Posts about law

Posner’s dangerous thinking

June 26, 2009 by Jeff Jarvis
, , ,

Mike Masnick on techdirt points us to some dangerous and incomplete thinking from Judge Richard Posner on his blog. At the bottom, Posner writes:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

Good God. Posner is not just trying to mold the new world to old laws – which is issue enough – but is trying to change the law to protect the old world and its incumbents from the new world and its innovators. He is willing to throw out fair comment and free speech for them. That is dangerous.

Posner’s thinking is incomplete in a few ways. First, he is ignorant of the imperatives of the link economy. The links and discussion he wants to outlaw is precisely how content is distributed and value is added to it in the new media economy.

Second, as Masnick points out, Posner assumes that jouranlism as it was done is journalism as it should be done: that the goal is to protect newsrooms, unchanged. But there are tremendous savings to be had thanks to the link economy: do what you do best, link to the rest.

Note how The New York Times and The Guardian – not to mention the Huffington Post and Andrew Sullivan – covered the Iran crisis. They linked. Links made their journalism complete. So did readers. The Times has three editors for every writer but in the blog, there was no need – no opening – for them. There was no need for production or design. The new news organization can and will operate at a different scale from the old one, because it can and because it must. So what is Posner protecting besides the old budget and payroll. He’s not protecting journalism – or rather, he’s protecting it only from progress.

No, sir, the news industry – and the law – must be updated for this new world and so must your thinking.

: LATER: Here‘s Matt Welch at Reason.

The craigslist (read: internet) witchhunt

May 18, 2009 by Jeff Jarvis
, ,

The internet – in the form of the latest kerfuffle over craigslist – is exposing an anachronism of law in society.

I’ve seen reference lately to attorneys general and law-enforcement officials saying that the craigslist community policing itself isn’t enough. Said the Wall Street Journal: “Some large Internet communities are coming to a controversial conclusion: the Web can’t always police itself.” That’s why, they argue, they need to swoop in to save us from sex.

But the truth is that this episode only shows the gap between the law and the community. Craigslist’s community does police itself against the things that matter to it: fraud, spam, trolls. That’s how craigslist’s founder, Craig Newmark, spends his days, in customer service: policing against the things that bother and matter to his community. But sex? Who gives a damn? Clearly, the community doesn’t think it needs to be protected from that. So who are these cops protecting and from what?

That’s a fascinating aspect of the culture of the internet: It shows what really matters to a community and what does not matter and that, in turn, reveals how out of touch laws and those who make and enforce them can be. Craigslist is a society and it has its own laws and means of enforcement.

Can the law, like media, still be one-size-fits-all? Well, of course, to some extent, it must be. We need consistent laws across society that define everything from fraud to murder; tat is the foundation of society. But within a society there are other societies. And so, in the U.K., there have long been religious courts that deal with disputes in the Jewish and Muslim communities. The laws of society still stand over them (thank God) and members of the community retain the right to call on those laws. Online, we also have communities that cut across borders and have their own rules of behavior. Indeed, even games become societies with laws and consequences. As Lawerence Lessig famously said, code is law, for it prescribes behavior exactly. Laws come into conflict with laws.

And so, once again, the internet becomes a threat to the control and power of an elite and they are exploiting craiglist – and the murderer who used it – to reassert their control. But it has the marks of a witchhunt. Craigslist’s blog this weekend writes about the attorney general of South Carolina going after it even though craigslist promotes these supposed sins less than others. The blog says: “And FWIW, telephone yellow pages and other local print media have both companies beat hands down as adult service ad venues for South Carolina. Any interest in targeting them for criminal prosecution? Didn’t think so.” This weekend, I was also glad to hear craigslist CEO Jim Buckmaster go on the offensive against the offended on On the Media.

I’ll be writing more about the law after the internet soon. I have lawyers on the brain.

(Disclosure: Craig Newmark is a friend and an investor in Daylife, where I’m a partner.)

For bloggers: A stay-out-of-jail card

February 1, 2008 by Jeff Jarvis
, ,

My colleague at CUNY, Prof. Geanne Rosenberg, has just put up an online course for bloggers and media practitioners of any stripe with the 10 things you need to know to stay out of court.

It’s quick, clear, easy, and fun with videos and quizzes. This was produced with experts from the Berkman Center at Harvard and the Media Law Research Center. The course is funded by the Knight Foundation and its Knight Citizens News Network.

The 10 rules to blog by:
1. Check your facts.
2. Avoid virtual vendettas.
3. Obey the law.
4. Weigh promises.
5. Reveal secrets selectively.
6. Consider what you copy.
7. Learn recording limits.
8. Don’t abuse anonymity.
9. Shun conflicts of interest.
10. Seek legal advice.

The press release says:

Each rule in the educational module is aimed at helping citizen journalists avoid lawsuits; each rule serves as an entry point for more in-depth material. While other educational materials on online publication are organized by legal doctrines such as libel, privacy, laws of access, and intellectual property law, the “Top Ten Rules” are organized around practical guidelines for safer and more effective journalistic conduct.

The module aims to educate citizen journalists about legal hotspots, help them distinguish between genuine legal problems and intimidation tactics, learn simple practical steps to reduce legal risk, find additional resources and information, understand rights related to news gathering, and recognize when to reach out for a lawyer’s advice.

I’m included in the credits but this is all Prof. Rosenberg — and good thing, since I don’t even play a lawyer on TV. All I did was say that I wish bloggers and citizen journalists had this kind of help and there was Knight to fund it and Geanne to write it. So here is a gift to bloggers from them and CUNY.

But wait, there’s more: For a graduate-level course with lots of in-depth details, the amazing Berkman is, at the same time, putting online a legal guide with information on such topics as setting up a publishing business.

The lowest common denominator of speech

December 26, 2007 by Jeff Jarvis
,

Martin Stabe points to another legal story that is getting too little coverage here, with links to a news story and a FindLaw analysis about a New York court refusing to protect an American author from a UK “libel tourism” judgment over a book that sold a mere 23 copies in England.

What’s profoundly frightening about this is that we in America could find ourselves subject to the UK’s libel and privacy laws, which throw free speech to the wolves in defense of privacy.

In other words, thanks to the internet, we could be subject to the lowest-common-denominator of protection of speech against libel actions.

One could imagine it would get even worse: Couldn’t we be subject to Islamic theocracies’ prohibitions against criticizing Muhammad or dictators’ laws against criticizing them. If other legal systems can reach out to us and our speech here then corporations — publishers, networks, service providers — chilling us.

Only fair

February 21, 2007 by Jeff Jarvis
,

Jackson West at NewTeeVee — one of my daily reads — has an excellent and brief primer on fair use and comment. Nut graphs:

Section 1074 – remember it kids – of the Copyright Act defines the potentiality of a fair use defense as copyrighted work used “for purposes such as criticism, comment, news reporting, teaching…scholarship or research…”

Generally, it’s all about commentary. How can you prove, or how can your entertainment lawyer prove, that the nature of your use of the copyrighted work is critical. A limited excerpt of the work during a review or critique is clear cut fair use.