Category: Journalism

Truth Dies in Broad Daylight

Democracy dies in darkness according to the motto of the Washington Post, and this is, of course, just one of many phrases reciting the axiomatic theme that credible and responsibly reported information is the blood of a democratic society like the United States. If true, then why has the “information age” brought democracy itself to the brink of destruction?  There are many answers, including from those who would say that the question itself is alarmist—that, for instance, the “democracy in peril” narrative is a talking point of the political left with no foundation in evidence. But ain’t that the rub? Have we not crossed the event horizon of an epistemic crisis?

It bears repeating that a healthy democracy not only tolerates, but requires, a debate of competing ideas; but thanks largely to the major internet platforms, society has devolved to a shouting match of competing realities. No technological singularity required. We have already carved out a point in our little corner of spacetime that is dense enough to prevent truth from escaping. It may be self-evident that truth dies passively in silence, but truth can also be trampled to death by noise, and how could “democratizing information” ever have produced anything but a cacophony?

In a recent editorial for the Los Angeles Times, Anita Chabria asks Why is it OK for rich guys to steal my work? She writes…

Retail theft is causing a civic meltdown and inspiring a ballot measure to incarcerate repeat toothpaste thieves.

But billionaire tech bros dismantling democracy for profit, stealing thousands of times a minute by selling advertising against something they don’t own? That barely gets a shrug, even as more media professionals are laid off, more publications close, and reliable information becomes so scarce and hard to spot that truth itself has become political.

Some might argue that news organizations have lost so much credibility that it hardly matters, and I cannot deny that I have read my share of careless articles under the imprimatur of respected brands, including the WaPo. But notwithstanding cultural and social changes that ebb and flow through any industry, the bottom line is that good investigative journalism is expensive, highly skilled, and time consuming, and the internet industry has only served to make those obstacles larger, if not insurmountable.

First, social media fostered, and still perpetuates, an illusion that “citizen journalists” and raving pundits consistently uncover hidden truths which are obfuscated by the mainstream media. Second, social media demands feeding the beast 24/7, which forces the traditional news organization to prioritize speed over quality, thereby often fulfilling the prophecy that mainstream news is untrustworthy. And finally, the major social platforms resist paying for the news material they exploit for profit. In combination, how can these forces not cause a downward spiral in professional journalism, including the layoffs now being reported? And that’s before we truly see AI alter the landscape.

While it is impossible not to point to Trumpism as the paradigmatic—and potentially fatal—symptom of rampant conspiracy-mongering, the folly of democratizing information is shared across the political spectrum. The internet industry told the world that their platforms were the antidote to media conglomerates—the proverbial “gatekeepers,” who controlled, and even buried, the information to which people are entitled. And thus, Big Tech’s assault on copyright law often rode atop the half-baked slogan that “information wants to be free” in both senses—liberated and gratis. And everyone—nearly everyone—believed that bullshit.

Although copyright is commonly associated with creative and entertainment material, it was nonfiction works, including journalism, that were at the center of the constitutional framers’ attention when they drafted the “progress clause” in Article II. There’s a reason why that clause says, “to promote the progress of science,” and in one of my favorite papers about the adoption of copyright at the founding period, Professor Jane Ginsburg notes, “Petitions to Congress before enactment of the first copyright statute sought exclusive privileges for works overwhelmingly instructional in character.”

A century later, copyright protection would encompass a broad range of creative and performing arts, but at the outset, the framers understood that the Republic would fail in persistent darkness. Thus, the speech right, the press right, and copyright can be seen as working in concert toward the hope that future generations would have the “science” necessary to sustain the American experiment. Now, just over 230 years since the first Copyright Act and the Bill of Rights, I am hardly alone in wondering whether that “science” is lost, symbolized by the fourth estate shedding 500 jobs in January alone.

In 2021, Senator Klobuchar first introduced the Journalism Competition Protection Act (JCPA), which would provide a limited exemption to antitrust prohibitions against collective bargaining among news media organizations. Passage of the JCPA would enable news media companies to negotiate terms with giants like Meta, Google, et al. for licensing news content shared on those platforms, and Chabria cites a study from the University of Houston, which states that, with passage of the JCPA, the major platforms would owe news organizations between $11.9 billion and $13.9 billion per year. So, of course, the tech giants have used their lobbying power to block the bill.

Meanwhile, Big Tech continues to argue that they should not pay news organizations anything because their platforms “drive traffic” to the news channels. Artists will recognize this as the “exposure” rationale for piracy, and it takes some chutzpah to keep peddling this nonsense against a backdrop of layoffs and closings. Because it doesn’t take an economist to know that traffic alone does not pay for overhead and salaries—and that’s even if Google et al. actually increase traffic relative to pre-internet readership.

What we know for sure is that a democracy without a robust and free press is in danger of no longer remaining a democracy, and we know that news organizations have historically struggled to be financially sustainable. As the internet industry has done with music, motion pictures, literary works, etc., they sold the promise of access to news and information while siphoning the revenue that pays people to produce that material in the first place. And as we are witnessing in real-time, the vacuum is filled with charlatans, liars, cowards, and thieves. Thus, the proverbial “sunlight” promised by Big Tech is not a disinfectant, but a poorly made pesticide that animates the weeds and kills all the fruit.

Photo source by: Mediaphotos

Recent AI Copyright Lawsuits Are About More than Compensation for Authors

Last week, writer and broadcaster Andrew Keen invited me to his podcast Keen On to talk (of course) about artificial intelligence. When we got to the subject of the New York Times lawsuit against Open AI and Microsoft, I noted that 1) it is arguably the strongest copyright case presented to date against an AI developer; 2) that it would likely result in a substantial licensing deal between the parties; and 3) that it is hard to say what any of this means for journalism going forward. On that same subject, nonfiction authors Nicholas Basbanes and Nicholas Gage filed a class action suit against Open AI and Microsoft on January 5, just over a week after the Times suit was filed.

As discussed in other posts, although generative AI unequivocally poses a threat to authors and authorship, U.S. copyright law is, oddly enough, not quite designed to address the full scope of the social, economic, and cultural challenge of that threat. While this seems counterintuitive, the difficulty lies in the fact that copyright promotes authorship by protecting works against specific means of infringement, and the nail-biting question of the moment is whether “machine learning” (ML) with the use of protected works violates the reproduction right (§106(1)) of the Copyright Act.

Here, the Times case is strong because the news organization presents compelling, side-by-side evidence that its published stories are being output by ChatGPT almost verbatim. This is evidence that not only is reproduction occurring in the AI model, but that the outputs provided to users serve as a substitute for legal access to the Times’s material. The evidence of reproduction establishes a solid claim of infringement, while the evidence of substitution goes against Open AI’s putative fair use defense. In fact, it was the same circuit (the Second) which held that a news service called TVEyes was “slightly transformative” but that it made so much of Fox News’s material available, even in segments, that the substitutional purpose doomed its fair use defense.

Unlike the Times, the nonfiction book authors do not present side-by-side evidence of verbatim copying of their published writings, and this is consistent with some of the other class-action suits. These are the real nail-biter cases, in my view, because the plaintiffs’ cause is just, but their proof of copyright infringement is less demonstrable than the Times (or the Concord v. Anthropic case for that matter). But this focus on both The New York Times and nonfiction authors raises a serious question as to whether AI will exacerbate the already dismal state of information in the information age.

When the early work of this blog started in 2011, one of the issues of concern was the volume of mediocre, careless, or inaccurate reporting and commentary being promulgated under brands normally associated with quality journalism. Here, it must be said that the Gray Lady herself has not always been immune to the digital-age forces of volume and speed that can drive reporters and editors to engage the market on the lowest rungs. But if the stodgy algorithms of social media have animated a new era of yellow journalism, isn’t it reasonable to assume that certain generative AIs will make matters worse? The internet has already fostered more misinformation than a democratic society can safely endure.

If we consider the possible outcomes of the Times lawsuit, one would be that Open AI changes the model to avoid infringing reproduction. While this may satisfy from a copyright perspective, one wonders about the quality and/or purpose of the information being provided by a tool like ChatGPT.  The output of an LLM is the result of probability. The user asks a question (a prompt), and the AI responds that in all likelihood, based on the information fed into an algorithm, this is what you want to know.

It is no wonder the system to date reproduces material verbatim from a major news organization, but if it doesn’t do that, what should it do? Or what can it do that can be called “progress” with regard to news and information? Take a multi-faceted, extremely emotional topic like Israel and Palestine, train an AI on all the solid reporting, all the mediocre editorials, and the cacophony of opinions on social media, and the user of the LLM gets…what? Why would the results be more informative or thoughtful than the veteran journalist doing her best?

Why won’t an AI be worse than “recommendation algorithms?” If YouTube and Facebook foster confirmation bias and shepherd people onto the wild grazing fields of organically grown conspiracies, it seems rational and prudent to assume that an LLM will do the same thing more efficiently. Why have an old-school search engine point you toward a bogus article linking vaccines to autism when you can have a “dialogue” with an ersatz intelligence on the same topic?

Although the nonfiction book authors do not present the kind of evidence of copyright infringement the Times exhibits in its complaint, the facts presented about the authors’ investment of time, expertise, and money makes a point that should be read as more than a mere plea for sympathy. This is not just about job loss for future historians but quite possibly about the loss of history itself.  From the Basbanes et al. complaint:

The archive of primary research materials assembled by Mr. Basbanes in support of his work over a period of forty years, when acquired by Texas A&M University in 2015, filled 365 packing boxes with documents, transcriptions, drafts, field notebooks, photographic negatives, and the like, all acquired by Mr. Basbanes in pursuit of his literary activities, and at his expense and initiative.

It is more than a legal (i.e., fair use) question whether the purpose of a model like ChatGPT is to make new and relevant use of all that work, or whether its purpose is to supplant the historian and the reporter by “feeding off the sere remains of the past,”[1] until it eventually starves. In the former case, licensing and collaborating with authors and journalists seems reasonable, in the latter case, allowing certain generative AIs to die on the vine seems imperative.

[1] From Ralph Waldo Emerson’s speech at Harvard calling for an American literary independence, August 31, 1837.

Photo by: Antonio83

Facebook Blocks Oz. But Why Shouldn’t Platforms Pay for News?

This week, Facebook made good on its threat to block Australian news media on its platform. “Australian users cannot share Australian or international news. International users outside Australia also cannot share Australian news,” MSN reports. The move by the social giant is a hardline tactic designed to make the Australian government blink on proposed legislation that requires both Facebook and Google to pay for Australian news media that are shared across the platforms. Google reportedly has entered into agreements in recent days. For an in-depth analysis, especially from a global trade perspective, see Hugh Stephens’s post.

But acknowledging that the details are somewhere between opaque and invisible in the Facebook v. Oz story, I fail to see why the principle itself is terrribly flawed. Why shouldn’t the major online platforms pay for news media?

Google and Facebook (and potentially other platforms) derive substantial value from all those news stories that are shared across their platforms, but which others produce—often at great cost. Nevertheless, Facebook asserts that it does not need the news media as badly as the news media needs its platform. Perhaps that’s true. But in a statement released this week about the blocking decision, Facebook stated, “This is not our first choice – it is our last. But it is the only way to protect against an outcome that defies logic and will hurt, not help, the long-term vibrancy of Australia’s news and media sector.”

Combine that remark with the familiar generalization that the Australian proposal “misunderstands the internet,” and we are left to wonder if those are Facebook’s best arguments against the proposal. Because if the platform giants have ever been the least bit concerned with the “long-term vibrancy” of the news or any other media producing sectors, they must have been tripping balls when they built their business models. The underlying principle of every major online provider since roughly 2000 has been to monetize the flow of content produced by parties other than the platforms themselves.

Whether it’s someone making a joke or sharing a news story from the Washington Post, it’s all just data flow to Facebook. Very valuable data flow. And while we ordinary users may have volunteered to share personal comments or photos on the platform, the journalists whose salaries depend primarily on advertising revenues, did not voluntarily enter into the arrangement. While I recognize that the devil is in the details as to where the money will end up (i.e. does it pay journalists?), the underlying principle still seems sound.

Is really such a radical proposal that Facebook and Google (and potentially others if they achieve certain scale) pay negotiated fees to news producers? Certainly, the existing model has not done journalism much good, so why must we conclude that more of the same is necessary for the “long-term vibrancy” of the industry, as Facebook puts it? I noticed that Techdirt’s Mike Masnick tweeted his endorsement of Facebook’s rebuke to Australia, opining that the proposed legislation is just corporate welfare for Rupert Murdoch.

Admittedly, I find it difficult to defend journalism so broadly that it encompasses the work product of the Murdoch empire, but Masnick’s response is not wholly satisfactory to the question. What Facebook in particular has done to news—including where it has siphoned off revenue streams—has largely exacerbated the plague of alternate realities now threatening to unravel democratic societies worldwide. More specifically, to the extent that Masnick’s comment represents Facebook’s view, it obscures a much bigger truth:  that the major platforms have long been subsidized by the creators of works in nearly every field. That’s corporate welfare.

If the quotes listed on Yahoo! Finance, or the comments in this BBC piece are any indication, Facebook’s decision is not earning the company any goodwill—particularly in the middle of a global pandemic and brushfire season in Australia. And that’s on top of the fact that Zuckerberg & Co. have so reliably equivocated in its responding to demands to remove toxic disinformation and propaganda. “Well, that’s a tantrum. Facebook has exponentially increased the opportunity for misinformation, dangerous radicalism and conspiracy theories to abound on its platform,” said Lisa Davies, Editor of the Sydney Morning Herald, in response to the Facebook block.

Assuming the Australian proposal is a first test, it will be one to watch. There should be little doubt that if the platforms have to start paying for news in Australia and then the EU, we will see proposals to do likewise in the U.S. And that probably scares the hell out of Facebook and, perhaps Google as well. Presumably, Facebook will argue that the portal they built is so essential that they should not have to pay for any of the content that flows through it. But that seems about as irrational as saying that journalism itself is so important it should be free. Besides, I seem to remember a saying about great power coming with something. What was it again?