Valleywag has a great writeup about an upcoming FTC public hearing aimed at what sounds like propping up newspapers. The specifics of the hearing are best summarized in their article, so I won’t repeat it here. Just know that I wholeheartedly agree with their feelings on this issue.

In my own post, I would like to draw attention to something that bothers me greatly about the current state of American regulation over media copyrights. This FTC hearing is only another piece in a much larger regulatory movement that seeks to stifle changes in how media is distributed in America. Shockingly, the paradigm shift of the internet is unique in all of American history for the way in which Congress and the courts have begun to take positions that stifle progress. No one reading this blog probably remembers these cases, but time and time again throughout American history, Congress and the courts have sided with the technological innovations of the day upon recognizing that all copyright monopolies are allowed only to “…promote the Progress of Science and useful Arts.” That’s from the Constitution. So, let’s have a little history lesson on the matter.

Back when recorded music was very first invented, there were no laws governing how I, the listener, could go about recording music and what my rights were with regard to using that recording. Back then, I would have had to buy sheet music and then also pay for the right to perform the work. Now, here comes Edison’s phonograph and people can start recording all kinds of sounds. Media piracy was born! In response to this, the established interests in the music world insisted that everyone pay them every time anything ever happened. Clearly, the media companies of yesteryear are much like those of today. What did the Courts do in response to these claims? Nothing. What did Congress do? They instituted statutory licenses where a law set out what a composer was to be paid each time a recorded song of their was played. This is still in place today, and effectively subsidized the recording industry by giving them something of value for less than they would otherwise have to pay. Congress sided with the new technology and wrote laws to back it up. Yes, the rights of musicians were limited, but Congress saw the public benefit through all of this.

When cable TV first began wiring up homes, the cable companies weren’t paying a dime to the broadcasters whose content they were delivering. Not a dime!!! This matter even went to the Supreme Court twice and the Supreme Court rightly decided that the content creators were already compensated through their existing rights and claims. To extend that would be extending a monopoly and would increase the drag that monopoly placed on the public. According to the highest court in the land, the cable companies didn’t owe the broadcasters and content creators a single cent. Congress stepped in many years later to try and settle the issue, and guess what they did? Yup, statutory licensing.

The VCR was purportedly going to obliterate any and all opportunities for film companies to make any money. If we each had a recording device in our homes, why would we ever both going to movies? Once again, the courts did nothing in response. Congress didn’t either. The new technology was valuable enough, that the entrenched interests of yesteryear stopping it would be too much of a detriment to the public good (think of the Constitution). Once again, we’ve already given you a monopoly, why are you whining to get yet another one?

Now, here we are in 2009 and the internet has brought about a very, very different response on the part of both the courts and Congress. My opinion about why this is seems fairly straightforward and can be summarized in two points:
1) The internet is truly international. These past examples involved Congress setting out laws that would be enforced within the borders of the US. It would be very tough for a person outside the US to circumvent our laws when it comes to things like cable TV. Our “media borders” are more porous than ever thanks to the internet, but it limits the effectiveness of lawmakers in tremendous ways.
2) The internet affects all media. In the past, one entrenched interest was faced with an upstart technology that mostly only would affect them. VCRs impacted the film industry, radio and records the music industry. The internet has transformed all of them at once and we are now faced with an unstoppable tide of lobbying and lawmaking.

Sorting out a solution to how media can be used online is a difficult matter, and I certainly don’t have the whole solution. However, I do know that nothing in the FTC’s agenda for their public hearing is going to actually help the older news organizations survive much longer on their own. Since when has subsidizing a dying industry been good for the public or the companies themselves? And if blogs are killing newspapers, wouldn’t any tax credit given to news organizations also have to be applied to news blogs? The media companies of yesteryear need to wake up, because it is morning in America right now and Americans will always side with the new technologies.

Seeking out new models of revenue is the only way these media organizations can survive. If they don’t someone else certainly will. For example, record companies now find themselves beholden to Apple’s iTunes Store because back when everyone was getting their music online from just one place, Napster, that was the time to strike and put themselves online legally. Instead, they squandered that opportunity and now are pretty much as screwed as the newspapers. I hope they wake up before long.