Whatever that new new thing may be, it is supposed to have a business model: a business model is what separates the well-meaning amateur from the sustainable enterprise. It is vital for securing loans or venture capital. You can't be serious about sustaining a venture unless you have a plan for a business that will sustain that venture.

Except that maybe you can. I believe that in many cases, the urge to find a business model is orthogonal to one of the most important social changes today, one that is reformulating labor, technology, and product in unexpected ways.

Let's take a step back and explore how we usually imagine a business. Conventional wisdom dictates that, in order to create a product, there needs to be a profitable business (a firm), or similarly a well-funded non-profit with paid staff. The firm is a mixture of capital, labor, knowledge, and technology. The firm does the work of creating a product, in the way the Washington Post Company puts out the Washington Post newspaper. (Or, at least, still put it out when this post went online.) The firm's profits provide the capital needed to sustain the enterprise, and the actual work on the product is done within the firm. All this is so obvious that it hardly seems worth repeating, but therein lies the problem: the business model that assumes a firm is so ubiquitous that many people unknowingly conflate the firm with what it produces. They think that a product needs a firm, and even that each tends to scale with the other.

While the model in which a firm produces a product is common and viable, some of the biggest product success stories in recent history don't actually come from businesses. That's not to say that no one is making money from these products; there is plenty of green in these fields. But there isn't a one-to-one mapping between business (in the sense of a firm) and product. These new products are generated under the alternate organization of knowledge, labor, and capital called the free software model.

Free software has already had a profound impact on the world of IT, and its impact is being felt in other domains as well. Many people have heard of free software, Linux, or "open source," or may have downloaded the Firefox web browser. But few understand how free software is made. I believe that the way free software projects are created and maintained could be a great model for the future of news.

Let's look at one tried and tested free software project: the Apache HTTP server. HTTP servers are the bit of software that lives on hardware servers, taking requests for web pages and then dishing them out. Since 1996 Apache has dominated the intertubes, and currently has 50% of the global market. It is a complicated, comprehensive piece of software, the necessarily fast and secure engine that serves most major web sites. Apache HTTP is not made by a business, nor is it even made by a non-profit; rather, it's made according to a free software model. True, it's technically hosted by the Apache Foundation, a 501c(3). But the Foundation was formed in 1999 -- three years after the product was launched, and after the server had about 60% of global share. The non-profit Apache Foundation was created to help manage the project, but little of the code is generated by employees of the Foundation. Moreover, Apache Foundation now hosts dozens of different projects other than the HTTP server, some that are nearly as successful.

So while the Apache Foundation clearly has a plan -- perhaps even a business model -- the product itself is co-produced by literally hundreds of other businesses and individuals. Apache HTTP and other massive free software projects are the fruit of the labor of a group of committed, er, "committers" -- people who are trusted to create and modify the project's source code and upload it to the community code repository. Their changes may well be integrated into to the next release of the software. A list of current Apache Foundation committers -- roughly 2000 -- can be found here, and the "trunk" (main version) of the server they're building together is here.

Why do these people work on a software project that isn't cutting them a paycheck? They might be working in a big company that uses Apache HTTP, and are paid by their company to tailor it or add functionality. Some have their own business or consultancy that is competitive precisely because they know Apache inside and out -- and they continue to work on Apache in their down time. Some are individuals who work all day programming for a company that takes their work and gives them a paycheck, but keeps the rights to their work and "manages" their contributions. These programmers then go home and program for a free software project, an egalitarian enterprise that they see as a contribution to society. There is no one personality type that describes a free software project committer; indeed, there's no one model of a free software project.

Different free software (and free culture) projects have quite different labor, funding, and management structures. Wikipedia is largely maintained by non-programmers. Ubuntu (an alternative to Windows or OS X, currently used by millions of people) has a multimillionaire founder and front man, is backed by a private company, and borrows from an older product called Debian for much of its technical foundation. The Python Foundation coordinates Python (my favorite programming language), and its sponsor page has a list of corporate logos that would overwhelm a racing car. None of the products of these collaborative initiatives runs off of a single traditional business, though many people are making money from and through these products.

The projects I've mentioned so far are large, with hundreds or thousands of contributors. But the free software model isn't just for big projects. By far, the majority of free software projects are not massive; they solve a smaller problem, and have one, two, or three contributors. They may see little use, and need little improvement. But some of these projects are huge, and have scaled incredibly: Wikipedia's english edition, love it or hate it, has 2.5 million articles, and has incorporated edits from 220 individuals in the minute that I wrote this sentence. (The Wikinews project has, in contrast, been something of a dud. Indeed, it fails in the way that much contemporary American journalism fails, by trying to create a neutral point of view. But while the Wiki* projects share some similarities to free software projects, they are also different, and I don't think we can generalize much from Wikinews' shortcomings.)

These free software projects are based not in business units but in communities. Granted, in virtual, distributed communities rather than geographic ones, but communities nonetheless. None of these projects could have existed before the Internet, but projects like Debian also have quasi-Masonic systems of induction, including personal meetings and cryptographic signatures for all the trusted committers. Anyone who can contribute working code can join, and if they aren't too sociopathic they can rise within the enterprise. The more people involved in a project, the more "eyeballs on the code," meaning the less chance of a security hole, stale code, or inefficiency. This leads to great product: after all, Microsoft and Sun didn't cede the leading market position in web servers for over a decade because they decided they didn't want it. Apache was just plain better.

It's understandable that so many entrepreneurs default to a standard business model rather than the free software model -- even when they are creating web sites that will be served off of Apache HTTP. In many ways, the impact of free software is misunderstood or underestimated, in no small part because corporations like Microsoft have actively tried to block or obscure free software's success. But part of our unfamiliarity with free software models is because they are relatively new and quickly evolving, and their impact has mostly been felt in the guts of computers and networks. Every web user has "experienced" Apache HTTP much more than they have YouTube or Facebook -- easily thousands of times more -- but most of them didn't know it because Apache is doing its work transparently. Wikipedia and Ubuntu are, nonetheless, recent proof that it's possible to create goods and services that aren't just for hypergeeks, and even business schools are starting to take notice of how these remarkable products were made and are sustained.

At the Center for Future Civic Media we're not only looking at a journalism model, or even a firm-oriented business model. Indeed, many of our projects borrow the labor/knowledge/capital models of free software, activism, or other community-based enterprises. In the nearly two hundred years since LLCs and corporations started, they have produced most of the products we touch or use every day. But there's a new alternative to that model, and it's one that might lead to stronger, healthier, more informed communities.

Earlier this year they hosted a conference with community foundations on the Information Needs of Communities in a Democracy, then they announced the Knight Center of Digital Excellence focused on universal access to the "digital town square," and most recently announced a commission on the Information Needs of Communities in a Democracy and $24 million in matching funds for community foundations (see my collection of online civic engagement resources for community foundations referenced in a Council on Foundation's e-newsletter).

These investments represent the largest basket of resources I've seen to date on e-democracy/citizen media in the United States focused at the local level. What comes of this matters.

Since I've been working directly on local democracy building online for 15 years, I thought I might summarize a few starting-point recommendations:

1. The intelligence is in the network.

Because those delivering on local democracy online are very locally focused, they often do not take the time nor have the capacity to share their story. People on the front lines do not realize they have done something notable because they do not have a reason to compare themselves with communities across the state, much less around the country.

Recommendation: Network local people and project aggressively and create ways to share stories online. While national conferences are nice, really work to use online tools to connect projects without travel resources. Definitely reach out beyond your comfort zone in journalism to include open government advocates, governments themselves, and democracy building/convening non-profits.

2. Gather international lessons.

Like I did for the UK Local E-Democracy National Project with global best practice case studies and briefs, take the time to gather the best domestic and international examples. In the over two dozen countries I've visited, local civil society-conceived online community building projects (often government-funded where U.S.-style foundations do not exist) I've seen much more development than in the United States. On the other hand, we tend to lead in online advocacy, e-campaigning and commercial local online news projects.

Recommendation: Learn from success and more importantly failures around the world. Document the best examples (steal my past work :-)) to help Americans realize the train has left the station with local democracy online and now is the time to catch up.

3. Connecting people-to-people.

I've come to the conclusion that connecting local people to other local people through online public spaces is the most transformational and powerful thing you can do to build communities with stronger local democracies. As long as there is a civic cross roads online -- a there there if you will, information, news, local content of any kind can find a real audience through local conversation. While news and information gets old quickly, the connections among people can be sustained and grown over time.

At E-Democracy.Org we call these local or neighborhood online town halls Issues Forums. Similar people to people models are almost completely opposite from the sad trend in local news online to attach unsigned often nasty reader comments to stories online. Instead of building real community, the main approach is to maximize the number of heat generating comments.

Disappointingly, this eyeball maximization approach is at the expense of the local media institutions public mission and reputation as well as a knock against building social expectations that the Internet can contribute positively to local civic engagement. By placing news items, information items of any kind for that matter, out as the central organizing point for commentary is needlessly splitting local citizens into small completely transitory conversations of limited reach without a sense of accountability and meaning.

Recommendation: Develop public places for sustained online conversations among local people. They are both powerful and cost-effective. Democratic information and news has limited value online with out independent places where it can be used, exchanged, commented upon, and corrected. Explore both city-wide and neighborhood examples.

4. Think transformational informational infrastructure not just news.

While these Knight initiatives can certainly build on the digital future of local journalism and the Knight News Challenge, the other 2/3 of the local democracy equation including local civil society and government/governance provide a strategic opportunity (and a more stark market failure). I have a number of ideas about upgrading local democracy for the information age. Many of them center around systematizing local democratic information -- from open source and syndicated local voter guides to the public meeting system of the future.

Imagine the public meeting calendar of the future where local news sites and others provide real-time access into all public meeting schedules, agendas, minutes, handouts, digital recordings, extended online testimony, etc. While the Sunlight Foundation promotes projects like OpenCongress.Org using scraped congressional legislative information, state-level projects could do the same. The problem now is that at the local level governments simply don't have standardized decision-making process information systems that display the official "democracy pulse" in that community.

Recommendations: The Knight initiatives should explore ways to create a promote open data standards for this kind of information so while governments will use a zillion different systems, like "web feeds" their content can be aggregated nationally and displayed to citizens from their place/perspective on media and other sites. This may be the only way citizens will ever be able to put in their zip code and some keywords and be notified in a timely manner about ALL of the local, regional, state, even Federal government meetings and calls for public input related to where they live and their issue interests.

At some point in 2007, crystallized in part by the Open House Project, a number of Americans began to wake up to the potential of the Internet in "governance." That is between elections and not just for one-way government (or media) information or protest oriented e-advocacy. This interest was further fed by the second day of the Personal Democracy Forum focused on governance (here's a video of my speech and New York Times coverage of the conference). The exciting opportunity for Knight is to connect this mostly DC-centered interest with grassroots bottom-up activity at the state and local level to make democracy online a national movement.

Steven Clift
E-Democracy.Org

The legal guide, which runs more than 575 pages, is funded by the John S. and James L. Knight Foundation. It covers the 15 most populous U.S. states and the District of Columbia and is broken into six major sections:

• Forming a Business and Getting Online, which covers the practical issues online publishers should consider in deciding how to carry on their publishing activities, including forming a for-profit and nonprofit business entity, choosing an online platform, and dealing with critical legal issues relating to the mechanics of online publishing;


• Dealing with Online Legal Risks, which covers managing a website and reducing legal risks through compliance with the Digital Millennium Copyright Act and other laws, finding insurance, finding legal help, and responding to legal threats;


• Newsgathering and Privacy, which addresses the legal and practical issues citizen media creators may encounter as they gather documents, take photographs or video, and collect other information, including information on state shield laws and using confidential sources;


• Access to Government Information, which provides information for citizens to proactively use the law in an affirmative manner to enhance their reporting and highlights the extensive amount of information available through government sources and explains how both traditional and non-traditional journalists can use various public access laws, including the Freedom of Information Act, state open records and open meetings laws to gather and make effective use of government information;


• Intellectual Property, which explains various intellectual property concepts, including copyright, trademark, and trade secrets, and provides practical advice to online publishers about how to use the intellectual property of others and protect their own property from exploitation; and


• Risks Associated with Publication, which covers defamation law, privacy law, rights of publicity, and other legal risks that can arise from public distribution of content. This section also explains the legal risks associated with the publication of reader comments and other user-submitted material.

Of course, law is never static, so we'll be updating the guide from time to time.  If you would like to stay abreast of these changes and any new material, please sign up for our weekly newsletter, the Citizen Media Law Brief.

The legal guide is the product of a tremendous amount of work by CMLP students and staff, especially Sam Bayard, CMLP's assistant director, and Tuna Chatterjee, CMLP's staff attorney. We also received help from Allan Ryan, the Director of Intellectual Property at Harvard Business School Publishing, and a team of top lawyers at Skadden, Arps, Slate, Meagher & Flom LLP, including Richard Hindman, Jane Harper, Kai Kramer, David Pawlik, and Eric Sensenbrenner. 

Last week one of the most emailed stories on the New York Times website was about a medical doctor who traded in his profession for a more lucrative one: blogging. No, Arnold Kim M.D. does not blog about kidney diagnosis, his specialty, but rather, rumors about future Apple products. His blog, MacRumors.com is listed as the second most valuable blog ($85 million) on the internet right behind Gawker Media and ahead of The Huffington Post, according to 24/7 Wall St., a financial news blog.

But what if Arnold Kim M.D. did decide to blog about medical tablets rather than speculation of an Apple tablet? What rules and ethics would govern Kim's blogging? Should he offer medical advice on his blog? Is it ethical to describe the conditions of actual patients? Would it be better that he blog anonymously or that he use his real name? Should he be forthright about the problems facing his profession and the hospital where he works?

Those same difficult questions were asked by Tara Lagu, Elinore Kaufman, David Asch, and Katrina Armstrong in "Content of Weblogs Written by Health Professionals," an academic paper funded by The Robert Wood Johnson Foundation and published in the Journal of General Internal Medicine last week. The cost of the article if published from JGIM is $32, however, the entire article has been made available on the web by Pharmalot. The objective of the study, in its own words, is to "examine the scope and content of medical blogs and approximate how often blog authors commented about patients, violated patient privacy, or displayed a lack of professionalism."

The authors of the study take for granted that the influence of medical blogs will continue to grow:

Medical blogs are now part of the literature and media of medicine. These media include professional and scientific publication and presentation, medical stories and medical dramatizations in books, movies, theater, radio, and on television. Although medical blogs are a new addition to this list, the rapid increase in the use of the Internet suggests that their importance will
grow.

But they are also cautious about the unique unmediated nature of the medium:

Other forms of medical communication, such as presentations at medical conferences or articles in the lay press, adhere to specific standards of content and decorum. In contrast, medical blogs are public documents written in a diary style typically used for private thoughts. The authors of some medical blogs censor their thoughts and comments less than we expect they would in traditional public settings.

The Flea Malpractice Controversy

Without explicitly saying so, the study was seemingly inspired by the controversial case of 'Flea', a pseudonymous blogging doctor who revealed the details of a patient's death after a malpractice case was brought against him. Incredibly, 'Flea', now publicly known as Robert P. Lindeman, blogged his way to a costly out-of-court settlement after publishing posts which ridiculed the plaintiff's case and the lawyer, and accused members of the jury of dozing. It was, according to the Boston Globe's Jonathan Saltzman, "a Perry Mason moment updated for the Internet age."

Lindeman's blogging as a court defendant, much like his blogging as a pediatrician, offered insight into malpractice cases which is not widely known among the general public. According to the Boston Globe article:

In April, before the trial began, [Lindeman] wrote about meeting with an expert on juries who advised him how to act when he was cross- examined. Flea was instructed to angle his chair slightly toward the jury, keep his hands folded in his lap, and face the jury when answering questions, slowly. "Answers should be kept to no more than three sentences," he wrote.

The consultant told him juries in medical malpractice cases base verdicts almost entirely on their view of a doctor's character.

"We've said it before, and we'll say it again: If the basis of this case is that Flea is an arrogant, uncaring jerk who maliciously neglected a patient, resulting in his death, the plaintiff will not win, period," Flea wrote.

Held to Higher Standards

In total, the authors of Content of Weblogs Written by Health Professionals identified 271 medical blogs with the help of Google and three medical blog aggregators: Medlogs, Yahoo Health and Medicine Blogs and The Medical Blog Network. In each of the 271 blogs, they examined five posts from throughout 2006, but do not explain how those five posts were selected. (I certainly wouldn't want my own blog portrayed in an academic study based on just five blog posts.)

They found that over half of the bloggers provided sufficient information to reveal their identities. Individual patients were described in over 40% of the studied blogs and were portrayed positively in 16% of blogs and negatively in nearly 18%. "Of blogs that described interactions with individual patients, 45 (16.6%) included sufficient information for patients to identify their doctors or themselves. Three blogs showed recognizable photographic images of patients. Healthcare products were promoted, either by images or descriptions, in 31 (11.4%) blogs."

The authors of the study don't judge the torrent of new medical blogs to be either good or bad. Rather, they acknowledge that blogs "allow physicians and nurses to share their narratives, knowledge and
experience with the healthcare world" and "accurately portray the challenges facing our professions." However, they caution that "health professionals who share private thoughts in public settings risk revealing confidential patient information or otherwise reflecting poorly on the profession" and recommend that healthcare professionals who blog hold themselves to higher standards.

The author of Clinical Cases and Images, responding to the study, offers tips for fellow medical bloggers such as "write as if your boss and patients are reading every day", "comply with HIPAA", "use a disclaimer", and "get your blog accredited by the Heath on the Net Foundation." Kevin, M.D., one of the most popular physician bloggers, also responded to the study, agreeing that "physician blogs that write about patients do need to be held to a higher than normal blog standard", but that physician blogs should not be required to disclose conflicts of interest nor be held to the same standard as medical journals. Ed Silverman, who blogs at Pharmalot, is bemused that doctors so frequently complain about not having enough time to see patients, but do manage to find time to blog about them. Dr. R.W. Donnell, who blogs at Trusted.MD, notes that there is still little consensus on whether medical bloggers should publish anonymously or not.

Can Health Bloggers Shape Health Policy?

The study also notes that medical blogs "can accurately portray the challenges facing our professions." But can they be harnessed to help find solutions to those challenges and to shape local, national, and even global health care policy?

This is the central question of a panel discussion on Tuesday, July 29 sponsored by the Kaiser Family Foundation. According to the blurb:

The briefing will highlight how the traditional health policy world has embraced blogging and will feature a keynote address by U.S. Department of Health and Human Services Secretary Michael Leavitt, the first cabinet officer to author an official blog, followed by a moderated discussion with a variety of health policy bloggers and a media analyst.

According to the About Page of Secretary Mike Leavitt's blog, he is:

taking time to blog as a way to foster public discussion. The blog is the result of the Secretary’s continuing desire to engage Americans in the exchange of ideas on health care and the provision of human services. It provides an opportunity for the Secretary to share his observations as well as a means for him to have an open conversation about health and the related challenges that face the nation. The blog is intended to be a dynamic online conversation and the Secretary welcomes your ideas for overcoming those challenges.

Other health bloggers on the panel include Jacob Goldstein who blogs at the Wall Street Journal's Health Blog, John McDonough a senior adviser for Senator Edward Kennedy who blogs at Commonhealth and used to blog at A Healthy Blog, Michael Cannon who is the Cato Institute's director of health policy studies and frequent blogger, as well as Kaiser Family Foundation CEO Drew Altman who has so far published at least one blog post himself.

Global Voices for Global Health?

Other health-focused philanthropic foundations are also looking toward the blogosphere as a place to stimulate debate about health care policy. Last week I was invited by the Rockefeller Foundation to help cover a conference they have organized about Global eHealth. (You can see my conference coverage here.) Rather than sticking to press releases fed to mainstream journalists, the conference organizers realized that bloggers could help reach new audiences and foster more interactive discussions around how technology can be used to improve health care in developing countries.

Similarly, the Health Media initiative of Open Society Institute's Public Health program has partnered with Rising Voices, the Knight News Challenge grantee which I direct, to train staff at six health-focused NGO's in the developing world how to use citizen media like blogs, podcasts, and online video to spread awareness about their work and the populations they work with.

We have hired Juhie Bhatia as Global Voices' public health editor to help filter and feature the content produced by these six NGO's as well as content from the greater health blogosphere worldwide. Already she has published a fascinating piece examining Indian bloggers' reactions to a controversial proposal in Maharashtra to make HIV testing compulsory before a couple is able to marry. Like so many posts on Global Voices, it is available in multiple languages including Bangla, French, Macedonian, and Hindi.

Whether a single blog can help influence health care policy in the United States or, for that matter, in Ukraine or Romania, remains to be seen. But it is undeniable that health-focused blogs have alredy become part of what the authors of the article from the Journal of General Internal Medicine refer to as "the literature and media of medicine." The ultimate goal, of course, is that more information and more discussion will eventually lead to better healthcare, better health policy, and healthier lives.

Alyssa decided to try something to counter what she felt was the toxic cultural impact of the "See Something, Say Something" campaign. She recognized that she couldn't eliminate that campaign entirely, because people do want to be vigilant against possible acts of terrorism. But they could also understand strength and security in their communities a different way--as a matter of people taking care of each other, even as strangers. She decided to invite people to start looking for acts of heroism, generosity and civic engagement, however small or fleeting they might seem.

Her "Hero Reports" project (http://heroreports.org) has since won the attention of John Hockenberry's "The Takeaway" morning public radio program, and may be replicated in other cities. Here is how it works: anyone can go to her website or text message her in order to fill out a very brief form citing an act of courage, selflessness or special courtesy they have witnessed or experienced. It can be "challenging a racist stereotype, providing a stranger's bus fare, helping a disabled person across the street, assisting someone in difficulty," Alyssa says. She counts even small "acts of community" as heroic. The forms collect information about the date, time, place and description of the hero report. She is gleaning some of them from first-person accounts, and some from news media accounts. She hopes to collect at least 1,944 reports to match the number of suspicion reports under the See Something, Say Something MTA campaign.

At the end of the summer, Alyssa will present a collection of her Hero Reports to the New York MTA. She also is mapping the reports on her website, so that New Yorkers can see their security in a new way, as a series of places where acts of civic heroism--rather than crimes, which are so often plotted on these news maps--have taken place.

Alyssa's challenge was to design, build and operate the interfaces, website and database. She wanted it to look like the MTA's advertisements. Anyone who wants to contribute a report should do so soon--and if anyone wants to give feedback to Alyssa about the project, she is at apw217@mit.edu

New York's Libel Terrorism Protection Act was meant to address situations like that of Rachel Ehrenfeld, who was sued for libel in the United Kingdom by Saudi banker Khalid bin Mahfouz over her book, "Funding Evil: How Terrorism is Funded and How to Stop It," which she published in New York. According to evidence in the case, a mere twenty-three copies of the book were sold in England, but that was sufficient for a U.K. court to exercise jurisdiction over Ehrenfeld. As a result of her refusal to appear or contest the court's jurisdiction, the court entered judgment against Ehrenfeld in the amount of $225,000. Ehrenfeld then sought a declaratory judgment in New York federal court stating that the U.K. judgment was not enforceable in the United States because it did not comport with the First Amendment. Punting on that issue, the federal court certified a jurisdictional question to the New York Court of Appeals, which held that New York courts did not have authority to hear Ehrenfeld's case.

After Ehrenfeld's plight became widely known, the New York legislature passed the Libel Terrorism Protection Act to give Ehrenfeld and others who are sued abroad for libel the right to obtain a declaration by New York courts that U.S. law protects their speech. Governor Patterson signed the Act into law on April 28, 2008.

In a similar effort at the federal level, Senators Arlen Specter and Joseph Lieberman have introduced the Free Speech Protection Act of 2008, which would allow a federal court to enjoin the enforcement in the United States of a foreign libel judgment if the speech at issue would not constitute defamation under U.S. law. 

Yesterday, Specter and Lieberman published an op-ed in the Wall Street Journal explaining the proposed law:

Our bill bars U.S. courts from enforcing libel judgments issued in foreign courts against U.S. residents, if the speech would not be libelous under American law. The bill also permits American authors and publishers to countersue if the material is protected by the First Amendment. If a jury finds that the foreign suit is part of a scheme to suppress free speech rights, it may award treble damages.

First Amendment scholar Floyd Abrams argues that "the values of free speech and individual reputation are both significant, and it is not surprising that different nations would place different emphasis on each." We agree. But it is not in our interest to permit the balance struck in America to be upset or circumvented by foreign courts. Our legislation would not shield those who recklessly or maliciously print false information. It would ensure that Americans are held to and protected by American standards. No more. No less. 

Apart from Specter and Lieberman's gratuitous reference at the end of their op-ed to "Islamist terror" as a justification for the federal law, this is an important issue for both traditional publishers, who are increasingly moving to online distribution, and citizen media, who already use the Internet to reach audiences all over the world, including in countries that don't have adequate free speech protections. Let's hope that Congress acts quickly on this.

In some instances, the denial seems like out and out political retribution. Leonard Levitt, a former Newsday reporter who now writes the blog NYPD Confidential, lost his pass. Levitt has been a persistent police critic, dating back to his days in print. But once he moved on line, the city had an excuse to pull his credentials.

The New York Civil Liberties Union has filed suit on Levitt's behalf against the NYPD, demanding it reveal the criteria for press passes. Interestingly, the department's own instruction page for getting credentials makes no distinction between on-line and other reporters saying that credentials are for "are for those individuals who are full-time, news staff employees."

The police also revoked press credential for Rafael Martínez Alequin, a bit of a gadfly whose questions apparently irritated Mayor Michael Bloomberg. Martínez Alequin had had a small print publication but switched to on-line only with a blog called Your Free Press. In denying the permit, the department reportedly said Martinez Alequin had failed to prove that he was "a full-time employee of a news gathering organization covering spot or breaking news events on a regular basis."

As for Gotham Gazette, the denial of credentials is ironic. Until a few years ago, we published a small hard-copy newsletter that went out to maybe a couple of thousand New Yorkers and was handed out free at city libraries. Our reporters had press passes. Starting in 1999, we began moving operations on-line, picking up thousands more readers in the process -- but putting our press credentials in jeopardy. We are now exclusively on-line.

As long as hardly anyone read us, we were real reporters in the eyes of the police bureaucracy; now that tens of thousands of people do, we're not. And to use the department's own words, Gotham Gazette is a "news gathering organization"; Courtney does cover "spot or breaking news on a regular basis."

In Courtney's case, the department has resorted to evasive tactics. There is a right to appeal but the department's Office of Public Information has delayed setting a date for one. Calls go unanswered.

The department's action raise a number of issues. Why does an agency headed by a mayoral appointee and replete with politics get to decide who can cover that mayor and the city government? And as the barriers separating journalists from everyone else fall, what defines a journalist? Everyone seems to have a blog. Should the NYPD give all of them press credentials. Is that realistic in light of security concerns? Probably not. So then, back to square one: Who gets to decide who is and who is not a journalist and what criteria should they use?

The Drudge Retort is a community site similar to Digg and Reddit, allowing its users to contribute blog entries, comments, and links to interesting news articles. According to Cadenhead, none of the six posts republished the full text of an AP story; instead, each contained quotes ranging in length from 33 to 79 words (although the posts have been removed, Cadenhead has provided a summary of them here).

Of course, you might be skeptical whether such minimal -- and no doubt widespread -- quoting of AP content is actually copyright infringement, and you'd be right. Indeed, a number of prominent bloggers took AP to task (see here and here) for sending the takedown notice and ignoring what has become the general practice in the blogging community of using headlines and excerpted quotes from MSM sources. As Jeff Jarvis notes, the AP "is ignoring the essential structure of the link architecture of the web. It is declaring war on blogs and commenters."

In fact, it is very likely that the posts AP is complaining about on Drudge Retort are permissible fair uses under the Copyright Act. First, several posts appear to be offering commentary on recent news items. The use of another's copyrighted work for the purpose of criticism, news reporting, or commentary, will generally weigh in favor of fair use.

Second, all of the posts use fewer than 80 words from the original AP articles. While there is no bright line that defines how much of a copyrighted work can be copied and still be considered fair use, courts will consider the amount and importance of the material copied in assessing what is permissible. I can't tell how long the original AP articles were, but it's likely that all of the articles were substantially longer than 80 words.

Third, it is hard to see how the posting of AP headlines and 80 word snippets could possibly impair the market for the original AP articles (when evaluating fair use claims, courts are most concerned with whether the copying will undercut the market for the original work). Instead, the posts AP is complaining about would seem to be doing just the opposite. Users of Drudge Retort, and sites like it, post these headlines and snippets for the very purpose of alerting others that some interesting piece of news exists. These snippets invariably include links to the original articles and serve to drive traffic to the site hosting the original AP story.

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.

It doesn't appear, however, that AP is continuing to pursue a "hot news" misappropriation claim against Drudge Retort, and for good reason. This little known legal doctrine, which saw its genesis in 1918 in International News Service v. Associated Press, 248 U.S. 215 (1918), seems to have fallen out of favor because the 1976 Copyright Act preempts all legal and equitable rights that are equivalent to the exclusive rights offered by federal copyright law. As a result, in National Basketball Ass'n v. Motorola, 105 F.3d 841, 844 (1997), one of the few cases to address a "hot news" claim, the Second Circuit set an exceptionally high standard for such claims to be viable, requiring, among other things, that the information be time-sensitive; the defendant be in direct competition with the plaintiff; and the continued publishing of the "hot news" would so reduce the plaintiff's incentive to produce the product or service that its existence or quality would be substantially threatened.

Accordingly, to succeed with a "hot news" misappropriation claim, AP would have to prove not only that the Drudge Retort is a direct competitor to the AP, but also that its headlines and text were time-sensitive and Retort's use of this content would so harm the 1,500 member news cooperative that their continued publication would threaten AP's existence.

Perhaps because AP recognizes that its legal claims against Drudge Retort and its users are weak or because it has realized that its "heavy handed" approach might be counterproductive, it announced that it would rethink its policies toward bloggers and come up with a set of guidelines for others to use its articles.

I think it's laudable that AP is rethinking its approach and planning to meet with representatives of the Media Bloggers Association and others, but let's be clear here. While AP is entitled to issue a set of guidelines for the use of its articles, these guidelines are not legally enforceable and they cannot narrow the scope of what is permissible under the fair use doctrine. The blogging community needs to be careful not to allow these guidelines to become a de facto set of norms that constrain the permissible uses of news content.

Fair use permits a broad array of innovative and transformative uses of copyrighted material. It also is essential to ensuring that copyright holders don't trample on First Amendment rights. In the end, AP and other news organizations will be better off if they work together with bloggers and community news sites to expand, enhance, and contextualize news. Let's hope the AP's guidelines take this into account.

(You can follow further developments in the AP's dealings with Drudge Retort in the Citizen Media Law Project's Legal Threats Database entry: Associated Press v. Drudge Retort.)

Jason wrote in to ask why I thought that the newspaper industry was in a Dip. In my book, I point out that with classified ads disappearing and the web thriving, the days of newspapers as we know them are clearly over. That shouldn't mean the industry is in trouble. In fact, there are more people reading more news every day than ever before--without the cost of printing and distributing a costly piece of newsprint every day. Happy days...

But (many of) the people in the industry have built their lives around the trees. As a result, the industry is over. A new industry is being built in its place, often with new people doing work that might be done far better by the old hands, the ones who are stuck defending the wholesale slaughter of trees.

If you think your job is to keep the printers busy, then you see the world differently. You focus on per issue sales, you worry about people sharing a paper (!), you don't count online readers as valuable (even though they're more valuable). You focus on one edition, not a thousand different versions. You focus on having one front page, not dozens based on who is reading.

If you work for a newspaper that feels this way, every day you stay is a day wasted.

Godin often disclaims that he offers solutions. He says he tries to get people to see the right problems. That leaves a lot unanswered here- far too many unanswered questions to be of immediate use to people like ourselves who are already grappling with this situation. But as a bracing outside voice, maybe the above quotation can shake up our thoughts a little.

Personally, I want the future of news to be online because - as long as we retain net neutrality - the barrier to entry for starting a news operation is much, much lower on the Internet than it is in print. (A new Knight News Challenge funded project could vastly reduce this divide between online and paper, Printcasting.)

However, disregarding the difficulty in developing a financially sustainable business model online to replace the longtime easy-money paper business model is folly, and not because wringing our hands is useful.

The difficulty with building content-producing businesses around digital media shows some critical problems with the current and future media landscape. Government policy determines the economics of media, and the current model is based on either controlling distribution or getting a third party (mostly, advertisers) to pay.

In both cases the result is less than optimal for meeting the needs of a democratic society. With restricted distribution, news gatherers withhold important information from people who need it. With outside (advertiser, government, even foundation) subsidy, reporting on critical concerns is distorted by the perspectives of those who pay. (This helps explain why buying and borrowing are important to media, while bankrupcty law and surviving the sinking of a skewed economy is not.)

The fact that both models are weakening gives us a chance to replace them, but we're only have a chance of gaining something better if we both acknowledge, first, the role of government policy in shaping the economics of media and, second, the flaws of the current model apart from the current risk of financial insolvency for journalism.

To kill trees or not to kill trees isn't the most important issue from the perspective of investigating and disseminating the hard news we need. Instead, my takeaway and starting point is this:

Laws that try to treat information as property are harmful to journalism in the public interest.

Knight Foundation CEO Alberto Ibarguen (pictured below) announced the winners at the conference this morning. I think the most exciting aspect of the next round of winners is the international focus this year. There are projects in Africa, India, and Europe, as well as the U.S. -- all focused on connecting physical communities using technology and the Internet. There also seems to be a greater focus on rural communities and using mobile technology.

Another top-line highlight is that Tim Berners-Lee, the father of the web, will be one of the grantees for a project on transparent journalism that plans to create a tagging system for reporters so they can say how they source stories. That way, people searching for information on a particular event can then filter the search results according to the way the stories were reported.

Other interesting project winners:

> Freedom Fone in Zimbabwe will let people call into a voice database to hear audio news and pose questions on a voicemail system. It will help people in a country with little Net access get news via cell phones.

> Sochi Olympics Project will be a special website set up for the Russian town of Sochi that will be hosting the 2014 Winter Olympics. It will help them discuss the local impact of the Olympics and share their concerns and discuss issues in the community.

> Spot Journalism will help local communities raise money to assign a reporter to do an investigative report on a subject. The site will take in money by micro-payments, triggering an assignment to a journalist if enough money is raised.

> Radio Drupal will be a turnkey platform for radio stations to set up a web presence on Drupal, including radio archives, producing podcasts and streaming video and audio online. It will run on a test station and then be offered to other stations.

> Community Radio in India will help connect rural stations in India online. Plus it will help non-profits in India start to broadcast on the radio there.

It's been very exciting to meet the next group of Knight grantees here at the conference and I'm looking forward to seeing how their projects progress in the months ahead. Luckily, we'll all get to follow their projects right here on Idea Lab.

What do you think about the new round of News Challenge winners? Which projects interest you the most? Is there something you think is missing in the process? Share your thoughts in the comments below.

UPDATE: Oliver Luft at Journalism.co.uk asks a good question: Why doesn't the UK have a News Challenge like Knight's? I don't believe that the two UK-based finalists Luft mentioned ended up winning grants this round, but hopefully other foundations abroad will step up to fund innovative programs the way Knight is doing.

Photo of Ibarguen by Kristen Taylor of Knight (formerly of PBS).

While I think he gives too little credit to citizen journalists/media, equating them all with bloggers and asserting that they are largely "parasitic," his central points are mostly valid:

[N]ews and opinion blogs are largely (but certainly not entirely) parasitic on the institutional press. They copy, quote from, discuss, and criticize stories reported in the press far more than engaging in original reporting or linking to other blogs. And just like peer-to-peer traders of music and movie files, online readers copy and distribute stories from newspaper Web sites to their friends via email and social network sites. Especially for the young, trading copies of newspaper stories often substitutes for visiting the paper's Web site.

As Netanel correctly notes, news organizations (be they old media or new media) that do original reporting suffer from the classic public good problem: while they invest in investigating, reporting, editing, and fact checking their work, their competitors can simply use the finished product without making a similar investment in original reporting. One remedy to this problem proposed by the Pew Research Center's Project for Excellence in Journalism involves having news providers create a consortia to "charge Internet providers and aggregators licensing fees for content."

But this raises a host of concerns, which Netanel points out at the end of his piece:

To my mind, giving news providers a proprietary veto over online news aggregators', Internet providers', and bloggers' referencing of news stories would impose an unacceptable burden on speech. I argue in Copyright's Paradox that, all in all, holding such referencing to be fair use or otherwise noninfringing of copyright is the best solution. But I can see advantages to imposing some sort of statutory license or levy on commercial Internet service providers and news aggregators who profit from news providers' investment. Newspapers should not have a veto over who references their stories or how. But ensuring that they receive some compensation for their investment in quality reporting might be our only hope for maintaining that investment and the vital fourth estate benefits that flow from it.

You can read the entire post here. I also recommend reviewing the comments to his post, which has, as you would expect, elicited some good discussion.

So it was distressing when our technical director, Amanda Hickman, using Technorati, found many sites using our material. These were not links -- we are delighted when people link to Gotham Gazette stories. Instead these sites simply took the full text of our article and put it on their site in some cases, with little or no attribution or credit, even to the extent of making it look like their own original material. Needless to say, none of them had requested information or permission (in most cases, we do allow other publications, particularly non-profit or educational ones, to reprint our stories with proper credit).

In the past, other sites have not only reprinted our material but deliberately distorted it. In a particularly egregious case, a neo-Nazi site reprinted an article we had written about a group of Israeli furniture movers who had been detained immediately after the 9/11 attacks on suspicion of having been involved because they were Middle Eastern in a appearance and had a truck. Our story was about the legal labyrinth these men found themselves in; the neo-Nazis reprinted parts of it in an effort to argue that Jews were responsible for 9/11.

This was obviously an extreme case. But my sense (though I'll bow to he experts at the Citizen Media Law Project on this) is that all of this unauthorized reprinting is not legal. Practically, though, what can Web sites do to protect their content? And should we even bother or is this the price we pay for having so much access to so much information all the time?

On April 21, magistrate judge Muirhead granted Seidel's well argued motion to quash the subpoena. In so doing, the judge also ordered Shoemaker

to show cause within 10 days why he should not be sanctioned under Fed R Civ P 11 - see Fed R Civ P 45(a)(2)(B) which requires that a deposition subpoena be issued from the court in which the deposition is to occur and Fed R Civ P 45 (c)(1) commanding counsel to avoid burdensome subpoenas. A failure to appear will result in notification of Mr Shoemaker's conduct to the Presiding Judge in the Eastern District of Virginia.

Shoemaker will have a difficult time explaining why the subpoena he issued is justified, as it demands the disclosure of documents that appear to have no relevance to the Sykes litigation. Instead, it is rather obvious that the subpoena was intended to coerce a critic of his clients to "shut up."

The use of unjustified legal threats should never be allowed to silence speech. We all lose when we allow that to happen.

(You can follow further developments in the case by going to the entry in the Citizen Media Law Project's Legal Threats Database: Sykes v. Seidel.)

Seidel publishes the blog Neurodiversity, where she writes about autism issues. In February 2008, she wrote about a lawsuit against various vaccine manufacturers, Sykes v. Bayer, in which the plaintiffs, Lisa and Seth Sykes, seek to link exposure to mercury to their son's autism.

Seidel's post mainly focused on developments in the lawsuit, but some of her language was critical of the Sykes and their case. For example, she indicated that the Sykes have "aggressively promoted the overwhelmingly discredited scientific hypothesis that autism is a consequence of mercury poisoning" and called their lawsuit "a hydra-headed quest for revenge, for compensation, and for judicial validation of autism causation theories roundly rejected by the greater scientific community, by numerous courts, and by a great number of individuals and families whose interests they purport to represent."

Apparently as a result of this post, the Sykes served her with a subpoena in connection with the Sykes v. Bayer lawsuit. The subpoena demands that Seidel appear for a deposition on April 30, 2008 and that she produce a breathtaking array of documents. Seidel summarizes the subpoena's demands as follows:

The subpoena commands production of "all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com" -- including but not limited to material mentioning the plaintiffs -- and the names of all persons "helping, paying or facilitating in any fashion" my endeavors. The subpoena demands bank statements, cancelled checks, donation records, tax returns, Freedom of Information Act requests, LexisNexis and PACER usage records. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any "religious groups (Muslim or otherwise), or individuals with religious affiliations," and any other "concerned individuals."

On March 31, 2008, Seidel filed a motion to quash the subpoena in federal district court in New Hampshire. (The underlying lawsuit, Sykes v. Bayer, is taking place in federal court in Virginia, but the Sykes obtained the subpoena from the district court in New Hampshire because that court has jurisdiction over Seidel, a New Hampshire resident.) The motion to quash, which Seidel wrote herself, argues that the Sykes' subpoena infringes her constitutional rights, seeks material irrelevant to the Sykes v. Bayer lawsuit, and was not issued in good faith. Of particular interest, the motion argues that the subpoena requests material protected by the "journalist's privilege."

Thankfully, the subpoena has received widespread coverage in the blogosphere (see here, here, and here, to start). But it still highlights the vulnerability many bloggers face because they simply don't have anywhere to turn when they recieve these sorts of legal threats. In fact, the more popular a blogger becomes, the more likely he or she may be the target of a legal threat. As Carolyn Elefant noted on Legal Blog Watch:

That Shoemaker felt compelled to intimidate Seidel with a subpoena is, as some bloggers have pointed out, a testament to her blog's influence. Says Law and More's Jane Genova: "Kathleen Seidel's blog "Neurodiversity," which deconstructs autism vaccine litigation, has influence. Why else would those she discusses have issued a subpoena for the documents used for her blog posts?" And Matt Johnston asks, "So what happens when a blogger becomes something of an expert? They get slapped with a subpoena for their research."

While Seidel is opposing this subpoena herself, she doesn't lack for supporters. We're behind you Kathleen. Keep up the fight.

(You can follow further developments in the case in our Legal Threats Database entry: Sykes v. Seidel.)

To whet your appetite, I've pasted the first part of the overview to this new section below:

Access to Government Information

This section of the legal guide outlines the wide-array of information available to you from government sources. These sources range from your local city council all the way up to the largest agencies in the federal government. In fact, you might be quite surprised at how much information is available to you. And the best part is that you generally don't need to hire a lawyer or file any complicated forms -- you can access most of this information simply by showing up or filing a relatively simple request. Moreover, you don't need to be a professional journalist to share what you find with others who are interested in these issues; with nothing more than an Internet connection, you can make the information available to anyone in the world. For an impressive example of how some people are using the power of new information technologies in conjunction with government information, check out Adrian Holovaty's Chicagocrime.org, a browsable database of crimes reported in Chicago.

Regardless of what you publish online, it is likely that at least one (if not many) of the information sources we discuss in this section will be valuable to you. For example, you might want to find out whether the drinking water coming out of your faucet contains pollutants (information that is likely contained in documents held by the Environmental Protection Agency or one of its state counterparts). Perhaps you'd like to know more about how your local school board makes decisions (information that you can get by attending school board meetings). Or perhaps you are concerned that a real estate developer may have been sued for fraud (information that is available by visiting the courthouse in person or accessing the court's electronic docketing system).

Information from these government sources will be especially useful to you if you want to take your publishing activities beyond merely commenting on material posted by others. These sources can help you move into original reporting and enable you to comment in an informed fashion on local and national debates. You might even do a periodic post or column on subjects of particular interest to your website or blog. For example, the Gotham Gazette, an independent news site that covers "New York City News and Policy," has an entire section focusing on city government, which is largely based on meetings of the New York City Council.

We should point out, however, that the information you gather from these government sources doesn't have to be limited to the actions of the government itself. Government bodies collect extensive information on individuals, corporations, and other organizations. Much of this information is available to the public. You just have to know where to look.

The first thing you will need to consider is which government entity likely has the information you are seeking. Public access to government information extends to a broad range of government sources, including federal and state agencies, Congress and state legislatures, government boards and committees, and the courts. In fact, it might be the case that the information you are interested in is located in more than one place. A little advanced research on your part can go a long way when dealing with the government. Because different laws apply to different government entities, you will want to review each section of this guide that might apply to your situation. If you are not sure whether the information you seek is associated with a federal, state, or local government body, refer to the page on Federal, State, and Local Government Bodies for some helpful information.

It is also worth bearing in mind that laws granting access to government information are only one of many important fact-finding tools in your information gathering toolbox. These laws can be very powerful, but their scope is limited to records and information available through government sources. For a broad overview of how you can investigate a full range of actors, including government, individuals, and corporations, see the Newsgathering section of this guide and check out the Center for Investigative Reporting's entertaining and inspirational guide, Raising Hell: A Citizens Guide to the Fine Art of Investigation.

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If you are interested in reading more, you will find the rest of this overview in the Legal Guide.