Akron Candidates Roll Is Up

As promised I've added a list of candidates with websites at left (third list down.) After my last post about the races I've been contacted by Will Padilla who is running in the crowded Ward 8 primary (site of the House of Pho) and Lisa Mansfield who is running for school board.

Will Padilla has a nice site up and a fine looking resume. It will be hard to make headway in such a crowded field, but he will be someone to watch in the future.

Lisa Mansfield also has a Friends of group on Facebook and is twittering -- you can find those links on the website/blog which is a work in progress.

As the season wears on and sites go live I'll add to the list. I check every once in a while but someone who wants to be added should drop a line to be sure.

R.I.P Judge Linda Kersker

Linda Kersker passed away last evening in Cleveland Clinic after falling ill at a judicial fundraiser Tuesday night.

I had gotten to know Linda when she was on the School Board and I was doing the public education advocacy thing. She could have given my little group of community advocates a cold shoulder -- after all she was a School Board member and a big firm partner. But she welcomed us to the cause, offering help and encouragement as we did what we could.

She was all energy, flying in every direction. If you got her going on one of her passions, she would start talking a mile a minute, pausing only to congratulate a passing friend on a great (though unsuccessful) campaign.

She lent her passion and intelligence to the Akron School Board for 16 years at no small professional cost -- her firm could not take cases involving APS during that time. Her community service continued this past spring when Gov. Strickland appointed her to one of the vacant seats on the Municipal Court. Sadly she was able to enjoy the new chapter only briefly.

Thoughts and prayers to her friends and family.

Why the Marburger Plan to Save Newspapers Won't Actually Save Newspapers

Yesterday we looked over the so-called Marburger proposal to allow newspapers (and presumably other content providers) to sue news aggregators for unjust enrichment. Since that post I've seen a couple others talking about monopoly of information, so I say again -- the Marburger plan would only protect reporter work product, not the information itself. If a reporter can obtain the same information independently, the cause of action should fail. (Accent on should -- the Marburgers do not entertain the possibility that the cause of action will drift and morph beyond what they envision, but that's another post.)

Before we get started on the problems with the proposal, a couple of caveats. First off, what I know about the newspaper business is what I read. Same with some internet use patterns. The difference between what lies below and what the Marburgers have done is that I have paid attention to things they haven't. Again I restate my central objection -- the Marburgers prove propositions with thought experiments that should be tested with data.

Finally a couple of links that got left off of yesterday's post. First off, Editor and Publisher covers the proposal, but with no critical comment. New media guy Marc Cantor weighs in with ideas about what the newspapers themselves can do to maintain an audience. (h/t Brewed Fresh.) A piece from the UK looks at the Marburger plan in the context of the far more draconian proposal from Judge Richard Posner to give papers intellectual property rights over their links. And if you really wanna get geeky wit it, here's a Coase Theorem treatment of the Posner idea. There has also been more dogpiling on Connie Schultz from various blogs. You can look through the links in yesterday's post and extrapolate if you really want to see more of that sort of thing.

Now on to the show.

Marburger Cures the Wrong Disease.

My biggest objection to Marburger (for want of another name, this is what we'll call it) is that it assumes that the gravest threat to newspapers is losing readers. While papers have lost readers steadily throughout the Twentieth Century due to competing media (radio was killing off papers long before the internets) the precipitous drop in revenues has happened on the advertising side.

Advertisers have been migrating steadily to online sources that have nothing to do with newspapers. This is particularly true of classified advertising which has traditionally been an indespensible revenue stream for newspapers -- up to 70% of profits. Craigslist has done the most damage, but Monster, Cars.com and for that matter Ebay have all taken away business that newspapers once dominated. As a result, classified revenues have dropped by half since 2000. Analysts like Lauren Rich Fine (that's the source of the 70% figure) have been warning for years that newspapers cannot survive ad revenue losses of this magnitude.

Online classified services offer advantages that newspapers cannot match. If you are paying for a newspaper classified, you are subsidizing that news gathering operation whose expense the Marburgers so persuasively described. Your cost is based on total circulation, despite the fact that only a tiny percentage of those readers are likely to have any interest in your ad. With online classifieds, on the other hand, every pair of eyes that wanders into the site is at least in the market for something along the lines of what you want to advertise. No one goes onto Cars.com to read about Michael Jackson's kids. They go to buy a car.

(By the way I have a theory that computer-based advertizing is a general danger to both content providers and content consumers. Advertizing is generally really inefficient. Again only a tiny percentage of whoever sees an ad has an interest in the subject of the ad. As computerization allows greater targeting, advertizing becomes more efficient. The more efficient it is, the less businesses have to buy it.)

Marburger does nothing about the loss of classified advertising. By their admission, they are talking about marginal increases in traffic. But traffic doesn't matter if it doesn't attract advertizing.

Curing the Wrong Disease, Part 2 -- Problems in Monitizing Websites.

The Marburgers would no doubt object that online ad pricing is dictated by traffic, which is true. But its not like newspaper website advertising was profitable, then the profits started to erode due to unfair competition from aggregators.

The fact is that it's really difficult to sell enough advertising to support web-based journalism. There isn't as much real estate on a web page (versus print where, among other things, you have facing pages that don't have an analog online). And people can block ads. And web advertising is still working to overcome a past rife with charlatans (remember the commercial about the poor sap who shot the duck in the banner ad?)

And of course news organizations are competing with sites that allow better targeting (see above.)

Over time, changes in technology may make monitizing online content easier (the rise in video allows commercials that you can't fwd past) or harder (written content on mobile web allows pretty much no space for ads). But between the loss of advertizing to other providers and the basic difficulty of paying for journalism with online ads, the newspapers are facing an inevitable decline that tinkering with intellectual property will not fix.

That said, the free rider effect that the Marburgers identify is the sort of thing that lawyers should seek a remedy for. Whether the Marburgers have correctly identified that effect and whether their proposal would provide an adequate remedy is another question.

Jeff Fusco Is Canvassing

Count City Council at-large candidate (and Citizens for Akron Treasurer) Jeff Fusco among those getting a jump on the very very crowded field for Council this year. I didn't see him in my neighborhood but got a flier stuck in my door. Fusco is one of three at-large candidates, along with Terry Albanese and Jim Shealey, whom Mayor Plusquellic is endorsing in the race.

I've been scrying the internets for council campaign sites. Fusco is one of the few I've found. I'll start a roll at left for them. Fusco is simply using Blogger as a platform for his site, but is keeping the blog updated (ahem, Sandra Kurt). Bare bones to be sure -- he didn't even spring for a non-blogspot url. But it still puts him well ahead of the pack in terms of web presence.

At large incumbent Jim Shealey has a personal webpage up -- one that got him some criticism when he linked to it on his Council page. It's not exactly a campaign website but not exactly not either.

I have three or four projects in mind for the blog this summer. Sifting through the Council candidates is one of them. If you know a candidate -- or are a candidate -- feel free to touch base.

The Marburger Proposal to "Save Newspapers" Round up and Initial Thoughts

Connie Schultz began what is rapidly becoming a national conversation about the economic future of newspapers with her Sunday column about a proposal by the brothers Marburger. Daniel is an economist at Arkansas State University, David is a partner at Baker Hostetler who represents newspapers, including the PD.

You can find a pdf of the proposal on the "blog" version of the column.

The default blogger reaction has been to hate on this mercilessly. Of course any time Connie Schultz ventures anywhere near blog world, Tim Russo's melon explodes, so the Marburger plan has taken over #JamesRenner among Russo Trending Topics. But other negative reaction has been nearly as intemperate from Jeff Jarvis, Anastasia at ODB, Mediactive, you get the idea. Some reaction has been a bit more measured and some has been borderline positive, but overall, it hasn't gone well.

I also have problems with the proposal, but since the haters have had their vein-bulging, spit-flying fun, I will try to break things down a little more soberly. Not as much fun, I know, but the proposal raises real issues that merit serious discussion. And let's face it, I'm generally the wet blanket at the hater party.

So. Let's start with what the proposal is. And isn't.

Aggregation Aggravation.

The Marburger proposal takes aim at news aggregators, in particular those they call "parasitic aggregators." The Marburgers begin with the assumption that some news aggregators summarize and rewrite reporting from online newspaper sites, and by doing so skim some would-be visitors to the site that did the actual reporting to put that information online. Whether this actually happens is highly questionable, but let's leave it for now. I know you want to stop and yell and scream about strawman scenarios, but seriously, let's lay this out before we pick it apart.

The problem is that copyright protection traditionally protects expression, not information. So while it would violate copyright to simply reproduce news stories verbatim, it does not violate copyright to write up the information into a new story.

So assuming aggregators are actually taking eyes away from newspaper site, they are doing so using the work product of newspaper reporters. The Marbugers spend a large chunk of their 51 pages making the case that because doing journalism is labor intensive and expensive and aggregating is relatively cheap, that aggregators work at a comparative advantage that will eventually drive newspapers under.

While the argument that aggregators are cheaper to run than news sites is well-established, the authors also claim that the loss of traffic to aggregators is a big reason newspapers cannot monitize their website traffic. This part of the argument they extrapolate from their talk of aggregators. It is entirely data-free. Indeed, to preview one blanket criticism of the paper, the authors engage largely in thought experiments to establish propositions that should be testable by examining actual data.

The Unjust Enrichment Solution.

In the early days of the teletype (1918) the AP successfully sued to prevent a competitor from rewriting its stories and selling them to newspapers. The case went all the way up to the U.S. Supreme Court and according to the Marburgers (I haven't researched it directly yet) won under a theory of unjust enrichment pursuant to what was then called Federal common law. The Court has since declared that there is in fact no Federal common law and that instead, a Federal court not deciding a case under a Federal statute has to choose some state's common law under which to decide. Bear that in mind when we talk about problems with the proposal, a post or two down the line.

Unjust enrichment is a well-established common law doctrine. Basically it means you can't profit from someone else's work. In law school we mostly study it under contract law. If two parties do not agree to a contract but one mistakenly starts doing work, the party that profits from that work can't refuse to pay because the contract wasn't finalized.

After the AP case, the particular strain of unjust enrichment enshrined there was referred to as the "hot news" doctrine. Importantly, the doctrine limited the use of information contained in a "hot" news story, but did not prevent enterprising reporters tipped off by a story from going out and doing their own reporting on it.

Problem is copyright law is a federal statute and federal laws generally preempt state laws. During a 1980s rewrite of copyright laws, Congress explicitly stated that state law remedies for copyright violation are preempted; copyright is the exclusive remedy for violations.

The Marburger proposal reverses that decision. Copyright law would be rewritten to allow state law claims for unjust enrichment. The individual states would then thrash out what constitutes unjust enrichment, what the remedies are and so forth. While commentators have called it an expansion or tightening of copyright, it isn't. It is more of copyright-plus regime, where the plus is the "hot news" unjust enrichment doctrine.

The Marburger proposal is neither benign toward First Amendment freedoms, nor the total squelching of those freedoms some critics have claimed. It is not the information land grab some have predicted, but it does expand rights to control of information under very limited circumstances. In sum, the proposal will benefit newspapers and put some burdens on other content providers, though the extent of those burdens would have to be hashed out in court.

Given the problems/burdens attendent in the proposal, my biggest problem with it is that it will not work. We'll take that up in the next post.

City Council: Finley's Slate

Last Thursday the latest salvo in the battle for the soul of Akron began as Joe Finley announced his slate for City Council. Finley is styling his slate "Democrats for Reform," though as the ABJ points out, he hasn't been specific about what needs reform and what these guys plan to do about it.

Here's the Finley slate:

Ward 2: Bruce Kilby (incumbent)Ward 3: Jan David (vs. Marco Summerville - good luck with that)
Ward 5: Willis Smith (v. Kenneth Jones)
Ward 6: Wayne Kartler (open seat -- Terry Albanese is vacating to run at-large)
Ward 7: Dave Reymann (v. Tina Merlitti)
Ward 10: Jay Moore (v. Kelli Crawford)
At-large: Joe Finley

Say this for Finley -- he's not shy about going after hard targets. On the other hand, he does seem to trying to distance himself from Team Mullligan. From the ABJ post-recall story:

Plusquellic accused Finley of being in league with those behind the recall, noting that Finley appears in a photograph from one of the group's early meetings. He said Finley's slate is the ''same group'' at the ''same time'' who will use the ''same tactics.''

Finley, who along with his ally, Ward 2 Councilman Bruce Kilby, came out against the recall in late March, acknowledged he attended one of the pro-recall group's early meetings. But, he said, he didn't circulate petitions or otherwise help the effort.

Hmm. Yes he came out against the recall. But according to the ABJ the bulk of the Democrats for Reform worked on the recall. And Joe himself joined all three pro-recall Facebook groups. I certainly understand Finley not wanting to be associated with the toxic asset that Mendenhall has become, but he probably should have thought of that sooner.

As of now, the Finley slate has no web presence, so it's pretty much impossible to know what exactly they are proposing aside from being unfriendly to the Mayor. During the Mayoral primary, Finley seemed to have no position other than the opposite of whatever Plusquellic said, and he famously doesn't have much of a record as a Councilman. His main claim to fame at this point is having come closer than expected to winning the micro-turnout primary in 2007 (then getting horsewhipped in his run at Russ Pry for County Executive). If he wants to be something more than a drag on his slate-mates, he needs to come up with some specific policy goals.

And for God's sake, can he run without bashing the city he wants to serve? Nothing irked me more during that primary than his constant poormouthing of Akron and its prospects. The same thing happened in the recall election. Akron is challenged by economic forces not under anyone's control, but it's better postioned for the Twenty-First Century economy than any other city in the region. Candidates who fail to acknowledge this fact do themselves and the people whose votes they court a disservice.

J. Ken Blackwell Acting as One of NRA's Hatchen Men on Sotomayor

The Brady Campaign blog reports that the NRA and other gun lobby organizations are pursuing a "two-faced" strategy in opposing Judge Sonia Sotomayor's nomination to the Supreme Court. While the NRA proper is quietly expressing "concern" about her nomination, certain NRA-affiliated individuals are bringing out the long knives. Among them is spectacularly unsuccessful gubernatorial candidate J. Ken Blackwell.

And, as Brady Blog notes, Blackwell is not being exactly forthright about his affiliation:

While Blackwell – a former officer holder in Ohio and unsuccessful candidate for Chair of the Republican National Committee – now identifies himself as a Senior Fellow of the American Civil Rights Union or the Family Research Council in this context, he neglects to disclose that he is also an elected NRA Board member.

I'll follow this up with a post unpacking Blackwell's argument. For now, just marvel at Ken being Ken.