Category: Culture

Wikileaks Ethics in Journalism

In a recent OpEd in the New York Times, media ethicist Kelly McBride generally stands by the principle that journalists should not pay sources for information; but she also wants pardoxically to propose that sometimes the ends justify the means.  Specifically, she is referring to an initiative (ploy, stunt?) by Wikileaks to crowd fund a “bounty” for a leaker to provide the full text of the Trans Pacific Partnership agreement. But more broadly, McBride seems unaware that there can be no exception to this rule of journalistic standards, if it is to remain a rule at all.  Because in the course of investigating hard news, when don’t the ends appear to justify the means?  Surely, there are reporters out there risking their lives to uncover stories that are more grave and more time-sensitive than a trade deal, even a very big trade deal.

But that central contradiction is not the only reason I think McBride’s OpEd misses the point in its analysis. What she says is that, in general, paying for information is still wrong but that extreme situations call for extreme measures until some balance is restored between transparency and secrecy.  She writes, “Right now, the bounty may be the best shot we have at transforming the TPP process from a back-room deal to an open debate. But we need a better system to discourage unjustified secrecy, to protect sources and to encourage public-interest whistle-blowing.”  Although earlier in the piece, McBride acknowledges, “It’s true that trade deals, which are usually about tariffs and the price of goods, are traditionally negotiated in secret. But the TPP exceeds agreements like Nafta in scope and scale and involves far-reaching foreign policy decisions.”

The funny thing to me about the TPP kerfuffle is that everyone is complaining both about how bad it is and about how secret it is without noticing that the latter complaint casts considerable doubt on the former.  And thanks to the headline-rich, substance-poor nature of social media, even the tidbits of information out there are being manipulated by players with their own agendas, including such mundanity as just making click-bait.  As a result, many of my friends now take as gospel rumors about possible proposals or outcomes of this deal that are entirely unfounded.  For instance, McBride sets up her larger premise, establishing the TPP’s obvious badness with this almost parenthetical statement:  “Chapters already leaked suggest that the deal restricts fair use of copyrighted material, expands medical patents and weakens public policies that govern net neutrality.”  From such statements, we are left to wonder what other nefarious proposals lurk within the TPP and to conclude, yes, the ends justify Wikileaks’s means of offering to buy a leak.

But what if many of those highly publicized assumptions based on earlier partial leaks are false or at least very misleading?  Certainly, the statement about restricting fair use is fallacious, either by design or by ignorance, and we don’t need the full text of TPP proposals to know why.  For one thing, trade deals generally do not change domestic law in the U.S.; and to imply that ratifying the TPP might alter our application of fair use is inconsistent with history and with the process presently being applied.  Second, trading partner nations cannot necessarily apply U.S.-style fair use because (hold onto your hats) they have different legal systems. (I hear they speak different languages, too.)

But here’s the insidious detail in the big picture:  McBride writes what seems like a reasonable editorial with a premise that takes for granted a false assumption like this one about fair use, unaware perhaps that this widely-spread rumor is actually a modification of an Internet-industry-backed effort to “export U.S. fair use doctrine” through FTAs to our trading partners. These companies would favor replicating our liberal application of this doctrine and even imply that U.S. copyright holders are against such a provision, but this is a mischaracterization. It is more accurate to say that our trading partners don’t have the constitutional foundation to apply doctrine as we do.  I know that’s a too complex and wonky to make a good Facebook meme or grabby headline, but that’s the point.

So, even with this one tiny matter about which much corn has been shucked, we’re witnessing a giant game of Telephone.   Silicon Valley-funded organizations say “export fair use doctrine” to start the game, and this translates to “TPP will harm fair use” by the time the message comes full circle in the form of an OpEd in the New York Times.  So, is it really logical to believe that more leaked text about even more complex issues and filtered through even more vested interests will help us make more informed decisions?  I have more than a few doubts.

Meanwhile, the TPP isn’t classified; it’s embargoed.  Journalists committed to their principles are familiar with the need to embargo a story, perhaps to ensure someone’s safety prior to publication, and it would be a shame if that kind of judgment call were inappropriately reclassified as censorship just because we now have these machines that confuse our right to know with our right to know right bloody now.  The scale and scope of the TPP are unprecedented, but the level of secrecy is not. Negotiating trade deals through real-time public referendum would be like trying to play poker while everybody’s kid brothers run around the table shouting out who’s holding which cards.  What is also unprecedented (and frankly fascinating) is that the TPP is the first trade deal to be negotiated in the age of social media, which provides what I will continue to insist a fairly opaque form of transparency at best.

In fact, I suspect one of two outcomes would be the result of Wikileaks’s brand of un-alloyed “transparency” in this case:  one would be a collapse of trade deals altogether, but the other would be truly unprecedented secrecy indeed.  As journalist Christopher Dickey points out in this 2010 piece about State Department leaks by Wikileaks, “To avoid this kind of massive leak in the future, documents will get higher classification and less distribution, and a lot of the most important stuff may not be committed to the keyboard at all.” Oversight through the filter of  representation and principled journalists is imperfect, but a much bigger question than the one McBride is asking is whether we want to be a nation that does imperfect things as a republic or a nation that doesn’t do anything because we choose to embrace the near anarchy of direct democracy?

To be sure, I feel, as many of my fellow progressives do, that we have ceded far too much power to corporations overall, allowing deregulatory trends to foster wealth consolidation, poor environmental policy, weaker labor rights, and downgrades in education, medicine, infrastructure, and other foundational enterprises.  If we hope to address any of these issues, we need to find the political will to do so through domestic policy, investment, and the representation we choose to elect. In the meantime, it doesn’t seem helpful to perpetuate confusion about what trade deals can and cannot do to our domestic laws, let alone to cite that confusion as a reason for serious journalists to abandon their hard-won principles.  Frankly, I think we have enough hacks.

TVEyes Warping Fair Use Principle

Once again the Electronic Frontier Foundation has taken up the cause of industry in the guise of public interest, principally with the ultimate goal of distorting fair use doctrine beyond its intended purpose.  I am speaking about the case of FoxNews v TVEyes, which as Terry Hart points out in this post on Copyhype, re-treads some familiar ground regarding the copyright interests of news producing entities and the fair use claims of news monitoring services.  I recommend Hart’s blog for more in-depth historical context; but suffice to say that in the early 1990s, bills proposed by Senator Orin Hatch that would have amended copyright law to add news monitoring to the list of fair use purposes never made much progress. But, as Hart writes, “…the lack of legislation did not jeopardize the broadcast news monitoring industry. Nevertheless, little has changed in the discussion of fair use and news monitoring from the early 90s to the current litigation involving Fox News and TVEyes.”

Last fall, a federal judged ruled in this case that copying “broadcast content for indexing and clipping services to its subscribers constitutes fair use.”  And this July, oral arguments will be heard as to whether or not other services (like subscribers downloading, storing, and emailing clips) might also be judged fair.  The EFF, along with the Technology Law & Policy Clinic at NYU School of Law, has filed an amicus brief on behalf of TVEyes, while several leading news organizations have filed a brief on behalf of Fox.

To be clear, plenty has changed technologically in the news monitoring world, but Terry Hart’s point above is that the fair use argument being made today in favor of TVEyes is fundamentally the same as the arguments that failed in Congress twenty years ago — namely that there is a public and First Amendment-serving purpose to news monitoring that should qualify the enterprise as a fair use of copyrighted material.  And be it far from me to second guess a federal judge, but it seems that technological changes have only weakened this argument, not strengthened it, particularly when we look at the specific business model of TVEyes itself.

News monitoring services have been around since before television, first in the form of clipping services for print, and later as video systems monitoring broadcasts of “hard news” that was captured and stored on tape. This enabled customers to order a specific broadcast clip for educational, documentary, reporting, and other communications and investigative purposes.  We used these services in the 1990s during my corporate communications days. You paid a service a small fee to do a search and then received a VHS tape with the clip(s) you needed.  Today looks very different.

Presently, TVEyes copies, stores, and indexes round-the-clock broadcasts from 1,400 channels, and this includes programming that exceeds traditional models for “hard news” monitoring, capturing entertainment programs like magazine-format shows and documentaries.  Moreover, TVEyes is a fairly elite, B2B service; and it seems to me that fair use exceptions in the name of the public’s right to information ought to be limited to those uses that actually serve the public. But you and I do not use TVEyes, and we never will because a subscription costs $500/month.  So, as a business, TVEyes is not even a consumer-focused service, but an industry-focused service used by professionals who need to be ahead of the proverbial curve when it comes to breaking and overlapping news stories.  Such professionals include news organizations like the Associated Press, major corporations, government agencies and NGOs, and of course high-level investors who are skilled in the dark arts of predicting how a traffic jam in Malaysia might affect their position in shoe laces or something.

Clearly, this $6,000/year service is not for the general citizenry that has a right to be informed. In fact, it’s interesting that one argument being made today on behalf of TVEyes — as it was twenty years ago for news monitoring in general — is that there is “so much information out there”, that these services are invaluable.  And they are invaluable for the types of clients that need and can afford them. Meanwhile, the public-serving aspect of the fair use argument here seems to overlook this free technology we all have called the search engine.  Yes, there is more information produced more rapidly by more sources than ever before; but the average citizen also has more free tools to search, index, and access that information than ever before.  Isn’t that what Google congratulates itself for doing at every opportunity?  And setting aside the chicken-and-egg quality of these phenomena, the bottom line is that you and I can search news items all day long on just about any subject we can imagine, which has nothing to do with the high-priced and  specialized service provided by TVEyes.  The logic being applied is akin to saying that because the public has a right to know what happens in the financial markets, Reuters should not have to honor licensing deals for any of the content it aggregates to its elite Reuters Insider service that it sells at a premium to investment professionals.

There is absolutely nothing wrong with TVEyes. It’s a sound business and clearly provides a service that many companies and institutions consider well worth the subscription fee.  But as a for-profit entity providing a high-level, B2B service for institutional clients, it should not be allowed to profit from the use of assets produced by Fox or any other entity without paying reasonable licensing fees.  More importantly, it is dismaying to see fair use doctrine distorted on the basis that the general public is in any way served in this case. It moves the needle of legal precedent closer to the Internet and tech industry goal of monetizing the totality of works without paying the individuals or entities who produce them.  This neither serves any beneficial social practice nor any larger ideological principle.  It’s just an old-fashioned land grab and a big middle finger to the evicted. Fair Use is not what we mean when we say “FU.”

In praise of Elizabeth Wurtzel and “Creatocracy”

“What would the world be without America? It would be a dull and dinky planet indeed.”
– Elizabeth Wurtzel –

In honor of the 225th Anniversary of the first copyright act of the United States (May 31, 1790), I’d like to recommend a little book that neatly offers both a primer and a rationale for intellectual property in the United States. Creatocracy:  How the Constitution Invented Hollywood, by author and attorney Elizabeth Wurtzel is an unabashed, patriotic affirmation of the Progress Clause, reminding us that its inclusion in our Constitution can be explained by the same reason we have the United States at all:  because it seemed like a good idea at the time.

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Photo by Jason Myers

“There’s no particular reason that the Constitution, which otherwise contains few frills, should bother to make mention of something as luxurious to a nascent nation as intellectual property,” writes Wurtzel.  “And yet, there it is. As such it made America. Because of intellectual property, we live in a democracy of ideas and not a plutocracy of provenance.”

In just about ten thousand or so words, Wurzel flaunts American exceptionalism in both creative and practical inventions with the kind of energy in her writing that Kerouac gave to his love of jazz.   She gets in your face and tells you unequivocally that America is the coolest country in the world and that it has the almost incidental establishment of intellectual property law to thank for that coolness.  She reminds us that implicit in the Progress Clause is the same contagious, unwarranted optimism that created America in the first place. Drawing upon the fact that the nation itself is an improbable, even preposterous, invention, she cites the historical irony that no revolution of such magnitude had ever been fought, let alone won, by a people who had it so good. So, of course that same restlessness would eventually land men on the moon (and bring a car!), invent Rock-n-Roll and the Internet, build the largest military force in the world, and make a motion picture that cost a gazillion dollars just to produce a mediocre melodrama tacked onto an epic recreation of the epic sinking of the Titanic.

In fact, Wurtzel’s example of extolling the scope and audacity of James Cameron’s blockbuster is a pretty good metaphor for why I choose to defend copyright.  Sure, I criticized that film for all the subtle moments of pathos the script forgoes in favor of dime-novel sentimentality. And I have certainly never been a teenage girl who would return to the theater a dozen times to watch Leo sink into the Atlantic. But I agree with Wurtzel that we have reason to celebrate the gall that made that over-hyped, over-budgeted movie because it could have been a disaster, but it worked. And for better or worse, that has been the American story over and over again.

Likewise, it really is kinda cool that the Framers almost haphazardly established the basis for intellectual property while cobbling together a new nation populated by semi-literate and generally unwashed farmers. “… it was a supreme leap of of faith to believe that there would ever be culture in this country …,” writes Wurtzel. And although it is necessary and relevant that we critique law as we might critique Titanic, when that criticism lapses into futile cynicism, we do often forget to have fun. Wurtzel’s enthusiastic little book reminds me that every time I hear or read some high-level, academic, legal theory banging on about natural laws and government-granted monopolies and maximalism and so on, I often want to say, “Dude, whatever. It worked. We totally got Elvis and Ray Charles and Star Wars and the Corvette and, yes, even Google. So, quit being a stick in the mud, and go fix something that isn’t working!”

I often worry that the America envisioned by some of the more extreme intellectual property rights reformers would look more like China, which we might describe as the Elvis impersonator version of a culturally diverse society.  Whether it’s software or handbags or CDs, there’s something fundamentally depressing about a nation filled with so many knockoffs, lacking a system for creating a more diverse bounty of their own cultural works and inventions or even a system for acquiring our works in fair trade. It’s what a market looks like where there are limited moral boundaries like intellectual property or human rights that are tethered to the foundations of free enterprise.  In Creatocracy, Wurtzel celebrates the fact that copyrights and patents make commerce out of intellectual and creative endeavor because commerce is the ultimate democracy.  Yeah, money makes people do bad things sometimes (or more often just lame things), but that’s exactly why our system based on IP is brilliant — because it does the best job of removing both government and aristocracy from the creative process and gives the power to the people. “Here the idea was everyone would buy a ticket or purchase a copy, and voila — fun!  Everyone pays a little and gets back a lot. Culture is as democratic as government. When it comes to taste, the people rule,” she writes.

But I have seen folks suggest on this blog and elsewhere that perhaps patronage or publicly-funded works would be preferable to the intellectual property system we’ve had so far. This view is not only cynical (and really boring), it’s contradictory.  These folks argue that, on the grounds that copyrights are “government-granted monopolies that keep creative works from the people” (which makes no sense on the face of it), they would sooner see a system in which only large corporations, wealthy individuals, or members of Congress sponsor creative taste and/or R&D in this country.  How is that in any way an antidote to the consolidation culture these same critics (and I for that matter) view as socially regressive? These same people have yet to recognize that their anti-copyright, populist, free-for-all has so far made creative works more corporatized and driven popular creators toward patronage-like models to survive.

The Silicon Valley tycoons and their vast PR network love to talk about “permissionless innovation” as though intellectual property were the barrier preventing that innovation.  But their blindness in this regard is why, for all their new-money insouciance, they’re really a bunch of fuddy-duddy corporate wonks. They miss the point that the individual rights granted to inventors and creators is the legal embodiment of permissionless innovation. It is constitutionally guaranteed permission to not ask permission of anyone other than an audience or a customer. It’s why the Dead Kennedy’s got away with saying “Fuck The Man.”  Because The Man, no matter how rich or powerful he may be, can still only buy one ticket relative to an audience of millions of screaming, head-banging fans.

As Wurtzel points out, while American fine arts are something of a carry-over from our cousins across the pond, the breadth and depth of expressions written onto “celluloid and vinyl and acetate” are distinctly American.  And despite the inexorable, so-called progress of these tactile media into drab, invisible ones and zeroes, we should not let that be the reason to starve genius or stifle the quixotic madness that may produce big, daring works just because we can. There’s plenty that American exceptionalism does not get right. We believe our own press and too often confuse our mythology with history. We can’t always tell the difference between reality and a movie, but whether we do the most audaciously noble or the most audaciously terrible thing in reality, it’s worth noting that we always relive, re-contextualize, and reexamine those truths through our movies. “Our movies are America,” writes Wurtzel. And I think she has a point.

Elizabeth Wurtzel is also the author of Prozac Nation and Bitch: In Praise of Difficult Women.