Month: November 2008

Posted on By Patrick Maines

The Media and the Economy

Virtually everyone who’s taken an objective look at the subject agrees that media coverage of the presidential race was tilted in favor of president-elect Obama. The latest to make the claim is Time magazine’s Mark Halperin, who last week characterized “extreme pro-Obama coverage” as “the most disgusting failure of people in our business since the Iraq war.”

Late last month, a study by the Pew Research Center found that by a margin of 70%-9% (including over 60% of Democrats and Independents), Americans said journalists wanted to see Obama win on November 4. Even the Washington Post’s ombudsman, Deborah Howell, corroborated the charge. “Readers,” she said, “have been consistently critical of the lack of probing issues coverage and what they saw as a tilt toward Democrat Barack Obama. My surveys, which ended on Election Day, show that they are right on both counts.”

So for 70% of the people of this country, the media’s performance was noted. And for 46%– those who voted for McCain– it was noted and resented, thereby further alienating a large part of the audience of the foundering newspaper and broadcasting industries, a woeful aspect of contemporary journalism that’s been mentioned here before.

But there’s another feature of the media’s campaign coverage that is the subject of this note, also mentioned here before: the failure of political reporters generally to focus their coverage on the issue which mattered most– the extraordinary financial and economic crisis, and what, if anything, the candidates knew, or proposed to do, about it.

An item reported on Bloomberg shapes the problem nicely: “Obama’s program will be far larger than the $175 billion package of tax cuts and stepped-up government spending he proposed just a month ago. Some of his advisers, and Democratic Senator Charles Schumer of New York, have suggested a figure of $700 billion.”

In a country in which trial lawyers routinely work their will on juries comprised of people who have no conception of the difference between, say, a million and a billion, the difference between what Obama was saying then and what his aides are saying now may seem to many like no big deal.

But as people come to understand, however imperfectly, that this is a piper they’ll have to pay, they may look upon the matter differently, especially if the effects of the stimulus and bailout plans don’t come in time or in numbers sufficient to save their jobs, or homes, or life savings.

There is no suggestion here that substantial and intelligent media coverage of the economy would have changed the election results. For that to have been the case, even in theory, would have required an opponent with a far stronger grasp of economic issues than John McCain, about whom it may fairly be said that no presidential candidate in recent history was more inarticulate or unpersuasive.

But by their neglect of the economic issue, political reporters disserved the nation as a whole, and left the people utterly unprepared to vet the candidates’ economic proposals, then or now. That they did this while also clearly favoring Obama just adds journalistic insult to civic injury.
 

Posted on By Richard T. Kaplar

Digital Copyright Questions Deserve Answers

The U.S. Supreme Court has an opportunity to chart a clearer course for copyright protection in the digital age if it agrees to hear a case from the U.S. Court of Appeals for the Second Circuit.  The matter involves a video-on-demand service offered by Cablevision Systems, and allegations by Cable News Network that the service constitutes the unlawful copying and public performance of copyrighted works.

The case raises at least two serious and unresolved issues.  First, who is responsible for making a copy of protected content?   The cable customer who makes a selection from the cable company’s video-on-demand service?  Or the cable company itself, for putting in place and making available the automated software that allows the customer to make that selection?  

Second, what constitutes a public performance?  Is a video-on-demand program viewed in the privacy of one’s family room a public performance?

Such issues are important because they go beyond the narrow scope of video-on-demand and touch on broader questions of how digital technology will be used to produce, store, transmit, and copy content across a variety of platforms – and how that content is to be protected in this digital environment.  Once again technology has far outpaced law and regulation, and is striding ahead in territories still largely uncharted.

How the courts map that territory will depend on how much value they place on protecting the creative rights of copyright holders.  Meanwhile, the digital age in general and the Internet in particular have generated a new class of content users (including many college professors) who believe that anything goes when it comes to obtaining and sharing copyrighted material.  (Remember Napster?)

In the Cablevision matter, however, professors of a different stripe have filed an amicus brief urging the Supreme Court to take the case.  Led by copyright guru Prof. Raymond Nimmer, this group of six law professors and one economics professor (all with impeccable intellectual property credentials) argue that creative rights are worth protecting and that the law should come down on the side of copyright owners.  (Two of the group, Dean Rodney A. Smolla of the Washington & Lee University School of Law and Prof. Stan Liebowitz of the University of Texas at Dallas, sit on the advisory council of the National CyberEducation Project, a program of The Media Institute.)

I agree with these professors, that the Supreme Court needs to take this case for the sake of digital information systems going forward.  I further agree that copyrights are essential – and that copyright protection needs to be clarified in this digital age.   

Posted on By Patrick Maines

Call Me Ishmael

In Herman Melville’s novel, Captain Ahab’s obsession is with Moby Dick.  In the morality play that’s been running for years at the FCC, Chairman Kevin Martin’s obsession is with “a la carte” for cable TV.   Missing from this analogy is a communications lawyer as the novel’s Elijah — "ye shall smell land where there is no land” — perhaps because so few of them are into allegory and none say “ye,” but I digress.

The latest chapter in this struggle between good and evil took place last Thursday when, at the point of a gun, 13 cable companies provided the FCC with information, I blanch to say, about their shifting of channels to digital tiers.  Did I just say digital tiers?  Yes I did, and who wouldn’t want to investigate something like that?

For a matter of such gravity, however, it does seem, as the NCTA argued, a wee bit prejudicial and a skosh abrupt for the FCC to have sent its request from the Enforcement Bureau, and to demand the data in 14 days.  Not eager to be fined, all of the companies did in fact respond by the deadline, but it remains to be seen if the FCC will accept their responses as adequate.

This, because according to press accounts, at least some of the respondents were chary about parting with confidential information relating to their deals with program suppliers, and gobsmacked by the sheer volume of the material requested.  Comcast, for instance, estimated it would take 1,500 man hours just to compile the data for 2008.

Whether the agency accepts the companies’ reports or not, however, it’s clear that this is one fishing expedition that’s not going to end here.  Aided and abetted by such as Commissioner Copps, Kevin Martin is hell-bent, you’ll pardon the expression, on saving consumers from fleeting expletives on broadcasting, and all manner of indecent programming on cable TV, and his solution for the latter is a la carte pricing.

So, as with the captain of the Pequod, the order from the captain of the FCC is sure to remain, for at least a little while longer, “steady as she goes."

Posted on By Patrick Maines

Obama Names FCC Transition Team

President-elect Obama has named the members of his FCC transition team.  They are Professors Kevin Werbach and Susan Crawford.

Here is an election day post from Mr. Werbach’s weblog, and an earlier one in criticism of John McCain’s technology plan.

Susan Crawford’s blog also yields two interesting items — one in re the "white spaces" issue, and the other Google’s deal with book publishers.

First impression: If the new FCC reflects the thinking of the transition team members, it’ll  be happy days for proponents of net neutrality.

 

Posted on By Patrick Maines

Fairness Doctrine Redux?

It comes as no surprise that Senator Charles Schumer (D-N.Y.), perhaps the most partisan politician in America, has indicated his support for a reinstatement of the Fairness Doctrine.  Neither is there any surprise in the reasoning he conjures up for the purpose.

As he told Fox News last week: “The very same people who don’t want the Fairness Doctrine want the FCC [Federal Communications Commission] to limit pornography on the air.  I am for that….  But you can’t say, ‘government hands off in one area’ to a commercial enterprise but you are allowed to intervene in another.  That’s not consistent.”

A piece published here in August (Conservatives and the Media) warned conservatives of the danger in promoting governmental restrictions on indecent speech because it would undermine their efforts in opposition to governmental restrictions like the Fairness Doctrine.

“Through [his] Media Research Center," it said, "[Brent] Bozell is mobilizing his troops to fight against the … [Fairness Doctrine], but because of the pro-regulation stance of his Parents Television Council there are real questions about how much credibility his anti-Fairness Doctrine activities will have.”

Senator Schumer’s comments breathe  a kind of Frankensteinian life into that warning.  Moreover, there is both a logical and precedential plausibility to what he says.  If government can regulate some kinds of speech, why can’t it regulate other kinds of speech?

The simplest and best answer to that question, of course, is that government shouldn’t be regulating any kind of constitutionally protected speech — a point that Senator Schumer is smart enough to understand but not honorable enough to acknowledge.

For all the talk of it, the view from here is that it is unlikely that, in the end, Democrats and “progressives” will push for reinstatement of the Fairness Doctrine per se — just too much trouble to promote the thing openly.  More likely they will try to find another, more opaque way of accomplishing the same result.

As reported in Broadcasting & Cable, Senator Benjamin Cardin (D-Md.) may have inadvertently suggested as much.  “Asked if he would support reimposition of the rule, which was jettisoned as unconstitutional in 1987 and is credited with the rise of conservative talk radio, Cardin did not rule out some review of media coverage.  ‘I don’t think we’re going to get to it in the manner in which you are explaining it,’ he said.  ‘I think we do look at making sure that our system is not biased….’”

Posted on By Richard T. Kaplar

Digital Politics Comes of Age

Pundits, pols, and political scientists will spend months and years dissecting this presidential election.  But one fact is unmistakably clear: We have seen the future of politics.  And it’s digital.

Digital technologies played a bigger and more decisive role in the outcome of this election than ever before.  For a confluence of reasons, they worked spectacularly well for Barack Obama.

Consider some of the particulars: The respective campaigns relied on sophisticated marketing data from commercial firms that tracked Internet viewing habits, political leanings, and issues of interest to likely voters.  In addition to making it easy to donate money online, the candidates’ websites placed cookies in visitors’ computers, making it easy for the campaigns to keep track of potential voters and to target them at the online sites they were likely to frequent.

The campaigns collected the cell phone numbers of thousands of participants at political rallies and the national conventions.  They set up dedicated social network sites for their candidates, and individuals set up scores of independent socnets and blogs of their own.  The campaigns barraged their supporters with e-mails.

Barack Obama took things a step further by famously announcing his running mate via text message.  And his campaign even embedded Obama ads in video games. 

Okay, I think the running mate gambit was a gimmick.  But it seems to me that Obama clearly had the edge in using digital technologies more effectively than his competition in both the primary and general elections. 

Why?  Obama ran a young person’s campaign.  He appealed to the young demographic with his charisma and calls for change in a way the Republicans couldn’t touch.  And he was wildly successful at reaching young people via the digital technologies that are their lifelines.  They were able to interact not only with his campaign, but with their friends and online communities – and to extend that online involvement to grassroots participation on the street.

Obama has given us the best model of what digital politics will look like henceforth: using the Internet and personal electronic devices to find potential supporters; to keep track of and stay in touch with them; to make it easy for them to donate their money; and to “activate” them to work on the candidate’s behalf.  

There are a lot of factors that determine the success of a political campaign, starting with the amount of money raised.  There are the strategic decisions large and small, the quantity and quality of advertising (especially on TV), the effectiveness of local organizing, personal charisma, the tone of media coverage … oh, and even the candidates’ stances on the issues.

Maybe it’s a stretch to say that Obama won because he did the better job of mobilizing young voters via digital technologies.  But I suspect it’s not a big stretch.