My Comments on the News

I’m not doing any more editions of the News You Can Use feature, unless of course someone paid me for it. It’s another great idea that I think someone should take up as long as it’s not me (like the NFL SuperPower Rankings). The next evolution of it might be something akin to a webcast where someone could recite the really important stories of the day.

(Where’s the best news source(s), between TV, print, and the Internet, for finding news the American people really need to hear, while still having a good balance of US news and not sounding like a liberal screed?)

Anyway, as you may have noticed, I tend to link to the AP’s web site (which I’m not sure they intend for real public consumption) whenever there’s a news story I want to comment on, and now the AP wants to talk with the Media Bloggers Association for standards for quoting from AP stories. (I’m not sure I ever quote per se, but it might apply anyway.)

The article talks about things like making sure the AP’s guidelines closely follow fair use provisions, but I want to talk about more basic things, like a backlash by bloggers wondering where these people in the MBA came from, and some nasty accusations I’ve learned of that the MBA is a scam, or even a front for “traditional” journalists who have as much incentive to squelch blogging as the AP.

So, in a Da Blog Investigative Report, let’s try and separate fact from fiction.

First, the backlash from bloggers has been wondering who the hell are these people and why they should have any claim to represent bloggerdom. From Gawker:

And who are they? It’s hard to say, even after reading the group’s site and searching for more information elsewhere on the Web.

The association obtained credentials for some bloggers to attend the Scooter Libby trial. Founder Robert Cox claims the group “makes available” pro-bono legal services. There is some sort of partnership with Newsweek. Rabble-rousing blogger Jeff Jarvis is a member. But the association is a self-appointed representative of a hugely diverse group, and its legitimacy appears entirely self-assigned. Gawker Media, for one, is not aligned with the association, I am reliably informed.

The AP’s decision to emphasize its meetings with this lone, opaque organization only makes its copyright crusade seem all the more surreal.

Also arousing suspicion: A claim that the closest thing it has to a blog of its own is hosted by Newsweek… a representative of “old media.” Well, that’s not completely fair; the MBA does host president Robert Cox’s personal blog, but seems to want to hide it, only showing a list of posts on the sidebar of some pages. Gawker commenter Triborough raised more red flags on the same post:

The group claims to be in New Rochelle, but a search of the NYS Department of
State Corporation and Business Entity Database doesn’t have them listed. The whois info for the domain lists a P.0. Box in Philadelphia (looks like a possibly privately registered domain with things like olbermannwatch.com being registered to the same address) with the Pennsylvania Department of State’s business entity database revealing zip. The phone number listed on the website’s contact us page is in Arizona with the Arizona Corporation Commission database revealing no listing.

And this raises a red flag for us: The Media Bloggers Association will be opening up registration for membership starting in Summer 2008. Just send them your name and e-mail. Seems like a bit of a scam.

Then again it is about 1AM and are tired and feel like not doing any more research
into possibly dubious groups that I don’t think anyone has ever heard of.

Cox didn’t do his organization any favors in their response to the Gawker post:

Some kid named Ryan Tate has a snarky little post about our efforts to help a
blogger facing a legal threat over at Gawker. He claims to have tried to find out about the MBA by reading our site and searching the web. Here’s a thought, kid. Pick up the phone and call us – our phone number and email is on the same site you claimed to have read.

Yeah. Here’s a thought: Instead of attacking him (which makes you look like even more of a shill to old media), why don’t you answer why very popular blogs like Gawker don’t appear to be represented in your organization, and why people have to call and e-mail you to find out information that virtually every other similar organization in the world puts on their Web site? You claim to represent bloggers, why don’t you have some sort of membership roll on your Web site? Even listing some of the “very popular” blogs you claim to represent?

The rest of the article completely ignores Tate’s concerns in order to establish that the operator of the blog that started this mess did indeed contact the MBA for legal protection. I find it odd that the MBA would accuse Tate of “sneering” and “snarking” about them when Tate’s post is not all that sneery and snarky, but the MBA sure loves to snark about what a punk kid Tate is! Gawker summarily counter-mocked them.

Meanwhile, Gawker commenters continued the march of evidence that something was wrong with the MBA, suspecting it of being a possible scam and being friendly with the AP. The evidence is collected here, and here are some excerpts:

This is the group that the blogger behind Drudge Retort turned to when faced with legal threats from the Associated Press. AP backed down, but who knows what Cox and his MBA got from the blogger. And now this group is supposedly in negotiations with the AP to issue blogging guidelines that most likely will be stricter than copyright law even calls for.

Cox has now written a post claiming that there are several “misconceptions” about the case, and regarding the topic that now has people’s panties in a bunch, claims:

A final note, there has been a lot said about the absurd notion that the MBA thinks it is representing “all bloggers” or that the AP is “negotiating” with the MBA. Ridiculous. We were approached for help by Rogers Cadenhead and, as we have done hundreds of times over the past four years, responded by offering him pro bono legal counsel and to set up a direct dialog with the plaintiff to see if the dialog could resolve the problem. We represent A BLOGGER and achieving an outcome acceptable to that blogger is our goal. Any discussion about how AP could better communicate its view of what is and is not acceptable is important and useful but secondary to the primary issue of getting to resolution for the blogger we agreed to help.

In looking back as to how that notion got out there, I see The New York Times article which ran over the weekend. While the article was factually correct it mischaracterized what was going on in a way that caused a great deal of misunderstanding.

So, let me try to address that too. In wrapping up my call with Jim Kennedy I expressed my view that it seemed incumbent on the AP to offer bloggers a better understanding of what the AP did find acceptable, to offer some sort of guidance which might help bloggers operate in a way less likely to draw the attention of the legal department and thereby reduce the number of legal threats made against bloggers. Such a discussion is entirely in keeping with our mission as an organization. Looking back on it now it may seem incredible but I told him that if he was willing to come up with some sort of guidelines, the MBA would help promulgate them as much as possible. The concern being that no one would know the outcome of such discussions and so any guidelines they came up with would be a tree falling in the forest. Jim knew the MBA could help with such things because our members include quite a few widely read bloggers who would most likely have been willing to consider putting up a post about it if they were asked. Apparently Jim told The New York Times the he was going to meet with me per our conversation but the way that came out was that the sole purpose of the meeting was to negotiate guidelines for bloggers. That take on the conversation was then twisted into the absurd notion that that MBA was going to meet with the AP for some sort of binding arbitration to negotiate terms on behalf of all bloggers. Even after I picked up the phone and explained the actual purpose of the meeting – to sort out what to do about the outstanding DMCA Take Down Notices – some bloggers just continued to run with this absurd story in order to advance an agenda that I can assure you has nothing to do with resolving the case at hand.

Um, here’s AP’s own story on the issue, which I linked to at the top of this post:

NEW YORK (AP) — The Associated Press, following criticism from bloggers over an AP assertion of copyright, plans to meet this week with a bloggers’ group to help form guidelines under which AP news stories could be quoted online.

Jim Kennedy, the AP’s director of strategic planning, said Monday that he planned to meet Thursday with Robert Cox, president of the Media Bloggers Association, as part of an effort to create standards for online use of AP stories by bloggers that would protect AP content without discouraging bloggers from legitimately quoting from it.

Here’s some advice for Cox: The best way to avoid the appearance of a “negotiation” would be to not “meet” with them at all. Having any say in what the guidelines are makes it look like a “negotiation”. The New York Times has nothing to do with it. In certain circles at least, that WILL get equated with “negotiation” even if whoever is making the judgment makes it based on this fairly neutral AP story. Considering most bloggers hadn’t heard of your organization before now, it’s not likely you would have had much effect “promulgating them as much as possible”. There is no such thing as a centrally controlled blog that every other blogger reads; blogs are the most decentralized concept on the Internet. The best way for the AP to distribute its guidelines would have been to post them on its web site and include them on its articles wherever they are legally distributed.

Another reason why “bloggers continue to run with this absurd story”? They would actually prefer a “negotiation” to the AP unilaterally determining its guidelines! It seems obvious that Cox is out of touch with a blogging community that, by and large, sits far to the left of his own positions. (Cox also runs Olbermann Watch, a site criticizing MSNBC host Keith Olbermann.) Here’s Gawker on the MBA working with the AP in 2007 on coverage of the Scooter Libby trial:

In return, Cox promised to keep bloggers in line! “This is not the time to write a post titled ‘Dick Cheney is a [expletive deleted].’ We sought to address [the AP’s concerns] by saying we have a vetted membership of bloggers who’ve agreed to ascribe to certain ideals of what they’re trying to do. [The AP] has the kind of accountability that they want. I’m not going to control what the blogger writes, but if they get way out of line and embarrass the AP, they can be pulled from the feed.”

Goddammit Cox this is the time to write a post titled “Dick Cheney is a [expletive deleted].” If we can’t do that, then what is the point of blogging?

The blog community is far more anarchic and opinionated than Cox gives it (or himself – another Gawker commenter writes, “Cox is the guy who a few years ago tried to make his point about the New York Times “correction” policy by creating parody websites of their correction page and then was threatened with a lawsuit by the Times and then I forget what happened”) credit for, and like capitalism, blogging works best when it’s given free rein. It’s a free market of opinions out there, and Cox and the AP shouldn’t be trying to censor people who don’t agree with his own right-wing views.

Now on the other hand, if swearing is Cox’s only concern, I have little problem with that and wouldn’t help but wonder if Gawker is overreacting. Similarly, I’m not sure what the big deal is here either, unless the AP ends up restricting quoting so much it’s ridiculous, which some bloggers fear. The AP should be able to present common sense guidelines most people will follow anyway. Cox claims this started because Cadenhead posted several entries that quoted AP stories in full, which seems ridiculous; you may as well just post a link in that case.

But the posts in dispute now, if they violated any rules, could breach the spirit of fair use and limit bloggers’ ability to take certain parts of a story and perform analysis on them. And what the AP seemed to want in its first communique with Cadenhead is REALLY disturbing:

… you purport that the Drudge Retort’s users reproduce and display AP headlines and leads under a fair use defense. Please note that contrary to your assertion, AP considers that the Drudge Retort users’ use of AP content does not fall within the parameters of fair use. The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of “fair use.” AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes “hot news” misappropriation.

WTF? I don’t even understand what this is supposed to mean, and the consequences for any interpretation are disturbing. And I don’t understand why AP would even have a problem. Is not quoting the headline and lede of a story common practice even outside the world of blogs? Would not the AP want traffic to its member sites? Is the problem that the AP thinks that taking the headline and lede takes it out of context? Does the AP want MORE than this, or LESS than this? Or is the AP’s problem with the comments associated with each item? I can’t assess that since Cadenhead was required to take down the offending posts immediately, but he explains the issue better than I could:

I have no desire to be the third member of that club, but sharing links to news stories of interest has become an essential component of how millions of people read and evaluate the news today. When linking to articles, bloggers commonly include excerpts of the article for the purposes of criticism or discussion. Some AP member sites encourage this kind of reuse. Yahoo News, the source for two disputed stories, invites bloggers to use items from its RSS feeds. USA Today, the source for two others, includes a browser widget alongside articles that facilitates their submission to Digg, Mixx and other sites. Wade Duchene, the attorney who helped me win the domain name arbitration for Wargames.Com, says that what we’re doing on the Retort is the “absolute definition of fair use.”

Cadenhead, obviously, is on the MBA’s side, calling them a “blogger’s ACLU” in a later post, which is to be expected since he is taking legal counsel from them. Commenters for Gawker disagree, seeing it as a “just an excuse to sell scared bloggers useless liability insurance.” Your mileage may vary, but the ACLU doesn’t unilaterally negotiate with some group on what guidelines they will set on searches and seizures that may or may not be broader or narrower than what the Fourth Amendment allows.

There’s some hysteria going around the Internet that the MBA is a scammy, right-wing organization that is claiming to represent all bloggers so that the AP can institute overly restrictive regulations. It’s probably unfair to the MBA, but I’m not sure what to believe here. Is the AP going to lay the smack down by itself and let the MBA just be the messenger, as Cox claims, or are they actively negotiating even though most bloggers had never heard of MBA before now? If they are actively negotiating on rules the AP will expect to apply to all bloggers, sorry, but no matter what else you may claim, the MBA IS claiming to represent all bloggers if only de facto. And if the AP is going to impose its rules unilaterally on all bloggers, and most bloggers find them unacceptable (and if the MBA so much as says “we find this unacceptable” then it IS representing all bloggers in a negotiation, like it or not, and it probably SHOULD be claiming to), they’ll wish someone had claimed to represent them and post their objections.

If the AP IS “negotiating” with the MBA, they made a bad choice because it’s apparent that the MBA needs to do some “negotiating” itself with the group it claims to represent. Certainly the MBA has made some bad PR moves rooted in not understanding most of the blogosphere or even the Web itself, such as making little about their organization available online, or being anywhere near as high-profile as the ACLU, or not taking any new members at such a high-profile time. People naturally fear what they don’t know, and after reading about an organization they’d never heard of being treated as some sort of advocacy organization for all bloggers that was going to be the closest thing to an advocate the blogging community had for the adoption of the AP’s guidelines, maybe they couldn’t be blamed for lashing out. And given what little information is available, they also couldn’t be blamed for coming to the conclusion that the MBA is a scam or an old media front group out to suppress those uppity bloggers. I would come to the same conclusion myself if it weren’t for one thing: Cadenhead still trusts that the MBA is on his side, and he cites a liberal blogger as having referred him to the organization.

I’ll wait and see what the AP’s ultimate guidelines are, but I hope the blogosphere isn’t just trying to protect a mythical right to quote entire articles with maybe one word omitted. Instead of attacking the MBA, perhaps blogs across the Web should post what rights they refuse to have taken away from them, and what rights they think are just reasonable, and bring those posts to the attention of the AP and MBA. In addition to the right to post the headline and lede, I’d also like the right to selectively copy relevant passages from an article and comment on them as I see fit, without obviating any need on the part of a reader to read the article in full.

Verdict: Let’s wait for the AP’s guidelines, the blogging community’s reaction to them, and the first legal test of the guidelines. But while I’m certainly not ruling out that the MBA is part of an AP Master Plan, I’m willing to give the MBA greater benefit of the doubt than most bloggers, depending in part on the specifics of Cadenhead’s involvement with them. It’s very possible that the MBA has laudable intentions but not enough credibility to be an effective negotiating force. As strange as it might sound now, the MBA could come out of this episode with a greater understanding of the blogosphere and an actual legitimate role to play where bloggers see them as an organization they can trust as an ally against the distrustful, litigous forces of old media, not distrust as an ally of old media. Or the MBA could come out of it as Public Enemy #1 for bloggers everywhere.

P.S. Why “Verdict”? What’s with the “truth court” tag? Ah, that would be telling…