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.

Wasserman's elitism

Ed Wasserman, the Knight professor of journalism ethics at Washington & Lee, dishes out a healthy dose of elitism in his latest broadside against the FCC and the nation's sometimes incoherent information and communication policy (what, we have a policy?).

Wasserman's right in his conclusion that the FCC is largely toothless when it comes to the evolving media landscape, But instead of a thoughtful discussion of useful alternatives, he offers this dollop:

[W]e're on the cusp of a new era when localism will be all that's left for local TV stations anyway. That's because the national networks are eager to get around those local stations altogether and channel their shows directly to audiences via cable, Internet, mobile phones, molar implants -- telepathy, soon enough -- anything that will save them having to share ad revenues.

Plus, local stations are about to get even more channels to fill once they make the long-awaited move to the digital spectrum next year. What will they fill it with? Cheap, hyper-local programming, tailored to intensely local advertisers and interests, whether neighborhood sound-offs, Pop Warner football or peewee soccer. Broadcasting is about to launch into a craven new world of localism, with programs of unimagined triviality.

Well, yes, Ed. It's precisely that kind of elitism that got much of the mainstream media into this mess in the first place. They became estranged from their audiences for which such things often are not trivial (trust me on this; I've coached youth baseball). Why do you think things like YouTube and Vimeo and Flickr and Photobucket and any number of social networking sites are so popular? Oh, yes, those millions really should be watching TV and reading their local newspaper.

But they aren't! And you aren't getting them back, at least not with those kinds of attitudes.

These sorts of things are not trivial, but they can be trivialized. Wasserman and others continue to show how effortless it is to do so.

(However, on one level I do agree with him -- given broadcasting's track record, I expect to see substantial amounts of schlock. It need not be that way, however, as some online sites and show.)

Inside digital NPR (and other good stuff)

Yeah, yeah. I'm a lousy executive editor of The Convergence Newsletter.

We have good stuff in two issues, and I forget to flog it. So let me make up for that.

In the February issue, Editor Brad Petit begins a two-part conversation with Maria Thomas, senior vice president of digital media at National Public Radio, about the public broadcaster's digital strategy. A sample:

The Web site plays a variety of different functions, one of which is simply to make radio not ephemeral. ... So on some level, we are representing the stories that are told on the radio so that they can live on in an archival form. That’s a very basic element. Beyond that, if we think of these people in NPR News as storytellers, eventually we’ll want to move to a place where we think of them as storytellers or journalists and not necessarily affiliated with one platform or another.

I hope you'll check it out. The second part of the interview will be in the March issue (that link will work early nest week when we get it up). (Also, see a good story on NPR and its future from the Christian Science Monitor.)

Also in the February issue, check out Sid Bedingfield's The Problem with Broadcast News on the Web. Sid, who spent many years with CNN -- and before that UPI -- dissects why the current broadcast news package formula doesn't work on the small screen.

The package format has been the workhorse of broadcast news since the days of Murrow and Friendly. It is an efficient means of visual storytelling. In skilled hands, it can pack an emotional wallop. In the passive environment of television, where viewers “lean back” to watch the news, the package works well. On the Web, however, users “lean in” to engage with the content. There, the broadcast format falls flat.

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The land of free

Brian B.'s comment on an earlier post I thought deserved a post of its own:

Doug: Following up on our discussion some time back on free vs. pay models for news Web sites, I wonder if you've seen this article in Wired magazine. It's Chris "long tail" Anderson on how and why some things become available for free. Apparently he's working on a book about the phenomenon.

First, go read the article. Make sure everyone in your newsroom reads it -- especially the publisher.

Now, consider again the reality of the modern news business:

• The "news" as we do it has little intrinsic value.
• The value came from the "wrapper" -- the newspaper. It is this part of the equation the Internet is destroying.
  
• We are not going to solely "write" our way out of this, nor will we do it simply by increasing the number of photos of people with their pets or receiving the latest charity check (although it's probably a good start if, for no other reason, to get back to the roots of why we exist anyhow).
• This is a two-part problem, and unless we think about and attack both parts ...

OK, let's again tackle these in order:

The news has little intrinsic value
If you don't understand why after reading Chris Anderson's article, go read it again. Yes, the news has value, but it is so fleeting and close to zero that it is economically impractical to extract it. I know it's hard telling a generation of journalists that what you're doing has no (or little) value, but until they have that catharsis, it's going to be tough to move on.

This, of course, is a blanket statement that will have variances. For instance, in a smaller area with less media, the "news" is likely to have more intrinsic value. Even these areas, however, are unlikely to be bypassed by the digital revolution, which means, eventually, there will be more sources for that local news. Whether they will suffer the same dilution that metro areas have or whether dilution will not get to the point where an economic model -- think small community newspaper, etc. -- can be maintained remains to be seen. This, of course, is the backbone of the faith in "hyperlocal" -- that somehow if we carve it up enough the resulting news product builds intrinsic value because there are likely to be fewer competitors in each sliver ( in other words we keep grasping for the monopoly or oligopoly straw that allowed 30 percent profit without any real innovation for 50 years or more). This, however, may be offset by the resources needed to produce enough material for each of these hyperlocal markets, plus the reality that it also takes fewer competitors to make a smaller segment unprofitable.

The value is in the wrapper
Until now, we have wrapped the various parts, each with minimal value, in the newspaper (or into channels on the airwaves). The very aggregation provided some value, as it made it convenient for readers to get most of what they wanted in one place. However, that "place" had limited space, and as their interests broadened and diverged, this wrapper became less relevant, long before online. It was prolonged by its monopoly position. Online destroyed that, and the economic model is rapidly collapsing (whether it will find equilibrium at a much-contracted level remains to be seen).

However, Google and Yahoo and Digg and Reddit, etc., are all just wrappers, too. They bring a new kind of convenience in the digital age. More on that in a moment ...

We are not going to "write" our way out of it
Go back to point one -- the inherent value of the "news." Again, not all stories nor pieces of information will have the same value. Thus we have "refrigerator journalism" in which those items, hung on the refrigerator door, have greater value to one or more people, as does the picture of someone's son or daughter, etc. And maybe a "big picture" article occasionally falls into this category.

But the reality is:

• Such items, the things people probably are willing to pay for, generally have a micro audience. If you amortized the cost of production across the willing payers, it would be a serious mismatch. Advertising helps fill the gap, but we have not developed systems to match advertisers with buyers at this granular level, and even were we to, it's still not clear it would be cost-effective.
• The cost of producing "must-read" pieces with a wider base of potential readership climbs rather quickly to the point where there is no marginal benefit. This becomes especially acute if you try to increase the frequency. (Think of one grabber investigative or other type of piece once a month versus one every day or two.) Plus, frankly, there's no guarantee that any local area has that many compelling stories. (This is another conundrum for local media -- a New York Times can amortize not only its expenses but its newsgathering over a much broader area, making it more likely it will find a steady stream of compelling reads.)
  

We have to attack both parts
If you have that catharsis I talked about, you realize this is a problem that has to be dealt with on two levels.

1. Yes, we have to try to improve the "news" so that we increase its intrinsic value. How do we do that? Is it possible to do with economic effectiveness? (An honest assessment tells you that you absolutely have to get your audience involved to help with the production.) What are the elements of photos, stories, headlines that work for audiences? (When you begin to get into this you find lots of shibboleths and assumptions, but really very little reproducible research.) We can't write our way out of it in the sense that we are unlikely to produce a journalism in which every part has measurable, recoverable value. But we are likely to be able to increase the value of some parts.
2. Develop new "wrappers." The industry track record on this is shameful at best. R&D has best been referred to in this industry as "rounding error," and now it is coming home. Cooperation has been hard to come by, too (anyone remember New Century Network). But if journalists expect to be more than just bit players, they are going to have to coalesce and crack this nut, as well as get a better idea of how readers/users interact with the material they are putting out. Read Anderson's article again closely. What he describes is a universe in which the digital product is largely free, but it's the wrapper that costs (if you elect to choose the more expensive wrapper).

The challenge for journalists is to figure out what new digital wrappers provide the convenience, credibility, portability, etc., that can add value to their product. So far, this industry has abdicated that to the Googles of the world -- and then it likes to whine that Google et al. are "stealing" its product.

So we, as journalists, have a choice: Do we want to be just "content" providers? If so, then admit you are going to rely on someone else to distribute your product and you are going to be one - small - dot on the map with relatively low value. Like any artist, you 'll be able to do what you are doing for its intrinsic beauty. A few will become superstars. Most will need a second job to eat.

If not, then somehow this industry is going to have to discover a way to break more than a century of independence, cantankerousness and anti-intellectualism. Whether it backs such efforts at universities, think-tanks, corporate R&D centers or all three, there is a small window developing. It starts next February when TV goes digital, freeing up tremendous bandwidth and starting a push that I predict within a decade will pretty much bring an end to the desktop computer. New devices, programs and ways of interacting with online media will all result.

News organizations -- and most journalists and j-schools -- missed the first window after the dot-com bubble burst. Now that they know this "Internet thingy" is real, maybe they won't miss the second.

But I'm not putting any money on it.

Back in the saddle (Carnival of Journalism 2)

Well, just back from the "2007-08 New Grandson Tour" and into the crucible of the first day of classes, so I have not had a chance to think many deep -- or shallow, for that matter -- thoughts, but a few things ran through my mind as I was on the road, trying to crib Internet access where I could:

• I wonder if sometimes what we're doing online forgets what it's like for those without high-speed access. Sure, the figures tell us more and more people have it, but there remain significant pockets - demographic and geographic -- that don't. In my case, it was a situation of son and daughter-in-law having moved into a new house and not having it yet and other relatives who will never have it. Between "borrowing" high-speed from a few unprotected sites and spending hours on dial-up, I was pretty much able to keep up with e-mail. But RSS? Too much of a hassle. Many of my favorite news Web sites? Big, omnivorous time sinks.
• This comes to mind because while I was near Louisville, its Metropolitan Housing Coalition released a report about high rates of home foreclosures, and buried in it (page 25 - click on Read More and you'll get a PDF) is this about one of the causes:

High expense or debt levels - extraordinary transportation costs – driving vehicles with low gasoline mileage and/or substantial maintenance needs, jobs requiring extensive non-reimbursed driving or commuting, having a number of cars in the household; high utility costs due to poorly insulated home or energy inefficient elements or systems; extensive deferred maintenance needs or a household disaster such as a fire; high communications related expenses – cell phones, internet, cable television; little or no savings and high levels of debt; financially naive or lacking money management skills; excessive credit card bills; and using equity in home to pay ongoing monthly expenses. (Emphasis mine.)


Now, let's not overplay this, but it's one of the first times I've seen telecommunications expenses listed as an explicit factor leading to financial distress. But maybe, as a generation of journalists on the cusp of an era when we may no longer control our own "printing press" (not necessarily a bad thing -- but that's for another post), it's time we took some serious notice of this. The more I though about it, and tallied my telcom bills, the more I wondered if we are heading into a period even more unsettling than we have foreseen so far -- as more and more efforts shift to digital, will our audiences be able to afford us?

• Feedblitz rocks! The ability to take RSS feeds, turn them into e-mail digests, then download those e-mails for offline reading was a godsend. (I use an online, not an onboard, RSS reader, and even had I used an onboard one, the online time to do the RSS downloads still would have been questionable.)
• Putting Wi-Fi into its restaurants may be one of the smarter moves McDonald's has done. The price is generally reasonable (and some restaurants are free, especially overseas), and although I didn't use it on this trip (other things intervened), knowing a reliable, almost high-speed connection is widely available should attract business (see also). Right now, Mickey D's is a bit balkanized among service providers, but if it could swing a national deal at a set price, I could see news organizations negotiating in bulk and telling reporters that if they have to file, head to the nearest arches. (Maybe they already do, and I'd like to hear about it, if that's the case.) If MickeyD's picks up a Coke or two in the process, it becomes very lucrative. Think about how many "road warriors" in all forms of business this could attract (yeah, there are technologies like Wi-Max, too, but the arches are a lot more ubiquitous right now, even more so than Starbucks and its Wi-Fi).
• Enough already with the Facebook widgets! Sure, a fair number are fun, but if I get one more vampire or werewolf or Scrabble or news quiz invite ...
  
• A lot of the stories I read about the potential breakup of Landmark concentrated on the Weather Channel. They missed or glossed over the 800-pound (or $850 million) gorilla, Dominion Enterprises. People I've talked with inside and outside the company say the classified publications could surprise in the price they fetch. And don't underestimate Landmark's community newspapers division, based in Shelbyville, Ky. It not only has a good number of highly profitable newspaper titles, but its stable also includes real estate magazines (probably hurting a little now, but likely to rebound) and some highly trafficked sports Web sites in partnership with Rivals. In fact, the nine larger papers may well be the consolation prize. This will be a very interesting breakup to watch, if it happens.

(Now, back to the baby pics. Chrs.)

Adrian Monck is hosting this month's Carnival of Journalism.