Can Journalism Handle the Technology/Copyright Interface?

With the rise of online newspaper content (not to mention blogs), the fate of print newspapers continues its seemingly relentless downward trajectory. That said, one likely outcome of this process is the even greater prominence that surviving newspapers will enjoy. On any shortlist of survivors is the New York Times. For that reason, the manner in which the New York Times chooses to cover IP matters is particularly noteworthy.

It is against this backdrop that I read with interest the 16 January article in the New York Times by Nick Bilton (described as "the Lead Technology Writer/Reporter for The New York Times Bits Blog") entitled "Can Your Camera Phone Turn You Into a Pirate?" here. In considering this piece, and with apologies to that most trite of rhetorical conventions--the double entendre--I came away with the feeling that something was a bit off-focus in the piece.

The foundation for the article is Bilton's confession that his wife and he had used their camera phone to make dozens of digital pictures of kitchen layouts and hardwood floor textures, all taken from various books found at a Barnes & Noble store. The pictures were then shared with their contractor. Upon reaching home, the question arose to Bilton:

"Did we do anything wrong? And, I wondered, had we broken any laws by photographing those pages?" After all, Bilton mused, if they had wheeled in a photocopy machine, the store's management would have immediately wheeled the photocopy machine out of the store. Replace smart phone for photocopy machine--and what do you get. Bilton went on to consider answers to the question (or, as he wrote, "[d]id we go too far?").

First stop in providing an answer came from Julie Ahrens, associate director of the Fair Use Project at the Stanford Law School. Her response: "Is it morally incorrect? Maybe. But it entirely depends upon how much of the book you copy, that would determine if it was illegal." But no answer to Bilton's specific question--concerning the very different context of pictures taken by a smartphone-- was offered by Ahrens; maybe she was not even asked to provide an answer. In any event, Bilton then goes on to discuss the attack by the publishing industry on the photocopy machine in the 1960s and 1970s. And what was the result? According to the article, "the publishing industry succeeded in persuading Congress to pass the Copyright Act of 1976, which defined "fair use" of copyrighted material ...."

The article proceeds to consider the view of Professor Stan Liebowitz of the University of Texas, Dallas, that camera phone pictures are "closer to music piracy" than to copies made by a photocopy machine. After all, while in the 1970s, most persons did not keep a photocopy machine for personal use, everyone has the potential to keep a cellphone in his pocket and make copies at his will. In a similar vein, Professor Charles Nesson of Harvard observed that "[i] people are taking a picture of a picture to take with them, then it is exactly like the MP3 issue."

So what are my concerns? They are of two kinds.The first relate to the specific contents of the article:

1. Perhaps my memory of the history of the 1976 Coyright Act is faulty, but I don't remember that it was the publishing industry and its concern with the photocopy machine that was the principal driver of the legislation. One of the drivers, probably so, but the "principal" driver? After all, antecedents to the legislation reached back to the mid-1950s.

2. Equally, I don't remember that, except at the margin (as the article itself writes, mere "snippets" of content), "fair use" became was the principal solution to the publishers' unease with the photocopy machine. References to arrangements reached regarding certain educational copying by teachers had nothing to do with sanitizing wholesale copying of chapters and entire books. Ditto for pictures taken with a smartphone camera.

3. Then, as now, the fundamental issue is about "infringement", and not "fair use", and, more importantly, whether, even if there is infringement, technology threatens to overwhelm the ability of the legal system to enforce unauthorized copying by means of a technology, such as the smartphone camera. However, the word "infringement" does not appear in the article and there is scant discussion of enforcement. Instead, there are multiple references to "piracy", which is great for journalists but less than satisfying for lawyers.

I can already hear the rumbling--get off it Kat, this is mere nit-picking at best. I don't think so, and that brings me to my second set of concerns, namely, the ability of even quality journalism adequately to cover the intersection of technology with IP generally, and copyright more specifically. More people will likely have read the New York Times article than any piece this Kat has or will ever publish. If influence is the name of the game, the New York Times will likely win hands down. If so, here are some of my concerns:

1. Can any article of 20 some short paragaphs (whether or not the factual account is totally accurate) do justice to the question of the potential challenges to copyright posed by the use of a smartphone camera?

2. More than that, should quality journalism even try to tackle the topic in such a platform, whereby this 20-paragraph article moves from the photocopy machine to fair use and morality to the MP3 player to piracy in a reporting mode, eschewing conclusions and leaving the reader to reach her own result?

3. If the answers to (1) and (2) are negative, who, if anyone, fills that vacuum?