Sunday, July 13, 2008

Is the law an arse? (July Carnival of Journalism)

Once a month, some of us who blog regularly about journalism, get together to, well, write about journalism in what we call a blog carnival. That's right, step right up ladies and gents, all the latest tonics, laxatives, patent medicines and other helpful prescriptions in one place for your convenience!

And so I come to hosting the July Carnival of Journalism.

Actually, as long as we don't take ourselves too seriously, we do try to be about serious business in these monthly gatherings that bring together some really insightful thinkers (myself excluded) about what is happening in journalism and digital media in hopes we might figure out where this is going.

Lately, we've been trying to tackle one question a month, which adds some form to the mob, though bloggers may go off any which way they want if they find something more important.

For this month, I posed this question:
What changes will need to be made in national and international legal systems to help the digital age, and especially journalism in the digital age, flourish? We talk a lot about hyper-local journalism, innovation, the journalism entrepreneur, etc. But we don't often talk much about the legal issues still hanging in the background out there as highlighted a bit by the Drudge Retort/AP case.

Here is what I wrote to a correspondent recently and have touched on disjointedly in my blog from time to time:
1) I think we need establishment of a national digital small claims court of diverse jurisdiction. That way, if I'm in South Carolina and you're in California, and I find something you've done offensive to my legal rights, I can bring an action. However, unlike now, where you immediately would file to have it removed to California, and we'd both have to spend a lot of money prosecuting it there, the matter would be handled electronically so that we could remain where we were. Lord knows we have the technology to do that. And though some legal fees would be incurred, as with all small claims courts, the bias would be in favor of not needing to lawyer up.
2) I'd also like to see a realistic threshold on damages high enough so that many of these small copyright issues would fall under that court. Basically, I'd suggest the law be amended to presume damages of less than $5,000 or $10,000 unless the plaintiff could prove otherwise before the case could be removed to a higher jurisdiction.
3) Amendment to the DMCA or other applicable laws to recognize the unique aspect that visual journalism plays in today's society so to allow for fair comment not only on technique but on content in a way that does not propagate a usable copy of the photo. Something similar to the rule that you can show paper money only if it is so small, so large, or so distorted that it cannot be copied.

I'm hoping this topic will really highlight the international nature of these carnivals (and in the process highlight how digitized information's disrespect for national borders highlights some knotty legal problems, too).

But let's check in on what out other carnivalistas think. (And do check back. We'll be adding to this oh, through Tuesday, if necessary. After all, it's July, and it's the South, and we're wiling to take a longer view of deadlines under such circumstances.):

Jack Lail, in Done In by Reform, takes a different tack and aims at the Sarbane-Oxley Act that arose in the U.S. after a series of headline-grabbing corporate scandals. Lail's rail is against the busywork reports and corporate bureaucracies that have grown as a result. But where is the journalism issue in this six-year-old law? Guess what, companies are laying off in newsrooms, not in audit departments. And the IT knowledge and skills that ought to be focused on making media companies more technically adept and gazelle-like, are taking inventory and doing compliance reports.

David Cohn has some of the same frustrations, finding that bureaucracy sucks and stifles innovation. He sees a future in the Creative Commons license and says more journalism should be licensed that way. Just as the Creative Commons has built the legal framework through which people can be creative - we need a legal framework where groups of people can be creative together without being stifled.

In the "malleable, changing entity" of media ethics, Wendy Withers sees a future where laws will relax when it comes to posting other people’s work on the internet. ... The days when publications (now think blogs and websites) take the words of other people and dump them on their own pages are back, and we should accept this. But Bolm does have one caveat -- the "dump" would have to have our names and URLs attached.

Andy Dickinson takes on the subject of contempt of court, especially how it plays out in the UK, but more importantly bringing in that international factor I mentioned: On a global platform, how do you protect yourself when you report what is going on in another part of the world? ... Time was a journalist could find themselves in contempt because they where the only ones who could. They where the only ones who could publish. Now that anyone can publish everyone is, or should be, equally at risk.

In a physical world, news becomes a destination, an end point often tied to a time and place, like the morning newspaper. ... In an online world, news is part of a distributed and networked ecosystem of information - a journey, Alfred Hermida reminds us. He's wondering how a legal system grounded in products and places adapts to digital media that respect no borders, and he highlights conflicting rulings internationally on deep linking as an example.

All Ryan Sholin asks is that the law keeps its hands off the Internet.

But Charlie Beckett, with his perspective in the UK, says that seems unlikely. Regulators' appetites already are whetted, he says. There is no appetite here for an Internet First Amendment. Frankly, I am surprised at how much of a desire there is for control of the Web.

Adrian Monck observes: The real legal barrier to the digital age is international governance itself. There is no international legislature established under the representative terms that we understand to confer legitimacy.

And Bryan Murley worries about the concept of free expression embedded in the U.S. Constitution if we create global standards. As intellectual property law has been more or less standardized among developed nations, the result has been a benefit for those with monetary interests in tighter controls, not greater freedom for the average citizens. It would seem that a similar scenario would play out in the arena of free expression were we to attempt such a standardization of free expression across the globe.

(Interestingly enough, "On the Media" this week has another aspect of the Internet's legal Rubik's Cube -- the defense in an online pornography case that a community's standards should be determined by its online searches. There are some interesting comments at the end about reality vs. fantasy and the law's floundering on the concepts in the digital age.)

And though David Lee had to sit out this month's particular question because of other commitments, still, take a look at the student journalism project he's helped put together in New Zealand http://www.newswire.co.nz/ -- and his look behind the scenes of how it came together.

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