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News Media Alliance Challenges Tech Companies To 'Accept Accountability' And Responsibility For Filtering News In Their Platforms

Last week, David Chavern, the President and CEO of News Media Alliance (NMA), testified before the House Judiciary Committee. The NMA is a nonprofit trade association representing over 2,000 news organizations across the United States. Mr. Chavern's testimony focused upon the problem of fake news, often aided by social networking platform.

His comments first described current conditions:

"... Quality journalism is essential to a healthy and functioning democracy -- and my members are united in their desire to fight for its future.

Too often in today’s information-driven environment, news is included in the broad term "digital content." It’s actually much more important than that. While some low-quality entertainment or posts by friends can be disappointing, inaccurate information about world events can be immediately destructive. Civil society depends upon the availability of real, accurate news.

The internet represents an extraordinary opportunity for broader understanding and education. We have never been more interconnected or had easier and quicker means of communication. However, as currently structured, the digital ecosystem gives tremendous viewpoint control and economic power to a very small number of companies – the tech platforms that distribute online content. That control and power must come with new responsibilities... Historically, newspapers controlled the distribution of their product; the news. They invested in the journalism required to deliver it, and then printed it in a form that could be handed directly to readers. No other party decided who got access to the information, or on what terms. The distribution of online news is now dominated by the major technology platforms. They decide what news is delivered and to whom – and they control the economics of digital news..."

Last month, a survey found that roughly two-thirds of U.S. adults (68%) use Facebook.com, and about three-quarters of those use the social networking site daily. In 2016, a survey found that 62 percent of adults in the United States get their news from social networking sites. The corresponding statistic in 2012 was 49 percent. That 2016 survey also found that fewer social media users get their news from other platforms: local television (46 percent), cable TV (31 percent), nightly network TV (30 percent), news websites/apps (28 percent), radio (25 percent), and print newspapers (20 percent).

Mr. Chavern then described the problems with two specific tech companies:

"The First Amendment prohibits the government from regulating the press. But it doesn’t prevent Facebook and Google from acting as de facto regulators of the news business.

Neither Google nor Facebook are – or have ever been – "neutral pipes." To the contrary, their businesses depend upon their ability to make nuanced decisions through sophisticated algorithms about how and when content is delivered to users. The term “algorithm” makes these decisions seem scientific and neutral. The fact is that, while their decision processes may be highly-automated, both companies make extensive editorial judgments about accuracy, relevance, newsworthiness and many other criteria.

The business models of Facebook and Google are complex and varied. However, we do know that they are both immense advertising platforms that sell people’s time and attention. Their "secret algorithms" are used to cultivate that time and attention. We have seen many examples of the types of content favored by these systems – namely, click-bait and anything that can generate outrage, disgust and passion. Their systems also favor giving users information like that which they previously consumed, thereby generating intense filter bubbles and undermining common understandings of issues and challenges.

All of these things are antithetical to a healthy news business – and a healthy democracy..."

Earlier this month, Apple Computer and Facebook executives exchanged criticisms about each other's business models and privacy. Mr. Chavern's testimony before Congress also described more problems and threats:

"Good journalism is factual, verified and takes into account multiple points of view. It can take a lot of time and investment. Most particularly, it requires someone to take responsibility for what is published. Whether or not one agrees with a particular piece of journalism, my members put their names on their product and stand behind it. Readers know where to send complaints. The same cannot be said of the sea of bad information that is delivered by the platforms in paid priority over my members’ quality information. The major platforms’ control over distribution also threatens the quality of news for another reason: it results in the “commoditization” of news. Many news publishers have spent decades – often more than a century – establishing their brands. Readers know the brands that they can trust — publishers whose reporting demonstrates the principles of verification, accuracy and fidelity to facts. The major platforms, however, work hard to erase these distinctions. Publishers are forced to squeeze their content into uniform, homogeneous formats. The result is that every digital publication starts to look the same. This is reinforced by things like the Google News Carousel, which encourages users to flick back and forth through articles on the same topic without ever noticing the publisher. This erosion of news publishers’ brands has played no small part in the rise of "fake news." When hard news sources and tabloids all look the same, how is a customer supposed to tell the difference? The bottom line is that while Facebook and Google claim that they do not want to be "arbiters of truth," they are continually making huge decisions on how and to whom news content is delivered. These decisions too often favor free and commoditized junk over quality journalism. The platforms created by both companies could be wonderful means for distributing important and high-quality information about the world. But, for that to happen, they must accept accountability for the power they have and the ultimate impacts their decisions have on our economic, social and political systems..."

Download Mr. Chavern's complete testimony. Industry watchers argue that recent changes by Facebook have hurt local news organizations. MediaPost reported:

"When Facebook changed its algorithm earlier this year to focus on “meaningful” interactions, publishers across the board were hit hard. However, local news seemed particularly vulnerable to the alterations. To assuage this issue, the company announced that it would prioritize news related to local towns and metro areas where a user resided... To determine how positively that tweak affected local news outlets, the Tow Center measured interactions for posts from publications coming from 13 metro areas... The survey found that 11 out of those 13 have consistently seen a drop in traffic between January 1 and April 1 of 2018, allowing the results to show how outlets are faring nine weeks after the algorithm change. According to the Tow Center study, three outlets saw interactions on their pages decrease by a dramatic 50%. These include The Dallas Morning News, The Denver Post, and The San Francisco Chronicle. The Atlanta Journal-Constitution saw interactions drop by 46%."

So, huge problems persist.

Early in my business career, I had the opportunity to develop and market an online service using content from Dow Jones News/Retrieval. That experience taught me that the news - hard news - included who, where, when, and what happened. Everything else is either opinion, commentary, analysis, an advertisement, or fiction. And, it is critical to know the differences and/or learn to spot each type. Otherwise, you are likely to be misled, misinformed, or fooled.

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Chanson de Roland

The traditional news media, the one consisting of news organizations with the professionally trained journalists and editors and that is legally liable for what it publishes and that has a news room which does an appreciable amount of original news reporting, that news media, which includes neither Facebook or Google or any of their ilk, has been badly damaged by the misappropriation of its product, original news reporting, by the likes of Google and Facebook, who simply take their original news reporting without their permission or at least on unfair terms of bargaining that don’t reflect the proprietary interests that traditional news organizations ought to have in their original reporting. So once again, as in the case of the misappropriation of our information, the rulers of the Internet have misappropriated original news reporting from its true owners, traditional news media for nothing or only a fraction of its worth in exchange for that original news reporting, which they, Google and Facebook and their ilk and so many other smaller firms, then use to make their profits.

As in the case of the misappropriation of our information, Facebook, Alphabet/Google, and their ilk, both large and small, can commit this misappropriation of original news reporting because the law has not keep up with new technology and has been unduly influenced by the big Internet firms so that it fails to protect the interests that traditional news organizations ought to have in their original reporting.

This does not have to be so; the law can protect original news reporting without permitting traditional news organizations to monopolize the news itself. And the answer lies in an old case that we studied in law school. A party, Party, back in the day when there were phone books, the Yellow and White Pages, simply copied AT&T’s Yellow Pages and was selling advertisements based on what AT&T alleged was Party’s infringing Yellow Pages. Party defended on the grounds that AT&T neither owned or created the addresses, so it had no valid copyright in those addresses in AT&T’s Yellow Pages. While conceding that point, AT&T argued that its work in assembling its Yellow Pages was original and deserved protection as an original work.

The court found for AT&T, holding that AT&T did have a proprietary and copyrightable interest in the original work of collecting and organizing its Yellow Pages, which was protected by copyright so that the Party couldn’t simply copy AT&T’s Yellow Pages, though Party was, of course, free to collect and organize addresses into its own competing product, its Party Yellow Pages, which, after the holding, is what some parties did.

So too, the courts should hold that the likes of Google and Facebook can’t simply link to, copy, or simply re-edit the original news reporting that it expropriates from others’ original news reporting. While Facebook and Google and their ilk would, of course, be free to do their own original news reporting, they may not simply copy or re-edit others’ original news reporting, without license to do so, for some appropriate period of time, let’s say 48 hrs., that reflects the value of the work that a news organization does in doing original reporting. That way the sweat equity of original news reporting would be respected as copyrightable original work, while permitting Facebook, Google, or anyone to do their own original reporting of the news or historical presentation of the news after some appropriate period of time, when the original reporting’s value as news has diminished.

Congress should make this change explicit in the Copyright Act. However, even before that, the federal courts should follow the holding of that old AT&T case, supra, to protect the original work and value of the work, as an original expression, that a news organization has in its original reporting.

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