these positions, please use the Contact Form to get in touch with me directly, and include your resume, links to previous work and an explanation of why you would be perfect for the job.

Associate Editor

This part-time job will include the following duties:

> Copy-editing and direction on blog posts submitted by a team of MediaShift and Idea Lab writers. This means making sure they get copy in on time, reworking the copy, and helping craft the direction of their work.

> Writing a monthly blog post on MediaShift on a subject within the realm of the blog but of which you are more interested or experienced in covering. That could mean social networking, online video, Twitter or any area you feel comfortable covering. Your posts would combine opinion, informed commentary and some reporting, when necessary.

> Other editorial duties as needed on the blog, including monitoring and picking featured comments, coming up with story ideas, and helping research stories.

The following experience will be needed to do this job:

> Writing and/or producing a blog or website.

> Working on deadline.

> Editing other people’s work.

> Working with other people and enforcing deadlines.

We estimate the job should take up about 20 to 25 hours each week. The pay for this job is $350 per week. We are hoping to hire someone for this position in the next few weeks. It would be ideal work for someone who already has other part-time or freelance work.

Salesperson

This part-time job will include the following duties:

> Helping formulate a strategy for selling underwriting, sponsorships and getting grants for MediaShift and another new site to be launched in 2010.

> Sales calls to universities, foundations and media and technology companies to sell MediaShift site, 5Across video show and 4MR audio podcast inventory.

> Coordinating sales with executive editor and PBS liaisons.

The following experience will be needed to do this job:

> Sales for online websites or blogs, preferably those that cover the media industry or journalism fields.

> Knowledge of media business, particularly media foundations, educational institutions, research firms, and media and tech companies.

> Deep list of contacts at media companies, journalism schools, and technology companies interested in new media.

The pay for this job is $1,000 per month plus 15% commission on all sales. We are hoping to hire someone for this position in the next few weeks. It would be ideal work for someone who already has other part-time or freelance work.

Marketing Manager

This part-time job will include the following duties:

> Helping formulate a strategy for promoting and marketing the MediaShift and Idea Lab sites.

> Helping to boost traffic and awareness of sites, as well as 5Across video show and 4MR audio podcast.

> Creating banner and text ads, as well as ads placed on Facebook.

> Tracking success of various ad and promotional campaigns on social media.

> Working with other promotional people at MediaShift and PBS.

The following experience will be needed to do this job:

> Promotion or marketing for online websites or blogs, preferably those that cover the media industry or journalism fields

> Knowledge of MediaShift and Idea Lab sites, authors and subject matter.

> Intimate knowledge of social media and Twitter as marketing tools.

> Ability to “think outside the box” to spread the word about the site in underground campaigns.

The pay for this job is $1,000 per month and would take about 10 to 15 hours per week. We are hoping to hire someone for this position in the next few weeks. It would be ideal work for someone who already has other part-time or freelance work.

Correspondents

We have a great group of writers at MediaShift, including academics, editors and students. I am currently looking for correspondents to cover the following subjects or geographical areas:

> Free speech

> Middle East (outside of Israel), Asia, South America, Africa, Europe

> radio/TV/broadcast

> politics

> book publishing

> magazines

> film industry

These are unpaid correspondent positions, and we expect you to write pieces that are 750 to 1,000 words, once or twice per month. They do provide good exposure for your work on other sites or blogs. Your reports can include thought pieces, reporting, Q&As, video or audio.

If you are interested in writing for MediaShift in another niche or category, or as a guest blogger, let me know via the Contact Form. Be sure to include links to your resume, examples of past work, and explain why you would fit well for these positions.

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4 Minute Roundup: NYTimes.com Charging?; AP’s Sotomayor Blog

Here's the latest 4MR audio report from MediaShift. In this week's edition, I look at the latest move by the New York Times to survey print subscribers to see if they will pay for access to the website -- on top of what they're paying for the print edition. Plus, the Associated Press launched a Twitter feed and blog with Yahoo News to cover the upcoming Sotomayor confirmation hearings Monday. It's a departure for the wire service to include reader questions, feedback and input while covering a live event.

Check it out:

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Background music is "What the World Needs" by the The Ukelele Hipster Kings via PodSafe Music Network

Here are some links to related sites and stories mentioned in the podcast:

New York Times to decide how to charge for its website by August at the Telegraph

New York Times Asks Subscribers: Is It Wrong to Charge for Online Content? at Poynter

NYT Tests Online Pay Scenarios On Print Subscribers; Decision By August? at PaidContent

The New York Times Asks Readers If They'd Pay For Online Version at Mashable

AP_Courtside Twitter feed

The Supreme Court and You at Yahoo News

The Associated Press tries courtside crowdsourcing Sotomayor coverage at Nieman Journalism Lab

Gannett Blog's Hopkins Ends Run Today at E&P

Here's a graphical view of last week's MediaShift survey results. The question was "When did you believe Michael Jackson really died?"

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Also, be sure to vote in our poll about what you would pay (if anything) to access NYTimes.com.

Mark Glaser is executive editor of MediaShift and Idea Lab. He also writes the bi-weekly OPA Intelligence Report email newsletter for the Online Publishers Association. He lives in San Francisco with his son Julian. You can follow him on Twitter @mediatwit.

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Some Bloggers Welcome FTC Scrutiny for Paid Reviews

When it was reported in 2006 that the FTC would begin forcing word-of-mouth companies -- which paid people to hype products to their peers -- to disclose their marketing campaigns, Brian Clark predicted at the time that these rules would apply to bloggers as well. Now it looks like his prediction is coming true -- and bloggers are taking the news in stride.

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A former commercial litigation attorney, Clark is the founder of Copyblogger, a site focused on copywriting and effective use of social media to sell products and services. Earlier this year he published a post stating that he made much more money through direct sales of his services and affiliate marketing programs than he ever did with third party advertising.

So when the AP reported recently that the FTC would begin enforcing disclosure rules on bloggers that were paid to review products, received free products or used affiliate links, Clark wasn't surprised. In fact, one could even say he was delighted. In a post titled How to Turn Affiliate Marketing Disclosure Into a Selling Point, he argued that disclosing your economic incentives to push a product would create more trust with your readers, not less, and in many cases your readers would want you to be compensated for your work.

Rise of Affiliate Marketing

"Affiliate marketing has been going on for 13 years now," Clark told me in a phone interview. "So I'd say it's probably been a long time coming ... The prominence of the number of people trying to make money through various affiliate marketing and paid reviews has gotten to the point where [the FTC] felt like they had to say something about it. They had to make it clear that the law is what it is, and it applies to you whether you're a professional marketer or an amateur trying to make a few bucks from your blog."

I queried the FTC for this story but didn't hear back from them in time for this posting. Rich Cleland, assistant director in the FTC's division of ad practices, told the AP:

If you walk into a department store, you know the (sales) clerk is a clerk. Online, if you think that somebody is providing you with independent advice and...they have an economic motive for what they're saying, that's information a consumer should know."

Clark said the new rules possibly meant that something as small as an Amazon affiliate link could land a blogger in hot water if it isn't disclosed. It is not uncommon for bloggers to receive free products in the mail with the hope they might review them positively; some companies have even gone so far as to pay bloggers to write positive reviews about their products, often leaving it up to the blogger to decide whether to disclose the payment.

When a company called PayPerPost launched in 2006, it received heated criticism for not requiring that bloggers within its network disclose their paid posts. PayPerPost succumbed to pressure and began requiring disclosure. Recently, Blogads CEO Henry Copeland announced that gossip blogger Perez Hilton would begin using his popular Twitter account to send out sponsored tweets.

Regulating paid posts

So is Clark's thesis correct that disclosure will improve affiliate marketing, or will bloggers find it much harder to make money through paid posts? So far it's still unclear as to what kind of disclosure would pass muster with the FTC, or even how the FTC would be able to enforce the new regulations.

"Some people think that some kind of site-wide disclosure or disclaimer link at the bottom of your page is enough," Clark said. "Maybe it is, I don't know. The piece I wrote argued that you should disclose in the body of the content itself, and try to make it a positive thing instead of something that you're ashamed of. You can never go wrong with that. Whatever the FTC says you have to do, this method would always be acceptable, because you're addressing the conflicts of interest directly in the content where you're making the recommendation or endorsement."

But unlike other mediums -- newspapers, radio, television -- there are millions of bloggers so it would be impossible to monitor every single one of them. Many of these bloggers don't monetize their blogs at all, and most that do are lucky if they can pull in more than a few dollars in an entire year. How could the FTC ever hope to regulate the medium with any effectiveness?

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"I think the Washington Post article on this topic mentioned that the companies that compensate them are liable," Clark said. "It's much easier to go to the big affiliate merchants, and say, 'You're going to have a liability when your downstream affiliates screw up.' But here's what'll also happen: They'll find a few high-profile bloggers and make an example out of them and that will scare the hell out of everyone else. So there are two approaches there."

I asked Clark which blogosphere niches were most likely to engage in the kind of marketing that would be targeted. He said that an entire "make money online" industry has sprouted up over the last few years, a group that is largely monetized through affiliate advertising.

"Affiliate marketing is often pitched as an easy way to make money," he explained. "I think that's not necessarily true. I think if you can make a lot of money selling affiliate products you can make a lot of money selling your own products. For example, for our model, we mainly sell our own products, and only occasionally recommend either affiliate products or affiliate marketing programs."

Bloggers respond

In the discussion about the new FTC guidelines, one group under scrutiny is the "mommy bloggers." Many advertisers and marketers have deemed these blogs to have heavily influential readerships, so it's not uncommon for mommy bloggers to receive free products or to be approached for sponsored posts. Jamie Reeves told me that she's often sent products for review and has even set up a separate blog from her main site, Blonde Mom Blog, to post about them.

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Recently, Reeves was approached by Frigidaire for a product promotion and she attended -- along with other mom bloggers -- a promotional event put on by Johnson & Johnson. I asked her why her niche has been targeted so much by advertisers, and she pointed to the influence that moms have over household budgets.

"The vast majority of moms are online," she replied. "They might not have a blog, but they're on Facebook. Moms are very influential because they make a lot of the household purchasing decisions. There are dad bloggers out there, too, but I think the moms are maybe just a little more vocal and a larger demographic. So companies are going to gravitate toward them."

Reeves doesn't write sponsored posts. Like Clark, she said she thinks any conflict of interest -- whether from a free product or otherwise -- should be disclosed, and that most reputable bloggers were offering disclosures well before the FTC indicated that it would begin to crack down on blogs.

"I think that it makes the blog more professional," she said. "Hopefully, everyone I have come in contact with through blogging is up front about it, whether they make it an official statement on their blog or whether they say in their post that 'So and so contacted me, and they sent me a camera, and here's some pictures I took with it and here's what I think of it.'"

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Melanie Phung -- who runs a few affiliate marketing sites -- told me via email the effectiveness of the disclosure will depend on how the affiliate marketing is being done.

"Some should be able to do it pretty seamlessly," she said. "But for casual affiliates who just use affiliate tracking on links they would have placed on their blogs anyway (say, to Amazon or iTunes)...for those people, having to put an obvious disclosure notice -- that they might make a dollar every time someone buys from their link -- would definitely be clunky."

She noted that those currently not disclosing any financial ties are already attempting to float under the radar, so in all likelihood these kind of bloggers wouldn't change their modus operandi because of new guidelines. For many blogs, which can be run anonymously through Blogger and Wordpress accounts, it likely wouldn't be easy for regulators to even track them down, much less take legal action against them.

"There are sketchy affiliate marketers out there preying on the gullible," Phung said. "These scammers promise you free government grants for a hefty finders fee, they're the ones who charge your credit card recurring fees for 'magic' diet pills that never get delivered, etc. And if those people 'disclosed' that their claims were total BS, yeah, that would hurt their sales. But it's the fact that they're making false claims in the first place, not that they're affiliates, that's the problem. These people aren't going to follow the rules anyway."

Simon Owens is a former newspaper journalist and an associate editor for MediaShift. You can read more of his writing at his blog or contact him at simon.bloggasm@gmail.com.

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The Importance of Free Speech Online in Iran, China, Kenya

In a crisis, governments will often curtail freedom of the press, censoring or shutting broadcasts and newspapers. But blocking websites, slowing the Internet or cutting off SMS messaging can be harder to do. Stopping the flow of information online can be a difficult task, as the Iranian government has learned over the past few weeks, as protesters have posted images to Flickr, video to YouTube, and running commentaries on blogs and Twitter. While the Iranian government would prefer to operate under a cloud, the Interent has proven to be a key distribution medium for spreading news to the rest of the world.

This month’s 5Across video roundtable focused on free speech online in various countries, from Iran to China to Kenya — and even a mention of the U.S. government’s attempts at curtailing speech online over the years. The discussion gave context to Iranian Internet use, its demographics and the way people there get information via satellite TV from Persian-language foreign news sources such as BBC Persian and Voice of America. Plus, we talked about how China uses psychology in making its millions of Internet users believe they are all being monitored.

5Across: Free Speech Online

Guest biographies:

Cyrus Farivar is a freelance technology journalist based in Oakland, Calif. He regularly reports for Public Radio International’s The World, National Public Radio, the Canadian Broadcasting Corporation, The Economist and others. His forthcoming book, “The Internet of Elsewhere,” examines the history and effects of the Internet in four countries around the world, including Iran. It’s due out from Rutgers University Press in 2010.

Danny O’Brien is the International Outreach Coordinator for the Electronic Frontier Foundation. He works to help the EFF, the first digital rights group in the world, collaborate with organizations and individuals fighting for online liberties globally. O’Brien has written columns for the Sunday Times, Irish Times, and also founded the Need to Know email newsletter in the dot-com heyday.

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Edwin Okong’o is a Kenyan-born journalist, writer and humorist. He’s an editor at New America Media, an online news service and coalition of ethnic media in the United States. He is also a reporter for PBS Frontline/World. Okong’o received a Masters in Journalism from UC Berkeley.

Scott Rosenberg is the author of the new “Say Everything: How Blogging Began, What It’s Becoming, and Why It Matters,” as well as “Dreaming in Code.” He co-founded Salon.com in 1995 and served as its technology editor and later managing editor for many years. He is also the founder of MediaBugs, a new project funded by the Knight News Challenge.

Kim Spencer, president of Link Media, is an award-winning producer of over 50 documentaries and television specials. A pioneer in using satellite links to foster global dialogue, Kim produced a series of 15 international “spacebridges” including The Moscow Link, a live TV exchange that changed USSR attitudes on nuclear war. Subsequently Kim became coordinating producer of ABC News’ “Prime Time Live.” Spencer is also executive producer of Link TV’s original productions, including “Global Pulse,” “Bridge to Iran” and “Mosaic.”

If you’d prefer to watch sections of the show rather than the entire show, I’ve broken them down by topic below.

Twitter Revolution?

Iran in Context

What Source Do You Trust?

Government Interference

Dangers of Free Speech?

China, Kenya…U.S.?

Credits

Mark Glaser, producer and host
Charlotte Buchen, camera

Julie Caine, audio

Location: Vega Project & Kennerly Architecture office space in San Francisco

Special thanks to: PBS and The Knight Foundation

Music by AJ the DJ

What do you think? How important is the Internet at spreading news when governments curtail freedom of the press? How have you followed the news from Iran? Share your thoughts in the comments below.

Mark Glaser is executive editor of MediaShift and Idea Lab. He also writes the bi-weekly OPA Intelligence Report email newsletter for the Online Publishers Association. He lives in San Francisco with his son Julian. You can follow him on Twitter @mediatwit.

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