Last Updated Jul 15, 2009 1:32 PM EDT
There are these brothers named Marburger. One is named David and he is a "first amendment lawyer," i.e., the same class of practitioners who have been advocating suicidal business practices* to their newspaper clients for some time now.
The other is named Daniel and he is an economics professor at Arkansas State.
That's all fine. Now these guys, as is the case with certain other legal and academic types, want to resuscitate "common law unfair competition rights" to protect newspapers from "parasitic aggregators" who allegedly "steal" content online. But, after reading through their argument courtesy of Fitz& Jen's blog at Editor & Publisher, I don't see a single example of one of these so-called thieves cited anywhere.
All I see is a preposterous hypothetical case study (of the kind economic professors use in classrooms) about an imaginary "Freshfood supermarket" and some assumptions about "parasitic aggregators in Nevada" plundering several unnamed "California newspaper's" content. Then a bunch of economics modeling, you know, the type that ends with "all other things being equal."
Meanwhile, all of this imagining is making me a bit dizzy, but let's plow on, shall we? The brothers, both of whom I'm sure are very nice and sincere people, state that their theoretical model "explains how free-riding on stories that originate in New York City and Washington, D.C. and Los Angeles can lead to depressed ad rates for online advertising in many other markets â€" even if parasitic free-riding is less prevalent in those other markets."
Now, in response to questions and critics, the Marburgers say they are not talking about Google News here, that, "In fact, they say Google News is a net plus for newspapers."
All right, folks, let's pull the brake switch on this one. I have truly had it with lawyers and professors trying to frighten newspaper executives, already freaked out of their minds, with wacky proposals like this one, to extend copyright law, or reclaim supposedly lost copyright rights, or any other kind of legal shenanigans, when what newspapers simply need to be doing is come up with a new business plan.
And since the Marburgers are not opposed to Google News or any other big aggregator, whom are they talking about? Can anybody show me one of these "parasitic aggregators" that republishes newspaper content in whole? (If there is somebody, we have a better name for him -- plagiarist -- and newspapers have full legal rights already to prosecute him.)
But there is no such parasite in the real world, at least not one with enough traffic to matter. Because they only live in classrooms or in the feverish minds of "first amendment lawyers" who, BTW, stand to profit handsomely if foolish media execs should ever follow their baseless advice.
*Some of our previous coverage: