Lessons for journalism from the Google Books decision, across Europe and here in the US

On Tuesday, US Judge Denny Chin rejected a settlement agreement between Google, the Association of American Publishers, and the Authors Guild for a 2005 lawsuit over the search giant’s full-text scanning and displays of copyrighted books. While Judge Chin’s decision makes the precise future of Google Books unclear for now, the issues it raises are already being felt by journalists, newspapers, and media creators of all stripes who are currently grappling with Google abroad.

Currently, the United Kingdom and European Union do not have a US-style fair use exception for copyright — at least nothing as remotely as permissive as the United States. In British and European libraries, Google’s policy is to scan only out-of-copyright books. And in countries like Belgium, Google is not permitted to make search results from newspapers available in its Google News search results unless papers’ publishers request to be included — exactly the “opt-in” remedy Judge Chin proposed in the Google Books settlement.

Google is actively working to combat Europe’s copyright restrictions on its businesses, through both legislation and the courts. Meanwhile, both Google and its opponents base their arguments — whether legal or practical — on a particular interpretation of United States copyright law and its effect on business development. Judge Chin’s decision suggests that US IP law can’t be so easily characterized. Indeed, it offers all parties, both here and abroad, routes to different kinds of settlements altogether.

Great Britain: modeling copyright laws on the US

In the UK, a government-appointed commission led by former newspaper editor and current Cardiff University journalism professor Ian Hargreaves is completing a report examining British copyright law. The commission, charged as it is with the specific goal of enabling new digital businesses, is widely expected to recommend an overhaul of existing IP rights. When launching the review, Prime Minister David Cameron justified it by noting that Google’s founders had told him that Google could never have launched in the UK because of its stricter copyright laws.

On March 18, just days before the Chin decision, Google submitted the following (excerpted) brief to the Hargreaves commission:

Without a robust fair use doctrine and well-balanced limitations for intermediaries, many of the online platforms for creativity and research that we take for granted today might never have made it off the ground.

The law must not create a culture of ‘permission first, innovation later’ for technology innovators. Such a culture threatens to chill socially beneficial innovation that helps content owners, creators and consumers alike.

We do not believe that (the EU’s) closed list of (22) exceptions (to copyright limits) is as conducive to innovation as the more flexible, technology-neutral approach embodied within the US copyright regime. The numbers of occasions when innovators might want to use copyrighted material to generate new products in ways that the closed list of EU exceptions did not antitipcate is only likely to increase.

The US system, with its inherent flexibility, is a better way to ensure new and untested innovations are not killed before they even get off the ground. Digital and internet technology requires constant, continuous copying on a global scale and often of vast quantities.

Many other UK media groups have filed responses arguing against changing copyright law, including the British Association of Journalists [pdf] and News Corporation (currently engaged in its own controversial acquisition of Sky News’s BSkyB), whose brief claims that local culture and educational investment matter more than loosened IP law [pdf]:

Silicon Valley is often cited as an example of a success story in discussing innovation. This is understandable: the majority of large dot-com start-ups are clustered in the West Coast of the USA. Nevertheless, such comparatively localised success is unlikely to be connected to the IP framework, which is part of US federal law. It is more likely that it is Silicon Valley’s cluster of universities which attracts both entrepreneurs and, crucially, investors. We are not aware that venture capitalists have ever perceived IP as a significant deterrent to investment, and the fact that Google started in Silicon Valley, in preference to either the UK – or indeed New York – is testament to the particular investment culture there rather than the IP framework.

Indeed, critics see the charge to overhaul British copyright law as led almost entirely by the Cameron-led government and Google. The Telegraph’s Jeremy Warner wrote a scathing op-ed titled “Intellectual Property reform cannot be dictated by Google,” accusing the PM of having “watched [The] Social Network once too often” and having “fall[en] victim to the ‘all content is free’ lobby,” while noting that the last review of IP law, led by Financial Times editor Andrew Gowers, had been completed as recently as 2006.

Cameron has also transferred responsibility for implementing the recommendations of the review from its commissioner, Business Innovation & Skills (BIS) secretary Vince Cable (a Liberal Democrat), to Conservative secretary of state Jeremy Hunt, who heads up the Department for Culture, Media & Sport. The department’s portfolio includes British historical sites, planning for the 2012 Olympics — and now all media and telecommunications policy.

The case of Belgium: Newspapers and web-crawling

Meanwhile, Google is also appealing a 2007 decision in Belgium that disallowed its use of search results from newspapers. Google was compelled to pay 25,000 euros for each day that links to articles and images from the newspapers were stored in its cached search results. The papers are currently seeking an additional 49.1 million euros in compensation for the period prior to the decision.

Google’s hope, according to its attorneys, is to take its appeal of the Belgium case to the EU’s Court of Justice. A favorable decision there would allow Google to operate freely to index newspapers and other information in every country in Europe. A negative decision, Google contends, might make indexing and search operations disappear altogether.

Google Books and the Chin decision

An important if easily overlooked part of Judge Chin’s decision in the Google Books case is the effect of its decision on foreign authors. As he writes in his ruling, many foreign publishers have actually registered their books with the US Copyright Office to ensure their coverage under US law. As a result, “France and Germany, as well as many authors and publishers from countries such as Austria, Belgium, India, Israel, Italy, Japan, New Zealand, Spain, Sweden, Switzerland, and the United Kingdom continue to object to the [settlement agreement], even with the revisions.”

Japan’s P.E.N. Club, a literary group, expressed the general objection, arguing that the agreement would give Google “an almost insurmountable market advantage worldwide in the world of digital book publishing, while granting it a monopoly at home in the United States and other English-speaking countries.”

Google responds that “this case is about United States copyright interests. It’s about uses of works in the United States.” And the implications for international copyright law of the settlement, Chin argues, demand that the relevant issues be determined by Congress, not by a legal settlement between interested parties in the US alone. Yet the political process in the UK and extracted legal process in the EU hardly seem like models either. The temptation is always to come to a decision that results in a favorable business decision for multiple parties, rather than grappling with the issues of fair use and the public good that are necessarily implicated. Let’s hope the Chin decision leads to a substantive reboot where those issues are once again first on the table.

Image by Aray Chen used under a Creative Commons license.

This Week in Review: The New York Times’ fees and free-riders, and tying community to local data

Every Friday, Mark Coddington sums up the week’s top stories about the future of news.

Debating the Times’ pricing structure: There was really only one big news story in the media world this week: The New York Times’ paid-content plan, which is live in Canada now and coming to everyone else on Monday. I divided the issue into two sections — the first on general commentary on the plan, and the second specifically about efforts to get around the paywall.

We learned a bit more about the Times’ thinking behind the plan, with a story in the Times about the road from its last paid-content system, TimesSelect, to this one, and an All Things Digital interview with Times digital chief Martin Nisenholtz, in which he said, among other things, that the Times didn’t consider print prices when setting their online price levels. Former Times designer Khoi Vinh also looked at the last couple of years, lamenting the lost opportunity for innovation and the legacy of TimesSelect.

There were a couple pieces written supporting the Times’ proposal: Former CBS digital head Larry Kramer said he’d be more likely to pay for the Times than for the tablet publication The Daily, even though it’s far more expensive. The reason? The Times’ content has consistently proven to be valuable over the years. (Tech blogger John Gruber also said the Times’ content is much more valuable than The Daily’s, but wondered if it was really worth more than five times more money.) Nate Silver of Times blog FiveThirtyEight used some data to argue for the Times’ value.

The Times’ own David Carr offered the most full-throated defense of the pay plan, arguing that most of the objection to it is based on the “theology” of open networks and the free flow of information, rather than the practical concerns involved with running a news organization. Reuters’ Felix Salmon countered that the Times has its own theology — that news orgs should charge for content because they can, and that it will ensure their success. Later, though, Salmon ran a few numbers and posited that the paywall could be a success if everything breaks right.

There were more objections voiced, too: Both Mathew Ingram of GigaOM and former newspaper journalist Janet Coats both called it backward-looking, with Ingram saying it “seems fundamentally reactionary, and displays a disappointing lack of imagination.” TechDirt’s Mike Masnick ripped the idea that people might have felt guilty about getting the Times for free online.

One of the biggest complaints revolved around the Times’ pricing system itself, which French media analyst Frederic Filloux described as “expensive, utterly complicated, disconnected from the reality and designed to be bypassed.” Others, including Ken Doctor, venture capitalist Jean-Louis Gassee, and John Gruber, made similar points about the proposal’s complexity, and Michael DeGusta said the prices are just too high. Poynter’s Damon Kiesow disagreed about the plan structure, arguing that it’s well-designed as an attack on Apple’s mobile paid-content dominance.

Are paywall loopholes a bug or feature?: Of course, any barrier online is also a giant, flashing invitation to get around said barrier, and someplace as influential as the Times was not going to be an exception. Several ways to bypass the Times’ pay system popped up in the last week: There was @FreeNYT, the Twitter account that will aggregate Times content shared on Twitter, and NYTClean, a browser bookmarklet that strips the Times’ paywall coding, allowing you to read the Times just like normal. The Lab’s Josh Benton noted how easy the hack was to come up with (four lines of code!) and speculated that the Times might actually want nerds to game their system, “because they (a) are unlikely to pay, (b) generate ad revenue, and (c) are more likely to share your content than most.”

So how has the Times responded to all this? A bit schizophrenically. Publisher Arthur Sulzberger Jr. said the people who would find ways around the system would be “mostly high-school kids and people who are out of work.” And the Times asked Twitter to shut down the aggregating Twitter accounts (for a trademark violation) and extended its limit on daily search-engine referrals beyond Google. But the Times is also widening some pathways of its own, making it so you can’t hit the wall directly from a blog link, and offering 200,000 regular readers free online access for the rest of the year through an advertiser.

Search Engine Land’s Danny Sullivan mocked the Times’ behavior toward wall-jumpers as an effort to have its paid-content cake and eat it too: “This wall is designed, as best I can tell, only to be a barrier to your most loyal — and most stupid — readers.” Slate’s Jack Shafer made a similar argument to Benton’s, pointing out that online free-riders aren’t keeping paying customers from reading the Times (like, say, someone who steals a paper edition, as Sulzberger analogized) and are actually help the paper continue its influence and reach.

Adding community to local data: EveryBlock, a three-year-old site owned by MSNBC.com that specializes in hyperlocal news data, unveiled its first major redesign this week, which includes a shift in focus toward community and location-based conversation, rather than just data. All place pages now allow users to post messages to those nearby, using what founder Adrian Holovaty called the “geo graph,” rather than the “social graph.” Mashable added a few valuable details (notably, the site will bring in revenue from location-based Groupon displays and Google ads).

Holovaty answered a lot of questions about the redesign in a Poynter chat, saying that the site’s mission has changed from making people informed about their area as an end in itself to facilitating communication between neighbors in order to improve their communities. GigaOM’s Mathew Ingram applauded the shift in thinking, arguing that the main value in local news sites is in the people they connect, not in the data they collect. At 10,000 Words, Jessica Roy noted that the change was a signal that hyperlocal sites should focus not just on the online realm, but on fostering offline connections as well.

NPR on the defense: Two weeks on, the hidden-camera attack on NPR continues to keep it in the middle of the news conversation. Following last week’s vote by the House to cut off NPR’s limited federal funding, several media folks made cases to keep NPR’s federal funding alive, including the Washington Post’s Len Downie and Robert Kaiser and Poynter’s Roy Peter Clark. NPR host Steve Inskeep argued that NPR’s most important work has nothing to do with any liberal/conservative bias. “Think again of my colleagues in Libya, going forward to bear witness amid exploding shells. Is that liberal or conservative?” he asked.

Elsewhere, James O’Keefe, the producer of the gotcha video, and Bob Garfield of NPR’s On The Media had it out on the air, and DailyFinance gave a picture of NPR’s financial situation. Howard Kurtz of Newsweek and The Daily Beast wrote that some NPR journalists think that NPR management’s passive, reactionary defense of their organization is damaging it almost as much as the attacks themselves.

Reading roundup: Not too busy of a week in the media world outside of Timesmania. A few things to take note of:

— A quick news item: Journalism Online, Steve Brill’s initiative to help media companies charge for their content online, is being snatched up by the Fortune 500 printer RR Donnelley, reportedly for at least $35 million. PaidContent broke the story, and Ken Doctor wrote about the unexpected difficulties the startup encountered.

— At the New York Review of Books, Steve Coll wrote a thoughtful piece on the competing claims regarding technology’s role in social change.

— For the stat nerds: The Lab’s Josh Benton looked at the latest of the continual stream of depressing graphs flowing from the newspaper industry, and Peter Kafka of All Things Digital analyzed the source of traffic for some major sites across the web, comparing the influence of Facebook and Google.

— For the academic nerds: Here at the Lab, USC Ph.D. candidate Nikki Usher talked to media sociology rock star Herbert Gans about targeted and multiperspectival news, and Michigan Ph.D. candidates William Youmans and Katie Brown shared a fascinating study about Al Jazeera and bias perception.

The power of brand to inspire bias: How do perceptions of Al Jazeera English change once the logo’s gone?

William Youmans and Katie Brown are Ph.D. candidates in communication studies at the University of Michigan who just published an interesting paper in the journal Arab Media & Society about how audience bias against Al Jazeera is pushing the network to seek nontraditional methods of distribution. You can read the entire academic paper, but they’ve written a summary for the Lab below.

The diminished capacity of American TV news networks to cover international news became sharply evident during the recent uprisings in the Middle East, most notably Egypt. Into that void stepped Al Jazeera English (AJE). With headquarters in Qatar and staff already stationed in Egypt, the global news media outlet quickly mobilized an on-the-ground newsgathering presence.

But most Americans couldn’t just turn on their televisions to watch AJE’s coverage. The network is largely absent from cable and the main satellite providers’ offerings despite being available in 250 million homes globally. As Ph.D candidates in communication studies at the University of Michigan, we were interested in the role that Americans’ perception of the channel might have in its difficulties getting cable carriage — and how online distribution might serve as a fruitful workaround. That led us to an experimental study that looked at how Al Jazeera branding might influence public perception of a piece of journalism.

The Egypt effect

For years, some in the Bush administration and the American media spoke of the Arabic Al Jazeera channel (AJ) as a spreader for enemy propaganda in Afghanistan and Iraq. This association proved robust in American political discourse. It was one reason AJE had such a tough time getting into the American market when it launched in late 2006. Even today, only cable systems in Washington, D.C., Burlington, Vermont, and Toledo, Ohio currently carry the channel in its entirety.

AJE’s coverage of Egypt was something of a turning point for the network’s image in the United States. Visits to AJE’s website increased 25 times, with more than half of the traffic coming from the U.S. The D.C. area was one of the leaders in Google searches for “Al Jazeera English” at the time. The press not only turned to AJE for information and footage, but lauded its work; ABC News’ Sam Donaldson thanked the network on air. Secretary of State Hillary Clinton called AJE “real news” and juxtaposed it with the talking head-dominated American channels.

As public discourse about AJE changed, many began to question its lack of availability on television sets. Then-New York Times columnist Frank Rich made a tongue-in-cheek analogy: during the Egypt story, “news-starved Americans” tracking down AJE online were like “Iron Curtain citizens clandestinely trying to pull in the jammed Voice of America signal in the 1950s.”

But despite the accolades and calls for carriage, cable companies appeared to let AJE’s “moment” pass, at least for now. In late February, AJE met with the nation’s two largest cable operators, Comcast and Time-Warner. No deal has been announced in the month since (although carriage deals often take longer to materialize).

It is likely the operators are holding out for evidence that attention on AJE sustains or increases. The question of cable carriage is not just a function of policymakers, the press, and cable company preferences. Public demand is an important part of the equation. Are Americans generally open-minded towards AJE after the Egypt coverage?

We conducted an experimental study (pdf) on how potential viewer attitudes toward AJE change with exposure to the channel’s news content. Carried out online in late February to early March, our study involved 177 American participants, drawn from Amazon’s Mechanical Turk pool.

The participants were randomly assigned to three groups. Two of them watched an AJE-produced news clip about the Taliban’s position towards peace talks, which included minimal reference to America. The first group watched the original clip with AJE’s branding:

The second group saw the same news piece re-edited to carry CNN International’s (CNNI) logo.

The third group, the control, viewed no clip. We then asked participants in each group to rate, in general, how biased they thought AJE and CNNI were.

Watching the AJE clip — branded as AJE — did not seem to have an impact on perceptions of bias; bias ratings were equal between those in the AJE-clip-watching group and the control group.

But in the group that had just watched the clip with fake CNNI branding, participants rated CNNI as less biased than those in the control group.

This suggests that many Americans may be unwilling to change their perceptions of AJE — despite the fact that the same clip, when attributed to CNNI, boosted their impressions of the American network.

We also asked all the participants about views towards cable carriage: Should AJE be on cable systems? The responses were distributed in a bell-curve, with no significant differences between conditions. The largest group, about 40 percent, was indifferent. Roughly 25 percent said they prefer carriage but would not take action to promote it. Slightly fewer, about 20 percent, said they would merely prefer it’s not on air, but would do nothing about it either way. While 5 percent said they would contact cable companies to request AJE, 7 percent said they would actively oppose AJE’s carriage. (No one said they would take action opposing CNNI’s availability.)

This finding of an oppositional minority is echoed by actual action, ranging from national petitions to protests against a Pacifica radio station in Houston and a campaign against a small college cable system’s airing of AJE programming in Daytona Beach. In Vermont, some members of the public and Burlington city officials protested the presence of AJE on the municipally-run telecom, sparking a local debate. AJE remained a part of the lineup. Former NBC executive Jeff Zucker suggested that one cause of AJE’s cable troubles is the fear advocacy groups and high-profile media figures “would go after some of those distributors if they were to put Al-Jazeera on.”

But even absent public opposition, there would still be doubts about the commercial feasibility of another news network. Cable companies can point to declining news audiences and the supposed lack of American public interest in international news, arguing that the TV news market has reached a saturation point. These, along with the fear of backlash, only creates further reluctance in an already risk averse industry. The preferences of those in favor of AJE’s availability, around one-third of our respondents, are overridden by this outcome. The power of cable as a gatekeeper prevents AJE from participating in the open competition of ideas so important to American free press values.

Circumventing cable

AJE’s best chance for getting around cable gatekeepers is by continuing to develop new, mostly online, distribution channels. Survey research from Pew suggests that while TV news viewing since 1996 has been relatively stable, online news consumption since 2006 has been on the rise.

The lack of cable carriage may force AJE to look ahead of the curve if it is to build an American audience. AJE’s online news gathering, presentation, and distribution are still developing, but have shown major improvements in the past year especially.

AJE’s provision of video clips and online livestreaming via its website and YouTube, where it is currently the third most watched news and politics channel, enhanced its accessibility tremendously. Google, to the extent it is increasingly becoming a media company, has been hospitable to AJE.

AJE has arranged a deal for carriage through Roku, the Internet-based set-top video delivery company — although how much of a substitute such Internet-based TV systems will be for cable is still an open question. And AJE continued to roll out smartphone distribution by adding an Android app to its iPhone, Nokia, and Samsung lineup.

During the Egypt story, the network’s website coverage and online videos were heavily redistributed via social media such as Twitter and Facebook and led many to AJE’s website. At times, as many as 70 percent of its website visitors linked in from social networking platforms and sites.

News flows online are diffuse and remain relatively free of large gatekeepers. Small vocal groups are less able to deny access to news and information they oppose through protests and threats of boycott. Questions of middle-man profitability and channel capacity constraints do not constrain online distribution. One unintentional advantage of its exclusion from cable and American satellite is that AJE will be better placed as news consumption routines increasingly depend on the Internet — assuming new, powerful gatekeepers do not arise to block others’ access to information.

How CNN’s iReport enhanced the network’s coverage of the Japan earthquake and its aftermath

When the ground began to vibrate in Fukushima, Japan on March 11, Ryan McDonald thought it was just a “normal earthquake.” But the fear in his voice as the vibrations escalated was palpable. In video uploaded to CNN’s iReport, McDonald screams, “Oh my God, the building’s going to fall!” as he frantically shifts the camera’s view into what looks like a garage and then out into the street.

McDonald’s video is one of the hundreds uploaded onto CNN’s iReport focused on the deadly Japan earthquake that has killed thousands and disrupted the lives of millions. Not long after he submitted the video he was invited onto a live CNN broadcast where he used Skype and a computer headset to field an interview. “I’ve been in Japan for nine years,” he told the CNN host. “I’m an English teacher here… In those nine years I’ve never been concerned, or worried, or scared about an earthquake. But with this I was truly terrified.”

In the week after the earthquake, CNN invited several other iReporters on air to recount their own firsthand experiences of the disaster, a strategy that allowed the network to enrich its reporting on the region as other news organizations were struggling to get their own reporters on the ground. The New York Times reported last week that CNN — which has often drawn last place ratings against its cable news competitors — shot up to the ratings lead in the earthquake’s aftermath, attracting over 2 million viewers on some nights. Given that a sizable portion of this coverage focused on footage from iReports and interviews with the citizen journalists who recorded them, at least some of CNN’s success can be attributed to its iReport community.

Lila King, iReport’s participation director, told me in a phone interview last week that it’s not uncommon to see a flood of iReports, not only in the immediate aftermath of a major news event but in the weeks following, as well. “There’s the first wave of iReports,” she said. “An event happens and people post photos or videos immediately — the immediate damage and after-effects. And then once CNN begins covering the story, both through television and online, then there’s a second wave of iReports.”

This second wave, she explained, comes from viewers at home who watch the iReport interviews and are inspired to produce their own. Often the videos in this second wave are more diverse; they can include both video diaries of people speaking into the camera offering their opinions and more well-edited videos exploring the indirect implications of a major news event. With Japan, the first wave of iReports originated in the disaster area and then moved on to Tokyo before migrating to the California coast. There were videos of waves crashing into the US shore and of tourists huddling on the ground in a Honolulu hotel, fearing the possibility of a tsunami.

So how does the collaboration between the main network and the iReport team take place? King said that her team — made up of about nine people — sits right in the middle of the CNN newsroom. “They’re like 20 yards from the person who’s running the homepage, so if something happens, you’re within shouting distance,” she said. “It’s just a constant communication like in the middle of any newsroom. With something like this, what typically happens is that an event takes place and then iReport gears up to go build a page to house all the incoming iReports so we can set it up for our television colleagues, and then on the homepage of CNN.com. Then there’s a lot of shouting across the room and telephone calls and daily emails to deal with the iReports that still have to be vetted.”

What makes iReport stand out from other citizen journalism sites, King said, is the fact that CNN makes an attempt to verify as many of its submissions as possible. An iReport producer will often speak directly to an iReporter, and it’s during these conversations that the producer may bring up the possibility of the iReporter going live on the air to tell his or her side of the story. “When you talk to someone, you get a sense of what their story is, and how they tell it,” she said. “Obviously that can be very important for television. We will just ask people, ‘Would you be willing or interested in talking to someone live on the air?’ In general — not just for this story, but for iReport overall — probably half the people we ask that question to are really excited and the other half decline it outright. It can be a very tough thing to do, doing a live interview on television. When people are willing, we ask them for their Skype handle or iChat or whatever it is that they have, and then we patch them through to the newsroom.”

Since its launch in 2006, 753,000 people have registered iReporter accounts, and a CNN spokeswoman told me that the network sees an average of 2.1 million unique visitors to the iReport section of the site. So far, 799,959 videos and images have been uploaded.

I asked King whether most the uploads deal with major news events like the Japan earthquake.

“When iReport started, we all expected spikes around breaking news reports, and we’ve certainly seen that, especially in this case,” she replied. “But one of the things that surprised me the most is that there is a whole other world in iReport that’s much more focused on feature storytelling through local personal stories.”

Some of those personal stories will be about what it’s like to live through an earthquake, while others are simply showing off a user’s new iPad. The goal of King and her colleagues is to push the most newsworthy of those stories into the spotlight, whether through the homepage of CNN.com or a feature with Wolf Blitzer on his show. Not only does CNN employ more news journalists than its fellow cable news competitors, but it also has its own personal army of citizen journalists, showcasing the voices of some who didn’t even know they had one.

In two years, Amazon moved from journalism savior to afterthought; is today the day the trend reverses?

In the brief moment between last week’s unveiling of The New York Times’s new smartphone- and tablet-centered subscription plans and today’s launch of Amazon’s Android Appstore, it’s worth taking a short historical detour, if only to see how differently the world looks today from the time, not long ago, when the Kindle was supposed to be a big factor in getting people to pay for journalism.

First, an observation: the NYT’s new digital subscription plans don’t apply to Amazon’s Kindle, Barnes & Noble’s NookColor, or any other e-reader. The digital subscriptions FAQ spells it out: “At this time, we’re not able to connect your e-reader subscription to an NYTimes.com subscription. Each must be purchased separately.”

This is partly a result of earlier negotiations between the Times and the e-bookstores. But it’s clear that the NYT’s digital strategy today is focused on the web browser for the desktop and applications for mobile. E-reader subscriptions today, for better or worse, are minor players — legacy obligations. With that in mind, it helps to understand how we got here, and why.

May 6, 2009

Less than two years ago, between “countless meetings” and furious debates over how to secure The New York Times’s digital future, publisher Arthur Sulzberger appeared on stage with Amazon CEO Jeff Bezos to announce the new Kindle DX.

Magazines and blogs ran breathless stories wondering if the new Kindle might rescue newspapers. (We were skeptical.) But everyone seemed to agree that the DX’s extended ten-inch display was ideal for digital subscriptions to newspapers — which were then the Kindle’s best-selling content. (The Times alone was selling tens of thousands of digital subscriptions for the first-generation 7″ Kindle.)

In 2009, Amazon owned the mobile market for screens six inches and up. No other e-readers had a comparable marketplace. Barnes & Noble had yet to launch the Nook, let alone the NookColor. Apple’s first iPad and the wave of tablets that continue to follow it were still a year away. The Times, along with the Boston Globe and Washington Post, even agreed to subsidize digital subscriptions for readers outside their print delivery areas with the purchase of a new Kindle DX. For the Times, that subsidy amounted to a free one-year subscription and a New York Times-branded Kindle cover.

At the Kindle DX launch, Sulzberger was bullish on Amazon’s device: “We’ve known for more than a decade that one day an e-reader product would offer the same satisfying experience as the reading of a printed newspaper.” But he was guarded on the specifics of the NYT-Amazon partnership, calling it an “experiment” and “a laboratory to test new digital distribution strategies.”

Kindle periodicals, two years later

On its own terms, the Kindle is even more successful today than it was in 2009. The Kindle 3 is Amazon’s best-selling device in its history; more importantly, it generates millions of dollars in ebook sales for Amazon. Even the explosion of color tablets has arguably been good for Amazon’s ebook store; the company’s mobile apps extend the reach of its marketplace while its most loyal readers gobble up books on the Kindle. Amazon’s also continued to innovate in its support of journalism, with Kindle Singles providing a new platform for long form pieces that don’t fit in the current economics of either books or periodicals.

But you rarely hear anyone talking about Kindle subscriptions as either the savior or future of newspapers or magazines any more. On Amazon’s Kindle DX page, newspaper and magazine subscriptions occupy a slim space at the bottom, together with blog subscriptions and well below books, PDFs, and built-in access to Wikipedia. There’s a short note on newspaper navigation that mostly advertises the DX’s five-way controller and clip-and-save capacity. (Textbooks, the other original raison d’être of the Kindle DX, go unmentioned altogether.) Despite its augmented capacities — I’ve written admiringly about them elsewhere — the Kindle, including the larger DX, is a machine (in both senses) for selling and reading books.

It’s telling that Kindle Singles, Amazon’s most exciting contribution to the journalism marketplace, essentially converts a periodical article to enlarge the market for ebooks. And it’s telling that Apple’s most influential contribution to the journalism marketplace has been the conversion of periodicals into apps.

We want the inches: Kindle vs. tablet

In retrospect, Amazon was prescient in targeting a 9.7-inch screen for periodicals. But several features have tilted the market towards tablets and away from e-readers. Some of the most decisive may not be the first that come to mind.

The immediate advantages of a tablet like the iPad over an e-reader like the Kindle DX are color, multimedia, touch, richer interactivity, and a wider marketplace. Kindle users trade that for readability, battery life, and a simpler content-buying experience.

For content creators like The New York Times, however, the revenue streams for the two devices are quite different. Even though Apple now asks for 30 percent of subscription revenue sold within its own app store (and zero for subscriptions sold via NYTimes.com), Amazon’s cut was once far steeper, taking 70 percent to the publisher’s 30. The company’s since moved to a split virtually identical to Apple’s for books and periodicals $2.99 and higher — but Amazon doesn’t have a comparable mechanism for current print subscribers or anyone who subscribes outside of Amazon’s own store.

Even more significant, however, may be the difference in advertising revenue. Currently, Kindle periodicals like the NYT are ad-free. Mobile applications can offer not only interactive, multimedia ads, but can easily offer advertisements scaled for handheld- and tablet-sized devices. What’s more, demographics for mobile devices and the Kindle differ wildly, with the Kindle skewing older (although those figures are likely closer now than they once were).

Even six- and seven-inch tablets suffer from diminished ad revenue potential compared to ten-inch devices like the iPad, as Gannett’s Craig McKennis noted last year. Meanwhile, the Kindle DX has amazing screen estate, but keeps it all for itself.

The future: Amazon’s Appstore and its ten-inch device

Today, Amazon launched its Appstore for Android devices. It’s a remarkable challenge to Google’s official Android Market, as well as an admission that the market for mobile apps has grown too big for a digital retail giant like Amazon to ignore. And it’s a challenge to Apple, which has filed a lawsuit against Amazon for use of the contested “App Store” trademark, and can’t be happy to have the powerful retailer competing for user mindspace and exclusive access to developer’s apps, even on another platform.

But the Appstore is also potentially a barometer for Amazon’s future role in the economics of the news industry. Applications, not subscriptions; 30/70, not 70/30; availability on multiple devices and platforms, both analog and digital; control of the marketplace above control of the device or the content. This is largely the emerging conventional wisdom for publishing today, which Apple embodies and Amazon has adopted. It’s also part of the universe in which The New York Times’s new subscription plans appear, and in which they will thrive, fail, or limp along.

As Pascal-Emmanuel Gobry at Business Insider noted in January, there are several reasons why Amazon’s Android App Store “can be a huge deal”:

People will be able to download the app store on their handsets, but what’s more likely is that Amazon will partner with device makers to ship gadgets with Amazon as the default app store.

A few things will set apart Amazon’s app store from Google’s. The first is curation — Amazon will try to strike a happy middle between Apple’s sometimes crazy restrictions, and Android’s free-for-all. Another one is pricing: developers can set a “list price,” but Amazon reserves the right to heavily discount apps. And finally, Amazon will offer app recommendations, like it does on its web site.

Pre-launch, tech blog AndroidNews took screenshots of a prematurely-available page that seem to confirm that Amazon will be offering apps at lower prices than Google’s marketplace. The apps predicted to appear are mostly games, although Newsweek Mobile’s app also makes an appearance (at a discount).

Let’s assume that Amazon’s Appstore becomes a success, and that it does, in fact, become the default store for a handful of manufacturers and users who prefer it. If news applications largely do appear there, that’s significant for both publishers and Amazon, because the retailer will be continuing to play a role in the dissemination of news and revenue. If news apps largely don’t appear in the Appstore, that’s also significant — because there will be a class of devices and readers who will be harder to reach.

The most intriguing but also the most speculative scenario for Amazon, in light of its new app store, is that Amazon itself might launch an Android Kindle, a multimedia tablet to rival the iPad, NookColor, and others, using the Appstore as a base. Nick Bilton at the NYT recently observed that Amazon is hiring Android developers, while rumors of an Amazon Android tablet are nothing new.

An unexpected hurdle for such a tablet might again be legal. Yesterday, Microsoft filed a lawsuit against Barnes & Noble claiming its Android-based e-reader violates several of Microsoft’s patents. Last year, Microsoft and Amazon made a broad patent cross-licensing agreement for the Kindle and other technology, but it’s not known whether and under what conditions that agreement would permit an Amazon-branded multimedia tablet or prohibit it.

However, the current-generation Kindle’s low price point and advantages as an ebook reader make it no longer an either/or between tablet and Kindle, as Dan Frommer points out in the smartly-titled “The Kindle Is An iPad Accessory, And That’s Why It’s Still Going To Be Huge.”

Like Frommer, I think it’s unlikely that the mainstream Kindle will be radically altered. It is simply too successful for what it is. The Kindle DX, however, is something else entirely. It’s too close to the iPad in both size and price to be just a large-print Kindle with 3G access. The original initiative behind the DX, to grow a marketplace for Amazon beyond the book, remains unmet. A ten-inch multimedia tablet backed not just by Amazon’s Appstore, but by its selection of ebooks, music, movies, games, and more — fueled by Amazon’s unparalleled payment system, offering one-click access to millions of credit cards, and driven by Google’s operating software — would meet that need.

What’s more, Amazon plus Google may be the most dangerous competitor Apple could face. The open question would be whether such a “Googlezon” tablet would need to carry the Kindle brand, or whether (like “Wintel”), they could set the market standards for an ecosystem of third-party manufacturers.

Kevin Kelly and Michael Arrington have separately speculated that Amazon could give its six-inch wifi Kindle away for free, possibly with purchase of a subscription to Amazon Prime, making its revenue back on the sale of ebooks and real-world retail goods of all kinds. And John Lanchester, writing late last year in the London Review of Books, makes this oddly-resonant observation about a very different kind of subsidy:

A persuasive looking analysis in the Business Insider put the cost of printing and distributing the New York Times at $644 million, and then added this: ‘a source with knowledge of the real numbers tells us we’re so low in our estimate of the Times’s printing costs that we’re not even in the ballpark.’ Taking the lower figure, that means that New York Times, if it stopped printing a physical edition of the paper, could afford to give every subscriber a free Kindle. Not the bog-standard Kindle, but the one with free global data access. And not just one Kindle, but four Kindles. And not just once, but every year. And that’s using the low estimate for the costs of printing.

But that future leaves us where we were in 2009: with Jeff Bezos and Arthur Sulzberger sharing a stage, holding a $400 E Ink reader that offers subscriptions without paper or advertising. It’s an open question whether that vision or another will win out in the years to come.

That was quick: Four lines of code is all it takes for The New York Times’ paywall to come tumbling down

The New York Times paywall is costing the newspaper $40-$50 million to design and construct, Bloomberg has reported.

And it can be defeated through four lines of Javascript.

That fact is both the problem and the opportunity of a leaky paywall. There is no one consistent, workable price for online news content. For the vast majority of people who read a news site, the price they’re willing to pay is zero; for a few, it’s something more. The key question of the Times paywall — and of any paywall, really — is how to maximize the revenue generated from those two extremes and the various gradations in between.

The Times’ approach is to create a relatively high price point — $15 to $35 a month, depending on the package — for those willing to pay. For those who are very casual fly-by readers — those who read fewer than 20 articles a month — the site remains free, and the Times makes money from advertising. And for those in the middle — readers who lack the brand loyalty to want to pay, but nonetheless like to see Times stories pop up in their Twitter feed — the social media “leak” in the paywall will keep letting them in for ads.

That kind of nuance makes for a much more precise instrument than a blunt-force paywall. But it also puts the onus on you to get all that nuance right. Get it wrong and you risk angering readers — or letting would-be paying customers in for free.

The Times paywall doesn’t launch in the United States for another week; the paper has plenty of time to plug this particular Javascript vulnerability, which goes by the name NYTClean, if it wants to. But the real question is: Is this a hole they really want closed? Or is this one of the intentional leaks in the wall?

The parable of NYTClean

<nerdy interlude>

In my piece Thursday looking at the paywall — currently only live in Canada — I noted that, when you reach your 20-article limit and try to read more, the contraband article actually loads just fine in your browser — it’s just quickly covered by an overlay obscuring the article and reminding you to pay up:

The full text of the article is still visible in the page source. And as I mentioned in responding to a commenter — and as is evident to anyone who can right-click on a page and choose “Inspect Element” — the overlay is nothing more than a little CSS and Javascript.

Unfortunately for the Times, there are plenty of popular (or popular-among-nerds) tools that tactically remove little bits of CSS and Javascript. There’s Greasemonkey, there’s Stylish — not to mention the ease with which a browser extension in Firefox, Chrome, or Safari can be built to strip out code. As I wrote:

…not to get too far into it (although many bearded people will in the coming days, I can assure you), but yeah, as far as I can tell it’s just a set of divs generated by some javascript. Although I couldn’t quickly find that script in any of the linked .js files, certainly someone nerdier than me will.

So an attempt at a set of Firefox/Chrome/Safari extensions named FreeNYT can’t be too far off. Although I’m sure the Times has already thought of some creative things to counter that too.

Well, consider the first shot in the NYT paywall battle fired. Canadian coder David Hayes has just released NYTClean, a bookmarklet that, in one click, tears down the Times’ paywall.

“Released” is probably even a little strong — it makes it sound like there was an extended development process. All NYTClean does is call four measly lines of Javascript that hide a couple <div>s and turn page scrolling back on. It barely even qualifies as a hack. But it allows you access to any New York Times story, even when you’re past the monthly limit. (I just tested it out with a Canadian proxy server — works just like it says.)

</nerdy interlude>

(Obligatory note: I think the Times is right to ask regular readers to pay, and I think their paywall is basically well designed. Me, I just became a print subscriber last week, using the Frank Rich Discount. Support your local journalist!)

Leakiness: a bug and a feature

Now, the Times paywall is, to a certain extent, defined by its leakiness. The various holes — external links from social media and search biggest among them — are no accident; they’re the result of some (correct, I say) thinking about hitting the right balance between fly-by and dedicated readers, between those who come in the front door and others who arrive from the side.

But the tradeoff for those holes is that they’re designed to be a pain to use if you’re a dedicated NYT reader. Click an occasional Times link when it comes up in your Twitter stream? No problem. But if you’re the kind of person who goes to nytimes.com every morning and clicks on four or five articles, you’ll quickly find it’s a big pain to go search for a headline in Google or Twitter every time you want to read another David Carr piece. (A similar workaround has existed for Wall Street Journal stories behind its paywall for years, but it’s doubtful anyone other than the most desperate reader has ever used it much.)

This CSS-and-Javascript hole, however, isn’t difficult to use at all. One drag into your bookmark bar, then one click whenever you hit a blocked article.

And yet this workaround is so blindingly obvious to anyone who’s ever worked with code that it’s difficult to imagine it didn’t come up in the paywall planning process. The other major news paywalls — WSJ, FT, The Economist — don’t actually send the entire forbidden article to your browser, then try cover it up with a couple lines of easily reversible code. They just hit you with a message saying, in effect, “Sorry, pay up here” whenever you stray past the free zone.

And that leakiness is actually a defensible choice, I think, on the Times’ part. Imagine a Venn diagram with two circles. One represents all the people on the Internet who might be convinced to pay for nytimes.com. The other represents all the people on the Internet who (a) know how to install a bookmarklet or (b) have read a Cory Doctorow novel. Do you really see a big overlap between the two? If someone is absolutely certain to never pay for the NYT, then it makes sense to squeeze a little extra advertising revenue out of them on the rare occasions when a link sends them to nytimes.com.

The problem with that model, though, is that it assumes inefficiency. It assumes that the happy-to-pay crowd (or the grudgingly-will-pay crowd) never find out about the workarounds — or at least that the workarounds remain complicated enough that they won’t want to bother. One click, though, ain’t all that complicated.

And that nudge-nudge approach to security through obscurity also assumes that the Times will be, at some level, okay with people using workarounds. It’s a tough balance: tolerating them so long as they boost advertising revenue and continue to give people the impression nytimes.com is available to them; breaking them when they prove to be too popular among people who might otherwise pay.

To get an idea what that balance looks like, check out statements from two top Times officials in the past few days. First, Eileen Murphy, NYT vice president of corporate communications, talking to the Canadian Press:

She said the paper will be watching for attempts to circumvent the digital subscription system and the limits in place, like if Twitter users tweeted links to the entire paper.

“If it was something blatant…that is likely something that we would make an effort to go after,” Murphy said.

“If there was some real attempt to game the system in some way that was not appropriate it’s something we would certainly look at.”

Psst…if you’re looking for someone who tweets a whole bunch of links to NYT content, I know a guy.

Or Martin Nisenholtz, in his interview with Peter Kafka:

…we want to make sure that we’re not being gamed, to the extent that we can be…We’re obviously going to be vigilant over the next couple of months, in looking at the ways that people are doing that…

I don’t think we’re going to spend enormous resources to go tracking people down. But at the same time, we’re going to obviously work to see where the source of these workarounds are, and work to close them off, if they become substantive enough.

But in looking at the research that we did, we expect [paywall jumpers] to be a very significant minority, a small, small number of people. When you look at your Twitter feed, based on the people you follow, it probably seems like it’s looming very large. But in the scheme of things, among people who don’t live in Silicon Valley or don’t cover it, the vast majority of people do not have this on their minds.

That last bit gets at the issue: You can afford to let nerds game your system. You probably want them to game your system, because they (a) are unlikely to pay, (b) generate ad revenue, and (c) are more likely to share your content than most.

The danger is when it becomes easy for non-nerds to do it. And that’s the risk of any leaky paywall — the risk that you might calibrate the holes incorrectly and let too many of your would-be subscribers through. Something like NYTClean — or the many tools that will soon follow it — could be the kind of thing that tips the balance in a way that hurts the Times.

“News media are targeted but audiences are not”: Herbert Gans on multiperspectival journalism

Herbert Gans, a professor emeritus in Sociology at Columbia University, wrote perhaps the seminal book about news organizations. In Deciding What’s News: A Study of CBS Evening News, NBC Nightly News, Newsweek and Time, first published in 1979, he provided one of the best accounts of how journalists actually do their work. In 2003, Gans published Democracy and the News, criticizing our current news outlets but offering hope that with some changes, we might improve both journalism and democracy along with it.

Journalism is not all he writes about, but when he does, it’s pretty powerful. Gans has inspired a new legion of would-be ethnographers to take up studying the news from inside newsrooms themselves, including myself and fellow Lab contributor C.W. Anderson. In Deciding What’s News, Gans made a powerful argument about the role of source power, audience power, and the need for efficiency as a motivating force driving the production of the news. But he also introduced an idea that he is revisiting today in an article in the journal Journalism. That idea is “multiperspectival journalism,” and I’ll let him define it below in his own words.

What follows is an interview I conducted with Gans. In addition to a discussion of multiperspectival journalism, it includes some of his ideas about how journalists could better serve as representatives for the people whom they cover, better reflecting the diversity of American experiences in their work.

NU: I’d like to begin by asking about what many people in the journalism world know you for: Deciding What’s News. In that work, you looked at CBS, NBC, Newsweek, and Time from a multi-year, ethnographic perspective. If you were to approach a restudy, what would you change — and what would you keep intact — from the original?

HG: I wish someone would do such a study, because both [network TV news and newsmagazines] now have smaller audiences and smaller budgets, but the network evening news has barely changed in format or content in the last 40 years, while the newsmagazines are changing drastically. I would want to study how they decide how and what to change — and what to keep — and what direct and indirect roles news organizations’ budgets and news audiences play in these changes and in the shape of national news generally.

NU: You defined “multiperspectival news” in 1979. And you bring it up again now. Could you explain it for us, and explain why you think it is still a relevant need? Is it more relevant today, given the challenges facing legacy news outlets?

HG: When I did my original research, national news was limited mostly to what I might now call monoperspectival news, sometimes also called stenographic news. I oversimplify somewhat here, but national news was dominated by journalists reporting what authoritative sources, especially top government officials, told them — or, when these disagreed, what “both sides” (usually Republican and Democratic) were claiming.

Multiperspectival news reporting is more diverse. It seeks news about other subjects that are newsworthy for the variety of audiences in the total news audience; it obtains news from many other sources, including ordinary citizens, and it reports a variety of political, ideological, and social viewpoints (or perspectives).

Here’s my favorite example. Poor audiences need business news like everyone else, but not about investing in the stock market or the latest newsworthy acts, legal or illegal, by corporate bigwigs. They need to know about the businesses in which they can afford to shop and the ones that will hire them, as well as the charitable and public agencies that can help them when they are jobless and in need.

Today, thanks to cable news and the Internet, the news is much more multiperspectival than it was in the past, but it reaches a far smaller news audience than traditional legacy news.

NU: You offer the following different perspectives that news could cover: national, less Washington-centered and more bottom-up news about ordinary people affected by the decisions and acts of politics; output news, or how policies (both public and private) affect people; representative news, or news about Americans in their great expanse of diversity writ large; and service news, or news that’s meaningfully relevant about how the government and other institutions can get things done.

Where would all of this news go? And who would you have writing it? Do you think newsrooms as they function today can shift to adapt to make these changes in perspective?

HG: When I published Deciding What’s News in 1979, I suggested increasing the number and variety of news media. Today, cable, the web, and other new technologies have made that happen, and we are at a stage in the innovation process in which further new journalistic formats and ideas are being tried out all the time. What can be monetized and what can be supplied free of charge remains to be seen, but if the needed monies and audiences are there, the journalists and the newsrooms will come to stay.

NU: You talk about the idea of journalists working more as representatives of people than they currently are, even though, of course, journalists are not elected. At the same time, journalists are, as you have argued, stuck in the box of their own worldviews, which often reflect their own social status and the ensuing beliefs about nation and society. How do we get around that?

HG: I find the idea of journalists as representatives intriguing, in part because the U.S. is an upscale democracy, the politics of which is dominated by corporate campaign funders and the upper-middle-income population that votes and participates more actively than the rest.

As a result, U.S. politics does a poor job of representing the remainder of the citizenry, especially those earning below the median income and various numerical minorities.

Journalists are not elected officials and they cannot be political representatives or advocates but they can represent people in a variety of other ways, for example by turning their experiences and problems into news, and by asking politicians and other authoritative sources questions to which unrepresented and poorly represented citizens need answers.

Journalists can also pay more attention to (now) poorly represented political and other ideas.

I think j-schools and news organizations can either recruit journalists who can get journalists unstuck from their own boxes or teach them to do so. Moreover, multiperspectival news — and representative journalism — would require a greater diversity of journalists, especially those coming from and familiar with the lives of poorly represented citizens and ideas.

NU: Today, the idea of “who is a journalist” has changed since your book in 1979. Who do you see as today’s journalists?

HG: I don’t think professional journalists have changed all that much since the book came out, other than that they are more educated and professionally better trained. Newsrooms have changed, as have all other workplaces, but I don’t see a big difference in today’s news judgments. Even the inverted pyramid has not yet been torn down.

True, there are amateurs who supply photos, videos, and even news stories to supplement what is gathered by professional journalists — but the latter still provide most of the actually-consumed news. It’s just that much of the news and opinion we once told each other face to face and in small groups is now visible to so many other people in the web’s so-called social media. However, even if it is visible does not necessarily mean that it is seen. One must always remember that ordinary people do not pay the same kind of attention to news as do journalists and media researchers, whether it is Facebook’s personal news or the TV networks’ professional news.

NU: You speak about citizen news, which would help people be more educated politically. Where do changes such as the citizen journalism movement and hyperlocal news fit into this vision of citizen news?

HG: Journalists need to pay more attention to what citizens are doing politically, and what their elected representatives do and don’t do for them. Conversely, elected representatives should know more about their constituents, especially the silent ones.

Reporting more such citizen news would incorporate the citizenry a little more into the political process, and would also offer citizens seeking to be more active examples of citizen activity. Since such news will probably always be of lower priority to professional journalists, help from the citizen journalism movement and supporters of local news would be desirable.

NU: One thing you alluded to in 1979 and bring forth more clearly now is the idea of targeted news. In 1979, you talked about having a two-tier system of a general news audience (first-tier) and then more specific (second-tier) audiences that were more homogeneous. I see this idea as taking shape in your current idea of targeted news coverage — what some would call niche content. Can you explain a little bit about the relationship between the general news audience and this targeted audience? Is there enough overlap to create a common conversation?

HG: News media are targeted but audiences are not. There are news media which seek to communicate with a particular audience, which may be targeted by gender, education, race, etc., and there are other news media — most, in fact — which try to attract everyone. However, audiences head for where they want to go, and many people turn to both general and targeted media. But I wouldn’t imagine much overlap or a common conversation. I am not even sure that many people converse very often about what’s in the news media, other than journalists and media researchers.

NU: All of this is going to take a lot of money, and you acknowledge that some of your calls for changes are not particularly practical. For example, you talked about having a national endowment for the news. Why is it, do you think, that the idea hasn’t been taken up? How could such an idea exist absent from the debates over public media funding?

HG: I didn’t try to be realistic or practical then, nor am I trying now, though I hope some of my ideas and proposals catch on. Even so, when I proposed the national endowment for news, its purpose was to fund some of these proposals on an experimental basis, not to provide general public media funding.

However, some public subsidy of the news media may become necessary in this day and age, and I am sorry that it seems to scare too many professional journalists. I think most of their fears are groundless but in any case, we should be discussing safeguards against possible threats to press freedom from government funders instead of scaring ourselves about what government might do to censor or chill journalists. Politicians and others making money or otherwise benefitting from fear are already scaring us too much about too many things.