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Posted on By Richard T. Kaplar

Digital Technology: Double-Edged Sword

Two items in the Washington Post in the past three days point up how the relentless march of technology will affect news in the months to come – both how it is generated by the White House, and how it is reported by at least one local TV station.

President-Elect Barack Obama sees new technology as a means “to reinvigorate our democracy,” according to senior adviser David Axelrod.  And, as Chris Cillizza reported on Dec. 14, Obama is starting with the Saturday morning radio broadcast begun by Ronald Reagan in 1982.  

“The speech is still beamed out to radio stations nationwide on Saturday mornings, but now it is also recorded for digital video and audio downloads from YouTube, iTunes and the like, so people can access it whenever and wherever they want,” Cillizza reports.

It’s part of a “broader revolution” in how the Obama White House will communicate, according to Doug Sosnik, a senior aide in the Clinton Administration. "The mainframe for this White House will be the Internet, not TV," he told Cillizza.

Only two days earlier (Dec. 12.), Paul Farhi reported that WUSA-TV, Channel 9 in Washington, D.C., had reached a new labor agreement that would scrap the traditional two-person news crew of reporter and photographer.  Under the new pact, an individual “multimedia journalist” will report, shoot, and edit stories alone using digital tools.  Reporters will double as their own camera crew.  Camera operators will take on reporting tasks as well.

In the case of WUSA, however, the impetus is economic. The one-person operatives are part of a broad budget-cutting scheme under which these “multimedia journalists” will actually be paid less than current reporters.

It’s encouraging that Obama embraces digital technology and plans to use it extensively.  At the same time, it’s ironic that digital technology has siphoned viewers from broadcast television and weakened some local news operations to the point where they can only be saved by changes in news-gathering built around … digital technology.

Posted on By Patrick Maines

New Tech and the Old Media

Microsoft’s Chief Counsel for Intellectual Property Strategy, Tom Rubin, recently gave a speech to the UK Association of Online Publishers that has made some waves.

At its most basic, Rubin’s speech was a call for greater copyright protection of “quality content,” and an appeal to content providers for new approaches to the dissemination of their content online.

“The evidence is in,” he says, “and I think we can safely say that the ‘information wants to be free’ approach not only does not work, actually it has been a disaster for almost all newspapers.”

Even if, as a columnist for CNET suggested, Rubin’s speech was meant to position Microsoft, at Google’s expense, as the “safe” technology partner for content companies, many of the specific observations, and the very language employed, provide a welcome contrast to the carelessness and condescension that mark so much of the digerati’s take on the subject.

Speaking of the Evil One, turns out that Google and Yahoo! called off their joint advertising deal just in the nick of time.

A story in the December 2 issue of Am Law Daily quotes Sanford Litvack as saying that the Department of Justice was just three hours away from filing antitrust charges to block the deal when the two companies abandoned their pact.

Litvack says that had the deal not been withdrawn the DOJ would have challenged it under sections of the Sherman Act that “ban agreements that restrain trade unreasonably,” and “make it unlawful for a company to monopolize or attempt to monopolize trade.”

As noted here in September, because of its opacity and potential harm to online publishers and advertisers, the deal alarmed many people, including us. Glad to see it go away, unwept.
 

Posted on By Richard T. Kaplar

FCC on the Offensive

Say what you will about the FCC, but you have to admit they’re a scrappy bunch when it comes to pursuing their crackdown on broadcast “indecency.”  First they persuaded the U.S. Supreme Court to hear the case they lost in the U.S. Court of Appeals for the Second Circuit – the one about Cher and Nicole Ritchie uttering a couple of verboten words during Fox’s “Billboard Music Awards” shows.

Now the FCC crowd is asking the Supreme Court to hear yet another indecency case they lost – this one in the Third Circuit involving the infamous Janet Jackson wardrobe incident during the 2004 Super Bowl halftime show on CBS.

The Supreme Court hasn’t even ruled on the Fox case yet, and in fact heard oral argument only about a month ago (Nov. 4).  But the word on the street is that the justices seemed sympathetic to the FCC’s arguments in Fox – perhaps even sympathetic enough to rule in the agency’s favor.  Handicappers are predicting that a vote favoring the FCC would be slim (say 5 to 4) and decided on narrow procedural grounds, rather than reaching the constitutional issues.  IF the vote goes the FCC’s way at all, that is.  

The common wisdom, of course, is that predicting Supreme Court decisions based on oral argument is a fool’s errand.  So, an unreliable prediction that foresees such a tepid outcome would seem a double whammy, enough to give one pause.

But not the FCC.  They reportedly are buoyed by the oral argument in Fox to the point that they want to pile on with the Janet Jackson matter.  The Commission did, however, request that the High Court defer a decision on whether to hear the Third Circuit case until after the Court rules on the Second Circuit case.   

This begs the question of why the Commission petitioned the Court at this particular time at all.  (The Court is not likely to issue a ruling in Fox until next spring or summer.)  Maybe this is just the Commission’s way of warning broadcasters that the indecency watchdog is not about to roll over and play dead.  To this observer, however, it seems a transparent ploy that might well prove all bark and no bite.    

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.

Posted on By Patrick Maines

The Financial Crisis and Horse Race Journalism

In 2001, the events of 9/11 were covered by the news media in a way that reassured and unified an angry and fearful country.  In 2008, a financial crisis that in its own way is as dire as 9/11 is being covered in ways that are divisive and infuriating.

At the root of the problem is the colossal failure of reporters to report the crisis, in the context of the presidential campaign, objectively and in a way that challenges the major party candidates to address the issue with the seriousness it demands.

Before it is over our financial and economic distress will almost certainly take the life savings and the livelihood of hundreds of thousands of people, and perhaps many more.  But by the evidence to date, reporters don’t get it.  So taken are they with the “horse race” conventions of political reporting that they have reduced even this, the worst economic portents since the Great Depression, to the familiar banalities of their stock in trade: who’s up, who’s down, and polls galore.

This, plus of course, their own political spin on things.  Thus are we told that the financial mess works to  Barack Obama’s political advantage …  and not much more.

Whether reporters perform this way because they are biased in favor of the Democratic Party and Democratic policies, or because they are themselves clueless about all things economic, or because they are, perforce, tethered to the inadequacies of the politicians they cover (with the correct answer being all of the above), makes not the tiniest bit of difference.

The stark fact is that the national news media have underreported and misreported virtually every important aspect of our national nightmare: how we got into it, how we can prevent it from happening again, and, most importantly, how we can escape its worst effects now — and how our national leaders can help us.  

Here at The Media Institute, which receives all of its financial support from media companies, we spend most of our time promoting the Speech Clause of the First Amendment.  This means that we promote those laws and regulations that maximize freedom of speech and of the press — something we will continue to do whatever the media’s journalistic shortcomings.

But at a time when all of the legacy media are in grave jeopardy — first from the competitive effects of the Internet, and now from the struggling economy — they are not making it any easier for themselves or for us.  If worse comes to worst, the people of this country are unlikely to forget or forgive the role the media have played at this crucial hour.