The second panel of the day featured a spirited debate of the tenet “information wants to be free.”

We knew we were in for fun when Rebecca Tushnet, Professor of Law at Georgetown, who was tasked with arguing in favor of the tenet, lead off by arguing that no, information does not want to be free.  Information doesn’t want anything.  People want things.  Rebecca went on to argue that adding new legal property rights is not the answer to the problems we see in the news industry. Creating new legal rights in information to tackle the thorny problem of “free riding”  would come at a high cost in other areas, particularly to journalists — as we’ve seen when sports associations and investment banks rely on the hot news doctrine to monopolize information others want to report.  She highlighted these examples to demonstrate the poor fit between making information property and saving the news industry.  Putting a price on information may keep information locked away, clearly not a solution that will save the news industry.

Moderator, Tony Falzone of Stanford’s CIS, engaged the panel by asking a fundamental question: is professional journalism in jeopardy or is it diversifying and evolving?

Alan Murray (Executive Online Editor of the Wall Street Journal which as we all know closely guards its web content behind a pay wall) jumped right in and unequivocally answered yes, professional journalism is in jeopardy.  And the reason for it is the industry made the mistake 15 years ago of giving away its content for free. Now it’s the minority voice that says news should not be free, making the news industry an anomaly among those like it that rely on intellectual property for their value (like the movie, music, software, and pharmaceutical industries).  In those other industries it is a minority voice that says all of their information should be free.  The news industry needs to stand up and say, its information shouldn’t be free either.  To get quality information and content, people have to pay for it.

Josh Cohen, of Google News, took issue with Murray’s contentions and argued there isn’t one cause to the problems the news industry is facing.  The news industry isn’t suffering simply because of the decision to not charge.  The competitive advanatage news publishers used to enjoy was the means of distribution and the internet has blown the doors off the monopolies that newspapers once had.  The challenge now is to focus on the unique value journalists can offer.

David Marburger, an attorney at Baker Hosteler LLP, vociferously contended the problem leading to decline of the news industry is that any one can take news stories, copy them, rewrite them, and trade on the reliability of the major news outlets.  New online media sites don’t have to hire journalists, they have low costs and easy profits.  He argued that these sites drive newspapers out of business by using their own content to compete against them (to which an audience member rejoined, “A suicide pact!”).   The law doesn’t adequately protect traditional news outlets and now the internet is full of websites that aren’t offering any “original” news.

Both Cohen and Tushnet took issue with this contention.  Cohen critiqued Marburger’s conclusion as overly simplistic and one that underestimates the innovation that has taken place on the web and the litany of challenges that publishers have faced for a long time, particularly the decline in classified ad revenues.  Tushnet added that more competition and voices on the web is a good thing, and that the problem might just be that people don’t want to buy the content news publishers want to sell them (a sentiment some in the audience cheered).

Marburger came back to his contention that free riding by all these media websites is the root of the problem, one he’d solve not by making new property rights but by strengthening common law tort of unfair competition – by amending the Copyright Act to make explicit that it doesn’t preempt unfair competition or unjust enrichment, and reinvigorate state courts’ reliance on the hot news doctrine.

Tushnet pointed out that the hot news doctrine is viable and exists, and questioned  what exactly legal reaffirmation of the doctrine would accomplish. What Marburger calls  “free riding” she calls talking.  These websites have a function: talk about a story, what that reader thinks about it, and provide a link to the full article if others want to read about it.  Handing out a right to sue for misappropriation is a bad idea and bad for journalists in particular. “Rewriters” aren’t the problem and copyright law already protects against those who simply copy.  The plaintiffs we’ve seen relying on misappropriation in the last decade are toxic to journalists — sports organizations and investment banks.  The WSJ certainly doesn’t gain in a world where we have pay the NBA to report basketball scores.  Not only would Marburger’s solution not solve the problem, it would come at a very high cost.

Falzone wanted the critics of the web to identify just who these bad actors are.  Murray immediately pointed to Cohen — Google and aggregators are the problem.  The ever-argumentative Marburger disagreed with Murray too, saying that it’s not aggregators he has a problem with, it’s the Gawker.com sites of the world — ones he says simply take news stories, rewrite them and compete with the originator.  Murray chimed saying he’d love to shut down Gawker and Huffington Post.  Marburger doesn’t want those sites shut down, he wants them to pay a license.

Looking ahead, Falzone then asked  are there technologies out there that will encourage people to read more news? Cohen contended that technology is key, and that news publishers need to innovate and create an engaging experience for readers on the web.  News publishers have to innovate to create a competitive advantage; there is space and demand for different perspective on the same stories and information but we need to re-imagine the format for what the news should be.  Murray disagreed that innovation alone will close the circle, contending that despite lots of experimentation and innovation publishers cannot support reporting staff on advertisement budgets only.  Cohen responded that there is not one change that will radically fix all this.

Given the divergence of viewpoints and the passion of the panelists for the topic, the discussion was fiery and held the audience in rapt attention.  For the full effect be sure to check back and watch the video when it’s posted.