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July 31 2012

18:03

By tweeting about a developing story, could you be inciting a riot?

You’re probably not going to like this, but we’re facing bigger Twitter problems than @GuyAdams having his account suspended.

For those who haven’t been among the outraged on Twitter: Guy Adams, a Los Angeles-based reporter for The Independent, tweeted up a storm of criticisms about NBC’s handling of the Olympics. One of those tweets included NBC Olympics president Gary Zenkel’s work email address. Twitter suspended his account for allegedly violating its user policy. The Internet went bananas.

What’s making people so berzerk about all this is the idea that Twitter and a corporate partner — one that works in the news business, no less! — appear to have teamed up to silence a guy who said things those companies didn’t like. (Breaking: Adams apparently has his account back.)

In reporting on something through social media, your action might be seen as calling for that thing to happen.

But here’s a scarier thought: What if it were up to the government to choose what kind of Twitter speech is allowed? What if instead of account suspensions, Twitter users had to worry about being arrested for what they tweet?

That’s a question that Yale Law School lecturer Margot Kaminski has been thinking about a lot these days. The premise of her recent research is that as people increasingly use social media as a tool for community organizing, government will try to impose regulations.

Kaminski has delved specifically into “incitement to riot” statutes in the United States. These are the laws that add the “but” to that freedom-of-assembly bit in the First Amendment, and they vary in key ways from state to state. (How many people have to assemble for it to be considered a riot? What kind of activity constitutes a riot? What’s the difference between someone who’s acting violently, or just threatening violence? And what about intent? Etc., etc., etc.)

Here’s a hypothetical: Let’s say I take to Twitter, and tweet that everyone in Cambridge should meet at the Out of Town News stand and start moonwalking at noon. Harmless flash mob, right?

But what if instead I tweet that everyone should meet there for a looting spree? Am I inciting a riot? (For the record, I am decidedly pro-moonwalking and anti-looting.) Kaminski argues in her paper, “Incitement to Riot in the Age of Flash Mobs,” that “there is no real need to go after the speaker for a crime of ‘incitement to robbery’ or ‘incitement to riot,’ because the speaker’s involvement in the robbery could be punished through other means.”

A thornier question: What if I’m a reporter or some other passerby who tweets about a crowd that’s gathering at the newsstand, and my tweet notifies others who then turn up?

“If somebody tweets there’s a protest happening at XYZ location, there’s a possibility that that might be seen as incitement to riot,” Kaminski told me. “So the thing that might be harmful to journalists is in reporting on something through social media: Your action might be seen as calling for that thing to happen.

This isn’t just an academic thought exercise. Last year, Cleveland’s city council passed ordinance to prohibit “the improper use of social media to induce persons to commit a criminal offense.” Mayor Frank Jackson vetoed the measure. But in December, the council adopted a revised version of the original ordinance, making it clear that “electronic media devices” can be considered criminal tools.

Kaminski says the Supreme Court has never addressed whether there should be a distinction between “direct and indirect advocacy of unlawful action.” The other thing to remember is that states define riots differently. Get the image of a torch-and-pitchfork-toting mob out of your mind: Only two states require at least seven people for a gathering to be a possible riot. Four states require only two people to gather for their assembly to be considered a possible riot. For most states, the minimum is three people.

Many states already criminalize incitement to riot, and plenty of them in ways that Kaminski says are overly broad, even unconstitutional. She calls these statutes fascinating because they implicate not one but two protected freedoms: speech and assembly. In the landmark 1969 Supreme Court case Brandenburg v. Ohio, justices unanimously ruled that the government may not punish speech unless it incites violent action. They drew a line between speech that advocated for violence versus speech that actually incited it. Traditionally, it was up to authorities — often in the midst of a crowd — to determine whether someone was inciting a riot.

“Now there’s a particular fear of social media,” Kaminski said. “I use Twitter as the example because of the fact that cops are afraid that it creates instantaneous reaction. Before, the call to gather would have occurred by some kind of telephone chain, passing out pamphlets or putting up posters. Brandenberg put up this idea that the harm has to be immediate before you can legitimately go after it. It really meant you’re watching the speaker give the speech, and you’re seeing how soon bad stuff is going to occur.”

In an age of virtual assembly, authorities are trying to figure out how to navigate incitement in a non-physical space. One high-profile example from last summer: When police in Britain threatened to bring charges against people for using Twitter and BlackBerry Messenger to incite widespread London riots.

“Twitter brings this immediacy question back into play again,” Kaminski said. “You can have 100,000 followers and send out a message, and have something occur in 20 minutes. There’s a lot of potential for ex post facto justification. The chance that you, with 100,000 followers, put out this message and something really bad happens? Well, you might put out 50 messages with nothing happen and one thing occurs and post-legislators are going to try to apply this to social media. The core of this is making this really clear how much of a high level of intent you have. You have to be able to show that the speaker on Twitter wanted the gathering to occur, wanted it to be large, wanted it to happen immediately, and wanted to frustrate police ability to control it.”

Image derived from photo by Dave Hogg and illustration by Matt Hamm used under a Creative Commons license.

April 11 2012

14:00

Governments Increasingly Targeting Twitter Users for Expressing Their Opinion

This piece is co-authored by Trevor Timm.

In its six years of existence, Twitter has staked out a position as the most free speech-friendly social network. Its utility in the uprisings that swept the Middle East and North Africa is unmatched, its usage by activists and journalists alike to spread news and galvanize the public unprecedented.

As Twitter CEO Dick Costolo recently boasted at the Guardian Changing Media Summit, Twitter is "the free speech wing of the free speech party."

But at the same time, some governments -- in both not-so-democratic and democratic societies -- have not taken such a positive view of Twitter and freedom of expression. Instead, they've threatened, arrested and prosecuted their citizens for what they express in 140 characters or less.

Not surprisingly, in a number of authoritarian-minded states, journalists are often the first targets. And as bloggers and pundits take to the ephemeral style of Twitter to criticize rules, the government has been -- in a number of cases -- one step ahead. While some countries, such as Bahrain and Tunisia, have chosen to block individual Twitter accounts, others prefer to go straight to the source.

Crackdown in the Middle East

In February, Saudi blogger and journalist Hamza Kashgari fled the country after threats on his life. His crime? Tweeting a mock conversation with the Prophet Mohammed, an action which many called blasphemous. Though Kashgari was on his way to a country that would have granted him asylum, he transferred in Malaysia where, upon his arrival, he was detained, and finally extradited back to his home country, despite pleas from the international community to allow him to continue onward.

Kashgari remains in detention in Saudi Arabia, while outside of prison, members of the public continue to call for his murder. Nearly as chilling is the threat to his livelihood: Saudi Minister of Culture and Information Abdul Aziz Khoja has banned Kashgari, a journalist by profession, from writing in "any Saudi paper or magazine," meaning that even if he walks free, he'll be prohibited from continuing in the only profession he has ever known -- and all for a tweet.

In the United Arab Emirates -- no stranger to Internet censorship -- political activist Mohammed Abdel-Razzaq al-Siddiq was arrested in late March for criticizing one of the country's rulers on his Twitter account. Earlier in the month, blogger and activist Saleh AlDhufair was arrested for criticizing repressive actions by state authorities on Twitter as well.

According to one source, UAE authorities also detained three other people in recent weeks for postings on social media, including one young citizen who faces charges for commenting on uprisings against autocratic rulers in the region on Twitter. All are free on bail for now, but their ultimate fates have yet to be determined.

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In Oman, police arrested prominent blogger Muawiya Alrawahi in February after he posted a series of tweets in which he criticized the country's rulers on a variety of issues. Alrawahi's arrest directly followed that of two journalists charged with "insulting" the Minister of Justice. And in nearby Kuwait, writer Mohammad al-Mulaifi has been held for more than a month over accusations of "insulting the Muslim Shi'ite minority," a charge which for another activist, Mubarak Al-Bathali, whose "crime" was also committed on Twitter, resulted in a prison sentence of three years (later commuted to six months). His detention was not the first of its kind in the country either; in the summer of 2011, Nasser Abul spent three months in prison for criticizing the Bahraini and Saudi royal families on Twitter.

Outside the Gulf, Egypt's Supreme Council of Armed Forces (SCAF) has taken a similar approach. Last summer, SCAF court-martialed young activist Asmaa Mahfouz and charged her with inciting violence, disturbing public order and spreading false information via her Twitter account. Tunisia and Morocco have also cracked down on social media punditry of late and have arrested Facebook users for expressing themselves politically.

Facebook is as likely a target as Twitter. In the West Bank, Palestinian authorities arrested two Palestinian journalists, which may prove to have a self-silencing effect on other local reporters. Two journalists and a university lecturer were recently detained for comments made on Facebook that offended the Palestinian Authority. The lecturer remains imprisoned.

Democracy?

Arrests and prosecutions based on tweets is not relegated to Middle Eastern countries, however. A string of cases in otherwise robust democracies have raised questions by using the legal system to attempt to jail citizens who many would say are engaging in free speech.

South Korea -- one of a handful of democracies that justifies online censorship on the basis of "national security" -- has used its National Security Law to mete out harsh punishments to those who "praise, encourage disseminate or cooperate with anti-state groups, members or those under their control." The law applies to "affiliation with or support for" North Korea, and allows the government to censor websites related to North Korea or communism.

As reported by the New York Times in February, authorities arrested Park Jung-geun, a 23-year-old photographer, who re-posted content from North Korean government site Uriminzokkiri.com to his Twitter account. Ironically, South Korean media regularly cite the government-run website in news reports. Though Park claimed that his Twitter posts were intended sarcastically, prosecutors disagreed, countering that the Twitter account "served as a tool to spread North Korean propaganda." If convicted, Park could face up to seven years in jail.

In the United Kingdom, where the prime minister already floated the idea of censoring Twitter accounts during the London riots last year, a judge sentenced 21-year-old college student Liam Stacey to 56 days in jail for tweeting racist remarks about a prominent footballer for the Bolton Wanderers. While the tweets were certainly "vile and abhorrent" as the judge concluded, his statement that "there is no alternative to an immediate prison sentence" is misguided. By making an international case out of the tweets, the prison sentence ended up giving them more reach than if had they been ignored.

In the United States, strong free speech protections under the First Amendment have kept Twitter users out of jail for expressing their opinion, but increasingly, the federal and local governments have been going after Twitter users in a different way -- by subpoenaing their Twitter information in criminal investigations. Most notably, this tactic was used against three former WikiLeaks volunteers, who saw their Twitter and email information subpoenaed in a Grand Jury investigation into the publishing of classified information -- a practice normally protected by the First Amendment.

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But more recently, a series of subpoenas have been issued by the Boston and New York district attorneys offices in response to Occupy Wall Street protests. At least four accounts have been targeted, and often the subpoenas come with requests for months of information for minor crimes such as disorderly conduct that often don't rise to a felony, require jail time, or even show up on one's permanent criminal record. Critics have seen it as an intimidation tactic against protesters who are engaging in legitimate First Amendment-protected speech.

While social media sites like Twitter will continue to proliferate in the coming years, governments -- whether they are fearful of the power of communication, because of existing strict speech laws, or a combination of both -- will find ways to "fight back" against increasing venues for expression. Journalists -- whose livelihood is increasingly bolstered by social media -- must continue to call attention to them.

Occupy image by asterix611, CC BY-NC-ND-2.0

Jillian C. York is the director of International Freedom of Expression at the Electronic Frontier Foundation. She writes regularly about free expression, politics, and the Internet, with particular focus on the Arab world. She is on the Board of Directors of Global Voices Online, and has written for a variety of publications, including Al Jazeera, The Atlantic, The Guardian, Foreign Policy, and Bloomberg.

Trevor Timm is an activist and blogger at the Electronic Frontier Foundation. He specializes in free speech and government transparency issues. Previously, he helped the former general counsel of the New York Times write a book on press freedom and the First Amendment. His work has also appeared in The Atlantic and Al Jazeera.

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December 20 2011

16:32

Journalism Education Roundup, Dec. 20, 2011

Education content on MediaShift is brought to you by: 


USCad68x68.gif Innovation. Reputation. Opportunity. Get all the advantages journalism and PR pros need to help put their future in focus. Learn more about USC Annenberg's Master's programs.



The best stories across the web on journalism education


1. Syracuse named best j-school in NewsPro poll (Jim Romenesko)

2. "Medical school model" brings newspaper, radio station and university together (Poynter)

3. Schools explore rules to limit how teachers and students interact online (New York Times)

4. Classroom guide to the First Amendment in a digital age (Knight Foundation)

5. California bill pushes for free online college books (MindShift)


Get the weekly Journalism Education Roundup email from MediaShift



Education content on MediaShift is brought to you by: 

USCad68x68.gif Innovation. Reputation. Opportunity. Get all the advantages journalism and PR pros need to help put their future in focus. Learn more about USC Annenberg's Master's programs.

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September 16 2011

18:07

Study: Twitter, Facebook and Co., good for students and the First Amendment?

Knight Foundation :: While social media have been blamed for teen ills from narcissism to cyberbullying, a new study offers an inspiring perspective: as social media use has grown in the United States, so has students’ appreciation for the First Amendment.

[Eric Newton, senior advisor] This is the first generation in history that can text, tweet and blog to the whole world – it’s great news that their support is growing for the freedoms that let them do it.

Continue to read www.knightfoundation.org

July 19 2011

15:28

OpenCourt's Balancing Act: Redacting Sensitive Info vs. First Amendment

OpenCourt, our Knight Foundation-funded project devised to help make courts more transparent, is facing a legal challenge soon to be heard by a judge in the highest court in Massachusetts.

The central issue at stake is a First Amendment question of whether the court can order a news organization to redact material that has been presented to the public in an open courtroom.

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On July 8, WBUR, a public radio station, filed a response memo as well as a supplemental affidavit of our executive producer to the state's Supreme Judicial Court.

The documents are the latest in a lengthy legal exchange between the Norfolk County District Attorney's office and Quincy District Court judges over the redaction from the public record of the name of an underage alleged victim of sexual abuse which was accidentally blurted during a suspect's dangerousness hearing two months ago.

Two-Day Delay

OpenCourt publicly live-streams daily video of the court's First Session proceedings and posts the footage after an interim of two days. This delay is to allow reasonable room for redaction requests and to edit video in extraordinary circumstances, according to WBUR's journalistic standards and as outlined in OpenCourt's initial archiving guidelines.

We have not posted the May 27 archive episode at issue, pending the upcoming appeal hearing on Aug. 4 before a single justice of the Supreme Judicial Court, namely Justice Margot Botsford.

As mentioned in our filings, we would have removed from footage the name of the underage alleged victim and any information in court that would identify her, regardless of a court order. Such an order, however, represents a challenge to basic First Amendment press rights, specifically relating to issues of prior restraint. We are obligated as a press entity to clarify that our actions are voluntary and not mandated by the state.

Perhaps the most famous prior restraint case was the New York Times publishing of the Pentagon Papers in 1971. The leaked secret Department of Defense study extensively documented the U.S. government's Vietnam War history. The federal government sought to suppress the information in the documents. However, the Times' argument triumphed when the U.S. Supreme Court ruled that the press had a First Amendment right to publish information important to citizens' understanding of its government's policies.

Preventing Harm

In another case more relevant to ours, our lawyers write that in Nebraska Press Assn. v. Stuart in 1979:

The U.S. Supreme Court reasoned a prior restraint was not appropriate because there were no express findings that harm would occur upon publication. Moreover, there was no demonstrative evidence that other measures would be unable to prevent those harms ... as Mr. Davidow's affidavit sets forth, OpenCourt has taken other measures to prevent exactly the harm that concerns the Commonwealth.

We have every intention of protecting the latter, and over months have constructed guidelines with our Advisory Board, the public, and an open "working group" at the court. The guidelines are a living document.

The outcome of this case will set important guidance for the future operation of this project and others like it. More importantly, it could also significantly shape the legal lens through which the First Amendment is viewed when it comes to emerging technology in general, and specifically towards live Internet video-streaming.

Photo by of gavel by bloomsberries via Flickr.

May 03 2011

17:00

Reality TV: OpenCourt has begun its livestream of the judicial system

OpenCourt is about as real as reality TV can get when it doesn’t involve Kardashians, real housewives, or people trapped on an island. That’s because OpenCourt, which launched yesterday, offers a view inside the legal system — specifically, the Quincy District Court here in Massachusetts, where traffic infractions, drug cases, and arraignments of all kinds now unfold not only in the courtroom, but also via streaming video.

The streaming is the next step in what was formerly known as Order in the Court 2.0, the winner of a 2010 Knight News Challenge grant and a project with an explicit goal of making the courts as transparent as the other branches of government. It’s something that seems simple as a premise: Put a webcam in a courtroom, and, boom, livestreamed court proceedings. But of course it’s tricker than that; otherwise, the Knight Foundation may not have awarded $250,000 to the WBUR-led project.

“The truth of the matter is when we put this out there the concept is so simple,” John Davidow, OpenCourt’s executive producer, told me. “We’re just going to stream live what takes place in public.”

A test run for transparency

The tasks OpenCourt is addressing are technical as much as they are legal, and sometimes conventional. The project operates within the boundaries of camera-use in the courts (video recording is permitted here in Massachusetts but can be limited by judges — though the current law may be broadened). But it still must confront concerns from the legal community, and ultimately try to balance the idea of transparency with the right to a fair trial.

But since there is no universal standard for new media access when it comes to the legal system in the US, OpenCourt is also a test case. Walking into any random courtroom, there’s no way of knowing whether tweeting is allowed, whether recording is an option, or even whether the use of a laptop is acceptable. That’s why Davidow says OpenCourt is an experiment, and one that will need to be watched closely if it’s to be duplicated elsewhere.

“It’s a pilot,” Davidow told me. “It’s now a reality and off the white board. More and more issues will come forward.”

And already something has come forward. On its first day of operation, the Norfolk County District Attorney’s office filed a a motion to close access to OpenCourt’s archives. An attorney from the DA’s office said the archives would present a lasting, un-editable record if inappropriate or inaccurate information — the names of crime victims, say, or of confidential informants — were to come out in a hearing. Judge Mark Coven denied the motion, saying “respectfully, I can’t address hypotheticals.”

Defining an open system

The true hurdles for OpenCourt, as Davidow described them, come in defining the parameters of how, what, and when the video feed would be active. He and his staffJoe Spurr, OpenCourt’s director, and Val Wang, its producer — decided the video stream would be live only when a judge is presiding over a case and when an OpenCourt producer is present. (In other words, this won’t be the equivalent of a traffic cam staring at the bench.) Davidow said they decided that the judge (who has a laptop monitoring the feed) will have discretion over whether the video is online or not. And that will largely depend on the case, Davidow said. (Though, after consulting with their advisory group of lawyers, judges, academics, and others, the team decided not to broadcast restraining order hearings as a rule.) The team had to be mindful, Davidow noted, of how being transparent could cause additional harm to people or prevent them from appearing in court at all.

But rather than setting out more guidelines for limiting the use of live video, the OpenCourt team has tried to find ways to make the camera and what it represents less of an issue. Beginning late last year, they held a series of meetings with the community in and around the court to familiarize others with the project, the gear, and the people who would be filming hearings every day. The camera, and the producer who operates it, have their own pocket in the courtroom and have become something of a fixture. (On the stream, you might notice, not many folks look towards the camera.)

“When you put a TV camera some place, people eventually forget about it,” Davidow said. “There’s a comfort level with it; you get used to it. That has helped the project immensely.”

Watching OpenCourt is C-SPAN-esque — or maybe Court TV-esque (or is that now truTV-esque?) — minus the call-in shows and podium-thumping speeches from politicians. Defendants shuffle in and out, charges are explained, and things follow course from there. It’s an unfiltered eye into the legal process, like staring down at an engine as it’s working.

It’s also more than a little ironic: Courts are open, but are they open open? “Courts have enjoyed what they referred to as ‘virtual obscurity,’” Davidow said. “Yes, justice is done in public, but to see it you need to go to court.”

A judicial education

Watching the video feed also makes you appreciate the simplicity of the kit OpenCourt has put together to create such a seamless product. As the team explains on their “Open Your Court” page, a DIY run-through for filming your local legal system, they use a couple of MacBook Pros, a Canon HD camcorder, and Livestream to get things up and running. One of the project’s goals, said Spurr, is to offer other courts full guidance on using cameras in court — and that guidance includes technology details and other best practices. “It’s about iterability,” Spurr said, “and being able to create an ideal environment that is forward thinking: What could a courtroom look like?”

What OpenCourt is encouraging is more interaction with, if not more information about, the court system. Aside from the livestream, the project is also providing free WiFi at the courthouse for anyone who wants to come in to cover a case. In that, Davidow said, the project could be a boon to local bloggers and citizen journalists, giving them an additional resource for covering the community. It’s also clear that OpenCourt could be useful to understaffed newsrooms as a way of keeping track of cases as they move through the system. “I’d argue that nothing compares to actually being there and seeing with your own eyes,” he said. “At the same time, maybe some news organizations would find efficiency in that setup.” (The Quincy Patriot-Ledger has already embedded the OpenCourt stream in a story.)

While the goal is to throw open the doors of the court, it is also to educate the public about the court’s workings. Though one of the benefits of operating in a district court is that it’s the most accessible step in the judiciary (traffic/moving violations, fines, the types of misdemeanors you don’t want others to know about — all go through district court), there’s still an element of the unknown about how courts work. This is why, in addition to the stream on opencourt.us, you’ll also find a schedule of the day’s cases, a glossary of legal terms, and a rundown of the people who make the court work.

“One of the reasons the courts really embraced this idea is because people don’t understand some basic concepts,” Davidow said. “The courts felt this was a way for people to start learning about how justice is done in this country.”

December 28 2010

16:40

Top 3 New Media Legal Battles of 2010

This year's been a big one. Spain won the World Cup. Lindsay Lohan went to jail. Don Draper married his secretary. And, of course, the federal courts waded into some of the thorniest legal issues affecting new media.

Three cases stand out from the rest of 2010's docket. Each one shook up the law in a significant way. Below are summaries of the major developments, condensed in the spirit of CliffsNotes, with some commentary about the implications for people and organizations using new media.

Viacom v. YouTube

In June, a federal district court judge ruled on Viacom Int'l Inc. v. YouTube, Inc., a case testing the limits of the Digital Millenium Copyright Act. The ruling came after three years of pre-trial litigation. Viacom claimed that thousands of its copyrighted works had been uploaded to YouTube (e.g., clips of "The Daily Show with Jon Stewart"), in violation of the DMCA, which governs online copyright infringement.

At the heart of the case was the DMCA's safe-harbor provision. It allows service providers in certain circumstances to host user-generated content without assuming copyright liability for that content. The key element is a notice-and-takedown scheme that immunizes the provider if it "responds expeditiously" when notified of specific infringements. That notification can come in two forms.

First, the provider could have actual knowledge of an infringement. This occurs when a valid takedown request has been received. Second, the provider could be "aware of facts or circumstances from which infringing activity is apparent." This operates like a red flag, and the idea is that the provider can't claim the safe harbor if it ignored one.

Viacom argued essentially that YouTube ignored a red flag, because it was well known in general that there was a great deal of "infringing activity" on the site. The judge, however, didn't agree. He sided with YouTube and held that the "facts and circumstances" raising the red flag must be "specific and identifiable infringements of particular items." In other words, it was not enough for YouTube to be aware in general that there was "infringing activity" on the site.

Although some have questioned the importance of the decision, it does spell out just how aggressively YouTube and others must police their user-generated content. Among other things, the decision affirms that the burden of identifying and documenting infringing content is on the copyright holder, rather than the service provider, and it makes clear that if the provider is aware only in general that there is infringing activity on the site, then the safe harbor still will be available.

Earlier this month, Viacom appealed [PDF] the case to the U.S. Court of Appeals for the Second Circuit, bringing in Theodore Olson, a former U.S. Solicitor General, to handle the oral argument. This is a sign that Viacom is very serious about winning. YouTube has not yet filed its reply brief.

Barclays v. Theflyonthewall.com

barclays_logo.gifThis case required a federal district court judge to apply the "hot news" misappropriation doctrine, first recognized in 1918, to a news aggregation website. Barclays and two other financial firms produced regular research reports, to be distributed to clients for a fee, about stocks. They often released them before the New York Stock Exchange (NYSE) opened for the day, and although the firms took precautions to ensure the reports went only to paying clients, some did leak out.

Enter Theflyonthewall.com (Fly), an online subscription news service that picked up and published those reports on its own news feed, updated continuously every day between 5 a.m. and 7 p.m. It featured an average of 600 headlines per day, some of them about the research reports.

In 2006, Barclays and two other firms got fed up and filed suit against Fly, claiming that their reports were "hot news" and that the redistribution of them constituted misappropriation, a violation of New York state law. Misappropriation is a fancy way of saying that an organization used your property impermissibly for its own benefit. This is where the old collides with the new.

The "hot news" doctrine, as noted above, was developed in 1918, in the Supreme Court case International News Service v. Associated Press. INS and the AP were competing news services during World War I that transmitted articles by wire to member newspapers. Speed and accuracy got them their daily bread. For various reasons, INS began collecting AP stories that ran on the East Coast and rewriting them for INS subscribers on the West Coast. Finding that the AP had a "quasi-property right" in the news content it gathered, the Supreme Court held that INS's conduct constituted misappropriation. INS was, the Court said, "endeavoring to reap what it had not sewn."

The policy justification anchoring that decision was the same one running through the Barclays decision: The content producer invested substantial time, labor and money in its publication process, and those investments should be protected; because if they're not, the producer loses the economic incentive to continue producing, depriving the public of a valuable benefit.

The judge, accordingly, ruled for Barclays. She issued an injunction requiring Fly to delay its publication of stories about the research reports. Notably, the delay was just long enough to allow Barclays and the other firms to monetize the reports by distributing them to clients before they appeared on any news aggregation site.

Fly quickly countered that decision, however, by asking a federal appeals court to stay the injunction, i.e., to relieve Fly of its obligation to comply with it. The court granted the stay and agreed to expedite its full review of the appeal, which is pending as of this writing.

Comcast v. FCC

Last but not least comes the determination in April by a federal appeals court that the FCC has limited power to regulate the Internet. Comcast Corp. v. FCC [PDF] arose because of complaints in 2008 that Comcast, a service provider, was interfering with its customers' use of peer-to-peer networking applications.

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In response to those complaints, the FCC issued an order concluding that it had jurisdiction over the matter and that Comcast's method of bandwidth management "contravene[d] ... federal policy." Comcast complied with the order, but later asked the appeals court to review it, objecting on three grounds. The court began and ended its inquiry by finding that the FCC failed to establish jurisdiction.

For its part, the FCC conceded to the court that it did not have express authority to regulate network management practices, but argued that it had ancillary authority under the Communications Act of 1934 [PDF]. It empowered the FCC to "perform any and all acts, make such rules and regulations, and issue such orders ... as may be necessary in the execution of its functions."

The court didn't buy the argument and said the FCC, relying heavily on policy statements and unhelpful statutory provisions, failed to prove that its Comcast order was "reasonably ancillary to the ... effective performance of its statutorily mandated responsibilities."

The decision prompted many commentators to wonder about its implications for Net neutrality, the idea that all online content and applications should be treated equally by service providers. David Post in April summed up the thinking over at the Volokh Conspiracy: "So what does this portend for Net neutrality rules? Can the Commission proceed with its rulemaking efforts ... or does it need some additional statutory authorization from Congress before it can do so?"

Since then, the FCC has been trying to answer those questions. It promulgated last Tuesday a set of rules that functionally creates two classes of Internet access, one for fixed-line providers and one for wireless providers. The rules are tied to the FCC's Section 706 authority, which directs the commission to "encourage on a reasonable and timely basis the deployment of advanced telecommunications services to all Americans," purportedly including broadband services. This means the FCC would have to show that the Net neutrality rules are ancillary to 706's mandate, a difficult task because the FCC itself concluded in the 1990s that that section is not an independent grant of authority.

Despite all the uncertainty, two things are certain: The rules will be challenged in the courts, and they will be challenged by Republicans in Congress.

The Year Ahead

Next year promises to bring big developments in the law affecting new media. A federal appeals court will decide both the Viacom and Barclays appeals, and the Net neutrality rules surely will be challenged. WikiLeaks will continue to dominate the news and very likely will head to court to test the uneasy balance between free speech and national security. And at the Supreme Court, the justices will hand down Schwarzenegger v. Entertainment Merchants Association, which addresses whether the First Amendment permits any limits on offensive content in violent videogames sold to minors.

Jonathan Peters is a lawyer and the Frank Martin Fellow at the Missouri School of Journalism, where he's working on his Ph.D. and specializing in the First Amendment. An award-winning freelancer, he has written on legal issues for a variety of newspapers and magazines. He can be reached at jonathan.w.peters@gmail.com.

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December 10 2010

15:00

This Week in Review: The WikiBacklash, information control and news, and a tightening paywall

[Every Friday, Mark Coddington sums up the week's top stories about the future of news and the debates that grew up around them. —Josh]

Only one topic really grabbed everyone’s attention this week in future-of-news circles (and most of the rest of the world, too): WikiLeaks. To make the story a bit easier to digest, I’ve divided it into two sections — the crackdown on WikiLeaks, and its implications for journalism.

Attacks and counterattacks around WikiLeaks: Since it released 250,000 confidential diplomatic cables last week, WikiLeaks and its founder, Julian Assange, have been at the center of attacks by governments, international organizations, and private businesses. The forms and intensity they’ve taken have seemed unprecedented, though Daniel Ellsberg said he faced all the same things when he leaked the Pentagon Papers nearly 40 years ago.

Here’s a rundown of what’s happened since late last week: Both Amazon and the domain registry EveryDNS.net booted WikiLeaks, leaving it scrambling to stay online. (Here’s a good conversation between Ethan Zuckerman and The Columbia Journalism Review on the implications of Amazon’s decision.) PayPal, the company that WikiLeaks uses to collect most of its donations, cut off service to WikiLeaks, too. PayPal later relented, but not before botching its explanation of whether U.S. government pressure was involved.

On the government side, the Library of Congress blocked WikiLeaks, and Assange surrendered to British authorities on a Swedish sexual assault warrant (the evidence for which David Cay Johnston said the media should be questioning) and is being held without bail. Slate’s Jack Shafer said the arrest could be a blessing in disguise for Assange.

WikiLeaks obviously has plenty of critics: Christopher Hitchens called Assange a megalomaniac who’s “made everyone complicit in his own private decision to try to sabotage U.S. foreign policy,” and U.S. Sens. Dianne Feinstein and Joe Lieberman called for Assange and The New York Times, respectively, to be prosecuted via the Espionage Act. But WikiLeaks’ many online defenders also manifested themselves this week, too, as hundreds of mirror sites cropped up when WikiLeaks’ main site was taken down, and various online groups attacked the sites of companies that had pulled back on services to WikiLeaks. By Wednesday, it was starting to resemble what Dave Winer called “a full-out war on the Internet.”

Search Engine Land’s Danny Sullivan looked at the response by WikiLeaks’ defenders to argue that WikiLeaks will never be blocked, and web pioneer Mark Pesce said that WikiLeaks has formed the blueprint for every group like it to follow. Many other writers and thinkers lambasted the backlash against WikiLeaks, including Reporters Without Borders, Business Insider’s Henry Blodget, Roberto Arguedas at Gizmodo, BoingBoing’s Xeni Jardin, Wired’s Evan Hansen, and David Samuels of The Atlantic.

Four defenses of WikiLeaks’ rights raised particularly salient points: First, NYU prof Clay Shirky argued that while WikiLeaks may prove to be damaging in the long run, democracy needs it to be protected in the short run: “If it’s OK for a democracy to just decide to run someone off the internet for doing something they wouldn’t prosecute a newspaper for doing, the idea of an internet that further democratizes the public sphere will have taken a mortal blow.” Second, CUNY j-prof Jeff Jarvis said that WikiLeaks fosters a critical power shift from secrecy to transparency.

Finally, GigaOM’s Mathew Ingram and Salon’s Dan Gillmor made similar points about the parallel between WikiLeaks’ rights and the press’s First Amendment rights. Whether we agree with them or not, Assange and WikiLeaks are protected under the same legal umbrella as The New York Times, they argued, and every attack on the rights of the former is an attack on the latter’s rights, too. “If journalism can routinely be shut down the way the government wants to do this time, we’ll have thrown out free speech in this lawless frenzy,” Gillmor wrote.

WikiLeaks and journalism: In between all the attacks and counterattacks surrounding him, Julian Assange did a little bit of talking of his own this week, too. He warned about releasing more documents if he’s prosecuted or killed, including possible Guantánamo Bay files. He defended WikiLeaks in an op-ed in The Australian. He answered readers’ questions at The Guardian, and dodged one about diplomacy that started an intriguing discussion at Jay Rosen’s Posterous. When faced with the (rather pointless) question of whether he’s a journalist, he responded with a rather pointless answer.

Fortunately, plenty of other people did some deep thinking about what WikiLeaks means for journalism and society. (The Atlantic’s Alexis Madrigal has a far more comprehensive list of those people’s thoughts here.) Former Guardian web editor Emily Bell argued that WikiLeaks has awakened journalism to a renewed focus on the purpose behind what it does, as opposed to its current obsession with the models by which it achieves that purpose. Here at the Lab, USC grad student Nikki Usher listed a few ways that WikiLeaks shows that both traditional and nontraditional journalism matter and pointed out the value of the two working together.

At the Online Journalism Review, Robert Niles said that WikiLeaks divides journalists into two camps: “Those who want to see information get to the public, by whatever means, and those who want to control the means by which information flows.” Honolulu Civil Beat editor John Temple thought a bit about what WikiLeaks means for small, local news organizations like his, and British j-prof Paul Bradshaw used WikiLeaks as a study in how to handle big data dumps journalistically.

Also at the Lab, CUNY j-prof C.W. Anderson had some thoughts about this new quasi-source in the form of large databases, and how journalists might be challenged to think about it. Finally, if you’re looking for some deep thoughts on WikiLeaks in audio form, Jay Rosen has you covered — in short form at PBS MediaShift, and at quite a bit more length with Dave Winer on their Rebooting the News podcast.

How porous should paywalls be?: Meanwhile, the paid-content train chugs along, led by The New York Times, which is still planning on instituting its paywall next year. The Times’ digital chief, Martin Nisenholtz, dropped a few more details this week about how its model will work, again stressing that the site will remain open to inbound links across the web.

But for the first time, Nisenholtz also stressed the need to limit the abuse of those links as a way to get inside the wall without paying, revealing that The Times will be working with Google to limit the number of times a reader can access Times articles for free via its search. Nisenholtz also hinted at the size of the paywall’s target audience, leading Poynter’s Rick Edmonds to estimate that The Times will be focusing on about 6 million “heavy users of the site.”

Reuters’ Felix Salmon was skeptical of Nisenholtz’s stricter paywall plans, saying that they won’t be worth the cost: “Strengthening your paywall sends the message that you don’t trust your subscribers, or your subscribers’ non-subscriber friends: you’re treating them as potential content thieves.” The only way such a strategy would make sense, he said, is if The Times is considering starting at a very high price point, something like $20 a month. Henry Blodget of Business Insider, on the other hand, is warming to the idea of a paywall for The Times.

In other paid-content news: News Corp.’s Times of London, which is running a very different paywall from The New York Times, may have only 54,000 people accessing content behind it, according to research by the competing Guardian. The Augusta (Ga.) Chronicle announced it’s launching an metered model powered by Steve Brill’s Press+, a plan Steve Yelvington defended and Matthew Terenzio questioned.

While one paid-content plan gets started, another one might be coming to an end: Newsday is taking its notoriously unsuccessful paywall down through next month, and several on Twitter guessed that the move would become permanent. One news organization that’s not going to be a pioneer in paid online news: The Washington Post, as Post Co. CEO Don Graham said at a conference this week.

Reading roundup: Other than the ongoing WikiLeaks brouhaha, it’s been a relatively quiet week on the future-of-news front. Here’s a bit of what else went on:

— Web guru Tim O’Reilly held his News Foo Camp in Arizona last weekend, and since it was an intentionally quiet event, it didn’t dominate the online discussion like many such summits do. Still, there were a few interesting post-Newsfoo pieces for the rest of us to chew on, including a roundup of the event by TBD’s Steve Buttry, Alex Hillman’s reflections, and USC j-prof Robert Hernandez’s thoughts on journalists’ calling a lie a lie.

— A few iPad bits: News media marketer Earl Wilkinson wrote about a possible image problem with the iPad, All Things Digital’s Peter Kafka reported on the negotiations between Apple and publishers on iTunes subscriptions, and The New York Times’ David Nolen gave some lessons from designing election results for the iPad.

— The Guardian’s Sarah Hartley interviewed former TBD general manager Jim Brady about the ambitious local online-TV project, and Lost Remote’s Cory Bergman looked at TBD and other local TV online branding efforts.

— Advertising Age’s Ann Marie Kerwin has an illuminating list of 10 trends in global media consumption.

— Finally, two good pieces from the Lab: Harvard prof Nicholas Christakis on why popularity doesn’t equal influence on social media, and The New York Times’ Aron Pilhofer and Jennifer Preston provided a glimpse into how one very influential news organization is evolving on social media.

June 16 2010

19:00

Knight News Challenge: Order in the Court 2.0 wants to welcome the judiciary branch to the digital age

The debate over cameras in the Supreme Court is longstanding these days — but what about technology in courtrooms all over the country? One Knight News Challenge winner this year, Order in the Court 2.0, wants to bring new media to the judiciary.

I spoke with the man behind the idea, John Davidow, executive editor in charge of WBUR.org, the remarkable website for one of Boston’s public radio stations. Davidow said that the idea is to get the third branch of government to travel the same path to digital transparency that the legislative and executive branches have begun to do. Davidow said the court system has, by and large, continued to operate under the same video and audio recording standards it adopted in the 1970s and 1980s.

“The courts have sort of gone further and further way from the public and public access. In the old days, they were built in the center of town,” he told me. “The community was able to walk into the courts and see what was going on. Modern life has done away with that. The bridge that was going in between the courts and the public was the media. The media has just less resources.”

Davidow’s idea, which Knight awarded $250,000, is to use one courthouse as a laboratory, out of which will come a set of best practices and case studies for courtrooms across the country to reference. The test kitchen is the Quincy District Court here in Massachusetts, a courthouse Davidow described as ideal: Its chief judge is open to the idea, and the courthouse has a tradition of dabbling in new technologies. It’s also one of the busiest courthouses in the state, so it should also serve as a good model for even large courthouses.

I asked Davidow about how his idea differs from existing efforts to use new media in courthouses across the county. He explained that the problem is consistency: Decisions about new media decisions are made on a case-by-case basis, not systematically. Some judges make decisions based on space, others on whether a particular technology will disturb the court. The outcome is mixed: Yes, bloggers, you may cover the Scooter Libby trial, but, no Rod Blagojevich, you may not tweet during your trial. Davidow is also concerned about how many courthouses do not use new media themselves, not even making the daily docket available online.

Davidow hopes that a set of standards could help make new media and technologies that foster transparency and openness become just another normal part of the courthouse. One of the most interesting ways he thinks he’ll be able to achieve systematic success is through a broad network of stakeholders, already pieced together. “When I started formulating this, I made an awful lot of calls,” he told me. “I was fortunate enough to to find a conference of chief court information officers. They’re working on this same exact issue. They’re all trying to figure it out nationally.” The Conference of Court Public Information Officers has agreed to release a report at the end of the project, providing a framework for courts to handle new media questions. The Massachusetts Supreme Judicial Court Judiciary-Media Committee, composed of both journalists and judges, voted unanimously to support this project. Boston University’s School of Communication has volunteered to train “civic journalists” and court personnel. Our friends at Harvard’s Citizen Media Law Project, just down the street from the Lab, have also agreed to help.

Courts move slowly, and Davidow is prepared to face that challenge: “The term deliberation means something,” he joked. But with his test kitchen going, and many stakeholders supporting his effort, he hopes to get courthouses moving in a new media direction.

March 25 2010

15:00

The Barclays case: Will “hot news” limit the right to aggregate news?

[Sam Bayard, one of our friends down the street at the Citizen Media Law Project, has written the most detailed analysis I've seen of the Barclays v. TheFlyOnTheWall.com case. While focused on the work of financial analysts, the case could have serious impact on the ability of websites to aggregate and curate content. It also invokes the "hot news" doctrine that some news organizations have argued limits the kinds of linking other sites can do to their content. We're reprinting Sam's piece below; it's worth a read for anyone interested in how the new news ecosystem is evolving. —Josh]

In 2003, prolific legal scholar and 7th Circuit Judge Richard Posner published a law review article entitled "Misappropriation: A Dirge," which discussed — among other things — the continued viability of "hot news" misappropriation, a theory of unfair competition that dates back to the Supreme Court’s 1918 case, International News Service v. Associated Press, 248 U.S. 215 (1918), which involved unauthorized re-publication of wire service reports. Contrary to what Posner’s title might suggest, the article didn’t outright announce the death of the hot news doctrine, but it did paint a picture of a legal doctrine on the ropes — disdained by noted jurists, unwise as a matter of policy, and limited in practical significance. For better or worse, a decision issued last Thursday shows the doctrine to be very much alive and relevant. In fact, the case raises some disturbing prospects for news aggregation and sharing of information on the Internet more generally.

In Barclays Capital Inc. v. TheFlyOnTheWall.com, 06 Civ. 4908 (S.D.N.Y. Mar. 18, 2010), Judge Denise Cote of the United States District Court for the Southern District of New York issued a permanent injunction requiring the Internet-based financial news site FlyOnTheWall.com ("Fly") to delay its reporting of the stock recommendations of research analysts from three prominent Wall Street firms, Barclays Capital Inc., Merrill Lynch, and Morgan Stanley. The injunction requires Fly to wait until 10 a.m. E.S.T. before publishing the facts associated with analyst research released before the market opens, and to postpone publication for at least two hours for research issued after the opening bell.

The injunction is based on Judge Cote’s finding, after a bench trial, that Fly engaged in hot news misappropriation, "free-riding activity that is directly competitive with the Firms’ production of time-sensitive information, thereby substantially threatening their incentive to continue in the business." Barclays, slip op., at 87. Morgan Stanley and Barclays also succeeded on copyright infringement claims relating to Fly’s unauthorized copying and distribution of excerpts from their research reports for a few weeks in 2005, but the court awarded relatively minor damages on these claims and this doesn’t impact Fly’s current business practices, which no longer involve verbatim reproductions or close paraphrases of analyst research.

Background

Like other Wall Street firms, Barclays, Merrill Lynch, and Morgan Stanley produce analyst research reports on stocks. The firms distribute these reports for a fee to their clients, usually large institutional investors. The firms often release these reports before the NYSE opens for the day, and the reports contain recommendations (buy/sell/hold) that, according to the firms, often spur investors into making trades, usually through the firm that issued the report. As a result, the release of a report often has a significant impact on the market price for the stock in question.

The firms’ paying clients gain access to the reports through several means, including the firms’ password-protected websites, licensed third-party distributors like Bloomberg and Thomson Reuters (presumably also using some sort of password protection), and email messages. In addition, the firms host private conference calls or webcasts in which their analysts discuss their research reports and recommendations with clients. Access to these calls and webcasts is restricted to those with the required passcode or login.

The firms take various precautions to ensure that the reports go only to paying clients. For example, they forbid employees from sharing the reports, their licensing agreements purport to forbid the clients from redistributing the research content, and licensed distributors like Bloomberg and Reuters contractually agree to maintain a "firewall" so that their media arms can’t obtain information from their research arms.

Inevitably, though, the research reports and the recommendations contained in them leak out, and Fly pioneered the business model of publishing this information for its own clients on a newsfeed over the Internet. The model has caught on, and, according to the court, presently "there is a crowded marketplace with small internet companies and major news organizations reporting the Firms’ Recommendations before and after the market opens." Barclays, slip op. at 35.

According to Judge Cote’s opinion, it looks like Fly’s operations have changed significantly over the last few years, largely in response to the firms’ lawsuit. Before 2005, Fly relied primarily on employees at the firms who emailed research reports to Fly after they were released to clients (this was pretty clearly a violation of the employees’ duties of loyalty and confidentiality to the firms). At that time, Fly staff would type the recommendation as a headline, sometimes accompanied by a verbatim reproduction or close paraphrase of a passage from the report explaining the basis for the recommendation. Id. at 32. Hence the copyright claims for Fly’s conduct in 2005.

As a result of the lawsuit, however, Fly apparently changed its information-gathering process. According to testimony from Ron Etergino, Fly’s president and majority owner, he "no longer feels free to look at the research reports, even if someone should send them to him," id. at 33, and he now gathers information about the firms’ reports from other sources:

According to Etergino, he checks first to see what Recommendations have been reported on Bloomberg Market News. Then he checks Dow Jones, Thomson Reuters, and Fly’s competitors such as TTN, StreetAcount.com, and Briefing.com. Next, he visits chat rooms to which he has been invited to participate by the moderator. . . . Etergino also receives "blast IMs" through the Bloomberg, Thomson Reuters, or IMTrader messaging services that may go to dozens or hundreds of individuals. Finally, Etergino exchanges IMs, emails, and more rarely telephone calls with individual traders at hedge funds, money managers, and other contacts on Wall Street.

Id. at 34. In other words, Fly acquires information about the reports through a process that looks a whole lot like good-old fashioned journalism. And it largely relies on information that is publicly available through mainstream and Internet media reports, IM blasts, and what appear to be open chat rooms. The result is a headline like this: "EQIX: Equinox initiated with a Buy at FofA/Merrill. Target $110." Id. at 27.

Hot News and Copyright Law

As noted, the main dispute in the Barclays case was not about verbatim copying, but about Fly publishing time-sensitive facts from the firms’ research reports — essentially, the buy/sell recommendations. Facts are not protected by copyright law. Feist Publ’ns, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991). While the firms’ recommendations aren’t exactly facts in the same way as "hard news," the firms appeared to concede that they couldn’t stop Fly’s current reporting practices through resort to copyright law. Enter the hot news misappropriation doctrine, which is controversial precisely because it provides IP-like protection to facts despite copyright law’s bedrock policy that facts are in the public domain.

In International News Service v. Associated Press, 248 U.S. 215 (1918), the Supreme Court created the hot news misappropriation doctrine as a matter of federal common law, and some state courts, like those in New York, adopted it as part of state unfair competition law. The INS case arose after British and French censors barred INS from sending war dispatches to the United States because Hearst had offended the British and French by siding with Germany at the outset of WWI. See Posner, at 627. INS employees got around this problem by paraphrasing AP dispatches published in east coast newspapers and sending them by telegraph to the west coast for publication in Hearst newspapers. See INS, 248 U.S. at 231-32 (at issue was INS’ practice of "copying news from bulletin boards and from early editions of complainant’s newspapers and selling this, either bodily or after rewriting it, to defendant’s customers"); id. at 259-60 (Brandeis, J., dissenting) ("The means by which the International News Service obtains news gathered by the Associated Press is also clearly unobjectionable. It is taken from papers bought in the open market or from bulletins publicly posted.").

The INS Court acknowledged that AP had no copyright claim because it had failed to register and/or place notice on its news reports (no longer a requirement under U.S. copyright law), and because copyright law did not extend to the facts in the reports. But, the Court nonetheless enjoined INS from using AP’s news reports in direct competition with the news service, finding that the INS’s free riding "speaks for itself and a court of equity ought not to hesitate long in characterizing it as unfair competition in business." Id. at 240. Justices Holmes and Brandeis wrote powerful dissents, decrying the majority’s opinion as unprecedented, unnecessary, and unwise.

The main policy justification advanced by the majority, which remains the motivating principle behind hot news doctrine today, is that protecting hot-news-type information is necessary to preserve the incentives that drive economic actors to make the substantial investment required to produce a socially valuable product or service in the first place. Posner characterizes this policy impulse as protecting against the danger of "killing the goose that laid the golden eggs." Posner, at 628.

In the Barclays case, the idea is that Wall Street research reports are a social good — they help disseminate information important to the proper functioning of the securities markets that otherwise would not be produced. This may be a disputable proposition, but it’s one the court accepted. And, the theory goes, Wall Street firms like Barclays and Merrill Lynch won’t go to the expense of producing these socially valuable reports if companies like Fly can free ride off of them and undermine the money-making potential of the practice. Again, it’s disputable whether Fly’s conduct rather than other economic factors (like international economic meltdown) has hurt demand for the firms’ reports, but Judge Cote found as a matter of fact that Fly’s activities did create a substantial disincentive.

I’ll leave to the economists the question of whether or not all this is wise economic policy. But from a legal perspective, the hot news doctrine creates an obvious tension with copyright law because, as noted above, it creates a pseudo property right in facts that copyright law says are in the public domain. This raises the specter of preemption: that is, a situation where federal law displaces inconsistent state law under the Supremacy Clause. Judge Cote’s opinion in Barclays does a very thorough job on this issue and determines — rightly, in my view — that federal copyright law does not preempt hot news misappropriation, or at least a narrow version of it. This result was a foregone conclusion for Judge Cote because the Second Circuit Court of Appeals had already said as much in National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), which is controlling precedent in the Southern District of New York.

Under NBA, the narrow version of hot news misappropriation that survives copyright preemption has the following elements:

(i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

Barclays, slip op. at 55 (quoting NBA, 105 F.3d at 845). Posner says that the "meat" of the test is in element (v), with (i) through (iv) describing a situation where (v) is likely to be satisfied. Posner, at 632. Therefore, "[t]he criterion appears to mean that states can protect fact gathering without running afoul of the preemption provision in the federal copyright statute only when unauthorized copying of the facts is likely to deter the plaintiff or others similarly situated from gathering and disseminating the facts that the defendant has copied." Id. The test is "alarmingly fuzzy once the extreme position of creating a legal right against all free riding is rejected, as it must be." Id. at 638.

In other words, hot news doctrine presents an inherently subjective and necessarily fact-specific standard, and one would expect courts to be cautious in finding it met, if for no other reason than to avoid the potential conflict with copyright law and to promote the public’s access to information. In Barclays, the firms convinced Judge Cote at trial that each element was satisfied, showing that, while it may take a unique set of facts, it’s not an impossible task.

What About the First Amendment?

Notably lacking from Judge Cote’s very thorough opinion is any discussion of how hot news misappropriation interacts with the First Amendment. This could be because Fly didn’t argue the point, at least not directly. While this post suggests that Fly’s lawyers "played the free speech card," it is hard for me to believe that Judge Cote would fail to address such an important argument if it were raised directly in the briefs. We have a student looking through the documents on PACER, which are pretty extensive, but so far we haven’t turned up any direct invocation of the First Amendment, except for an affirmative defense in the answer. As we’ll see below, though, Fly undoubtedly raised factual arguments that bear on the question.

The First Amendment issue is an important one because the Supreme Court didn’t address it in INS. Justice Brandeis’s dissent gives us a First Amendment tingle in his famous statement, "[t]he general rule of law is, that the noblest of human productions — knowledge, truths ascertained, conceptions, and ideas — become, after voluntary communication to others, free as the air to common use," 248 U.S. at 250 (Brandeis, J., dissenting), but even he didn’t seem to appreciate the constitutional implications of the case. It’s also an important question because First Amendment doctrine has developed considerably since 1918, and free speech concerns of which the Justices had only a vague inkling now have become an accepted part of the constitutional landscape.

The First Amendment issue raised by the case is one I’ve addressed before. A long line of Supreme Court cases hold that the First Amendment protects truthful speech on matters of public concern. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 527-28, 533-35 (2001) (First Amendment barred imposition of civil damages under wiretapping law for publishing contents of conversation relevant to matter of public concern); Florida Star v. B.J.F., 491 U.S. 524, 534 (1989) (First Amendment barred imposition of civil damages on newspaper for publishing rape victim’s name); Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103-06 (1979) (First Amendment barred prosecution under state statute for publishing names of juvenile offenders without permission of court); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 841-42 (1978) (First Amendment barred criminal prosecution for disclosing information from a confidential judicial discipline proceeding). Therefore, “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.” Smith, 443 U.S. at 103; accord Bartnicki, 532 U.S. at 527-28.

In Bartnicki v. Vopper, members of a teachers union sued a radio announcer under state and federal wiretapping laws after he played an unlawfully recorded telephone conversation on the air. The radio show host had received the recording from a third party who himself had received the tape in the mail from an anonymous source. The Supreme Court held that the First Amendment prohibited the recovery of damages against the radio show host for publishing the tape, explaining that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Id. at 535. The constitutional principle in Bartnicki and other Supreme Court cases is not limited to traditional forms of media like newspapers and radio broadcasters. See Mary T. Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007) (First Amendment barred criminal prosecution for posting illegally recorded video online when recording made by third party, even if knowing receipt of the recording constituted a crime under Massachusetts law).

In Barclays, Judge Cote considered it unimportant that Fly obtained the information it published from other news services that were publishing the firms’ recommendations on the Internet in advance of Fly’s own publication. The court said that "the conduct of third parties is simply of no moment in finding Fly liable for hot-news misappropriation," and "it is not a defense to misappropriation that a Recommendation is already in the public domain by the time Fly reports it." Barclay, slip op. at 61. This may be a faithful application of the INS case itself — recall that INS involved taking facts from publicly available bulletin boards and published newspaper accounts — but INS never considered the First Amendment, so it can’t resolve the issue.

Under Bartnicki and the cases mentioned above, if Fly obtained the information in question through lawful means, then the First Amendment protects its right to publish that information. There is nothing inherently unlawful about Fly reading about a stock recommendation on a newsfeed provided by another news service or participating in a public chat room where Wall Street "rumors" are discussed (accessing a passcode-protected conference call would be another matter). The court says that Fly has engaged in "illegal conduct" by publishing the information it did, Barclays, slip op. at 61, but this label begs the question — that is, whether the state may constitutionally penalize publication of truthful information relating to a matter of public concern that was not obtained in violation of any other applicable laws.

To be sure, the person who originally leaks a firm research report to a news service or chat room participant may violate a legal duty owed to one of the firms, but "a stranger’s illegal conduct" is not sufficient to remove First Amendment protection under Bartnicki. The question is closer for Fly’s pre-lawsuit-era publication of reports received directly from firm employees who violated a duty of loyalty and confidentiality. It might be independently "unlawful" in the constitutional sense to knowingly induce a breach of these duties, but even in the trade secrets sphere this question has not been resolved with any clarity. Furthermore, I’m not aware on anything that would make it "unlawful" for Fly to communicate by email or telephone with firm clients who are willing to convey the substance of the recommendations, though this probably violates the client’s license agreement. Regrettably, the court did not differentiate between Fly’s different information-gathering tactics, and it enjoined publication of information obtained through at least some practices that clearly aren’t "unlawful" in any meaningful sense.

The court might well respond to all this by arguing that the firms’ reports are not facts related to a matter of public concern like ordinary news, but rather "subjective judgments based on complex and imperfect evidence." Id. at 78. There may well be a constitutionally significant distinction between reporting the subjective recommendations generated by these Wall Street firms and objective, external facts that are discovered "out there" in the world. On the other hand, these subjective judgments have objective, real-world consequences, and the announcement of a recommendation is itself a newsworthy event because it may cause a change in a stock’s price. It strikes me as difficult, and potentially hazardous, to try to distinguish between reporting the "subjective" recommendations versus reporting the "objective" fact that they were made, especially when the publication in question looks like this: "EQIX: Equinox initiated with a Buy at FofA/Merrill. Target $110."

The court may have ameliorated some of the First Amendment concerns by clarifying that the scope of its injunction, like the scope of hot news misappropriation, is narrow:

[T]o the extent Fly alters its business and begins to engage in actual analysis of market movements, and refers on occasion after the market opens in New York to one of the Firms’ Recommendations in the context of independent analytical reporting on a significant market movement that has already occurred that same day, such conduct will not run afoul of the injunction.

Id. at 87-88. But, this description of speech activity (the court doesn’t frame it in terms of speech) that won’t be enjoined displays an obvious preference for original/sweat of the brow/"analytical" content-creation over the free transmission of facts and information, which is a lot of what happens on the Internet. This is a preference that hot news doctrine’s anti-free-riding purpose surely calls for, but I don’t believe the First Amendment shares this ideal. (Copyright sure doesn’t. See Feist, 499 U.S. at 359-60.) As I’ll touch on more below, the court’s logic here also has foreboding connotations for news aggregators and others who supposedly "free ride" by transmitting information to others over the Internet without engaging in "independent analytical reporting."

News Aggregators, Bloggers, and the Like

The $75,000 question is what the Barclays case means for other online news aggregators, as well as social media more generally. Will the major newspapers be able to use this case to revive a robust hot news misappropriation doctrine that will kill the news aggregators and lock down facts on the Internet? I have no doubt that AP lawyers are smiling to themselves this week, but I don’t think this decision spells doom for the Internet as we know it.

The bad news for aggregators, bloggers, and those who like to share news is that this is a detailed, thoroughly reasoned (with the First Amendment exception noted above) decision from a respected judge in one of the most prestigious federal district courts in the nation. And, the decision is the product of a full-blown trial, giving it a concreteness and specificity that other, Internet-related hot news decisions, like Associated Press v. All Headline News, 608 F. Supp. 2d 454, 458-61 (S.D.N.Y. 2009), lack. This will give the decision credibility and make it useful in the hands of future judges looking for direction.

Worse, there are moments when reading the opinion where one feels like Judge Cote might as well be talking about news aggregators or bloggers free riding on "original reporting" instead of equity research. The court’s concept of free riding (element iii of the NBA test) certainly sounds like it would apply to news aggregation or acts of curation more generally:

To the extent that Fly adds value through its collection and aggregation of information, however, the value reflected in that act of aggregation does not controvert the fact that Fly expends no effort to produce the Recommendations and does not contribute to the underlying research and analysis process.

Barclays, slip op. at 60. It’s not a huge logical jump to say that all news aggregators are "free-riding" because they "expend no effort" to produce original reporting, and therefore "do not contribute to the underlying [journalistic] process." But this logic vastly understates the social benefit contributed by news aggregators, as well as bloggers who curate and comment on the news without expending effort to create it, and it automatically tilts the scales in favor of content producers at the expense of informational services and commentary, without any real justification.

Also potentially troubling is the court’s willingness to attribute the firms’ disincentive to produce equity research to Fly’s online activities as opposed to global financial meltdown, a willingness we can only hope won’t be reproduced when it comes to evaluating the alleged contribution of news aggregators and social media to newspapers’ current financial plight. Courts need to take a very close look at what is causing newspapers to suffer hard times; increased competition and loss of monopoly advertising rents explain a lot more than headlines and ledes with a link back, but that’s a topic for another day.

In any event, on the all-important fifth element (killing the golden goose), the Barclays case is easily distinguishable because the firms made a good (if not bullet-proof) case that production of high-quality equity research implicates a special need for time-sensitive exclusivity so that firm clients can feel they uniquely benefit from the recommendations and so that these clients can place trades with the firms based on them. Most regular news doesn’t share this rivalrous character, and it may be extremely difficult for newspapers to show that news aggregation or blog commentary ultimately hurts their bottom lines.

As for blogs, Twitter, and other types of social media, Barclays is further distinguishable because of the direct and obvious competition between Fly and the firms, which will be lacking in all but the most unusual cases. When it comes to Google News, which may be a real competitor, the ability of news organizations to opt out using robots.txt makes it extremely difficult to argue that Google is free riding, much less that it is destroying all incentive to engage in original reporting.

Finally, I suspect that the move from the financial sector to the general news sector will brighten and clarify the First Amendment issue discussed above, making it harder for courts to ignore that hot news doctrine plainly contemplates restricting the publication of truthful information on matters of public concern, regardless of how that information is required.

March 16 2010

17:12

E&P: Ban on airport newspaper racks violates First Amendment

The U.S. Appeals Court has ruled that a ban on newspaper racks in Raleigh Durham International Airport, North Carolina violates the first amendment, following a challenge from a group of US newspapers including the Raleigh News & Observer, Durham Herald-Sun, New York Times, and USA today.

The Raleigh-Durham Airport Authority removed the racks, claiming that they were a security threat, a traffic impediment, and that they reduced revenue for airport stores that sold newspapers. But the majority of the Appeals Court panel voted to uphold the November 2008 U.S. District Court ruling that the ban violated the First Amendment.

“The government interests asserted to justify the ban do not counterbalance its significant restriction on protected expression,” the panel said in a 35-page opinion.

Full story at this link

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