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The royal Fifth Estate

Originally posted 2014-04-22 21:57:09. Republished by Blog Post Promoter

Glenn Reynolds:

[Former New York Times ombudsman Bill] Keller writes: “It’s an unusual and powerful thing, this freedom that our founders gave to the press. . . . The power that has been given us is not something to be taken lightly.”

The founders gave freedom of the press to the people, they didn’t give freedom to the press. Keller positions himself as some sort of Constitutional High Priest, when in fact the “freedom of the press” the Framers described was also called “freedom in the use of the press.” It’s the freedom to publish, a freedom that belongs to everyone in equal portions, not a special privilege for the media industry.

— as we have been saying, hardly alone, since forever. But then, why we expect the New York Times, of all people, to understand that point?

UPDATE: In a related development, the Supreme Court has overturned Vermont’s campaign finance laws as excessively restrictive of free speech. That’s another topic we haven’t been shy about it in the past, either, and it’s related to the same point: The concept that speech by the established press is somehow privileged, and speech by everyone else, even politicians running for office, is less worthy of protection.

Talking a leak

Originally posted 2013-11-03 23:05:02. Republished by Blog Post Promoter

Want to know the difference between a leaker and whistle-blower? Johnny Dollar posits the distinction.


Originally posted 2013-12-03 10:39:49. Republished by Blog Post Promoter

David Post discusses Judge Richard Posner’s musings on the pretty hopeless prospects of the newspaper biz:

[I]f “the newspaper” as a business model fails (because of competition from the free content available on the Net), who will invest the resources required for adequate news-gathering services in the first place? . . .

[Posner’s] proposal for reform, however, goes into the “Cure Worse Than Disease” file:

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.

It’s hard for me to summarize why this is so terrible an idea.

But — like online copyright infringement — impossible to resist the temptation to try!

Billings Don’t Only Matter to Lawyers

Originally posted 2005-02-28 11:45:43. Republished by Blog Post Promoter

And trademark law does’t evidently matter all that much to the Billings Gazette. What a mess this story is! Here are some of the trademark law howlers in this one piece about a fairly routine trademark dispute:

  • “Actually, the Burkhartsmeiers have only filed for the trademarks. The federal government hasn’t granted them yet. “ NO! The government doesn’t “grant” trademarks. It protects them via the legal system and may even grant you a trademark application for your trouble. But trademarks are established by use, not by the government.
  • “After registering Coffee Mill and Coffee Mill Espresso & More in Montana, Morgan started filing for national registration last June. However, her computer crashed and she got caught up in running for the state Legislature. Now she’s trying again to protect her business names. ” NO! Business names are not trademarks! They can be trade names, but they may not be entitled to trademark protection.
  • “To truly protect a business name, a company has to register at the federal level and in each state for trademarks, trade names and service marks. ” NO! Truly ridiculous, and in some states, truly irrelevant.

Remember, I’m a media blogger. Someone’s got to speak trademark truth to power!

Is the Internet replacing “journalism”?

Originally posted 2011-09-20 18:09:05. Republished by Blog Post Promoter

Press Pass

Nicholas Lemann writes in The New Yorker:

Reporting—meaning the tradition by which a member of a distinct occupational category gets to cross the usual bounds of geography and class, to go where important things are happening, to ask powerful people blunt and impertinent questions, and to report back, reliably and in plain language, to a general audience—is a distinctive, fairly recent invention. It probably started in the United States, in the mid-nineteenth century, long after the Founders wrote the First Amendment. It has spread—and it continues to spread—around the world. It is a powerful social tool, because it provides citizens with an independent source of information about the state and other holders of power. It sounds obvious, but reporting requires reporters. They don’t have to be priests or gatekeepers or even paid professionals; they just have to go out and do the work.The Internet is not unfriendly to reporting; potentially, it is the best reporting medium ever invented. A few places, like the site on Yahoo! operated by Kevin Sites, consistently offer good journalism that has a distinctly Internet, rather than repurposed, feeling. To keep pushing in that direction, though, requires that we hold up original reporting as a virtue and use the Internet to find new ways of presenting fresh material—which, inescapably, will wind up being produced by people who do that full time, not “citizens” with day jobs.

Journalism is not in a period of maximal self-confidence right now, and the Internet’s cheerleaders are practically laboratory specimens of maximal self-confidence. They have got the rhetorical upper hand; traditional journalists answering their challenges often sound either clueless or cowed and apologetic. As of now, though, there is not much relation between claims for the possibilities inherent in journalist-free journalism and what the people engaged in that pursuit are actually producing. As journalism moves to the Internet, the main project ought to be moving reporters there, not stripping them away.

I thought journalism, as Glenn Reynolds says, was something you do, not something you are? Read More…

The big crunch

Originally posted 2014-10-26 19:37:42. Republished by Blog Post Promoter

FortuneIt’s another big moment in blogger “transparency” upon us now.   The general rule is that the person who hasn’t “disclosed” enough to meet some preposterous concept of transparency is the person who the writer is jealous of, or worse.  The current dart board is Tech Crunch.

I saw this coming, now didn’t I?  I wrote this in 2007:

No one is free from bias of some sort or another, especially people who spend their time (paid or otherwise) writing opinions — whether in daily newspaper columns, legal newspapers or blogs, the newest, most exciting and most democratic medium of expression in the real and virtual worlds.

Opinion writers are understood by axiom to have an opinion; and it is just as axiomatic that opinions can be “negotiable” in all sorts of ways, overt and subtle.

Yet in the emerging world of blog publishing, there is a troubling trend toward mandatory disclosure of one kind of bias — the kind directly attributable to payment of material compensation to a blogger addressed specifically in a Dec.7 Federal Trade Commission informal opinion involving a company called PayPerPost Inc. — that is misguided, contrary to free speech principles and a threat to the growth of a dynamic economic and cultural phenomenon. . . .

[B]eing paid to express an opinion is not so different from being affected by one’s likelihood of getting tenure, a promotion or a choice committee assignment. The real difference between bias occasioned by cash and that occasioned by social, professional or other ambition is that one is merely liquid, and this distinction does not by itself prove a need for a particular standard of disclosure or transparency. . . .

Those who disclose more, and more accurately, will be more trusted on that account. Ultimately all a blogger, a lawyer, a politician or anyone else has is his persuasiveness, his intellectual honesty and a track record of trustworthiness. In the pure market of expression, that is all the regulation needed.

Four years later, here’s someone whose opinion actually matters, Tech Crunch’s Michael Arrington, responding to what appears to savage notices about what he describes as his blog’s “investment policy” and his approach to disclosure: Read More…

Reporters without Borders Nominates MBA for Freedom of Expression Blog Award

Originally posted 2014-11-26 12:58:01. Republished by Blog Post Promoter

mediabloggers-fixed_logoYesterday the Media Bloggers Association announced that it has been nominated for a “Freedom of Expression Blog Award.” You can read about the award here. You can vote for the MBA, and — entirely incidentally — thereby make me (the MBA’s lawyer) look a little good, here. Do!

Exactly Wrong on Free Speech for New Media

Originally posted 2010-12-13 15:16:25. Republished by Blog Post Promoter

Via the permalink-less Kausfiles, a link to excerpts from (and suckup commentary about) remarks by CNN suit Jonathan Klein espousing the self-parodic, anti-democratic, anti-free-speech, and, yes, darn it, bad-for-the-children “MSM” concept that, well, alright, maybe we will let new kids play in our sandbox, as long as we can still decide who gets the secret decoder rings:

When the Jeff Gannon bomb exploded in the White House press room, where was the White House Correspondents’ Association? … I have a modest proposal for the White House Correspondents Association, whose annual black-tie gala I eagerly await next week: cancel the gala, and instead spend that time and energy creating standards–and enforcing them–for those who would call themselves White House correspondents.

Sheesh. The “Jeff Gannon bomb exploded”? How about the Helen Thomas bomb? Or is that okay ‘cuz she’s a freedom fighter?

Holding Their Ink-Stained Breath Till They Turn Blue

Update on the the Tulsa World silliness: Michael Bates reports, citing to the blog Tulsa Topics, that the World has wisely decided that it will deal with criticism of its editorial and political deeds by disabling its own Internet capability, not only to Michael and his critical blog but to the rest of humanity — including its own paid customers! Now no one can get PDF’s off their site.

That’s the best way to protect your copyright: Just publish for your friends and family. This way if any of them crosses the line — WHAM! You ground ’em, or don’t invite them to the cousin’s club meeting, or disinherit them. Good thing is you keep the mess away from those Article III judges and their pesky technicalities.

Another victory for self help. Is anyone at Overlawyered going to compliment the World on this? Don’t count on it!

Well, yes, I do have fun (UPDATED)

Yes, it looks like a lot of fun, doesn’t it?Sometimes it is.  I recognize that I am very fortunate in that regard, considering how seldom it is (fun) for many of my colleagues.  Which, I’m pretty sure, is very seldom.

I always want to recall the time an older colleague and sometimes-mentor said to me, as we sat as co-counsel in the well before a jury trial in federal court, “Can you believe we get to do this for a living?”

I say I want to recall this because that trial was an unmitigated disaster.  (Frankly it was his disaster, not mine, artistically speaking.  But a flame-out all the same.)  That week in Brooklyn was not one of the fun times at all.  But at least the judge got to finish his charming book about himself.

Anyway, I did end up getting involved in something unusually fun, but at the same time deathly serious, recently.  And actually — because this blog is a law blog and deals with freedom of expression, as well as the way courts handle those things — it is also a topical thing, especially given my old “media bloggers” persona:

The filing, in which we represent investigative reporters Sharyl Attkisson, Steve Emerson, and Edwin Black, is discussed here too.  And the PLO’s brief in opposition is here.

We will be filing a reply on Monday, and will update then.

As promised, the reply brief:

Read More…