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.

Recall Roundup

Briefcase Radical called it before the polls closed, but like everyone else, he low-balled the final tally. Fem Dem has a brief post-election post up.

Ohio dot com has full coverage. Some, but not all, of the anti-Plusquellic comment trolls are out. The loudest appear to be keeping their heads down today. BTW, Ohio.com's breaking story about the election posted around 9:20 last night after they called it. I suppose being a source for real-time updates isn't going to make or break ABJ but it's worth noting that ANN owns them on this score as of now.

For their part, ANN has audio of the Mayor's victory speech, audio and video of his remarks to reporters and some snippets from Mendenhall.

Cleveland Magazine's politics blog saw it ultimately as a contest between Chrissie Hynde and Miss Tia. This sort of thing will happen when you let a lifestyle magazine carry a politics blog.

As noted in comments in the last post, CAN lost in every ward, in every precinct. Think about that. The recall effort couldn't even win a ward in Ellet, which to this day resents having been annexed into Akron two generations ago. You can find that official canvas here.

Whither Akron?

So now it's time to ponder what all this means. Contrary to what the recall supporters say, the only messages they sent is that there aren't very many of them and they don't learn very quickly. The conventional wisdom was that the actual election result would be about ten percent worse for the mayor than the actual sympathies of the population, given the motivation gap. Given the final tally, it probably isn't that high, but when you start with a 3:1 split it doesn't have to be. Fact is, the people who think the administration is bad enough to be run out midterm constitute a fairly thin group.

That said, we need to have a sensible loyal opposition in this city. Akron has been proactive in bringing and retaining business. That means it has funded improvements, granted tax breaks, cofunded ventures and otherwise spent a great deal of tax money. While I won't pretend to believe that it's all lily-white, it's damned impressive to see the combination of robust spending on business development and political hegemony hasn't bread a patently, undeniably corrupt administration. Nonetheless, with temptations abounding, it would be good to see some division of government to provide checks and balances.

Unfortunately we don't have a sensible loyal opposition. A sensible loyal opposition doesn't bray about restaurant receipts, it doesn't pretend that the city's difficulties are unique to the region, and it doesn't mutter about corruption then resentfully skulk away when people expect, y'know, proof for gawd sake.

Most of all, (pace Akron Watch and the CANCANners) sensible loyal opposition doesn't count all of the spending and none of the benefit. The SLO of which we dream would seriously analyze the benefits of the various projects, acknowledge the ones that work and decry those that don't. By refusing to acknowledge anything positive about either Plusquellic or Akron (Mendenhall's "good heart" comment being a classic damning with faint praise) the pro-recall/anti-Plusquellic forces have painted themselves as untrustworthy hacks.

Going forward it will be interesting to see if they can come up with an actual coherent platform. And no, "The Mayor should play nice with others" isn't such a platform. They will certainly say spend more money on neighborhoods, the problems being a) Akron already spends money on neighborhoods and b) if the city ignores business develepment there won't be any money to spend. When confronted with those problems, expect Mendenbot candidates to do the political equivalent of "Na na na I can't hear you."

So. The city will not be rendered leaderless as a result of this folly. But the recall election hardly puts to rest the challenges the city faces. The Mayor's Office continues to confront those challenges, but will anyone we can trust confront the Mayor's Office?

Following the Recall Results

The best online place to be is Akron News Now which has a live feed from the newsroom. It's kind of cool -- you can see anchor Lindsay McCoy gathering info from online and from the BoE and relaying it to on-air talent. A bit of behind-the-scenes.

One thing we learn from Lindsay is that the online BoE updates are more current than what the reporters at the BoE can get from staff there (having done voter protection duty at BoE, it's not surprising. At this time of night, the main BoE office is essentially vacant as everyone is in back processing the ballots.) As such, you can keep an eye on the BoE page by loading it and refreshing it every couple of minutes.

As of now (around 8:30) the Board shows 48% reporting, the results are 76.85 against the recall to 23.15 for. The trend line has been slightly toward narrowing that enormous gap. At around 8 the first 12 percent of precints showed an 80/20 split.

UPDATE 8:36 56% in, still 3-1 advantage for Plusquellic. ANN is calling it against the recall. Fascinating to see how manifestly unscientific the "call" decision is. Also, ANN is Twittering the results under hashtag #akronrecall

UPDATE 10:20 It's official -- Change Akron Now got boatraced. 74%-26%. Akron News Now signed off their live feed, but the recall page now features an interview with Mendenhall in which he confirms that his group will try to field candidates in all the city council races and that his wife Kelly is running for council at large. He also whines that he didn't have any money to run the campaign. Of course if people agreed with the recall they would give money, but . . .

Some recall results fun facts:

The received wisdom was that pro-recall voters would certainly vote and that the election would be close if turnout was low. Well turnout was low -- 21% -- and the recall still got crushed. That means either the pro-recall folks weren't significantly more motivated than anyone else (possible) or that there just aren't that many of them (more likely.)

At a total vote of 7325, Team Mulligan didn't even double up the 3800 some-odd valid petition signatures. That is, if everyone who signed the petition voted and brought a friend to vote, they would have exceeded the total actually garnered by 275 votes.

At 20895 the anti-recall vote is 30% higher than the 15895 he got in the uncontested general election in 2007.

Last Thoughts on Recall Election Day

Mostly, if you haven't already, GO VOTE. The general impression, bolstered by anecdotal evidence and what the anti-recall camp has said about their internal polling, is that a clear majority are against the recall but that the pro-recall voters are fanatical highly motivated. It would really be a shame if the will of the majority were defeated by the zealotry of the minority. Yes it's a beautiful day and all, but GO VOTE. You won't be in their long.

A few other points.

• I was voter number 46 in my Ward 8 precinct. The flow was pretty steady this morning at my polling location which includes two other precincts. That is consistent with the report from Summit BoE that Ward 8 is heaviest, and that Ward 8 voters led in absentee voting. In that last story, Mendenhall acknowledges that Ward 8 is more Plusquellic territory
  
• It's a shame that the recall has cast a shadow on the rare bits of good news Akron has heard in the current climate. For example, the rollout of the downtown wifi zone has been scheduled for June since at least last Fall. But because that prescheduled date happens in proximity of the recall it's dismissed as a political stunt.
  
• That said, the Mayor skipping the the rollout was the political equivalent of Darryl Strawberry acknowledging the Fenway crowd. Hizzoner needs to ignore the bleacher creatures.
• The Team Mulligan campaign has been able to pull off little other than volunteer canvassing. No mailers, no bilboards, no yard signs. But over the weekend someone tried to go online-linkage with FixAkron.com signs. The website is more of the same. (E.g. Akron is losing population (as is every city other than Columbus and Cincy). One interesting aspect -- hanging problems with the Akron Building and Health Departments on the Mayor. But remember how Mendenhall tried to pump up Joe Finley's campaign by claiming that the mayor had a tirade at the Building Dept? And that we found out later that he went off because they were offering lousy service to property developers? And that in fact that same building dept was put on probation by the state? Same stuff as we've seen this entire campaign.
• Count me among those who grew weary of the anti-recall mailers that demonized Warner Mendenhall. I'm assuming that with a quarter million to play with that stuff was focus-group tested and all, but after the third mailed reminder of Mendenhall's tax delinquency, I was done.
• Having said that, look for a reprise this fall. Mendenhall's "band of radicals" (according to the mailers) will have candidates going in a lot of city council races this fall and I'm guessing their linkage to Mendenhall will be a frequent talking point in the campaigns.
• One interesting feature of this election has been the total radio silence from the local Republican Party. It may be that the Republicans prefer the devil they know. It may be that the rank and file was insufficiently interested in a recall to make it worth putting the party behind the effort. Still, given the past practice of A²cutting deals across the aisle, it's worth keeping in mind going forward that he never put a dog in this fight.

BTW, if you missed the tweet, my absence the last few days was due to technical difficulties. As of now, those difficulties appear resolved.

Now GO VOTE.