The First Amendment confirms the freedom to think for ourselves.

--Supreme Court Justice Anthony Kennedy (1/21/10), granting corporations the power to spend untold billions to do our thinking for us

The problem with Rupert Murdoch's proposal to create an online news consortium, in which major publishers would all band together to put their news content behind pay walls (L.A. Times, 8/21/09), is that it's not illegal to discuss news events online.  And you don't want to make it illegal to discuss news events online.

And yet, absent a law forbidding such discussions, there's nothing to stop someone from buying subscriptions to the various pay news sites and starting a website (like this one, but more so) in which they write about what they've learned from them--thus offering for free what the Murdoch's news trust would be trying to get people to pay for.  You can't copyright facts, and any attempt to change the law to allow publishers to do so would run straight into the shoals of the First Amendment and the concept of democracy itself.

Let's say you could keep the "tech tapeworms in the intestines of the Internet" (as a Murdoch editor memorably calls them) from passing along the news for free.  According to the L.A. Times piece, News Corp points to the Wall Street Journal as a success story with its website's 1 million paying customers, and has encouraged the New York Times Co., Washington Post Co., Hearst Corp. and Tribune Co. to follow its lead. Imagine that each of those publishers was as successful, and that the paying readers they attracted did not significantly overlap (both rather unrealistic assumptions, it strikes me)--that would be great news for publishers but something of a disaster for democracy, with the news generated by these leading (and not-so-leading) outlets confined to an elite audience of 5 million--or roughly 1-2 percent of the citizenry.

It's not like we have a particularly well-informed electorate as it is; if Murdoch's plan for an online news cartel is at all successful, though, today's voters may seem like Encyclopedia Brown.

Richard Posner is the sort of judge who gets mentioned as a possible Supreme Court nominee because of his supposed brilliance. But, then, he's also the person who wrote this:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

With the first suggestion, does Posner mean that copyright laws should forbid people from posting other people's material online without permission, or hacking into subscriber-only sites? Because copyright laws already do that. If he means that whenever someone puts up something on a website, you have to get their permission before you can type in the url,  that would be quite bizarre. What does he mean?

The second part is no less strange. As an anonymous commenter points out, prohibiting links would be like prohibiting footnotes; you could also compare it to outlawing card catalogs, or phone directories.  And the idea that linking to a newspaper's website somehow harms the newspaper is nutty; newspapers don't want people to stop linking to them. (They would like people to give them money for doing something that people have an inherent 1st Amendment right to do, but that's a different question.)

The gap between the federal Appeals Court judge's understanding of copyright law and the Internet commenter's is striking.  Maybe Anonymous should be nominated to the Supreme Court?

I wrote a short item on Dan Froomkin's firing for FAIR's radio show CounterSpin today:

One of the bright spots at the Washington Post media enterprise was Dan Froomkin's column, "White House Watch," for WashingtonPost.com.  It often struck us that Froomkin had a whole different attitude--skeptical of those in power, and critical of their journalistic enablers--than most of his colleagues at the Post Co. So it was perhaps not too surprising to hear that Froomkin, one of the Post's most popular online writers, had been fired--not long after his column was placed under the authority of editorial page editor Fred Hiatt, who's one of the journalists who best exemplifies the Post's dominant ethic of service to authority.

Those who had accepted the premise that the purpose of journalism was to advance the agenda of official Washington were understandably resentful of Froomkin, who was a constant reminder that that was not, in fact, the only way to report the news.  Post ombud Deborah Howell wrote a column back in 2005  complaining that Froomkin was "highly opinionated and liberal"--hilariously quoting the Post's then-national political editor John Harris as saying that Froomkin's column "dilutes our only asset--our credibility."

Let's be clear--it's not that they don't like you injecting opinion into the news at the Washington Post; in fact, they do that so much that economist Dean Baker refers to them as "Fox on 15th Street." But they have to be the right opinions--if, like Post columnist Dana Milbank, you think single-payer advocates are pathetic and ridiculous, that's an opinion the Post Co. is happy to showcase.  If your opinion is, like Froomkin's, that torture performed by the U.S. government ought to be called "torture," well, that might be putting at risk what the Washington Post calls "credibility."

I was struck in writing this item by what I couldn't do, which is quote Froomkin's powerful statement about the importance of journalists pointing out when officials aren't telling the truth--because Froomkin repeatedly refers to this key journalistic function as "calling bullshit"--and if we had quoted that on the air, the stations that run our show would risk being fined by the FCC.  (I could have translated that to "calling BS," but somehow euphemizing Froomkin's unvarnished call for journalistic forthrightness didn't feel right.)  Just a reminder that the petty censorship policies of the FCC do have political consequences.

Maureen Dowd today (New York Times, 4/15/09) writes about the newspaper industry's complaints about Google:

Robert Thomson, the top editor of the Wall Street Journal, denounced websites like Google as "tapeworms." His boss, Rupert Murdoch, said that big newspapers do not have to let Google "steal our copyrights." The AP has threatened to take legal action against Google and others that use the work of news organizations without obtaining permission and sharing a "fair" portion of revenue. But what's fair will be hard to prove.

First of all, Google is not stealing anyone's copyrights; quoting the headline and a small bit of text to indicate what various news organizations are reporting about is clearly covered by the fair use exemption to copyright laws.

But Google, rather than insisting on the inherent right that we all have to quote minor amounts of copyrighted material, allows news outlets to opt out of Google News by adding a simple line of code to their websites.  Dowd's piece cites Google CEO Eric Schmidt pointing out that "newspapers could opt out of giving their content to Google free." Apparently they must think they get more from Google linking to them than from Google not linking from them.
So if Google has a right to quote the newspapers' material, and the newspapers see such quotation as beneficial to themselves, why should Google volunteer to write big checks to the newspapers?  Well, because the papers would like to get free money.  And who wouldn't?

For the New York Post (3/27/09), it's "Free Dumb Tower." For the same day's New York Daily News, it means "No More Freedom." They're talking about 1 World Trade Center, which is what the Port Authority of New York and New Jersey announced it was calling the skyscraper it's building on the site of the old World Trade Center destroyed on September 11--rather than Freedom Tower, as it had been previously referred to.

And the tabloids, naturally, are outraged. "Freedom is out of fashion at Ground Zero," declared the Post. "Once hailed as a beacon of rebirth in the aftermath of Sept. 11, the Freedom Tower has been stripped of its patriotic name -- which has been swapped out for the more marketable 'One World Trade Center.'"

It's worth recalling that despite the popular media line at the time, there's little evidence that Al-Qaeda targeted the towers because they hated our freedom. The main association between "freedom" and the past or future buildings on the site is "free enterprise." Not only is that more clearly conveyed by the old World Trade Center name, but it's exemplified by the fact that the developers of the building are changing its name in apparent reaction to the preferences of the kinds of businesses that are likely to rent there.

But even commercial freedom looks too free for the Post and the Daily News--they seem to prefer the kind of "freedom" that can be used to shame people who are insufficiently patriotic.

"First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

--The official position of the U.S. government from October 23, 2001 until October 6, 2008

Why do I get the impression that this was seen as a feature, not a bug?

Raw Story (2/22/09) has a report that illustrates, in passing, the ridiculousness of how copyright law is applied on the Internet.

The story concerns a McDonald's employee in Arkansas who threw an abusive customer out of the restaurant and got shot, and the hamburger company's refusal to pay the injured employer workers compensation because the worker's "injuries did not arise out of or within the course and scope of his employment."

Surely there's a legitimate public interest in the question of whether corporations pay compensation in such cases.  And if you want to have an informed opinion on this particular case, it would help to be able to see what actually happened.  The good news is that there is a videotape of the incident.  The bad news, as Raw Story reported:

A surveillance video of the incident, which had been posted to YouTube, was taken down after McDonald's charged copyright infringement.

It's unfortunately common for media companies to squelch criticism of themselves by claiming that their critics are violating their copyright.  But here you have a corporation that is not in the media business using copyright law to try to prevent people from seeing a video that they have no discernible commercial interest in, simply because people seeing the video might think less of the company. This is a perversion of copyright law, which is supposed to "promote the progress of science and useful arts," not assist in damage control operations for big businesses with PR problems.

Raw Story updated their story by noting that the video is once again available on YouTube, via a local news report from station KARK. Whether McDonald's will try to get that taken down as well, or whether the company has decided that such censorship efforts are actually counterproductive, remains to be seen.  But the public's access to information about public questions should not be held hostage to corporate PR strategies.

The February 18 Democracy Now! segment on Fox reality TV star Sheriff Joe Arpaio features Arizona's East Valley Tribune reporter Ryan Gabrielson telling Amy Goodman exactly how Arpaio's officers

went to the homes of the two publishers for Phoenix New Times, which--there was an investigation being conducted into a case where New Times published Joe Arpaio's home address in its paper and online. And Arizona has a kind of interesting law where you're not allowed to publish online the address of law enforcement. And so the sheriff had been pushing our county attorney to do an investigation and prosecute the case.

Over the course of that, it sort of snowballed to the point where they--New Times--received these hugely broad subpoenas for basically every bit of information about readers, reporter notes etc., just breathtaking subpoenas, grand jury subpoenas. And they were supposed to remain sort of--you know, they weren't supposed to publish anything about it, and they felt that they had a need, that people needed to know what was going on with this investigation, so they published all the details about these subpoenas.

Proving that Arpaio's abuse of power extends beyond his inmates to local media as well, "that night, after the newspaper came out, sheriff’s deputies in plain clothes showed up at the homes of these two publishers and arrested them."  Arresting journalists for reporting on government attempts to prosecute them for publishing information--interesting interpretation of the First Amendment they've got going there in Arizona.

We noted recently Fox News' peculiar understanding of the Fair Use doctrine, which allows writers, artists and others to make reasonable use of copyrighted material so long as they don't infringe on the copyright owners' commercial rights; Fox interprets this to mean that critics should only be allowed to make use of Fox video if Fox is allowed to sell ads to run alongside the criticism.

Now another corporate media company is making strange claims against Fair Use.  The Associated Press is claiming that the well-known "HOPE" poster of Barack Obama violates its copyright, because artist Shepard Fairey used an AP photo as a model for the image.

Here's a question for AP: If a cartoonist wanted to make reference to the famous "Dewey Defeats Truman" image--which is also a copyrighted AP photo--would they have to get your permission first? That's the implication of their claim about the Obama image. And the end result would be a world where artists can't talk about the images of our political leaders, because those images come to us via for-profit media--a strange position for a democracy to find itself in.

The folks at Free Press recount (11/25/08) how, "when St. Paul police launched a violent crackdown on journalists covering the Republican National Convention," the media reform group "needed an on-the-ground organizer to pressure city officials to drop the charges against the journalists"--luckily they "knew just the person to call: Nancy Doyle Brown of the Twin Cities Media Alliance":

With only two days to organize, Doyle Brown called media reform advocates throughout the city, rallying support for the petition delivery and the press conference. Free Press coordinated with its local members to prepare for the event and ensure a strong media turnout....

Not long after the petition delivery, the county announced it would not pursue any felony charges against journalists. Then, on September 19, authorities in St. Paul announced that they would not prosecute journalists arrested during the RNC.

Brown professes to have been "shocked and outraged" when she "saw the progressive city of St. Paul become a police state overnight. The RNC was a grave reminder that maintaining our freedoms requires constant vigilance." Indeed, she reminds us that "there are a hundred more subtle ways that press freedom is compromised every day in this country, from allegiance to corporate advertisers to newsroom staff cuts and overreliance on official sources."

Listen to the FAIR radio show CounterSpin: "Heidi Boghosian on Convention Protests" (9/5/08)

The ever-vigilant Electronic Frontier Foundation announces (11/18/08) its representation of "a New York City community organizer [who] is fighting back in court after her parody website challenging redevelopment efforts in New York City's historic Union Square was shut down with bogus claims of copyright infringement and cybersquatting":

As one part of her education campaign, [Savitri] Durkee created a website parodying the official website of Union Square Partnership.... In response, USP sent Durkee's Internet service provider a notice pursuant to the Digital Millennium Copyright Act improperly asserting that her parody site infringed USP's copyright, leading to the shutdown of the site. USP then filed a copyright lawsuit against Durkee and later filed a claim with the World Intellectual Property Organization (WIPO) seeking to take control of the parody site's domain name.

EFF today filed a response to USP's complaint on Durkee's behalf, pointing out that Durkee's parody is protected under the First Amendment and fair use doctrine. The response includes counterclaims asking the court... to find that USP's complaint was intended to stifle legitimate political speech. Durkee is also seeking compensation for the abridgement of her speech.

EFF attorney Corynne McSherry points explains the basics: "Ms. Durkee's site is a parody, so of course it mimicked USP's site to some extent. That's how parodies work"--and puts it plainly: "The parody site is plainly a fair use and protected by the First Amendment. This is a case about censoring speech, not about infringement."

Read FAIR's magazine Extra!: "Fair Use It or Lose It: Copyright Owners' Threats Erode Free Expression" (5-6/06) by Marjorie Heins

Fair Use infringement and talk-radio vitriol meet in a report (Bay City News, 11/13/08) on hate-jock Michael Savage's latest charming escapades:

Conservative radio talkshow host Michael Savage has been sued in federal court in San Francisco by a liberal film group for making an allegedly baseless demand that YouTube Inc. take down one of its videos.

The video by Brave New Films was entitled Savage Hates Muslims and criticized an October 29, 2007, broadcast in which Savage...comments that Muslims should "take [their] religion and shove it up [their] behind" and should be deported....

YouTube did take down the video and temporarily disabled the entire YouTube channel of Brave New Films, according to the group. Brave New Films claims in the lawsuit that the take-down notice for the Savage Hates Muslims video was baseless because the excerpts were used for political commentary and thus protected by the legal doctrine of fair use.

Indeed, Robert Greenwald's Brave New Films also "claims the radio network and Savage engaged in 'knowing misrepresentation' because" just this July, one judge "dismissed a copyright infringement claim Savage filed against the Washington, D.C., based Council on American-Islamic Relations for using four minutes of excerpts from Savage's broadcast."

See the FAIR magazine Extra!: "Fair Use It or Lose It: Copyright Owners' Threats Erode Free Expression" (5-6/06) by Marjorie Heins

After giving a dubious account of the causes of the Democrats' 1994 electoral disaster, Washington Post columnist Michael Gerson (11/14/08) provides an inaccurate description of the Fairness Doctrine, which he calls

a federal regulation (overturned by the Reagan administration in 1987) requiring broadcast outlets to give equal time to opposing political viewpoints. Under this doctrine, three hours of Rush Limbaugh on a radio station would have to be balanced by three hours of his liberal equivalent. This may sound fair and balanced. But it is a classic case where the "unintended consequences" are so obvious that those consequences must be intended. It would destroy the profitability of conservative talk radio and lead other outlets to avoid political issues entirely--actually reducing the public discussion of controversial issues.

I have to say--if that's what the Fairness Doctrine was, then I would be against it. But it was never an equal-time rule; instead, it required broadcasters to provide some coverage of controversial issues and to make some provision for opposing views. In practice, the FCC would accept roughly a 5-to-1 ratio as providing adequate balance. Far from making conservative talk radio impossible, a talkshow format in which the host occasionally takes calls from listeners who disagree was an easy way for stations to fulfill their Fairness Doctrine obligations.

The genius of the Fairness Doctrine was that it balanced the broadcasters' First Amendment right to express their point of view with the reality that the government is granting a monopoly to license-holders to broadcast on a particular frequency--in effect saying that they and no one else has a right to express themselves on that particular street corner. The Fairness Doctrine says that every once in a while, you have to let someone else share the soapbox. I wonder why right-wing pundits find that so threatening?

Hearing Joe Scarborough utter "the phrase 'fuck you' when discussing Obama's appointment of Rahm Emanuel" on MSNBC, Salon's Green Greenwald states (11/10/08, ad-viewing required) that he "couldn't care any less"--except that he just can't stomach the immense hypocrisy of "one of the most zealous crusaders against such awful filth on television":

Scarborough led the lynch mob over the 2004 Janet Jackson halftime show on CBS--demanding that the FCC impose massive fines against CBS and MTV, among others--and has railed against "rock stars" and entertainers who use, as he used to call it (before this morning), "the F word." Indeed, Scarborough even expressed outrage over the fact that the government would even consider refraining from imposing substantial fines on ABC when Bono, on a live awards show, used the "F word."

Greenwald even traces Scarborough's unrelenting "sanctimony" back to claims about his childhood--quoting the pundit having "boasted to his guest that his upbringing was so fine that he was taught not to use such words: 'Robert, I'm glad to hear that you don't use the words and you didn't use them growing up. All I'll say is, my mom put soap in my mouth more than once or twice.'"