Wednesday, June 24, 2009
Commentary
Why China’s leaders need to worry about recent events in Iran: Twitter trumps the Great Firewall
By Peter Scheer
As Iran has its Tianenman moment, no other government is watching events there with more anxiety than China--and with good reason. Both Iran and China are modernizing autocracies committed by a combination of ideology and fear to maintaining control over their peoples’ access to information. And, to a remarkable degree, they have been successful in doing so.
Until now.
Iran’s lesson for China’s leaders is that the technologies of censorship, despite their increasing sophistication, may not be sufficient to prevent determined citizens from using technologies of communication to organize dissent and political opposition on a mass scale. Twitter trumps China’s “Great Firewall.” For the elites in China’s national government, this development must be highly disconcerting.
China has embraced the internet as essential to the country’s rapid economic development. With nearly 300 million persons connected to the web, China has already surpassed the United States as the world’s biggest internet market. But China has gambled that it can have it both ways: it can achieve the high growth rates that a wired economy makes possible, and it can do so without putting at risk the government’s monopoly on political power.
Despite the conventional wisdom that the internet is beyond the control of any government, China’s leaders have placed their faith in technology to maintain their power and to protect against the democratizing “excesses” of the internet. The technology of censorship has included the ability to:
* block access to foreign websites containing content deemed objectionable;
* monitor domestic websites, search engines, blogs and social networks, and to coerce them into submission to self-censorship;and
* engage in wholesale eavesdropping on data communications (email, phone, Skype calls, text, etc.) for hints of views deemed subversive.
By design, this system of censorship is imperfect. Chinese citizens who speak foreign languages, and those who go to the trouble to use proxy servers and other devices for bypassing the government firewall, are connected to the outside world via the internet (albeit at sometimes painfully slow speeds). But this is a very small number, relatively speaking. China’s censorship strategy focuses, rather, on channels of communication--among its citizens and between them and the outside world--that pose a threat of dissent going “viral.”
China understands the potentially awesome power of an amateur video depicting a lone student standing his ground against a tank, or the beating of a Tibetan monk, or the violent suppression of peaceful protesters by police. It is for this reason that access to YouTube is subject to frequent blocking in China, as are Flickr, Hotmail, Blogspot, Live, Wordpress and social networking sites, among many others both inside and outside the firewall.
The experience of Iran, which employs censoring technologies very similar to China’s, is that, in times of domestic crisis, these technologies may not work as advertised. Twitter and Facebook, which many users in Iran access by cell phone over communications pathways different than the internet, managed to escape early efforts by Iranian authorities to shut down access. Words and images on these services galvanized opposition, served as communication tools for organizing the expanding street protests, and provided a window through which the outside world could witness the crackdown.
Chinese authorities should be worried about their own vulnerability. Although they will diagnose and fix the glitches that allowed Twitter and Facebook to escape blocking by Iranian censors, there will be other glitches, different and unpredictable glitches, in the event of popular unrest in China. And even a small glitch will be exploited by legions of hackers and cybersleuths, both in China and in western countries, determined to circumvent the firewall for millions of Chinese citizens.
This is the necessary context for viewing China’s recent, and rather bizarre, directive to computer manufacturers, issued without notice or consideration of alternatives, mandating installation of government-approved anti-pornography software on all new PCs sold in China. The mandated software (the “Green Dam,” produced by a Chinese company), which can be adapted to screen out officially disapproved ideas as well as X-rated images, is a new instrument of control in China’s ever-expanding system of censorship. In addition to restricting the internet sites that its citizens may see, China can use the Green Dam software to control the computers with which its people view the internet.
Although the software project was presumably in the works before the disputed election in Iran, the urgency surrounding the directive (which applies to all PCs sold in China after July 1) and the government’s inflexibility (refusing to allow the use of alternate programs that cause fewer technical problems while meeting the government’s pornography-screening specifications) can best be explained by China’s anxiety over events in Iran.
China’s leaders should worry about the limits on their capacity to preempt challenges to the government’s control of political power. Censorship technology will not insulate the current regime from demands for change. In the end, China must transition--peacefully, one hopes--to a world in which its people are given a choice about how to be governed, and by whom.
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Peter Scheer is executive director of the California First Amendment Coalition (CFAC), which has petitioned the office of the US Trade Representative in Washington, DC, to challenge China’s internet censorship before the WTO. CFAC contends China’s censorship system is an unlawful trade barrier.
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Monday, June 22, 2009
California scholastic press freedom: A work in progress
Plan set to stem censorship of California scholastic press
By Donal Brown
Although California has some of the strongest laws in the country protecting the free speech and press rights of public school students, the Golden State also leads the country in student journalists’ complaints about administrative censorship.
Now efforts are underway to translate the state’s legislative gains into greater editorial freedom and independence in school newspapers’ day-to-day operations.
The nonprofit Student Press Law Center (SPLC) in Washington, D.C. and the California Newspaper Publishers Association (CNPA) are collaborating to educate school administrators about their role in protecting student rights and urging them to assume a more positive role in educating high school newspaper staffs.
In theory if not yet in practice, California law gives student editors and reporters the same freedom from editorial interference by school administrators that a private newspaper has vis a vis government agencies. This means that, except for controls on obscenity and inciting violence or disruption of the school, student journalists are granted broad discretion in addressing controversial issues.
Administrators, under pressure to maintain a smooth-running school, grate under this freedom.
SPLC Executive Director Frank LoMonte says, “By far, the most common justification that schools have cited for censorship remains the same: ‘You’re making the school look bad.’”
“Any story that the principal believes is going to cause her telephone to ring with a complaint form a parent or a school board member has a censorship bulls-eye on it,” La Monte continues. They fear that political winds can shift abruptly causing them to lose their jobs.
Jim Ewert, legal counsel for CNPA, says principals have a cultural set inspired by the doctrine “in loco parentis” that blinds them to free press laws. “They think they can do whatever they want to protect students and that includes censoring the content of newspapers,” he says.
Whatever their motives and in spite of the strong laws, public school administrators in California have often been successful in silencing students. They have fired advisers and shut down newspapers. The principals often claim to be “publishers” to the student “editors,” and therefore empowered to make decisions about the content of student newspapers.
LoMonte says there is nothing in the law that supports that analogy. “…but even if it were, go to any decent newspaper in American and ask them whether the publisher comes into the news department and decides what stories or photos or cartoon can be run. It doesn’t happen.”
Ewert cited the case of Claremont High School in Claremont. In May of 2007 students of adviser Becca Feeney did an investigative story on the administration’s decision to permit probationary and mostly long-term substitute teachers to teach Advanced Placement courses.
When the phone calls began, the principal “went ballistic,” says Ewert. He not only reassigned Feeney, who had been advising for 17 years, but eliminated the journalism class altogether, according to Ewert.
In 2002 another veteran adviser, Janet Ewell, of Rancho Alamitos High School in Garden Grove, was also reassigned. Her students were writing about dirty bathrooms, poor cafeteria food and the failure of teachers to make time to help students before and after school.
She lost her journalism-adviser job but gained some measure of vindication as she joined forces with State Senator Leland Yee (D-San Francisco) and the CNPA to lobby successfully for a law, enacted this year, that makes it illegal to dismiss, transfer or discipline teachers who are protecting the free speech rights of their students.
It is not always such an obvious call for administrators. Students sometimes publish articles with embarrassing, hurtful, mean-spirited information about fellow students. Principals want to protect the victims of such expression.
In 2001 Novato High School journalist Andrew Smith wrote an editorial in The Buzz saying he was “sick” of illegal immigrants “waltzing in and abusing our country.” The principal seized copies of the newspaper that had not already been distributed and established prior review for the newspaper. When Smith sued, the California Court of Appeals found that he had been wrongfully punished under California scholastic journalism laws. Both the California Supreme Court and the U.S. Supreme Court denied the school district appeal. Ultimately the district was responsible for $336,350 in fees for Smith’s attorney.
Novato High School students did protest Smith’s editorial and certainly under the editorial policies of most student newspapers could have expressed their opinions about the issue in guest editorials or letters-to-the editor of the newspaper.
In keeping with the tradition of the open forum, Ewert favors an approach that emphasizes education over punishment and censorship. He says that administrators should look to the example of Tokay High School in Lodi.
Students there reported that a tiger logo on campus had violated copyright, bringing a cease and desist order from the NCAA. However, the students had falsely written that a coach and previous athletic director had authorized painting the logo on the gym floor.
The students were prevented from distributing the newspaper while the principal brought in experts to talk with the students about the law of defamation. The students were then allowed to reprint and distribute the newspaper without the allegedly libelous statement.
With the budget crisis looming, the SPLC and CNPA knew that state legislation requiring districts to incur new expenses for such training of administrators would not stand a chance of passing. So they developed a pilot proposal to go into one urban and one rural school to provide training and tips on how to settle free press disputes. They are now in the process of funding the pilots.
Once the pilots are evaluated, the next step will be to develop a program that could be presented to administrators at a state-wide conference. That proposal would establish free press training for administrators in all California districts.
LoMonte sees a great need for such training. He says, “The common denominator in all censorship cases is cowardice and ignorance at the top. If the principal or superintendent had the guts to tell the angry caller, ‘I’m sorry that you are offended, but that is what’s great about the First Amendment – that people get to say things that offend other people without being punished by the government – so surely you understand that I can’t punish kids just for offending you,’ we wouldn’t have nearly so many problems.”
LoMonte believes the newspaper experience has the potential to provide valuable education for citizens in a democracy.
“If we think school is about teaching critical thinking skills and good citizenship skills, which is what the Supreme Court said in the Tinker case, then we can’t run the newspaper like it’s Pravda in the 1970s,” says LoMonte.
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Tuesday, June 16, 2009
China Censorship
FOR IMMEDIATE RELEASE
US Urged to Begin Trade Action Over China Directive to Install Censorship Program in all PCs
Washington, DC--- The California First Amendment Coalition today called for the Obama Administration to initiate an international trade action against the Government of China unless China withdraws its newly imposed requirement to have censorship software installed on all personal computers sold in China.
The requirement that special censorship software be “pre-installed” on computers sold in China, reported originally by the Wall Street Journal, is due to take effect by July 1. The directive would apply to US computer companies, such as Hewlett-Packard and Dell, that are major exporters of computers to the Chinese market.
“This takes the Chinese internet censorship effort to a new level,” said Peter Scheer, the Executive Director of the California First Amendment Coalition. “Now, in addition to having a firewall on all internet traffic coming into China--a bad enough practice--China will require that each and every computer in the country have it’s own internal firewall, which will evidently be subject to manipulation by government censors.”
The California First Amendment Coalition has spearheaded an effort to have the US government bring trade action against China because of its direct censorship of internet websites and search engines. The Coalition last year petitioned the US Trade Representative ("USTR") to begin a WTO case against China based on the fact that such censorship discriminates against U. S. internet-based companies.
Gilbert Kaplan, partner at King & Spalding, a law firm in Washington D. C. and counsel to the California First Amendment Coalition, commented: “Censoring the internet creates major commercial problems for one of the key businesses in the US: internet services. The imposition of a mandatory censorship program in each computer is an unacceptable assertion of government control and will harm U. S. computer companies in their efforts to sell computers in China.”
Kaplan continued: “We need to learn more about the program, but it appears to create a Hobson’s choice for U. S. computer companies: either install censorship programs--which contradict basic American values--in their products, or cease selling computers in one of the largest markets in the world.”
In announcing the new directive, the Chinese government defended the compulsory use of censorship software as necessary to curb access to pornography. However, experts have been quick to point out that the same software can be used to block access to websites deemed offensive purely because of their political content.
“It’s hardly a coincidence that the new software-installation requirement comes at the same time that Chinese censors have been redoubling their efforts to block access to news sites like BBC and legitimate file-sharing and blogging services,” said Scheer.
For further information, please contact:
Peter Scheer, Executive Director, California First Amendment Coalition
415-460-5060
or
Gilbert Kaplan, Partner, King & Spalding
202-661-7981 (office) or 202-997-1351 (cell)
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Database lawsuit settled
FOR IMMEDIATE RELEASE:
CFAC AND MAPLIGHT WIN PUBLIC ACCESS TO CALIFORNIA DATABASE OF LAWMAKERS’ VOTES
BERKELEY, CA, June 16 —The California First Amendment Coalition (CFAC) and MAPLight.org, a nonpartisan, nonprofit research organization that shows the connection between money and politics, announce today that they have settled their freedom of information lawsuit against the Office of Legislative Counsel of California, having gained the object of their suit: a machine-readable database of how state lawmakers vote.
“It shouldn’t take a lawsuit for the government to realize its data belongs to the people,” said Daniel Newman, MAPLight.org’s executive director. “In this new era of highlighting transparency, we hope this settlement serves as an example to city and state governments across the country to provide public access to public information.”
California Legislative data, including how lawmakers vote, legislation in progress, and laws, was previously available to the public only in a plain-text format on the California Legislative Information website. That data was suitable for viewing and printing, but only allowed access to Legislative data at a rate of one bill at a time, making analysis lengthy and cumbersome.
“No longer can legislators use the complexity of the legislative process, and the sheer volume of bills and votes, to hide the favors they are doing for special interests that fund their elections,” said Peter Scheer, executive director of CFAC. “The more voters know about the influence of money on their elected representatives, the less tolerant they will be.”
CFAC and MAPLight.org requested copies of the electronic database used to create the website, but the Office of the Legislative Counsel refused their requests, and in December 2008 the two groups filed a lawsuit under the California Public Records Act (PRA) to obtain the electronic database records.
Shortly after CFAC and MAPLight.org filed their lawsuit, the Office of the Legislative Counsel introduced on its website a “structured database” which contains information about Legislators’ votes in a structured, machine-readable format. Having concluded that the newly-available database not only contains the same information previously available on the text-based website, but is updated in a timely manner and maintained in a format that lends itself to use and analysis not only by CFAC and MAPLight.org, but by any interested member of the public, CFAC and MAPLight.org entered into a settlement agreement with the Office of the Legislative Counsel.
As part of the settlement agreement, which is effective today, CFAC and MAPLight.org agreed to dismiss their lawsuit and agreed that they will not re-file any similar suit so long as the Legislative Counsel maintains the recently-created “structured database” at the same useful functional level at which it exists today. The new database can be downloaded by any member of the public at http://www.leginfo.ca.gov.
“Governments are increasingly maintaining information about their activities in sophisticated electronic formats, and the public is entitled to that information in those same sophisticated formats,” said Rachel Matteo-Boehm, a partner at Holme, Roberts & Owen LLP in San Francisco who represented CFAC and MAPLight.org in the PRA lawsuit. “We are pleased that the Office of the Legislative Counsel has recognized this as well.”
The settlement agreement also provides that the Office of the Legislative Counsel will release another database, known as the “Inquire” database that MAPLight.org and CFAC seek to review. The agreement also stipulates that the Office of the Legislative Counsel will pay $65,000 towards MAPLight.org’s and CFAC’s attorney’s fees.
MAPLight.org will use the structured database to create a new government transparency website, MAPLight.org California. The website will be modeled after the award-winning MAPLight.org Congress website, which provides journalists, citizens, and non-profit groups with a host of government transparency tools, including a Money and Votes database that shows the connection between campaign donations and legislative votes. MAPLight.org California’s free online database will combine all money given to members of the California state legislature with how each politician votes on every bill, revealing patterns of money and influence never before possible to see.
Background: On July 1, 2008, MAPLight.org requested basic bill information (bill text, bill history, bill status, legislator voting records, legislative calendar, etc.) in electronic database format from the California Office of Legislative Counsel for use in its MAPLight.org California website. MAPLight.org’s request was made pursuant to the organization’s rights under the PRA, the Legislative Open Records Act (LORA), and California Government Code 10248, which states that the Office of Legislative Counsel is required to make available, for each current legislative session, certain bill information in electronic format. On July 16, 2008, MAPLight.org’s request was denied.
On August 15, 2008, CFAC Executive Director Peter Scheer sent a letter to the Office of Legislative Counsel, under the PRA and LORA, requesting a copy of the same records requested by MAPLight.org. On August 18, 2008, CFAC’s request was similarly denied. On October 9, 2008, legal counsel for CFAC and MAPLight.org had a telephone conversation with the Office of Legislative Counsel asking them to reconsider their denial of the PRA requests. On October 23, 2008, legal counsel for CFAC and MAPLight.org had a subsequent conversation with the Office of Legislative Counsel in which counsel was informed that the requests were denied. On December 3, 2008, CFAC and MAPLight.org filed their PRA lawsuit in the Superior Court of California, County of Sacramento.
About CFAC: CFAC is an award-winning, nonprofit, nonpartisan public interest organization dedicated to advancing free speech, more open and accountable government, and public participation in civic affairs. The Coalition’s activities include: strategic litigation to enhance First Amendment rights for the largest number of citizens; free one-on-one legal consultations for journalists, activists, academics and ordinary individuals frustrated in the exercise of their First Amendment rights; educational and informational programs offered online, in books, and in conferences; legislative oversight of bills affecting access to government; and public advocacy.
This is one of a series of legal cases that CFAC has recently filed to break down monopoly control by government agencies over electronic information created with tax dollars. For more information, go to: http://www.cfac.org.
About MAPLight.org: MAPLight.org is a nonpartisan, nonprofit, 501(c)(3) organization based in Berkeley, California. Its mission is to illuminate the connection between Money and Politics (MAP) using our groundbreaking database of campaign contributions and legislative votes. MAPLight.org combines data from the Federal Election Commission, the Center for Responsive Politics, GovTrack.us, the National Institute on Money in State Politics (NIMSP), the Los Angeles City Ethics Commission and other sources to better inform Americans and local and national media about the role of special-interest money in our political system. Hundreds of newspapers, TV stations, radio shows and online news sites have cited MAPLight.org’s research, including CNN, the public radio show Marketplace, Harper’s magazine, The Washington Post, Reuters, and The Wall Street Journal. MAPLight.org has received numerous awards including a Knight-Batten Award for Innovations in Journalism; a James Madison Freedom of Information Award from the Society of Professional Journalists, Northern California Chapter and a Webby nomination for best Politics website. To learn more, visit: MAPLight.org.
Media Contact:
MAPLight.org
Pamela Heisey
Communications Director
pamela@maplight.org
Mobile: 415.299.0898
CALIFORNIA FIRST AMENDMENT COALITION
Peter Scheer
Executive Director
ps@cfac.org
415.460.5060
Mobile: 415.505.5024
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Tuesday, May 05, 2009
Commentary—Secrecy in the courts
Secrecy in the courts: How to get judges, lawyers and Sharon Stone to follow the rules?
By Peter Scheer
With one unforgettable gesture--the uncrossing and crossing of her legs—actress Sharon Stone famously demonstrated that, physically speaking, she has nothing to hide. Her legal affairs, however, are another matter.
Despite court rules mandating openness in judicial proceedings, Stone was recently allowed to file a suit in Los Angeles Superior Court under conditions of secrecy so strict they would make the CIA blush. According to the Los Angles Times, which exposed the Stone suit, even the existence of her case had been erased from the public record.
Secret justice is an oxymoron. In America, the courts’ business is the public’s business. Public access serves to safeguard the parties’ right to a fair trial and citizens’ right to be informed about a judicial system meting out justice in their name. So the US Supreme Court has held, and so the California Supreme Court has held, in repeated decisions narrowly circumscribing judges’ discretion to close off court documents and hearings from public view.
Although these decisions (and a California procedural rule codifying them) could not be more clear, they are regularly ignored by both lawyers and judges. Stone’s lawsuit is a case in point. Despite the actress’ celebrity, her secret suit was a garden variety breach of contract claim involving no issues or evidence of special sensitivity. The lawyers wanted the case sealed, and the judge accommodated, merely to avoid the inconvenience of litigating publicly.
Why the widespread disregard for rules against secret justice?
One reason is that there are no adverse consequences for noncompliance--even when one is caught. A trial court’s rulings on evidence and a host of legal issues may, if challenged on appeal, result in the overturning of the court’s judgment. That is an adverse consequence that gets the attention of a judge. But there are no similar risks associated with the improper sealing of records or clearing of a courtroom. Those legal errors are deemed “harmless” because they are presumed not to affect the correctness of the trial court’s final judgment.
Another reason: The issue of secrecy almost always arises in a setting in which all of the parties---plaintiffs and defendants--have in common an interest in excluding the public. In criminal cases, prosecutors want to protect witnesses or avoid publicity that could trigger a change in venue, while defense lawyers want to protect their clients’ reputation.
In civil cases the dynamic is similar. Both sides to business disputes typically favor limiting public access in order to protect their respective “trade secrets.” In personal injury cases, plaintiff’s lawyers often want secrecy (with its implicit threat of disclosure) as leverage for a settlement, while defense lawyers favor secrecy because they’re concerned about harm to their clients’ business interests.
Although the parties to these cases may be in accord about sealing records or taking other steps to pull a curtain around their case, conspicuously absent from this consensus is anyone who speaks for the public interest.
In theory judges should play that role, compensating for the absence of an advocate for the public. In reality, however, they rarely do. Judges are loath to push back when counsel for all parties—who usually can’t even agree on what day it is—present the court with a gift-wrapped secrecy agreement, in the form of a stipulation, ready for the judge’s signature.
Traditionally it has fallen to the press to crash this party and object on behalf of an absent public. But court procedures make this very costly. A news organization must hire a lawyer who first has to intervene in the case and establish standing before being allowed to tell the court what it already should know—namely, that the secrecy sought by the parties is patently illegal.
While never fully satisfactory as a counterweight to the parties’ mutual interest in secrecy, reliance on the media as a check no longer works. News organizations, many of which are now staring into the Chapter 11 abyss, are not able to fulfill this role.
What to do?
A few modest steps would go a long way to enforcing the Supreme Court’s openness rules. One possibility: To impose sanctions against counsel who obtain a protective order on grounds that are clearly deficient under applicable rules. Consideration should also be given to requiring notice to news organizations (and other self-selected interested parties) of secrecy motions, and permitting them to weigh in quickly and inexpensively, through letters to the court or appearance by nonlawyers.
California has long had judicial openness rules that are exemplary—on paper. The time has come to insist that they be followed.
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Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition This Op-Ed also appeared in the San Francisco Chronicle, the Huffington Post, and the Los Angeles and San Francisco Daily Journal newspapers, among other locations.
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Monday, May 04, 2009
CFAC News—Las Vegas Sun
Las Vegas Sun series on construction deaths wins CFAC Sunlight award
By Donal Brown
The California First Amendment Coalition today announced that the 2009 Sunlight Award has been given to reporter Alexandra Berzon and the Las Vegas Sun for an investigative series of 50 articles on the high rate of accidental deaths among construction workers at a huge casino construction site on the Las Vegas strip. The Sunlight Award, given jointly by CFAC and the Associated Press, recognizes journalistic excellence in news coverage that uses government records obtained through the assertion of freedom of information rights.
Berzon’s 2008 articles for the Sun exposed the high death rate among construction workers caused by lax safety rules and the rush to build quickly. The newspaper reported that 12 workers had died within 18 months. The series resulted in new safety measures that dramatically reduced deaths and other injuries among construction workers.
The same Sun effort also won this year’s Pulitzer Prize for Public Service, announced earlier this month. The Pulitzer board said the series exposed “the high death rate among construction workers on the Las Vegas Strip amid lax enforcement of regulations, leading to changes in policy and improved safety conditions.”
The CFAC judges praised the series “for the willingness to take on entrenched interests; for the successful use of FOI laws to obtain crucial records; for the effective use of online presentation and interactive features; and for obtaining stunning results: changes in safety practices and enforcement that appear to have made these jobs far safer.”
The Sacramento Bee was a close second-place winner for its extensive investigation of Sacramento’s Child Protective Services agency. Using a new access law, the series demonstrated that changes to the agency prompted by an earlier expose have done little to protect children from serious harm, and even death, caused by criminally abusive parents and other care givers. CFAC judges commended the Bee’s “dogged” pursuit of this important and controversial news story, which has generated multiple investigations.
“The Sun’s and Bee’s stories demonstrate what can happen when enterprising reporters vigorously insist on their rights under access laws,” said former newspaper publisher and long-time CFAC Board member, Rowland Rebele.
The Sun, as winner of the Sunlight award, will receive a prize of $500.
CFAC judges were CFAC board members Rebele; James M. Chadwick, CFAC Board President and attorney with Sheppard Mullin; Paul Gullixson, editorial page editor, Santa Rosa Press Democrat; Edward Davis, San Francisco media lawyer; and Dick Rogers, former reader representative of The San Francisco Chronicle, and Executive Director Peter Scheer. Donal Brown, retired journalism teacher and CFAC volunteer, was also one of the judges.
The Sun’s series also won the top newswriting prize in the Associated Press California/Nevada Newswriting and Photo Contest, celebrating the best print journalism of 2008 by AP member newspapers in the two states.
The AP award to Berzon and the Sun was one of many in the annual AP competition which featured 59 categories across four circulation divisions.
The Las Vegas Sun series can be found at:
http://www.lasvegassun.com/news/topics/construction-deaths/
The Sacramento Bee stories are available here:
http://www.sacbee.com/ourregion/story/1030603.html
http://www.sacbee.com/ourregion/story/1032325.html
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Wednesday, April 15, 2009
Commentary—Information wants to be free
Information wants to be free, but the creators of information need to eat. Whether to charge for journalism online is fundamentally a question about legal rights.
By Peter Scheer
A debate rages in what remains of the newspaper industry over the question of whether papers should charge for their content online or, as most papers now do, give it away for free in hopes of reaping faster overall revenue growth through internet advertising. As more and more publications contemplate their own obituaries, they are taking another look at the option of charging readers--whether through subscriptions or article-by-article “micro-payments"--for the content on their websites.
Information wants to be free, but the creators of information also need to eat. Which of these competing impulses ultimately prevails, although partly a business issue and partly a technology issue, is fundamentally a legal issue. To charge for access to editorial content, a content owner has to have the legal right to prevent competitors from offering it (or as much of it as customers are willing to pay for) for free. And thanks to the vagaries of intellectual property law, the boundaries of this “right” are, at best, unclear.
To illustrate, suppose the New York Times moves all its content behind password protection and initiates a monthly subscription plan. And suppose news aggregation web sites like Drudge Report, Huffington Post, newser, Breitbart, and, yes, Google News (the latter using computer algorithms, rather than journalists, to select news articles) republish on their sites the headline and first one or two paragraphs of the Times’ daily stories (giving the Times credit, but, alas, no money).
Put aside the argument, advanced most persuasively by Google, that this practice is good for the Times because it creates Times’ readers the paper wouldn’t have gotten on its own. Does the Times, which owns the copyrights and whose editors and reporters created the articles, have the right to stop these unauthorized uses, which--let’s assume--are undercutting its effort to charge for its content?
Maybe yes, maybe no.
The answer depends on the application of “fair use,” a doctrine of copyright law that basically blesses (what otherwise would be infringing) uses of a copyrighted work when the uses are both insubstantial and deemed to be in the public interest (based on various statutory criteria). This maddeningly vague doctrine, whose application depends on the specific facts of a case, is a lawyers’ dream because it requires virtually every dispute to be litigated.
Hypocrisy abounds on this issue. Fair use is championed by struggling artists because it allows them to incorporate others’ work (for example, independent filmmakers’ use of file footage) without paying extortionate use fees. However, the same artists, once they become successful, complain bitterly about fair use because it allows the next generation of struggling artists to borrow their content without permission.
But back to our hypothetical: Even if the Times sues and succeeds in stopping competing news sites from copying the headline and lead paragraphs of its articles, those news sites can still avoid copyright liability by re-writing the headlines and tops of the Times’ stories. Changing the wording--the “expression"---while retaining the essential idea or news information of the original, removes the copyright threat altogether. Copyright does not protect ideas or facts, just the way they are presented.
The Associated Press, which lately has taken to grumbling about news sites’ ripping off its stories, will have an uphill court battle trying to block online competitors who go to the trouble of rewriting AP’s headlines and the top one or two paragraphs of its stories. But AP, which is owned by its newspaper-members, and already has licensing agreements with Google and Yahoo, may have a narrower objective.
Currently, news sites linking to AP stories benefit only the individual newspaper to which the links happen to point—often, quite arbitrarily. AP, if it can’t stop other sites’ use of its content, may try at least to gain control over how traffic generated by these sites is allocated among AP’s member newspapers. In effect, AP’s members want more of AP’s internet-derived revenue. It doesn’t necessarily follow, however, that AP can demand more revenue from online users of its stories.
Where does the “fair use” problem leave newspapers and other publications (print or online) that want to charge for their content on the internet, having failed to create a viable business out of an advertising-only revenue model? It seems clear that they will not be able to block online competitors that pay editors to rewrite their headlines and content, as more and more news aggregation sites are now doing.
This is bad news for:
-- Publications consisting mostly of articles whose primary economic value--meaning, what readers will pay for--is summed up in a story’s headline and lead paragraph. This category covers many (but not all) metropolitan daily newspapers, as well as AP, Reuters and some other wire services.
But this is good news for:
--Publications that specialize in long-form journalism to which readers are drawn because of the quality of the writing (e.g., the New Yorker, Wired Magazine, and some parts of major daily newspapers).
--Publications whose content is dense with information of value to a discrete audience, defined geographically (e.g., local newspapers in small communities) or professionally (e.g., investors).
--Publications, including blogs, that are heavy on both opinions and thoughtful arguments, not easily summarized, to support them.
Newspapers and other publications, in deciding whether or not to charge for their content online, must ask the question whether they have the legal right to block others from giving their content away. If the answer is no, their only option is to double down on their internet advertising wager. If the answer is yes, more power to them.
===
Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition. To comment on this article,
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Friday, April 10, 2009
Opinion
Newspaper finance crisis: Nonprofit model no panacea but may be part of the answer
By Donal Brown
Like the economy generally, the newspaper industry’s financial crisis deepens daily with reports of bankruptcies, layoffs and closings. The prospect that this downward spiral could leave the country, or large parts of it, without a vigorous press to uncover news of vital interest has fueled interest in alternative business models--notably including the model of nonprofit organizations.
At a time when private investment capital is unavailable, the restructuring of newspapers and other media as nonprofits, able to attract philanthropic support to sustain professional journalism, is an idea that deserves to be taken seriously. It is no panacea, however.
Not surprisingly, the nonprofit model has both critics and supporters. The former have raised the concern that under the nonprofit model, newspapers would be beholden to their donors. Some fear that formally nonprofit news organizations would no longer be able to exercise editorial independence.
University of Missouri journalism professor Tom Warhaver, however, says that that concern is overblown. Warhaver is an editor of the nonprofit community newspaper, The Missourian, funded in large part by the University of Missouri. With different ownerships and sources of funding, there will always be pressures on the newsroom. Warhaver says, “As a day to day matter, no one calls and says you can’t do this story or that story.”
Government may pose a bigger threat to the independence of nonprofit newspapers. Federal tax law bars nonprofits generally from endorsing political candidates. A Senate bill, introduced March 24 by Democrat Benjamin Cardin, authorizes newspapers to operate as nonprofits but clarifies that the ban on political endorsements would apply to such restructured news media.
Still, if Congress can make an exemption for Major League Baseball to the anti-trust laws, it could exempt nonprofit news agencies from the prohibitions on endorsing political candidates. Whether as nonprofits or for-profits, newspapers’ unmuzzled participation in political debates--including endorsement of candidates and legislation--is crucial to vigorous debate. It should be encouraged, not curtailed, by federal law
Nonprofit status, however, is unlikely to provide a one-size-fits all solution to the industry’s economic woes. Existing nonprofit publications have had to downsize and seek economies to remain financially sound. Warhaven said that, after running a deficit in 2008 of close to $100,000, The Missourian dropped its weekend edition (circulation, 42,000), thus achieving savings in newsprint and staff costs, while also receiving an increase in the subsidy from the University.
The St. Petersburg Times, owned by the nonprofit Poynter Insitute, cut its staff from 430 to 300 by 2000. And just recently the Institute’s profitable Congressional Quarterly Inc. was put up for sale to generate revenue to operate the Times.
Converting to nonprofit status will also not help newspapers suffering from deteriorating editorial standards or failed formulas. Some claim that dumbing down the news with shorter articles or devoting too much content to soft news have hurt circulation numbers. Publishers should rededicate themselves to rigorous, in depth reporting of issues vital to their local communities and the nation.
Yet newspapers like the San Francisco Chronicle may be too far gone for the nonprofit model to make a difference. That’s because it has not found a its way in the varied communities of the Bay Area. The Chronicle may have relied too heavily on its veteran columnists and reporting on San Francisco culture at the expense of stories of interest to readers outside city limits.
Still, revenues are declining through no fault of newspaper staffs. When newspapers were seen as profit-generating entities, unreasonable expectations commanded the stage.
Monica Bauerlein, co-editor of the nonprofit Mother Jones magazine, finds great advantage in being free of demands for profit and growth. She says, “Our troubles really began when people started to think that newspaper presses could also print money, and the business became the province of investment bankers.”
As we saw with Knight Ridder, the profitability of its newspaper interests did not prevent stockholders from demanding changes when they saw stock prices decline. That meant selling off such profitable newspapers as the Miami Herald.
It would be too much to suggest that the nonprofit model is the holy grail of newspaper finance. Some newspapers such as the New York Times and the Washington Post might be able to survive with huge endowments similar to those that sustain elite private universities. Given their importance on the national scene, it is conceivable that foundations and wealthy individuals such as Bill Gates would respond to the crisis with billions of dollars in grants.
That won’t won’t be an option for many newspapers. There is already plenty of competition for private donor money. If a significant number of newspapers, from small town weeklies to major metros, join the competition, the resources will be stretched to no one’s satisfaction.
Warhaver thinks that there is no one answer but a bunch of little answers. He says, “I am still hopeful technology will help us rather than hurt us.” He wants to find a way to make the databases of the news business profitable.
He also sees promise in e-reader technology. He says reading devices like Amazon’s “Kindle” do not now work for newspapers because their size is wrong and they lack color, but already two barriers have been overcome: the clarity issue and battery life.
With additional innovations, newspapers might find a new means of distribution. It is comforting to have the New York Times delivered every morning before breakfast, but the Times itself says it could provide each of its loyal 830,000 subscribers with a Kindle for a little less than half of what it costs to print the paper on newsprint and then haul it to readers by truck.
Bauerlein agrees with Warhaver that newspapers need multiple sources of funding, including some from realms outside the organizations’ mission statement. “…Back when I lived in Minnesota, we were all jealous of Minnesota Public Radio’s success selling merchandise through its for-profit catalog operation…,” says Bauerlein.
Bauerlein describes the approach as “hybridization,” a mix of revenues from advertising, donations, subscriptions, merchandising, and sponsorships. She sees no difficult in adapting the model to large or small operations. The key, she says, is to maintain a sense of civic mission.
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Donal Brown is a teacher and journalist
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