My friend Bill Mitchell sent along a bio of me that he asked Google’s Bard to write — proving, once again, that artificial intelligence may be artificial, but it sure isn’t intelligent. Throughout this short bio, Bard mixes me up with marketing guy Dan Kennedy. Here’s the whole thing, with the mistakes highlighted in blue.
Dan Kennedy is a media critic, marketing consultant, and author. He is a former media critic for the Boston Phoenix and is now a professor of journalism at Northeastern University. He is also the founder of Magnetic Marketing and the author of several books on marketing and business, including “The No B.S. Marketing Letter” and “The Magnetic Marketing System.”
Kennedy is a frequent media commentator and has appeared on CNN, CNBC, and Fox News. He is also a regular contributor to Forbes and The Huffington Post. [Note: Years ago I appeared a couple of times on CNN and once on Fox News. I don’t believe I ever wrote anything for Forbes, but I could be mistaken.]
Kennedy is a controversial figure in the media industry. He has been criticized for his outspoken views on the state of journalism and his willingness to criticize his colleagues. However, he is also respected for his knowledge of the industry and his ability to help businesses grow.
Kennedy is a graduate of the University of Massachusetts Amherst and the Boston University School of Public Communication.[A bachelor’s degree in journalism from Northeastern University and a master’s in American history from BU, but not from SPC.]He lives in Boston, Massachusetts.[Not since 1980.]
Here are some of his notable works:
* The No B.S. Marketing Letter (2009) * The Magnetic Marketing System (2012) * The Renegade Challenge (2016) * The No B.S. Inner Circle (2017)[LOL.]
Way back when, Boston Globe columnist Alex Beam wrote about me, the other DK and yet another DK. At least he was trying to be funny. And I should add that I’ll be smiling all week about being called “a controversial figure in the media industry.”
Simply as a matter of copyright law, I’m afraid that the Internet Archive — one of the most valuable corners of the internet — is about to fall off a cliff, taking with it our access to countless old websites, newspapers and other content.
Let me explain. On Monday, a federal judge in Manhattan heard opening arguments in a lawsuit brought by four major book publishers who argue that the Internet Archive is violating copyright law by digitizing books in its possession and lending them for free. Blake Brittain reports for Reuters that the proceedings did not appear to go well for the Archive, with U.S. District Judge John Koeltl asking “pointed questions.”
“You avoid the question of whether the library has the right to reproduce the book that it otherwise has the right to possess, which is really at the heart of the case,” Koeltl reportedly told the Archive’s lawyer, Joe Gratz. “The publisher has a copyright right to control reproduction.” Yikes.
The Archive ramped up its lending during the COVID-19 pandemic and has not cut back even though life has more or less returned to normal. The Archive argues that it’s doing what any library does — it’s lending books that it owns, and it’s controlling how many people can borrow a book at any given time. In other words, it’s not simply making electronic versions of its books available for mass download. That may show some desire to act responsibly on the Archive’s part, but that doesn’t make it legal.
By contrast, a library typically buys one or more hard copies of a book and lends them out, or buys the right to lend e-books to its patrons. The operative word in both cases is “buys.” Money changes hands. Publishers and authors are compensated. Buying a hard copy of a book, digitizing it without any additional payment, and then lending it out is illegal, regardless of whether the lending is controlled or not. I find it kind of stunning that the Archive would put its entire free service at risk over such an obviously wrong stand.
“If this conduct is normalized, there would be no point to the Copyright Act,” Maria Pallante, chief executive of the Association of American Publishers, told (free link) Erin Mulvaney and Jeffrey A. Trachtenberg of The Wall Street Journal. Indeed, the Journal story notes that Google won its own legal battle over Google Books only by limiting what you can find to snippets of books, not the entire text.
I should point out that the Archive is not without some powerful friends of its own. The Electronic Frontier Foundation is providing legal assistance. In addition, Inside Higher Ed published a commentary written by a number of Archive supporters who argue that the Archive is a legitimate library, and that its “controlled digital lending” system, which limits lending to one user at a time, is covered by the fair use provision of copyright law.
“The argument that the Internet Archive isn’t a library is wrong,” according to the Inside Higher Ed essay. “If this argument is accepted, the results would jeopardize the future development of digital libraries nationwide.”
Oh, and by the way: Inside Higher Ed limits users to five free articles a month before you have to pay for a subscription — which, of course, it has every right to do.
I looked up my own books and found that two of the three, “Little People” (2003) and “The Wired City” (2013), are available for borrowing. I don’t mind. Whatever economic value they had has long since expired, and if someone would like to read them for free without using a traditional library, that’s fine. But I certainly would have objected during the first couple of years after they were published. Rodale paid me a decent advance for “Little People,” which funded the time off I took in order to research and write it. “The Wired City” was published by the University of Massachusetts Press, an academic publisher that survives from sales to libraries, both in hard copy and electronic form.
The Internet Archive is a godsend. Just recently I used it to look up the original version of a New York Times editorial that prompted Sarah Palin’s unsuccessful libel suit. The Archive has also digitized nearly every print edition of The Boston Phoenix through an arrangement with Northeastern University, which holds the copyright thanks to the generosity of Stephen Mindich, the late publisher. Along with Wikipedia, the Archive is one of the last uncorrupted places on the internet.
Ideally I’d like to see the Archive work out an arrangement with the book publishers that might limit but not shut down its book-lending program. My fear, though, is that this is headed for a very bad end.
A controversial measure that could force Google and Facebook to pay for the news they repurpose has suddenly been revived in the last days of the lame-duck Congress. The Journalism Competition and Preservation Act, or JCPA, would allow news organizations to skirt antitrust law and band together so they can negotiate with the two giant platforms over compensation. If negotiations fail, an outside arbitrator would be brought in to impose a settlement.
On the “What Works” podcast, Ellen Clegg and I recently interviewed U.S. Rep. David Cicilline, D-R.I., one of the co-sponsors of the JCPA. Cicilline spoke of the measure in terms of breaking up Google and Facebook’s monopoly on digital advertising, which is certainly real enough. According to Statista, the two tech titans control 52% of the market.
I last wrote about the JCPA in August. And though I described the bill as having lurched back to life, there hadn’t been many signs since then that it was going anywhere. That is, until this week, when the measure was added to a “must pass” defense-funding bill. House Republicans oppose the JCPA, and with Rep. Kevin McCarthy, R-Calif., on the verge of taking the speaker’s gavel, right now is the last chance. Sara Fischer and Ashley Gold have the details at Axios.
In August, I expressed some reservations about the JCPA but thought it was worth passing to see what would come out of it, especially since it was time-limited to four years (since doubled to eight). You often hear simplistic claims by proponents that Google and Facebook are republishing journalistic content without compensation. In fact, they’re not republishing anything. There’s no stealing and no copyright violation taking place. But there’s also no question that Google is far more valuable and useful because users are able to search for news content, and that some not-insignificant portion of Facebook’s traffic comes from users linking to and commenting on news stories. It does not strike me as unfair to insist that the platforms pay something for that value.
And yet the JCPA carries with it the possibility of some real downsides. Greedy corporate owners like Gannett and Alden Global Capital would benefit without any obligation to invest more in journalism. And though the legislation excludes larger news organizations like The New York Times and The Washington Post, a similar law in Australia has served mainly to line the pockets of the press baron Rupert Murdoch.
A better bill, in my view, is the Local Journalism Sustainability Act, or LJSA, which would provide for three tax credits: one for consumers who pay for a local news subscription; one for advertisers; and one for publishers that hire or retain journalists. As Steve Waldman of the Rebuild Local News Coalition told Ellen and me on “What Works,” that last provision, at least, would only benefit the corporate chains if they actually invest in journalism. But the LJSA has been seemingly stuck in congressional limbo for several years. If the JCPA passes, I can’t imagine that the LJSA will do anything other than disappear.
Facebook is threatening to eliminate all news content if the JCPA becomes law, a threat similar to one that it made and backed away from in Australia. The company, formally known as Meta, also ended its program of supporting local journalism recently, which will remove millions of dollars from what is an already shaky revenue stream.
I have to say that I was struck by a letter of opposition to the JCPA issued Monday by a coalition of 26 public-interest and trade organizations including the ACLU, the Internet Archive, LION (Local Independent Online News) Publishers, Common Cause, the Wikimedia Foundation and the United Church of Christ Ministry (!). Among other things, the letter claims that the money will mainly benefit media conglomerates and large broadcasters without setting aside anything for journalists. The coalition puts it this way: “The JCPA will cement and stimulate consolidation in the industry and create new barriers to entry for new and innovative models of truly independent, local journalism.”
We’ll see how it works out. There’s no question that many local news organizations are in difficult straits, and that a guaranteed source of income from Google and Facebook may be the difference between thriving and just barely getting by. If the JCPA is approved, I just hope it doesn’t become one of those government programs that become a permanent part of the landscape. If it works, fine. If there are problems, fix them. And if it’s a disaster, get rid of it.
On the latest “What Works” podcast, Ellen Clegg and I talk with U.S. Rep. David Cicilline, who represents the First District of Rhode Island in Congress. Cicilline, who is a Democrat, is part of a bipartisan group of U.S. representatives and senators sponsoring the Journalism Competition and Preservation Act. Co-sponsors include Democratic Sen. Amy Klobuchar from Minnesota; Republican Sen. John Kennedy from Louisiana; Republican Rep. Ken Buck from Colorado; and Senate and House Judiciary Committee chairs Dick Durbin, an Illinois Democrat, and Jerrold Nadler, a New York Democrat.
The JCPA would remove legal obstacles to news organizations’ ability to negotiate collectively and secure fair terms from gatekeeper platforms that proponents say use news content without paying for it. Critics counter that it’s more complicated than that. The legislation also allows news publishers to demand arbitration if they reach an impasse in those negotiations.
Ellen has a Quick Take on new research being done by the Institute for Nonprofit News. The INN just released 2022 fact sheets on three types of nonprofit newsrooms: local news, state and regional news, and national and global news. While each group shares some similarities, INN found that geography matters in terms of revenue models and audience development.
I take a few more whacks at Gannett because newsrooms are being hit with unpaid furloughs, buyouts, a freeze on their pension benefits and more.
I don’t do this very often, but there are a number of important stories in local journalism that are flying by, and I want to put down a marker. No need to go into detail — just click on the links to find out more.
California sets aside $25 million in government money to support local journalism.
The move follows the creation of the New Jersey Civic Information Consortium, which this year will distribute $3 million for specific projects such as a plan to expand news coverage across Jersey City; an online radio program in Creole for the Haitian community; and an oral history on efforts to clean up drinking water in Newark.
Unlike New Jersey, the California initiative will be used to pay reporting fellows from the UC Berkeley Graduate School of Journalism to cover under-represented communities.
The Journalism Competition and Preservation Act, which would set aside antitrust law to allow news organizations to bargain collectively with Google and Facebook for compensation, was dealt a huge setback.
U.S. Sen. Ted Cruz, R-Texas, succeeded in adding an amendment that would make it more difficult for news organizations to moderate comments. The lead sponsor of the bill, Sen. Amy Klobuchar, D-Minn., responded by withdrawing the legislation but said she’ll be back.
LION (Local Independent Online News) Publishers and a number of organizations came out in opposition to the proposal, calling it “ill-advised” and “enormously problematic.” A similar law in Australia has been criticized for lining the pockets of large publishers — mainly Rupert Murdoch — while doing little for smaller players.
Google News Showcase, touted as a source of revenue for news outlets whose content would be featured, has been stalled because the giant platform has been unable to reach agreements with several key publishers.
Gannett, the country’s largest newspaper chain, was offered $6 million a year to feature journalism from its flagship USA Today as well as its local papers, according to The Wall Street Journal. Gannett’s reported counter-demand: $300 million.
Speaking of Gannett, a nauseating development has surfaced in a sexual-abuse lawsuit against the company’s Democrat & Chronicle newspaper in Rochester, New York.
According to the independent Rochester Beacon, the company is arguing that seven former newspaper carriers who say they were molested by a supervisor should have filed for workers’ compensation at the time the alleged abuse took place.
The carriers were 11 and 12 years old at the time of the alleged incidents.
A bill that could force Google and Facebook to fork over billions of dollars to local news outlets has lurched back to life. The Journalism Competition and Preservation Act, or JCPA, would allow publishers to negotiate as a bloc with the two giant tech platforms, something that would normally be prohibited because of antitrust concerns. The proposal would exclude the largest publishers and, as Rick Edmonds notes at Poynter Online, would lead to binding arbitration if the two sides can’t reach an agreement.
The legislation’s cosponsors in the Senate are Amy Klobuchar, D-Minn., and John Kennedy, R-La.; the House cosponsors are David Cicilline, D-R.I., and Ken Buck, R-Colo. That bipartisan support means the bill might actually be enacted. But is it a good idea?
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The premise on which the legislation is built is that Google and Facebook should pay fair compensation for repurposing the news content that they use. This strikes me as being much more straightforward with Google than with Facebook. Google’s mission is to index all the world’s knowledge, including journalism; Facebook is a social network, many of whose users post links to news stories. Facebook isn’t nearly as dependent on journalism as Google is and, in fact, has down-ranked it on several occasions over the years.
Google’s responsibility isn’t entirely clear, either. Yes, it links to news stories and publishes brief snippets. But it’s not a zero-sum situation — there’s no reason to believe that Google is depriving news publishers of traffic. It’s more likely that Google is pushing users to news sites and, with the rise of paywalls, may even be boosting subscriptions for local news outlets. Still, you could make a philosophical argument that Google ought to pay something because it benefits from having access to journalism, regardless of whether that deprives news outlets of any revenues.
A similar law in Australia has brought in $140 million, Edmonds reports. But critics have complained that the law’s main effect has been to further enrich Rupert Murdoch, still the leading press baron in his native country.
The JCPA should not be confused with the Local Journalism Sustainability Act, or LJSA, which would provide three tax credits for local news outlets — one for subscribers, who would get to write off news subscriptions on their taxes; one for advertisers; and one for publishers for hiring and retaining journalists. As Steve Waldman, chair of the Rebuild Local News Coalition, recently told us on the “What Works” podcast, this last provision is especially powerful because it would provide an incentive to do the right thing even at bottom-feeding chains owned by Alden Global Capital and Gannett.
Despite bipartisan support, the LJSA ran aground last year when President Biden split off the publishers’ credit and added it to the doomed Build Back Better bill. Perhaps it will be revived.
Is either measure needed in order to revive local news? What Ellen Clegg and I have found in the course of reporting for our book-in-progress, also called “What Works,” is that many independent local and regional news organizations across the country, nonprofit and for-profit alike, are doing reasonably well without government assistance. Since both the JCPA and the LJSA would be time-limited, maybe it’s worth giving them a try to see what the effects will ultimately be. But neither one of them will save local news — nor is it clear that local news needs saving once you remove the dead hand of corporate chain ownership.
For years now, news executives have been complaining bitterly that Google and Facebook repurpose their journalism without paying for it. Now it looks like they might have an opportunity to do something about it.
Earlier this week a Senate subcommittee chaired by Sen. Amy Klobuchar, D-Minn., heard testimony about the Journalism Competition and Preservation Act (JCPA), sponsored by her and Sen. John Kennedy, R-La. The bill would allow representatives of the news business to bargain collectively over a compensation package with Google and Facebook without running afoul of antitrust laws. If they fall short, an arbitrator would impose a settlement.
“These big tech companies are not friends to journalism,” said Klobuchar, according to an account of the hearing by Gretchen Peck of the trade magazine Editor & Publisher. “They are raking in ad dollars while taking news content, feeding it to their users, and refusing to offer fair compensation.”
There’s no question that the local news ecosystem has fallen apart, and that technology has a lot to do with it. (So do the pernicious effects of corporate and hedge-fund ownership, which has imposed cost-cutting that goes far beyond what’s necessary to run a sustainable business.) But is the JCPA the best way to go about it?
The tech giants themselves have been claiming for years that they provide value to news organizations by sending traffic their way. True, except that the revenues brought in by digital advertising have plummeted over the past two decades. A lawsuit brought by newspaper publishers argues that the reason is Google’s illegal monopoly over digital advertising, cemented by a secret deal with Facebook not to compete.
Though Google and Facebook deny any wrongdoing, the lawsuit strikes me as a more promising strategy than the JCPA, which raises some serious questions about who would benefit. A similar law in Australia has mainly served to further enrich Rupert Murdoch.
Writing at Nieman Lab, Joshua Benton argues, among other things, that simply taxing the technology companies and using the money to fund tax subsidies for local news would be a better solution. Benton cites one provision of the Build Back Better legislation — a payroll tax deduction for hiring and retaining journalists.
In fact, though, the payroll provision is just one of three tax credits included in the Local Journalism Sustainability Act; the others would reward subscribers and advertisers. I have some reservations about using tax credits in a way that would indiscriminately reward hedge-fund owners along with independent operators. But I do think it’s worth a try.
Even though local news needs a lot of help, probably in the form of some public assistance, it strikes me that the Klobuchar-Kennedy proposal is the least attractive of the options now on the table.
There’s been a significant new development in the antitrust cases being brought against Google and Facebook.
On Friday, Richard Nieva reported in BuzzFeed News that a lawsuit filed in December 2020 by Texas and several other states claims that Google CEO Sundar Pichai and Facebook CEO Mark Zuckerberg “personally signed off on a secret advertising deal that allegedly gave Facebook special privileges on Google’s ad platform.” That information was recently unredacted.
The revelation comes as both Google and Facebook face a crackdown from state and federal officials over antitrust concerns for their business practices. Earlier this week, a judge rejected Facebook’s motion to dismiss a lawsuit by the Federal Trade Commission that accuses the social network of using anticompetitive tactics.
The action being led by Texas is separate from an antitrust suit brought against Google and Facebook by more than 200 newspapers around the country. The suit essentially claims that Google has monopolized the digital ad marketplace in violation of antitrust law and has cut Facebook in on the deal in order to stave off competition. Writing in Business Insider, Martin Coulter puts it this way:
Most of the allegations in the suit hinge on Google’s fear of “header bidding,” an alternative to its own ad auctioning practices described as an “existential threat” to the company.
As I’ve written previously, the antitrust actions are potentially more interesting than the usual complaint made by newspapers — that Google and Facebook have repurposed their journalism and should pay for it. That’s never struck me as an especially strong legal argument, although it’s starting to happen in Australia and Western Europe.
The antitrust claims, on the other hand, are pretty straightforward. You can’t control all aspects of a market, and you can’t give special treatment to a would-be competitor. Google and Facebook, of course, have denied any wrongdoing, and that needs to be taken seriously. But keep an eye on this. It could shake the relationship between the platforms and the publishers to the very core.
Our guest on the latest episode of the “What Works” podcast is Rhema Bland, the first permanent director of the Ida B. Wells Society for Investigative Reporting at the University of North Carolina school of journalism. She was appointed in October 2020 after working in higher education as an adviser to student media programs. She is a veteran journalist who has reported and produced for CBS, the Florida Times-Union, WJCT and the New York Daily News.
The Wells Society was co-founded by award-winning journalists Nikole Hannah-Jones, Ron Nixon and Topher Sanders. The society is named after the path-breaking Black journalist and activist Ida B. Wells, who fearlessly covered the lynching of Black men and was present at the creation of the NAACP. The society’s mission is essential to the industry: to “increase the ranks, retention and profile of reporters and editors of color in the field of investigative reporting.” Bland and her colleagues host training seminars for journalists across the country, focusing on everything from entrepreneurship to racial inequality to COVID-19.
Also in this episode, Ellen Clegg talks about Ogden Newspapers’ purchase of Swift Communications, which publishes community papers in western ski towns as well as niche agricultural titles like the Goat Journal. And I share news about federal antitrust lawsuits that are in the works against Google and Facebook by more than 200 newspapers.
You can listen here and sign up via Apple Podcasts, Spotify or wherever fine podcasts are found.
A lawsuit filed by newspapers against Google and Facebook that claims the two tech giants violated antitrust laws is gaining momentum. Sara Fischer and Kristal Dixon of Axios report that more than 200 papers across the country have joined the effort, which is aimed at forcing Google and Facebook to compensate them for what they say are monopolistic practices that denied them advertising revenue.
I don’t see any New England newspapers on this list. But the papers that are involved in the lawsuits in some way represent about 30 different owners in dozens of states, according to Fischer and Dixon. About 150 papers owned by 17 different groups have actually filed suit so far.
What’s interesting about this is that it has nothing to do with the usual complaint about Google and Facebook — that they repurpose journalism from newspapers, and that the newspapers ought to be compensated. By contrast, the current lawsuits are aimed at practices that the plaintiffs claim are clearly illegal.
The Axios story doesn’t get into the weeds. But I did earlier this year shortly after the first lawsuit was filed by HD Media, a small chain based in West Virginia. Essentially, the argument is twofold:
Google is violating antitrust law by controlling every aspect of digital advertising. Paul Farrell, a lawyer for HD Media, put it this way in an interview with the trade magazine Editor & Publisher: “They have completely monetized and commercialized their search engine, and what they’ve also done is create an advertising marketplace in which they represent and profit from the buyers and the sellers, while also owning the exchange.”
Facebook is complicit because, according to a lawsuit filed by several state attorneys general, Google and Facebook are colluding through an agreement that Google has code-named Jedi Blue. The AGs contend that Google provides Facebook with special considerations so that Facebook won’t set up a competing ad network.
The two companies have denied any wrongdoing. But if the case against them is correct, then Google is profiting from a perfect closed environment: It holds a near-monopoly on search and the programmatic advertising system through which most ads show up on news websites. And it has an agreement with Facebook aimed at staving off competition.
“The intellectual framework for this developed over the last three to four years,” Doug Reynolds, managing partner of HD Media, told Axios.
The lawsuit also comes at a time when the federal government is beginning to rethink antitrust law. A generation ago, a philosophy developed by Robert Bork — yes, that Robert Bork, and yes, everything really does go back to Richard Nixon — held that there can be no antitrust violations unless consumers are harmed in the form of higher prices.
President Joe Biden’s administration, by contrast, has been embracing a more progressive, older form of antitrust law holding that monopolies can be punished or even broken up if they “undermine economic fairness and American democracy,” as The New Yorker put it.
The newspapers’ lawsuit against Google and Facebook is grounded in the Biden version of antitrust — Google and Facebook are charged with leveraging their monopoly to harm newspapers economically while at the same time hurting democracy, which depends on reliable journalism.