The New News
both the legal and academic communities is that antitrust exemptions are generally not good. In a letter from the Department of Justice to Congress, the principal deputy assistant attorney general wrote, “Companies free from competitive pressures have incentives to raise prices, reduce output, and limit investments in expansion and innovation to the detriment of the American consumer.”137 Those interested in a unified paywall approach to monetizing news content argue that by granting the news media an antitrust exception, Congress would be guaranteeing the sustainability of the news media, which is directly related to the United States’ overall “physical and psychological health.”138 In addition, some content However, critics, including representaproviders and news organizations tives from the Federal Trade Commission, have suggested that an exception argue that the potential unification of the to antitrust laws might be a viable news media through an antitrust exception would do little more than limit the number of option to increasing revenues for news sources available from which the public can get information.139 the news media. In addition, some scholars argue that Congress has already attempted to grant the media leniency in the antitrust laws with the passage of the Newspaper Preservation Act (“NPA”) in 1969.140 After lobbying pressure from large media companies, Congress enacted the NPA, which allowed competing news organizations to fix subscription prices and advertising rates, allocate markets, and participate in other anticompetitive behavior legally.141 The NPA also allowed preexisting joint-operating agreements to continue.142 Newspapers believed that the joint-operating agreements would allow newspapers to succeed financially, however, today only six of these joint-operating agreements still exist.143 Finally, some argue that the media does not even need an antitrust exemption because the DOJ has issued letters stating that it was not against collaborations between newspapers.144 While news organizations and other content providers attempt to figure out ways to monetize their content, some organizations are going forward in the courts to protect their content from what they consider unauthorized use.
137. Letter from Keith B. Nelson, Principal Deputy Assistant Attorney Gen., U.S. Dep’t of Justice, to Lamar Smith, Ranking Member, H. Comm. On the Judiciary (June 23, 2008). See also Maurice E. Stucke & Allen P. Grimes, Why More Antitrust Immunity for the Media is a Bad Idea, 105 N.W. L. R ev. 1399, 1403 (2011). 138. See Greenberg, supra note 222, at 457-67. 139. See Mike Masnick, FTC Not Interested in Giving Newspapers Antitrust Exemption, Tech D irt, Sept. 30, 2010, http://www.techdirt.com/articles/20100929/19382811228/ftc-not-interested-in-givingnewspapers-antitrust-exemption.shtml. 140. Stucke & Grunes, supra note 228, at 1404. See also Newspaper Preservation Act, 15 U.S.C. §§ 18011804 (2006). 141. Stucke & Grunes, supra note 228, at 1404. 142. Id. at 1405. 143. Id. at 1410-11. 144. Id. at 1415.
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