Of vinyl records and 8‑track tapes

U.S. Supreme Court Justice Samuel AlitoEvery once in awhile a quote comes a long that’s bound to stick around for awhile, one you’ll likely see many times downstream. This one is from U.S. Supreme Court Justice Samuel Alito (a George W. Bush nominee) during yesterday’s hearing on cursing and nudity over broadcasting’s airwaves. Suggesting that the market itself should be allowed to deal with the issue without regulatory interference, Justice Alito made this remarkable statement:

Broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and eight-track tapes.

What’s most remarkable here is its source, the mind of a U.S. Supreme Court Justice. If this is the way a member of the final court in the land views things, broadcasting has no hope of ever finding relief in the courts against market forces that threaten its existence. The spectrum that the government licenses to broadcast companies is eventually going to wireless broadband, and that will doubtless end up in the courts. Alito is not alone in this belief, but he’s the highest ranking government official that I’ve ever heard say it.

My friend Ethan Beute asked via Twitter “how long?” I think this is going to come upon the industry much sooner than later. It will appear like a thief in the night, although it has been visible and approaching for many years. Broadcasters have been playing defense all this time, while intruders from Silicon Valley and elsewhere have been staging guerrilla and flanking attacks with armies funded by venture capital. Lobbyists representing the NAB and local interests are at war with those representing the Telcos and others, and it will likely be bloody. In the end, though, it’s pretty hard to deny the interests of the public in the matter, and that is strongly tilted to the wireless broadband side.

My advice to broadcasters has always been to move forward strategically on two separate paths. Get as much as we can out of the mass media market available to us via those airwaves and at the same time develop new ways to make money. Mass is shrinking and fragmenting. We can’t “fix” that, but we can find new ways to replace the revenue. We must look outside our comfort zone, but we CAN drive the car and fix it at the same time.

Vinyl records and 8‑track tapes evolved, and so can we.

CJR story brought to you by the FCC

Columbia Journalism Review logoThe Columbia Journalism Review has presented — as a news commentary — a piece indirectly written by the FCC that favors the commission’s position in a key legislative issue involving broadcasters. The piece hypocritically trashes broadcasters for the same kind of behavior it represents, and it does so using the popular buzz term “transparency.” This is a smokescreen for what’s really being conveyed.

First, a little background.

Long ago, our government decided that “the airwaves” belong to the public and, therefore, should be regulated by the public’s representatives in Washington. Licenses to “use” the public’s airwaves were granted and maintained by the Federal Communications Commission (FCC), and so was born an antagonistic relationship between the licensor and the licensees. Broadcasters have long held the upper hand in this antipathy. They are a powerful group with the ability to easily reach the public “back home,” where legislators raise money and votes. The National Association of Broadcasters was and is a powerful lobbying organization.

However, there’s been a recent shifting of that power, and things are a little different today. Armed with knowledge of a real demand for wireless broadband — which would use that same spectrum owned by the public — the FCC is turning up the heat on broadcasters. This will evolve to an all-out war that threatens the core value of all of broadcasting, and as the number of people receiving TV via those airwaves alone dwindles, the case of the whole industry weakens. We’re in a season when broadcasters can extract value two ways: through subscriber revenues from cable providers and via advertising based on reach, at least some of which is over-the-air. As a group, therefore, broadcasters must promote both, and that hands the FCC an industry with a split focus to regulate. The FCC, however, cares mostly about that spectrum.

We can argue that cord-cutting raises the value of that over-the-air signal — especially in high-definition — but the longer technicians are able to innovate and resolve compression and other hi-def delivery problems, the more viable TV over IP becomes, and so we must admit that broadcasting’s “cake and eat it too” has a limited window. Broadcasters are well aware of this “problem,” and are working on so-called solutions that limit broadcast signals over IP to those geographic regions determined by broadcast licenses, thereby maintaining the old status quo. The weakness of one solution supported by the NAB and big broadcast companies (Syncbak) is that it requires the broadcast signal to verify geographic position within the market. This will be a hard proposition to sell Congress or the FCC as pressure mounts for broadband spectrum.

It’s into this scenario that an advisor to the FCC Chairman was begun writing what I would call “attack pieces” published in the Columbia Journalism Review. What or who is being attacked? Broadcasting, specifically television. It would be untoward for me to suggest that this is a deliberate effort to cloud the picture of the FCC versus broadcasting, but it does strike me as odd that such vertically-slanted stories would be published in the high church of the Columbia Journalism Review.

Steve Waldman is the writer/advisor, and his latest (This News Story Is Brought to You By…) is about how some television stations “allow sponsors to dictate content” within or close to newscasts. Mr. Waldman was the lead author of the FCC’s Information Needs of Communities study, which challenged broadcasters and helped lay the groundwork for the above arguments about the best use of spectrum.

One of Mr. Waldman’s major concerns in the CJR article is the use by certain television stations of video news releases disguised as news stories or other methods that those with a position employ to escape the wall of separation between news and advertising via the public’s airwaves. In making this charge in the Columbia Journalism Review, however, Mr. Waldman is guilty of the exact crime of which he accuses broadcasters, namely the presentation of a government position paper as news or commentary. I find it astonishing that the CJR would permit this, and yet, there it is.

That said, Mr. Waldman’s point is well-taken and broadcasters most certainly should be following the law and clearly labeling such as sponsored. But so should the Columbia Journalism Review, for this piece was surely presented — however indirectly — by the FCC.

Court redefines “The Press”

Narces Benoit's videoThis was inevitable.

A few weeks ago, I wrote of the coming clash between police and everyday people with cameras. The issue advanced significantly on Friday with a stunning Federal Appeals Court ruling affirming the First Amendment right of citizens to photograph or create videos of police while they’re on duty. Police agencies in some communities were using an odd interpretation of wiretap laws to confiscate the camera phones of bystanders, and the court rightly found that to be unconstitutional.

The decision has far-reaching implications that go beyond the mere taking of pictures at crime, disturbance and accident scenes. By granting everyone this “right,” this ruling redefines “the press” in this country by shattering the myth of privilege associated with working for a so-called “legitimate” news organization. Some will cry that it opens Pandora’s Box, because a clearly defined “press” helps the machine of modernity function. This decision is potential chaotic, for example, to those cultural institutions who have a vested interest in keeping their “news” in the hands of a professional class (that can be manipulated). Think of an agency holding a press conference, for example. If press freedom applies to everybody, then that agency cannot restrict access to only those who work for a news organization.

The decision should make anybody in a traditional newsroom shutter. As we’ve been saying for years, the personal media revolution — what Jay Rosen calls “the Great Horizontal” — IS the second Gutenberg moment in Western civilization. It destroys the hierarchical infrastructure of the modern world and scatters authority across the people that the hierarchy was supposed to serve. Hierarchies, however, are comprised of human beings, and each has drifted into self-preservation and self-advancement rather than service.

It’s an enormous cultural shift, because power disrupted impacts everything. If the First Amendment press freedoms now belong to everyone, we clearly need an entirely different way of thinking about how information gets created and distributed in the culture. We’re going to hang onto the old for as long as we can, but we MUST be exploring ways to compete against that model, because the path for others to compete against us is now much simpler.

The ruling itself is fascinating, and I strongly recommend you go read it. The language is clear, as the following excerpts reveal. The case itself originates from a 2007 incident in Boston. Simon Glik was arrested for using his cell phone to film several police officers arresting a young man on the Boston Common. The case was thrown out in municipal court, but Glik sued. The Federal District Court affirmed the suit, which was automatically appealed to the 1st Circuit Court of Appeals, which issued its decision Friday.

The defendants moved to dismiss Glik’s complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that the allegations of the complaint failed to adequately support Glik’s claims and that the officers were entitled to qualified immunity “because it is not well-settled that he had a constitutional right to record the officers.” At a hearing on the motion, the district court focused on the qualified immunity defense, noting that it presented the closest issue. After hearing argument from the parties, the court orally denied the defendants’ motion, concluding that “in the First Circuit…this First Amendment right publicly to record the activities of police officers on public business is established.”

…is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”

As I wrote a few weeks ago, police in many places are using the smokescreen of wiretap law violations to avoid scrutiny, and I warned of the consequences:

The law of unintended consequences is waiting in the wings, however, as governments try to press their need for authority over this in public. The First Amendment is the “first” for a reason, and in the age of its writing, it protected those who bought ink by the barrel and those who printed their pamphlets any way they could.

…In this country, the right to report news isn’t reserved only for élite professional organizations, despite the reality that we’ve operated that way for a long time. We want and need to stay as far away from “licensing” as possible, for who then would report on those providing the licenses? Times have changed, and there’s no going back. The best we can do is adapt, and in this issue, that means getting involved.

Technology is altering many of the core beliefs and functions of the modernist world. This is why I’ve maintained a blog for the past ten years under the banner “The Pomo Blog.” Pomo stands for postmodern, and all of my ideas, suggestions and memes flow from the belief that modernism died the day the Web was created. This simple observation has been validated almost every day.

We want and need things to stay the same, because it’s what we understand. This includes media, so let me repeat for those with ears to hear that our future is along a different path, and the sooner we get on it, the better. There is no value in being the last buggy whip maker.

Police and cameras on a collision course

the tools of the peopleThe inevitable conflict between people with cameras and people in authority is heating up, and news organizations need to be doing more than just paying attention. This is one of those sticky issues between the personal media revolution and traditional media, because one’s perspective on the matter determines where you stand. If you’re a “member of the press,” you enjoy certain freedoms at crime scenes, etc., and your concern about the rights of everyday citizens is limited to whether their pictures or video are of sufficient interest to warrant insertion in your own work. If you’re an everyday Joe with a camera, your interest is more self-driven, but both groups are heading for a showdown with authority sooner or later.

The real sore spot is when that which is being photographed is authority operating outside their authority, as in the case of overzealous cops beating the crap out of somebody. You can apparently take all the pictures you want on a public street, unless the subject in the viewfinder makes law enforcement look bad.

In an utterly chilling report from independent news source Alternet.org, reporter Rania Khalek writes: “More and more people use their smartphones to record police misconduct. But laws against wiretapping are being used to intimidate and stop them.” If the public is the new media (I’ll get to that in a minute), then our culture has a serious problem on its hands.

One would think the fear of videographers on every block would be a powerful deterrent to police misconduct. However, legislatures are not taking this newfound power against police abuse lightly. In at least three states, it is illegal to record any on-duty police officer, even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists. The legal justification is usually based on the warped interpretation of existing wiretapping or eavesdropping laws with statutes against obstructing law enforcement sometimes cited.

Illinois, Massachusetts and Maryland are among the 12 states where all parties must consent for a recording to be legal. Since the police do not consent, the camera-wielder can be arrested and charged with a felony.

…The most pernicious prosecutions to date have taken place in Illinois, where the sentence for recording a police officer is considered a class 1 felony — on par with a rape charge — and can land a person behind bars for more than a decade.

These cases are, of course, thrown out of court, but that hasn’t stopped the arrests. Police have argued that they need protection from all these cameras, because it might inhibit officers from doing their jobs in the field (here, here, here).

Khalek’s article is worth reading, because it references many current and past cases and reveals a growing tendency on the part of police in several locations to confiscate the cameras and phones of onlookers in the name of seizing evidence.

Narces Benoit's videoIn Miami Beach on Memorial Day weekend, 12 cops sprayed Raymond Herisse’s car with 100 bullets, killing him. Herisse was a career criminal who police say tried to run over officers with his car. The police then seized and destroyed cameras and phones. One man, Narces Benoit, removed the SIM card from his phone and put it in his mouth. When his footage was later aired by CNN, police were caught in their lies about what went down.

CNN is an interested party in all of this, because of the huge success of its iReport unit. In a recent interview with Beet.tv, Lila King, Participation Director at CNN Digital and longtime head of iReport noted that contributions of citizen reporters have become “core of he the way we tell big, breaking stories.” iReport has 800,000 citizen reporters around the world, but those in the U.S. face ridiculous charges, if they cross the acceptable line with local law enforcement.

And, of course, citizen journalists aren’t the only ones subject to the overzealous behavior of cops. Last Friday in New York, Suffolk County Police arrested a freelance news photographeron obstruction charges when he refused to stop video taping police. Police say the charges will be dropped, but the point is that, again, legal authority was used to inhibit the gathering of news, and this must concern us all.

This issue is only going to get worse, and ultimately, it’ll be up to Congress and the courts to figure it all out. The law of unintended consequences is waiting in the wings, however, as governments try to press their need for authority over this in public. The First Amendment is the “first” for a reason, and in the age of its writing, it protected those who bought ink by the barrel and those who printed their pamphlets any way they could.

We’ve entered a new age, the depth and reality of which is being revealed more and more with each passing day. People with cameras will take pictures, and the truth is we NEED them to be taking pictures. Yes, there needs to be a few rules. Yes, there are privacy issues. Yes, authorities need to be able to do their jobs. In the end, however, there’s simply too much at stake for all this to play out without the input of professional media companies. Here are some thoughts about what we can do.

  • Each company needs to make a quality decision about whether the rights of citizens to photograph or take videos at news scenes is something we wish to support. Assuming the answer is “yes,” then we must get involved, in the courts by filing friend-of-the-court briefs and at the legislative level, both locally and nationally.
  • Local media properties would be smart to be proactive in the matter. Have meetings with local officials to determine their wants and needs and encourage their participation BEFORE it becomes a problem in your market.
  • Involve the public in the effort and solicit their participation through social media or otherwise.
  • Own the story. This is something that impacts anybody with a smartphone. What ARE their rights? If we want their pictures and their videos, we need to make sure we’re publicly supporting their actions.

In this country, the right to report news isn’t reserved only for élite professional organizations, despite the reality that we’ve operated that way for a long time. We want and need to stay as far away from “licensing” as possible, for who then would report on those providing the licenses? Times have changed, and there’s no going back. The best we can do is adapt, and in this issue, that means getting involved.


A lawyer in a boxRevolutions often begin as the unintended consequence of some action on the part of the ruling élite. I need you to put your imagination caps on this morning, because I want to share something that I see, and it’s directly tied to a burgeoning unintended consequence.

GigaOm’s brilliant observer/writer Mathew Ingram published a piece yesterday about a copyright infringement settlement that is incredibly troubling, one that points out a significant cultural weakness of the legal system. Go read his piece, because it needs reading by all. In the case, wealthy and famous photographer Jay Maisel sued blogger Andy Baio over his (clearly) fair use of a photo of jazz great Miles Davis for a project of Baio’s that benefited Davis’s friends who performed on the original works. Baio cleared all rights, altered the cover picture, and made the project available. He failed to get Maisel’s clearance, because the work was “transformative” under fair use provisions of copyright law. Maisel disagreed.

But the real story is that Baio and his lawyers settled — for $32,500 — because it was cheaper than taking it to court. 32-grand is a LOT of money to a guy like Baio, but it’s pocket change for a man who lives in a 72-room New York landmark valued at $35 million. We all know this is wrong. We all know Baio would have won the case, but the economic reality is that it was cheaper to fork over extortion money than to challenge the issue in the courts.

Enter technology.

Many years ago, as I sat alone in my little apartment in Nashville, I had revelation after revelation about how technology could and would impact the future, both short term and long term. I wrote the stuff about media, because it’s an industry I knew, but my biggest interest was culture. I put together a lecture that I’ve given at many colleges and universities, and I will one day share here with you. The very essence of the lecture is an explanation of why the West is ripe for a revolution in the wake of the second Gutenberg moment, the introduction of a “third way” in communications. We’ve had one-to-one and one-to-many. Now, we have many to many. This is entirely new, and it’s what Jay Rosen calls “The Great Horizontal.” It forms the essence of postmodernism, “I participate, therefore I understand.”

Western culture is entirely self-centered, which is where everyone of its institutions has drifted. Each is based on the promise of success and happiness, a bargain for permitting their selfishness. The institution of “Finance,” for example, says, “You need cash to bring you what you need to be successful and happy, and you need us to give it to you.” That is a lie.

No institution ranks higher in this than the legal profession, and it’s ripe for disruption by the culture it’s supposed to serve. That it costs more than $32,000 to defend yourself against a frivolous lawsuit is absurd, but it is the system that allows it.

How will we fix this?

We will somehow build a piece of software that contains all legal knowledge, can crank out responses to highly complex situations, can create forms required for the courts, and will enable people to defend themselves against bullshit like this. It’ll be a lawyer-in-a-box, perhaps a robot, of sorts. Granted, it may be years before we see this, but we WILL see it, just as we’ll see a similar doctor-in-a-box, which will dramatically reduce health care costs. The legal profession will fight this with everything they have. After all, our lawmakers are themselves members of this institution. But the people will prevail, because the second Gutenberg moment enables government of, by and for the people even more so than the first.

You don’t think this is coming? Why do you think the American Medical Association formed a new lobbying group in the mid 90s to insure that medical information on the Web would be kept under its purview? If you think it’s not about money, think again.

Any institution whose basis for living is based on protected knowledge is doomed. The cultural disruption of Gutenberg (and John WyCliffe) was in bringing the knowledge that governed the governors to everyday people, and that’s exactly the threat today. As a 15th-Century priest said, “The jewel of the elites is in the hands of the laity.”

Here’s the thing. There is zero incentive for reformation from any institution, but then, the media didn’t disrupt itself either. That was done by the Great Horizontal and funded by upstarts with a vision. The media has fought it tooth and nail, because its fatted calf is getting slain. Want more money? Shove another commercial in front of people, audience be damned! Well, we aren’t so damned anymore, and we’re taking over a culture that badly needs reforming. Look around.

When Gutenberg had the audacity to print a Bible, it gored the fatted calf of the Roman Catholic Church, who immediately demanded a right to license such activity. After all, THEY were the keepers of the good book (and ruled as a result of it). A few years ago, we had journalism school deans ban together to request licensing for journalism. It is eerily similar, isn’t it?

I don’t know when all this will happen, but I promise that there are more cases like Baio’s out there. As word of these spreads, and smart minds grasp that there’s money to made, we will respond.

We are the people. We will be heard.

Righthaven rulings impact everyone

Via Wired:

A federal judge ruled Monday that publishing an entire article without the rights holder’s authorization was a fair use of the work, in yet another blow to newspaper copyright troll Righthaven.

the problem with lawyersThe newspaper industry has generally been quiet about this whole Righthaven nonsense, and it deserves what is happening in the wake of these rulings. I wrote about this a year ago.

Suing is the last thing we want to be doing for only two outcomes are possible. One, fair use provisions are solidified and possibly even expanded, which will weaken the argument that traditional media companies want to use in protecting their “property.” That would not be good for them. Two, fair use takes it on the chin, which would give traditional media companies a sense of power and victory. In this case, others will seize the opportunity presented, and people will go elsewhere, New York Times be damned. That would not be good for media companies either.

Rather than talk some sense into Righthaven’s “client,” it appears we chose to sit back and hope. Instead, this stream of anti-Righthaven court rulings is establishing a very dangerous precedent for copyright future suits, and the industry will rue the day it decided not to get involved.

Chalk another one up for the personal media revolution.