First, kill the lawyers – before they kill the news

Following the frighteningly dangerous thinking of Judge Richard Posner – proposing rewriting copyright law to outlaw linking to and summarizing (aka talking about) news stories – now we have two more lemming lawyers following him off the cliff in a column written by the Cleveland Plain Dealer’s Connie Schultz.

First note well that Schultz is married to U.S. Senator Sherrod Brown as she calls on her newspapers and employer (my former employer, Advance Publications) and fellow columnists to influence Congress to remake copyright. She should be registered as a lobbyist. No joke.

Schultz says that David Marburger, an alleged First Amendment attorney for her paper, and his economics-professor brother, Daniel, have concocted their own dangerous thinking, proposing the copyright law be changed to insist that a newspaper’s story should appear only on its own web site for the first 24 hours before it can be aggregated or retold.

Incredible. So if the Plain Dealer reported exclusively that, say, the governor had just returned from a tryst with a Argentine lady, no one else could so much as talk about that for 24 hours. A First Amendment lawyer said this.

They make vague reference to the hot news doctrine theAP has been trying to dig up from its very deep grave. Note that their definition of hot is the cycle of newspaper publishing, not the cycle of news itself. Look at how fast the Michael Jackson news spread. Under these guys’ scheme, TMZ would have had exclusive right to publish his death for a day. Well, except it’s not a newspaper. And what they care about is protecting newspapers.

Schultz and the Marbergers complain about what they call the “free-riding” of aggregators, et al. But they simply don’t understand the economics of the internet. It’s the newspapers that are free-riding, getting the benefit of links.

These newspaper people are the ones trying to act as if they own the news and can monopolize it. Those days are over, thank God.

: LATER: Schultz has responded in the comments here. I have responded in turn. And I have just sent this message to the office of her husband:

Please consider this a press inquiry:

I want to know Sen. Brown’s stand on his wife’s column in the Plain Dealer on attempting to rewrite copyright law to give newspapers a 24-hour period of exclusivity on the news they report.

Does the senator support this legislation?

What will the senator vote on this legislation?

Will the senator recuse himself from voting on this legislation, considering his wife’s role in lobbying Congress on the issue?

Is his wife registered as a lobbyist?

Spoiling the paid party (again)

Paid Content reports today that The New York Times Companies’ Martin Nisenholtz is talking about charging for the paper’s mobile app.

On the face of it, this seems to make sense: People are paying for mobile content and functionality (ring tones vs. earth-shattering news, ferchrissakes!) and for mobile apps. The New York Times iPhone app is downright wonderful. It’s far better than The Times’ Kindle app (no fault of The Times; all the Kindle news sites are sucky). I’d pay for the app – once.

But would I pay for an ongoing subscription to it? Well, here’s the problem: my iPhone brings me the web and I can read The Times there without paying. Damn, that genie; doesn’t know his place (in the bottle).

Nisenholtz says, quite rightly, that one problem with the iPhone app is that there are fewer opportunities for advertising. And even so, the few ad avails I see are all filled with free house ads for The Times itself; obviously, the sales staff hasn’t taken seriously the opportunity to sell this prime audience (why is it always thus?). So The Times’ app makes bupkis. Even the house ads are irritating, so I might pay for an app without ads. But then I’d be paying for less irritation rather than for the content.

What’s the solution? I haven’t the faintest idea.

Adding value in the new news ecosystem

How can and should news organizations and others add value to the new news ecosystem that is being used in the Iran story?

Or to put the question another way: The New York Times keeps talking about how expensive its Baghdad bureau is and what a fix we’d be in without it. Well, the essential truth in Iran is that no one has a Tehran bureau (or if they do, it has been rendered useless by government diktat). So we have no choice but to replace that bureau with the people, with witnesses empowered to share what they see.

The New York Times, the Guardian, and Andrew Sullivan, to name three, have been doing impressive work with their live blogs, sifting through Twitter, Facebook, YouTube, blogs, trying to add as much context and as many caveats as they can. The live blog is print’s equivalent of live TV; it is the way to cover a story such as this: process journalism over product journalism.

But clearly, in that coverage of and by the people, we are experiencing severe filter failure, to use Clay Shirky’s term. Look at the hundreds of tweets that emerge every minute and at the overuse of the word “confirmed” on them, which is meaningless if you don’t know who’s doing the confirming. There’s no way to tell who’s who, who’s there, who’s telling the truth, who’s not.

Note the repeated word: Who. The greatest value a news organization can add to this new news ecosystem is to identify, curate, vet, and train people. Ideally, that needs to happen before the big story breaks. But it can even be done outside the country, as I saw CNN do this morning, talking with a Columbia University student from Iran, who knew who was real and was there from her network of family and friends. Of course, even if you know the people you’re listening to, it’s impossible to know whether everything they say is true unless you can verify it yourself. But that’s the point: You can’t.

So you need to have the best head start you can have. The larger the network of people a news organization can organize, the better shape it will be in when news breaks, the better it can filter the reports that come – whether from people in that network or in the larger network of people those people know. The more people in the network, the more who can go to the scene of news or research closer to it – the more you can ask for help.

Global Voices is an example of this infrastructure: someone who knows someone who knows someone, each able to judge what the next in the chain is saying.

I’ve also been arguing that for journalists, saying what you don’t know is becoming as important as saying what you know. That is all the more critical as misinformation and rumor can spread at the speed of information online. So I imagine a news organization creating a kind of anti-wiki – a dynamic, collaborative Snopes: a list of what we don’t know so we can see what is unconfirmed and so these things can be confirmed – so journalists can add journalism.

On Twitter right now, for example, I’m seeing a great deal about people being taken to embassies instead of hospitals. It is possible for journalists to call their diplomatic sources and confirm at least that, check that off. We need structure around that process.

See also the post below about YouTube holding unique information about the provenance of video. YouTube should not reveal identifiable information about those sources. But news organizations should be able to contact YouTube to help sift through them and find out least which videos came from Iran.

News organizations could also equip their networks of witnesses. Alive in Baghdad distributed cameras to people there. Today, that can be done so much less expensively – think Flip cameras. Bild in Germany sold 21,000 of equivalent devices in five weeks. Michael Rosenblum is planning to distribute 100 Flips in Gaza.

How else can and should news organizations add value and structure to this very disorganized and live new world of news?

Criminal Cases Push Newspapers to Identify Anonymous Commenters

Anonymous comments on newspapers blogs are drawing attention from prosecutors seeking information about criminal matters, once again raising the issue of whether newspaper blog comments are protected under state press shield laws. Last fall, I wrote about two civil cases involving claims of defamation, where two separate courts refused to order newspapers to disclose information that would lead to the identification of anonymous commenters on their blogs.

In criminal cases, the issues are similar, but the stakes can be higher for everyone involved. A refusal to turn over information in response to a grand jury subpoena can result in a contempt proceeding and a coercive jail term, as individuals as diverse as New York Times reporter Judith Miller and video blogger Josh Wolf have learned.

In one recent case, an Illinois court upheld the issuance of a grand jury subpoena seeking information on anonymous newspaper blog commenters who had, the court concluded, relevant information about the defendant in a murder case.

I Know Who You Are and What You Did

In 2008, Frank Price was arrested in Madison County, Ill., and charged with first degree murder for the death of a 5-year-old child, a development that was reported in the local newspaper, the Alton Telegraph. The article was posted on the newspaper's website and drew the attention of a number of anonymous commenters, some of whom purported to have personal knowledge of Price as well as past incidents of his abuse against children. Detectives investigating the case contacted the newspaper informally, seeking to learn the identity of the anonymous commenters, but the newspaper refused and told the detectives that the information had to be requested formally.

alton telegraph.jpg

Shortly thereafter, the newspaper was served with a grand jury subpoena requesting records that would lead to the identity of five of the commenters, including full names, addresses and IP addresses. The newspaper filed a motion challenging the subpoena, arguing that the comments fell within the protection of the Illinois reporter's shield law.

Journalist Shield Laws

As we noted in our prior blog post discussing the two rulings in civil cases, individual state journalist shield laws vary greatly in their provisions. The Montana Media Confidentiality Act is worded very broadly, and covers "any information obtained or prepared" by a news outlet. In Doty v. Molnar, the court focused on that language in concluding that anonymous comments were protected under that Act from disclosure in a civil suit.

The Oregon Media Shield Law protects "the source of any published or unpublished information obtained by the person in the course of gathering, receiving, or processing information for any medium of communication to the public." In Beard v. Doe, the Oregon court ruled that anonymous comments fell within that language and were thereby protected from disclosure.

The Illinois reporter's shield law, 735 Ill. Comp. Stat. 5/8-901., provides that a court may not compel "any person" to disclose the "source of any information obtained by a reporter" unless "all other available sources of information have been exhausted and...disclosure of the information sought is essential to the protection of the public interest involved." A "source" is defined as "the person or means from or through which the news or information was obtained."

The Alton Telegraph v. The People of Illinois

In the Alton Telegraph case, the newspaper argued in its brief that the Illinois reporter's shield law protected the identity of the anonymous commenters because the commenters were both "persons" and "sources" within the meaning of the Illinois law.

The newspaper also argued that the subpoena should be quashed because the prosecutor had not shown that all other sources of information had been exhausted, and that the disclosure was essential to the protection of the public interest. The prosecutor argued that the commenters were not "sources" for the newspaper or its reporters because the comments were posted after the newspaper's article on the topic was published, and the commenters were not "individuals who approved a reporter as an anonymous or confidential source."

In its ruling, the court construed the statutory language narrowly, agreeing with the prosecutor that the commenters were not "sources" for a story that had already been written and published, and therefore the identity of the commenters fell outside the protection of the shield law. But the court did recognize the importance of newspaper commenters (whom the court refers to alternatively as "bloggers" and "commentators") and their potential to serve as future leads for reporters, and suggested that arguments that they should be protected should be directed to the legislature:

While the bloggers were not used specifically to write this article, there is the possibility of the commentators becoming sources. It can be argued that the commentators are persons through which the information was obtained. However, the information is not necessarily obtained for the purpose of gathering the news. The commentary section provides readers with a platform for discussing the case at their leisure. Bloggers feel the comfort, and sometimes too much comfort, of freely conversing with the protections normally provided through the expected anonymity of the Internet. A lack of these protections and/or anonymity might well have a chilling effect on future bloggers.

On balance, the court concluded, that while the newspaper's interest in protecting the identity of individuals who made unsolicited, public comments was "not negligible," that interest did not "go far enough to serve the larger purpose of the reporter's privilege, which is to allow 'the public to receive complete, unfettered information.'" The court concluded that ordering the newspaper to reveal the commenters' identities would not "make the public unwilling to express their opinions or to provide information during the course of a reporter's actual investigation, in future cases, nor does it deny the public the right to receive complete unfettered information in this and future instances."

The court ordered the newspaper to provide information on only two of the five specified individuals, however. As to those individuals, the court found that the state had met its burden to show that the information they sought was relevant, that the information could not be obtained by other means, and that the individuals had "relevant information about the defendant's prior conduct, his propensities for violence, and the relationship with the child."

Grand Jury Subpoenas and Gag Orders

The Alton Telegraph case is not the only recent instance of law enforcement seeking information from anonymous commenters. Unlike civil proceedings, grand jury proceedings are secret; thus these incidents may fly under the radar unless a party who is served with a subpoena chooses to publicize it or challenge it in court. But some grand jury subpoenas contain "gag order" provisions warning recipients that mere disclosure of the subpoena may obstruct law enforcement, thereby suggesting but not stating that the recipient of the subpoena might be prosecuted if the subpoena is disclosed.

Such a gag order provision was contained in a grand jury subpoena issued in 2008 by a prosecutor in the office of the Bronx District Attorney to the operators of the New York political blog Room 8. The subpoena sought the production of identifying information about a single commenter on the blog, and warned that disclosure of the subpoena "could impede the investigation being conducted and thereby interfere with law enforcement." The subpoena and the included warning were subsequently withdrawn and the operators went public concerning the incident.

review journal edit.jpg

An article posted on the website of the Las Vegas Review-Journal on May 26, 2009, concerning the federal prosecution of a Las Vegas businessman, drew over 100 comments. Thomas Mitchell, the editor of the paper, revealed in an editorial on June 7 that a short time later the newspaper received a federal grand jury subpoena seeking information about the anonymous commenters, including "full name, date of birth, physical address, gender, ZIP code, password prompts, security questions, telephone numbers and other identifiers [and] the IP address." This subpoena also contained a warning: "You have no obligation of secrecy concerning this subpoena; however, any such disclosure could obstruct and impede an ongoing criminal investigation."

In a story published by the Review-Journal on June 17, Mitchell stated that the newspaper had reached an agreement with prosecutors to limit the amount of information that the newspaper would be compelled to produce, narrowing it to only two user accounts. Prosecutors indicated that they sought the information out of concern for the safety of jurors hearing the underlying criminal case based on what they regarded as threatening statements in the comments. According to the story, the American Civil Liberties Union remained concerned about the chilling effect of the subpoena, however, and filed a motion to quash the subpoena.

Mitchell also pointed out something that seems to get lost in the shuffle in these controversies: The newspaper may not even have the identifying information that law enforcement is seeking. As Mitchell noted: "We don't require registration. A person could use a fictitious name and email address, and most do. We have no addresses or phone numbers."

This is probably the case for many newspaper websites, in which case server logs that record the IP addresses of website visitors might provide the best clue to a subscriber's real identity. Resolving IP address information to yield a user's real identity is possible, but it can be a complex process and would probably require additional subpoenas to Internet service providers.

The Las Vegas Review-Journal can't fall back on a state shield law in this case, because the proceeding is in federal court. Currently, there is no federal journalist shield law, so newspapers seeking to challenge a grand jury subpoena must argue that the information requested by a prosecutor is protected under federal constitutional law principles. There is currently an ongoing move in Congress to adopt a federal journalist shield law.

Do Blog and Website Operators Protect Anonymity?

While some newspapers like the Alton Telegraph and the publications involved in the civil suits discussed above have taken legal action to protect the identity of anonymous commenters on their websites, not all media organizations do so. Typically, a site's online terms of use, terms of service, privacy policy or similar document will address the issue by reserving the right to provide information on website users in response to legal process, with no promise that they will even notify a user whose information is sought by law enforcement.

As noted by the court in the Alton Telegraph case, the newspaper's website required commenters to read and assent to a user agreement stating that comments submitted to the website "are not private," and its privacy policy stated that the newspaper reserved the right to disclose user information "when the law requires it." In The Alton Telegraph v. the People of Illinois, the law required it.

Jeffrey D. Neuburger is a partner in the New York office of Proskauer Rose LLP, and co-chair of the Technology, Media and Communications Practice Group. His practice focuses on technology and media-related business transactions and counseling of clients in the utilization of new media. He is an adjunct professor at Fordham University School of Law teaching E-Commerce Law and the co-author of two books, "Doing Business on the Internet" and "Emerging Technologies and the Law." He also co-writes the New Media & Technology Law Blog.

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AP Lowers Newspaper Fees On Hopes Of More Web Deals

The Associated Press is dropping its fees for newspaper members once again as it looks to strike more online content deals, AP reported. Next year, newspaper and broadcaster members will see their fees drop a collective $45 million. (In April, the AP said it was going to reduce fees by $35 million this year.) The moves come a year after a small group of members gave their two-year cancellation notice, citing the changes in fee structure. (That controversial member pricing plan divided services into core and premium; some members’ costs would have been reduced but others would have increased.) With newspaper revenues showing no signs of hitting bottom, AP is now trying to ease the financial burden on those members. At the same time, the news service realizes that it must find other sources of revenue and cut costs. Tom Curley, the wire service’s CEO, in an interview
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Retraining Wire and Feature Editors to Be Web Curators

If the wire editor and feature editor roles are becoming obsolete for print newspapers, as Steve Yelvington persuasively argues, then those editors should be retrained — or retrain themselves — as web curators. Rather than become obsolete, these editors could become essential to their news organization’s future on the web.

Steve observes:

On the Internet, we have no need of wire editors; if we wish to have wire content on our websites, we can plug in AP Hosted News, or run a full feed of AP Online or some similar product from another service. But with everything on the Internet just a click away, the value of such branded and hosted wire content is low (and measurable), and even that may go away before long, based on simple cost-benefit analysis. We may be better off sending users to CNN, MSNBC and NYtimes.

Feature editing faces the same problem:

But the job simply doesn’t transport to digital media. Again, everything on the planet is just a click away, much of it more interesting, entertaining and informative than can be found in the typical daily newspaper’s features.

Yet there is a HUGE opportunity in this shifting landscape. Just because there’s a wealth of content a click away doesn’t mean that news consumers know where to click in order to find it.

Instead, we have what Clay Shirky describes as “filter failure”:

Here’s what the Internet did: it introduced, for the first time, post-Gutenberg economics. The cost of producing anything by anyone has fallen through the floor. And so there’s no economic logic that says that you have to filter for quality before you publish…The filter for quality is now way downstream of the site of production.

What we’re dealing with now is not the problem of information overload, because we’re always dealing (and always have been dealing) with information overload…Thinking about information overload isn’t accurately describing the problem; thinking about filter failure is.

Local news sites may serve their readers much better by sending them to CNN, MSNBC, and NYT for non-local news, as Steve suggests. But they may also send them to local news sites in other regions for stories dealing with common issues. They may send them to local blogs and other non-MSM media sites.

There is a wealth of sources on the web. Helping readers find the best of the web could help local news sites remain daily destinations rather than just a host for content to be aggregated by someone else — which could help those news operations get back into the content distribution business, which is how they made money in print, and how they could make a lot more money on the web.

Wire and feature editors are already skilled content curators — they just need to adapt those skills to filtering the web. One challenge they can apply their news judgment to is discovering new sources of trusted information, something Google CEO Eric Schmidt admits alogirthms struggle with.

For general search, we’ve been careful not to bias it using our own judgment of trust because we’re never sure if we get it right. So we use complicated ranking signals, as they’re called, to determine rank and relevance. And we change them periodically, which drives everybody crazy, as or algorithms get better. There’s no question in my experience that the top brands represented in this room would, in fact, float to the top in our search ranking. The usual problem is you’ve got somebody who really is very trustworthy but they’re not as well-known and they compete against people who are better known, and they don’t, in their view, get high enough ranking. We have not come up with a way to algorithmically handle that in a coherent way.

Another skill that would help wire and feature editors take on the challenge of filtering the web, and make them hugely relevant in the web media era, is collaboration. They could learn a lot from the editors in Washington State who have been practicing collaborative curation, whether for a statewide flood or a flu outbreak.

Publish2‘s Senior Editor Josh Korr wrote about this vision for re-inventing the wire function on the web in a recent Nieman Reports piece, “A 21st Century Newswire—Curating the Web With Links

If I were a wire or feature editor in a newsroom, instead of waiting to become obsolete, I would start immediately learning how to be a top notch web curator. I’d ask myself — how can I become the Jim Romenesko or Matt Drudge for my community. I would start learning how to use the tools of web curation and learning how to collaborate with other web curators. I’d study how newsrooms like Chicago Tribune have created an editorial workflow for collaborating to curate the web (see Colonel Tribune Recommends on the Chicago Breaking News blog.)

And if I ran a newsroom, I’d look at how I could retrain and reassign talented to editors to be vital contributors to the web operation, even as their function becomes redundant for the print operation. (Or, I’d imagine a future where content from a diverse range of web sources could be licensed and curated for print — see this Josh Korr post.)

There’s still time for any journalist in the newsroom to become essential to the future of news, rather than being emblematic of the past.

The Great Seattle Advertising Experiment: What Will Happen to the Seattle Post-Intelligencer’s Print Advertising Dollars?

The Seattle Post-Intelligencer today because the first major metro newspaper to stop publishing in print but keep the news brand alive on the web.’s Executive Editor Michelle Nicolosi promises bold experiments, “to break a lot of rules that newspaper Web sites stick to.” And to be sure, the entire news industry will be watching to see what an editorial staff of 20 can accomplish compared to a staff of 165. (Given their intent to look “everywhere for efficiencies” — and that they won’t have “reporters, editors or producers—everyone will do and be everything” — I suspect they will accomplish more than most people think.)

But in addition to the key editorial question, Seattle has also now become a test case for one of the most important questions about the near-term future of the newspaper industry that is almost never asked:

What will happen to the print advertising when the newspaper stops publishing in print?

I asked this question a few months ago in theory, but now we get to see what happens in actuality.  Logically, one or a combination of the following will happen to the newspaper’s advertising dollars:

  1. Vaporizes, i.e. the advertiser stops spending the money — given the economic crisis, this seems likely for some advertisers
  2. Shifts to — which is hiring its own sales force following the dissolution of the joint operating agreement with the Seattle Times
  3. Shifts to another newspaper, i.e. Seattle Times — through the JOA, the same sales force sold ads for Seattle PI and Seattle Times, so it only makes sense that some advertisers will shift some or all of their spending to the Times
  4. Shifts to competing local online media, e.g. The Stranger, West Seattle Blog
  5. Shifts to non-local media that can target local audiences, e.g. Google, Craigslist

Anyone who runs a newspaper should be watching this experiment under a microscope. Someone should even go so far as to obtain copies of the last month of Seattle PI in print and call up every display advertiser and ask them what they plan to do.

This experiment has already been playing out in Denver since the Rocky Mountain News ceased publication, but since the Rocky ceased entirely, we didn’t get to see what happened with option #2 above — and that’s the BIG question for many newspaper companies looking at online-only publishing. (The experiment in Denver could be radically altered if a new publication is launched by former Rocky staff — it’s contingent on whether they can sell enough subscriptions, which I hope they do because that is another vital experiment.)

So much of the discussion of the future of the newspaper business seemes to assume only option #1 above will occur. But that’s unlikely.

Of course the big question is whether local media can find new ways to create value — and I say “create value” because that is the key to any new business (vs. “new business model,” because those discussions typically start with what the business needs, not what the market needs). I think there are tremendous opportunities for new value creation in emerging collaborative media ecosystems, but that’s for another post.

In the meantime, all eyes are on Seattle.