Times for Enforcing Copyright

by on January 10, 2005 · 16 comments

Glenn Reynolds (a.k.a. “Instapundit”) reports that the New York Times may start requiring readers of its website to pay for that privilege. I’ve got not objection to that as a general matter; I’m no copyright commie. But I’m not sure I’d welcome the probable consequences.

Prof. Reynolds predicts, “the Times would lose a lot of influence if it made this move, since it would only be talking to the true believers.” Perhaps so. I’d have to see some figures about how much of the Times’ readership reaches it only via the web before I’d put money on that prediction.

I will risk this prediction, however: The Times would start wielding copyright law against pesky bloggers. In the past, the Times has published editorials and stories somewhat sympathetic to copyright reform. Consider, though, what would happen if it started charging for access to its website.


Even if the move to “cyber$space” would ultimately reduce the Times’ influence, as Prof. Reynolds predicts, it would not do so overnight. Many bloggers would thus continue to regard the online Times as an important resource. Yet only a fraction of them would agree to pay for online access to the Times.

Those few bloggers who do agree to pay for access would thereby face a great temptation to republish great chunks of the Times’ text, since doing so would bring them the one thing bloggers love most: readers. Under the Times’ new business model, however, each of those readers would represent a lost potential customer. Why sign up to read the Times’ site if you can get the best bits via your favorite blog?

The Times would thus have a powerful financial incentive to start cracking down on the unauthorized reproduction of its online stories. And, given that it will have many defendants to choose from, it will probably favor going after those that not only copy but criticize it. Granted, bloggers who quote the Times in the course of commenting on it will have triable fair use defenses. But how many will want to put that defense to the test in court? Most will quickly cave under the superior firepower of the Times’ attorneys.

Some stalwart bloggers will of course resist the newly proprietary Times. Some of those will even beat it. That, however, will simply convince the Times that it must fight unauthorized copying not only in court, but also in Congress. The Times, which has long smiled on relaxing copyright’s grip on the flow of information, might thus become an ardent proponent of stronger, broader, and meaner copyright laws.

[Crossposted at Agoraphilia.]

  • http://www.techdirt.com/ Mike

    Under the Times’ new business model, however, each of those readers would represent a lost potential customer.

    Are you serious?

    “Lost potential customer” is the most ridiculous phrase I hear from people concerning business model decisions.

    Let’s see… if I have $3 in my pocket and there’s a pizza place on the left offering a $3 lunch deal and a sandwich shop on the right offering a lunch deal for $2.50… If I choose the sandwich shop, why aren’t you complaining that this is a “lost potential customer” for the pizza shop (it is) and that the pizza shop should sue the sandwich shop.

    A lost potential customer just means you have a bad marketing program. It means you didn’t do enough to convince that customer to shell out for your product — whether in product offering, pricing, promotion or whatever “P” you want. It’s a market problem, not a legal one, and the idea that anyone should sue because of their own stupid marketing seems pretty ridiculous to me.

  • http://www.techdirt.com/ Mike

    Under the Times’ new business model, however, each of those readers would represent a lost potential customer.

    Are you serious?

    “Lost potential customer” is the most ridiculous phrase I hear from people concerning business model decisions.

    Let’s see… if I have $3 in my pocket and there’s a pizza place on the left offering a $3 lunch deal and a sandwich shop on the right offering a lunch deal for $2.50… If I choose the sandwich shop, why aren’t you complaining that this is a “lost potential customer” for the pizza shop (it is) and that the pizza shop should sue the sandwich shop.

    A lost potential customer just means you have a bad marketing program. It means you didn’t do enough to convince that customer to shell out for your product — whether in product offering, pricing, promotion or whatever “P” you want. It’s a market problem, not a legal one, and the idea that anyone should sue because of their own stupid marketing seems pretty ridiculous to me.

  • http://www.tomwbell.com Tom W. Bell

    Of course *I’m* serious, Mike; serious that the Times might well view the situation as I describe. I’m not propounding that view, myself. I’m just saying that under the proposed business model the Times would have an incentive to use copyright law to try to prevent the loss of potential customers to bloggers who make unauthorized copies of Times’ articles.

    You may be right that, in that event, the Times would have adopted the wrong business model. I’m not so sure, myself. Your example does not illuminate, since an overpriced pizza place has no right to stop cheaper competitors, whereas a copyright owner does have the right to sue infringers. But,at any rate, that is not an issue I was trying to address.

  • http://www.tomwbell.com Tom W. Bell

    Of course *I’m* serious, Mike; serious that the Times might well view the situation as I describe. I’m not propounding that view, myself. I’m just saying that under the proposed business model the Times would have an incentive to use copyright law to try to prevent the loss of potential customers to bloggers who make unauthorized copies of Times’ articles.

    You may be right that, in that event, the Times would have adopted the wrong business model. I’m not so sure, myself. Your example does not illuminate, since an overpriced pizza place has no right to stop cheaper competitors, whereas a copyright owner does have the right to sue infringers. But,at any rate, that is not an issue I was trying to address.

  • http://WeMatter.com Mike Liveright

    Charge for organization not end content

    Obviously the Times has the right to determine their own business model for their content, but I’d prefer that they limited the access to their organization and not to the end content.

    What I’d like to see is for them to limit, if they want, and charge for, their Front Page, their search capability, etc. Though I might want everything for free, I understanding paying for the access to NEWS in general. (Personally I’d also like the access to be available to any hard copy reader so that the WEB site is really an extension of the hard copy version)

    Similarly, I’d understand if the Times wanted to charge Bloggers for being listed in a TraceBack ring from each article. That way when I went to an article, I could get a list of all the Bloggers who had paid the Times for being listed as commentort on the article.

    On the other hand, I’d also prefer that they not charge for the specific articles, columns, etc. (Perhaps behind an Ad) available for linking to and reading FREE. If the Web is to grow in value, it should be easy for a writer to point to their original source and then comment on it rather than trying to abstract it, perhaps out of context, or pointing to a blind ally.

  • http://WeMatter.com Mike Liveright

    Charge for organization not end content

    Obviously the Times has the right to determine their own business model for their content, but I’d prefer that they limited the access to their organization and not to the end content.

    What I’d like to see is for them to limit, if they want, and charge for, their Front Page, their search capability, etc. Though I might want everything for free, I understanding paying for the access to NEWS in general. (Personally I’d also like the access to be available to any hard copy reader so that the WEB site is really an extension of the hard copy version)

    Similarly, I’d understand if the Times wanted to charge Bloggers for being listed in a TraceBack ring from each article. That way when I went to an article, I could get a list of all the Bloggers who had paid the Times for being listed as commentort on the article.

    On the other hand, I’d also prefer that they not charge for the specific articles, columns, etc. (Perhaps behind an Ad) available for linking to and reading FREE. If the Web is to grow in value, it should be easy for a writer to point to their original source and then comment on it rather than trying to abstract it, perhaps out of context, or pointing to a blind ally.

  • Anonymous

    Has the Wall Street Journal engaged in any of this anti-blogging behavior that you ‘predict’ will occur?

  • Anonymous

    Has the Wall Street Journal engaged in any of this anti-blogging behavior that you ‘predict’ will occur?

  • http://www.knowledgeproblem.com Lynne

    Hi Tom!

    What about those of us who can access such publications without a fee through our university libraries? We can continue excerpting them. Right now I just don’t bother to take the extra step of going through the library b/c it’s not necessary.

    The Wall Street Journal does forego some customers because of their subscription fee, but I find in my case that I compensate by excerpting them more liberally because I’m paying for access.

  • http://www.knowledgeproblem.com Lynne

    Hi Tom!

    What about those of us who can access such publications without a fee through our university libraries? We can continue excerpting them. Right now I just don’t bother to take the extra step of going through the library b/c it’s not necessary.

    The Wall Street Journal does forego some customers because of their subscription fee, but I find in my case that I compensate by excerpting them more liberally because I’m paying for access.

  • http://www.tomwbell.com Tom W. Bell

    Anon. of 1/11/05: I thought of that potential counterargument, but concluded that the WSJ simply does not arouse as much animus–and thus commentary–as the Times does. That the WSJ has not apparently cracked down on bloggers thus does not disprove my conjecture.

    Hey, Lynn! If I understand your point, you mean to say that the Times’ proposed change of business model won’t affect *all* bloggers (such as you, for instance). OK, granted. But it seems to me you would still, like any other blogger, have an increased incentive to redistribute the Times’ content. Relatively few of your blog’s readers would, after all, enjoy the sort of access that your workplace provides.

  • http://www.tomwbell.com Tom W. Bell

    Anon. of 1/11/05: I thought of that potential counterargument, but concluded that the WSJ simply does not arouse as much animus–and thus commentary–as the Times does. That the WSJ has not apparently cracked down on bloggers thus does not disprove my conjecture.

    Hey, Lynn! If I understand your point, you mean to say that the Times’ proposed change of business model won’t affect *all* bloggers (such as you, for instance). OK, granted. But it seems to me you would still, like any other blogger, have an increased incentive to redistribute the Times’ content. Relatively few of your blog’s readers would, after all, enjoy the sort of access that your workplace provides.

  • http://www.sarahstirland.com Sarah Lai Stirland

    The Times has already been through this to some extent and there is already a way for people to access the paid for parts of the Times with some code written by RSS guru Dave Winer and others.

    See:

    http://nytimes.blogspace.com/genlink

    You can click through one of the links and read Dave Winer’s page.

  • http://www.sarahstirland.com Sarah Lai Stirland

    The Times has already been through this to some extent and there is already a way for people to access the paid for parts of the Times with some code written by RSS guru Dave Winer and others.

    See:

    http://nytimes.blogspace.com/genlink

    You can click through one of the links and read Dave Winer’s page.

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  • http://two-fingers.com Alex

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