Category Archives: Opinion

Trump attacks checks on his power

By William H. Freivogel

 

In the past half century the most reliable checks on presidential power have been a watchdog press and independent judiciary. In his first weeks in office, President Donald Trump has attacked the legitimacy of both institutions with a fusillade of insults, misstatements and lies.  They were among the 133 lies and misstatements that the Washington Post counted over the president’s first 34 days.

Trump labeled judges who blocked his immigration travel ban a “so-called judge,” “ridiculous,” “disgraceful” and deserving “blame…if something happens.” White House policy adviser Stephen Miller went so far as to say “the powers of the president to protect our country…will not be questioned.”

Meanwhile, in a remarkable feat of jujutsu, Trump captured the term “fake news” and wielded it as a sword against legitimate news organizations.  After having been accused of benefiting from fake news in the run-up to the 2016 election, Trump turned the tables and expropriated the slogan to attack news he doesn’t like.

And it’s becoming a popular propaganda technique worldwide.  Vladimir Putin has claimed reports of Russian hacking in the 2016 U.S. election are fake news, even though they are substantiated by Western intelligence.  And Syria’s President Bashar Assad has claimed Amnesty International’s reports of mass hangings are also “fake news.”

Even as Trump branded legitimate news as fake, his White House issued press credentials to the likes of Gateway Pundit Jim Host, a St. Louisan who regularly reports false news and conspiracy theories.

Trump himself seems to believe the conspiracy theories. In the most extraordinary and unverified claim of his young presidency, Trump tweeted on March 4 that former President Obama tapped the phones at Trump Tower as part of an Obama plot to undermine his administration.  Trump apparently relied on radio host Mark Levin, Rush Limbaugh and Breitbart for his information.  Had he instead checked with his own FBI director, James Comey, he would have been told his tweet was untrue.

After the tweet, newly credentialed Gateway Pundit headlined: “Incompetent AND Criminal: Obama’s Wiretapping of President Trump Icing on the Cake of Worst President Ever.”  Breitbart called the “scandal” “DeepStateGate,” a reference to the conspiracy theory that a shadow government of unelected officials and intelligence officers controls the government.

Trump capped his first month in office calling the mainstream media the “enemies of the people” — by which he means his enemies.

The Supreme Court viewed the press’ role in the opposite fashion in the 1971 Pentagon Papers case when it laid out the importance of the press as a check on presidential power in the nuclear age. In siding with the New York Times’ publication of the secret history of the Vietnam War, the court said an enlightened citizenry is a important check on presidential power in foreign affairs and there couldn’t be an enlightened citizenry without a press that is “alert, aware and free.”

No president before Trump has so personally and quickly attacked the media or so rapidly created a credibility gap through false public statements.  The closest historical analogy is President Richard M. Nixon with his enemies list, vice presidential attack dog and illegal taps of Washington reporters.  Nixon’s presidency didn’t turn out well.

Meanwhile, the branch of government the Founding Fathers envisioned as the main check on the president — Congress — is behaving like a lapdog.  The Republican-controlled Congress has done little to push back, excited that a unified Republican government can accomplish major parts of the GOP legislative agenda.

With a compliant Congress, the Trump attacks on the two remaining checks on his power make sense:  Target the two institutions that can limit your power. But what is the end game envisioned by Trump and the architect of this strategy, Stephen Bannon, the former Breitbart editor who speaks of a “fight a day” with the press?

In modern history, presidents fighting with the press and judiciary have failed.

The judiciary and press gain power

After World War II, both the federal courts and the press asserted new power. Chief Justice Earl Warren’s Supreme Court took the lead in recognizing broader civil rights and civil liberties protections. At the same time, the Golden Age of investigative journalism fortified the media’s role as watchdogs guarding against government abuse.

The pinnacle of this Golden Age was Watergate when Bob Woodward and Carl Bernstein of the Washington Post reported on the use of Nixon campaign money to fund illegal acts, such as the burglary of the Democratic National Committee headquarters at the Watergate hotel.

Those stories, like most of the journalistic challenges to presidential power, were based on unnamed sources. Deep Throat, the most famous confidential source in history, helped Woodward and Bernstein bring down Nixon.

Confidential sources have been essential to the most consequential disclosures about Trump as well.

Vice President Mike Pence reportedly learned that National Security Advisor Michael Flynn had lied to him about contacts with Russian Ambassador Sergey Kislyak by reading about the contacts in a Washington Post story. Trump had known about the contacts for days but apparently hadn’t told his vice president before the Post’s story based on unnamed sources.

Similarly, the Washington Post’s sourced account about Attorney General Jeff Sessions meeting with Kislyak, despite Sessions’ contrary testimony, led less than 24 hours later to Sessions’ recusal from the investigation of the Russian meddling in the election.

Trump complains about the leak of secret information by unnamed sources, and with some justification. Leaking top secret information is a crime.

But the publication of the leaks is not a crime. And it took the Washington Post stories with their unnamed sources to force Flynn’s resignation and Sessions’ recusal.

Media ethics codes advise journalists to minimize the use of confidential sources. The reader has no way of knowing whether to believe a nameless, faceless leakers. But the reality of Washington is that big stories checking presidential power almost always rely on confidential sources. People leaking top secret information would get fired and jailed if identified.

Good source stories and bad ones

Not all confidential source stories are created equal. Some serve the public good; some do not.

The leaks of the top-secret Pentagon Papers and of Watergate investigative information revealed serious abuses of presidential power. Edward Snowden’s disclosure that the NSA was collecting the metadata from all Americans’ phone calls got him charged with Espionage, but also led to reforms protecting privacy.

By contrast, the 2003 leak by Vice President Dick Cheney’s office of Valerie Plame’s identity as a CIA agent seemed intended to punish Plame’s husband, Ambassador Joseph C. Wilson. Wilson had blown the whistle on President Bush’s false claim about weapons of mass destruction in Iraq. Bush claimed in the 2003 State of the Union speech that Saddam had bought yellow cake uranium for a bomb from Niger, even though Wilson himself had investigated for the CIA and disproved the claim.

It was an upside-down leak with the people in power leaking top-secret information to punish the whistleblower — Ambassador Wilson. Usually, however, it’s the other way around, with whistleblowers leaking information about the abuse of power by top officials.

Julian Assange and WikiLeaks also performed a disservice to American democracy by serving as the apparent delivery system for Putin’s assault on the 2016 presidential election. Think of it: WikiLeaks and then the mainstream media became accomplices of Russia’s successful attempt to destabilize the election of the greatest democracy in the world.

One ethics issue most journalists have not confronted is whether reputable news organizations should refuse to print the bad leaks – the ones where high officials are leaking to damage whistleblowers, such as Wilson, or where WikiLeaks is weaponized to deliver hacks from Russia’s FSB.

The answer is tricky. Almost all leakers have mixed motives. Woodward and Bernstein claimed for years that Deep Throat did not have an ax to grind, but Deputy Director Mark Felt was mad at Nixon for passing him over to head the FBI. And if news organizations had refused to print the hacked DNC-Clinton foundation emails, they would have looked as though they were protecting Hillary Clinton.

News organizations should remember, however, that The New York Times’ demand for a leak investigation of the Plame outing boomeranged into Times reporter Judith Miller spending 85 days in jail for protecting her source in the vice president’s office.

Lessons for journalists

The past half century provides lessons for journalists performing the press’s constitutional duty to check President Trump’s power:

— When the press does not check presidential abuses of power, a president with a Congress of his own party will be unimpeded in his exercise of power. The beginning of the Vietnam War and the Iraq war are examples.

— The press’ use of confidential sources was essential to every major case where the press has checked presidential power — Pentagon Papers, Watergate, CIA black prisons, NSA wiretaps during the Bush administration and NSA data collection during the Obama administration.

— The use of confidential sources can be abused when used to support the presidential power to wage war as with Judith Miller, or to punish a whistleblower as with Valerie Plame or to harm the United States as with the weaponization of WikiLeaks as an instrument of Russian intelligence.

— Old-fashioned investigative reporting – such as Watergate, the Pentagon Papers, the black CIA prisons and the NSA wiretapping — is essential to the press’ check on presidential power. Stories moored to facts are more persuasive than flights of advocacy reporting.

— The press’s role of finding the facts and getting as close as possible to the truth is fundamental to the functioning of democracy because an unenlightened citizenry can enable bad government just as surely as an enlightened citizenry is essential to good government.

Today’s press is built on the Enlightenment assumption that free speech and a free press can find the facts that a democracy needs to arrive at governing truths. That still is possible in these days of the Trump administration when propaganda spreads across the political spectrum and across media platforms. But it requires hard work by journalists and sophistication from citizens.

Justice Louis Brandeis, one of the great justices of the 20th century, famously expressed his confidence that free expression would help democracy find truth: “Those who won our independence believed,” he wrote, “that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth . . . that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.”

Travis-sham-mockery of the presidential debates

201610gjr_debate01ag

As I watched the three presidential debates between Hillary Clinton and Donald Trump, one word continually came to mind: travis-sham-mockery.

I know what you’re are thinking – Travis-sham-mockery is not a word. Technically you’re correct. It is, after all, not recognized by Merriam-Webster, Cambridge Dictionary, or even the game of Scrabble. And despite this refusal by the lords of the English lexicon to give it their stamp of approval, this only tells half the story.

The history behind this delightful idiom is revealed through a simple Google search. Its etymology is actually tied to the history of the presidential debates, albeit in a less than traditional way.  The term can be traced back to Miller Lite’s “President of Beers” commercial – a parody on the 2004 presidential debates.

In the commercial, Miller Lite debates Budweiser over which company really is the “King of Beers.” Naturally, Budweiser is represented by a Clydesdale Horse while Miller Lite is represented by comedian Bob Odenkirk. During Odenkirk’s opening speech, he is interrupted several times by the moderating panel until he frustratingly spits out, “It’s a travesty and a sham and a mockery. It’s a travis-sham-mockery!”

Assuming we can even call the verbal sparring between Hillary Clinton and Donald Trump during the debates a true “debate,” then I think “travis-sham-mockery” is the perfect metaphor for what we watched.

It’s a travesty

It’s a travesty when presidential debates are more entertaining than educational. While many in the media pointed the finger at Donald Trump for the obnoxious tone set during the debates, I contend the format of the debates themselves also is responsible for the spectacle the world just witnessed.

Part of the problem rests with the moderators. Having them fire questions at the candidates makes it more of a media interview than an actual presidential debate. When compared with collegiate policy debate rounds, there are no moderators asking questions, but only a policy resolution which one side must affirm and the other negate. Questions can only be asked during cross-examination which the debaters conduct themselves.

Although credit needs to be given to the moderators for attempting the impossible task of keeping Trump in line, it also must be noted they overstepped their boundaries at times. From a debate perspective, moderators should never argue with a candidate regarding an answer. They are neither judge nor arbitrator of the debate. Instead, their primary role is to ensure the debate runs smoothly.

Even if moderators disagree with the answer given or think the response does not answer the question posed, they still need to remain neutral at all times. Anything less can jeopardize the impartiality of the debate. It is up to the other candidate to point out the flaws in their opponent’s answer or when their opponent attempts to skirt a question – not the role of moderators.

It’s a sham

Another problem with the debates are the short time-limits imposed on each speech. Two-minute speeches do not allow for any significant analysis of policy, but rather encourage “headline” debating, emotional appeals and claims without warrants. Candidates are often asked to explain complex and controversial issues in a short amount of time, and the end result is almost always a dumbing down of their answer.

Of course Trump might be the exception. Trump’s entire campaign was run on unwarranted claims. During the debates, he actually benefitted from the short time-limits of each question. It allowed him to once again make grand claims without evidence, relentlessly attack Clinton and talk in circles instead of answering the questions poised to him.

Longer speeches help separate wheat from the chaff. Give Clinton 10 minutes to explain her tax plan in its entirety and you would get a fairly detailed and thorough explanation of its inner-workings, its feasibility and its potential advantages. Give Trump the same 10 minutes and you have a potential disaster waiting to happen.

To put this in perspective, each of the famous Lincoln-Douglas debates lasted three hours. Each speaker also had significantly more time to develop his position with the first speaker getting a one-hour opening address and the second speaker getting one hour and a half to reply.

Can you imagine Donald Trump with an hour long opening address? Neither could I. The better question would be: How many times could Trump hang himself in an hour-long address?

It’s a mockery

Calling the presidential “debates” debates is a mockery of forensics. It belittles every high school and collegiate debate coach, many of whom have spent their lives advancing the craft. It tells the world the United States is more interested in live theatre than in meaningful dialogue. This point is driven home by Trump when he holds a press conference minutes before the second debate to introduce four women – three alleged victims of former President Bill Clinton’s past indiscretions and the fourth, a victim in a rape case that Hillary defended years previously.

These are not the actions of either a debater or a president to be. These are the actions of a desperate candidate willing to do whatever is necessary to win, even if it means turning the presidential debates into reality-television to do so. Should anyone really be surprised with these Apprentice-like tactics? Trump simply wagged the dog.

And therein, lies the problem. If a candidate can make a mockery out of the debates, then isn’t it time to change the format of the debates? Intelligence Square U.S., an organization that holds public debates, has petitioned to change the current format to the more traditional Oxford format – Two sides, one topic, with minimal moderation. In doing so, they say it would lead to overall better debates that would help to clarify the similarities and differences between candidates.

“This format would quickly reveal how well the candidates think on their feet, how deeply they know their subject, how well they understand the trade-offs, and how persuasive they are without the teleprompters” write Robert Rosenkranz and John Donvan.

After watching the travis-sham-mockery known as the 2016 presidential debates, it is clear that the world needs to start debating the quality and future direction of presidential debates. Let’s hope these public debates go better than did the actual presidential debates.

Bill to expand student journalists’ rights moving in Missouri Legislature

Talk is cheap.  Free speech isn’t.

And that is what Missouri lawmakers must decide as they contemplate the Cronkite New Voices Act currently making its way through the state government.

If passed, the bill, sponsored by Elijah Haahr, R-Springfield, would protect student journalists and advisers from censorship unless content is libelous, illegal or an invasion of privacy.  The act would override a decision in 1988 by the U.S. Supreme Court in Hazelwood School District v. Kuhlmeier, which ruled that St. Louis high school students’ freedom of speech rights were not violated when the school’s principal prevented articles about teenage pregnancy and parental divorce from being published in the school newspaper.

Instead, if the bill passes, student journalists would be granted the same free-speech rights afforded to other students under the Tinker v. Des Moines Independent Community School District Supreme Court ruling.  Under that ruling, school administrators cannot punish students for speech that does not cause a substantial disruption to the operation of the school.

If Missouri legislators approve the bill, Missouri will become the eighth state — joining Arkansas, California, Colorado, Iowa, Kansas, Massachusetts and Oregon — to pass a law protecting student journalists’ free-speech rights under the Tinker standard.  A similar bill is pending in the Illinois General Assembly.

A good sign for passage of the Missouri bill was the House’s overwhelming vote in its favor in March.  The legislature’s sympathy for the student journalists accosted by Melissa Click (see cover story) seems to have led to a greater appreciation of student journalists.

Bill makes sense

Protect young adults and their professional educator and treat them with respect and trust?  Yes.  Tell them their ideas matter?  Yep.  And what they think and what they say and what they communicate could spur discussion and educate?  You betcha.  Young adults need to feel valued and reminded their voice, their thoughts, their words matter.  This bill could help solidify that.

Journalism has changed.  That’s no secret.  The students in the journalism programs at my school, Kirkwood High School — and in programs throughout the country — produce a daily news website, a news show, a newsmagazine and a yearbook.  My students are tweeting breaking news, posting links to Facebook, and snapping shots during a basketball game that are immediately shared on Instagram and Snapchat.

We are lucky at Kirkwood High School.  Our journalists get that voice.  Beginning with former principal Franklin McCallie and extending to today’s Principal Mike Havener, we have been a school that supports the First Amendment and values our students.  And I have seen kids thrive.  Kirkwood H.S. has won the Journalism Education Association’s First Amendment Press Freedom Award more than any school in the country since its inception.  A program that had 75 students a decade ago now has more than 200.

When the events of Ferguson unfolded more than a year ago, some St. Louis-school administrators told advisers and students they could not cover the events in their school media.  To not cover something as important as Ferguson would be unfathomable to my students.  This type of censorship by administrators undermines critical thinking and destroys the quality of student media.

At Kirkwood, we covered it.  On our website, in our newsmagazine and in our yearbook–we covered it.  Students covered it to inform, to educate and to spur thoughtful discussion.  The press freedom at Kirkwood allowed student journalists to cover the events including a student walkout during the school day.  This press freedom told students their voice matters.

So much has changed in journalism, but one thing hasn’t: the benefits of practicing it when protected by the First Amendment.  Journalism gives students responsibility and real participation, not cosmetic decision-making honored only if it falls within the scope of the principal’s personal prejudices.  Establishing an open forum for student free expression through the student press is one of the most important things schools do.  Student journalists can tell the stories of their community better than anyone else can, and student voices can help promote positive school culture or help to change destructive culture.

Would you rather have this speech protected and under the supervision of a trained adviser or tell censor kids and have them express the same sentiments on social media?  Oftentimes a healthy student press means a healthy community.  It is civics in action.

Scholastic journalism is the epitome of authentic project-based learning, using various platforms to help students develop important media, news, information and civic literacy skills that are so often forgotten in other parts of the school curriculum.  And the goal of scholastic journalism is not to create journalists, but rather it is to develop capable employees and engaged citizens.  Though high school journalism teachers are proud of those students who follow career journalism’s calling, those educators know their students will be more informed, more empathetic and more engaged as a result of their scholastic journalism experience.

“The ongoing process of questioning, experimentation, reflection and analysis combines autonomy with a supportive ‘OK-to-fail’ environment, boosting confidence in students as they struggle with real-world challenges and find solutions,” said Sarah Nichols, a high school publications adviser and vice president of the Journalism Education Association, the largest association of scholastic journalism educators and advisers.

Today’s scholastic journalism — with an emphasis on the ethical and legal responsibilities of communicating in a digital world — will help students learn to rise above the noise and create meaningful dialogue.  What other class can claim such a vital learning outcome?  Quite simply, the end-goal is not journalists, but better people.

This process and end product cannot happen if student journalists and advisers are censored.  Censorship is detrimental for students and society. Punishing students for their speech teaches them that censorship, often arbitrary and without limits, is acceptable.  But in a society dependent on journalists and the public keeping the government in check, we cannot afford to have curiosity and confidence bred out of our students.  We cannot afford to stifle today’s new voices because they are tomorrow’s media leaders and citizens.

It is 2016 not 1988.  Eight states have laws negating Hazelwood.  There is no evidence of any greater incidence of libel, invasion or other injury in those states – even California, which had had such a law for nearly 40 years.  So that is a combined 160-plus years of experience with student press freedom.   After all, the New Voices Act merely gives students the same level of First Amendment protection that the Supreme Court gave Mary Beth Tinker in the 1960s when she wore a black armband to school to protests the Vietnam War.

Look, teenagers are incredible.  They are funny, smart, eager to please, and up for just about anything as long as food is involved.  They have the most generous hearts and want desperately to be loved and validated.  They are quirky, and messy, and have the best sense of humor.  I want to instill in them the belief that they are not limited, and that they can do anything if they’re willing to work hard enough for it.

The Cronkite New Voices act would make students feel important and valued.  And we all need to feel that way.

Free speech in Missouri may die Friday without as much as a peep

We learned Monday the New Voices Cronkite Act (HB2058) is not being put up for vote by Sen. David Pearce. If this bill is not heard by Friday, it will die.

If passed, this bill will restore the Tinker standard of student expression in public high schools. The Tinker Standard (1967) protects student speech unless it is libelous, an invasion of privacy or creates a “clear and present danger” or a “material and substantial disruption” of the school. The act would override a decision in 1988 by the U.S. Supreme Court in Hazelwood School District v. Kuhlmeier which ruled that St. Louis high school students’ freedom of speech rights were not violated when the school’s principal prevented two articles, one about teenage pregnancy, from being published in the school newspaper.

There are similar bills running through legislatures throughout the country and nine states have already passed similar legislation. In fact, one is currently working through Illinois and Maryland just passed theirs last week. The bill had overwhelming support in the Missouri House (Y: 131 N: 12 NV: 1 Abs: 18) and the Senate Education Committee.

Now it just needs a chance.

Missouri scholastic journalism students and advisers need this to pass. This protection ensures First Amendment protection as students practice journalism under the guidance of a trained adviser. Much better than killing programs and kids moving their message to social media regardless. At Kirkwood High School, where I advise more than 175 journalism students annually, young adults know their voice matters. They critically think, collaborate and produce thoughtful, engaging journalism. It’s the definition of civics in action.

We need to tell young adults their ideas, their words and their speech matters. The Cronkite Act is a step toward that. Look, I do not know Sen. Pearce, but I would ask him to trust advisers and young adults. Tell them their voice matters in this world of muddled messages and lack of media literacy. Support scholastic journalism and media in an educational setting.

Court isn’t crazy about Prince challenge to dancing baby

The 9th U.S. Circuit Court of Appeals in California isn’t crazy over Universal Music’s attempts to take down a YouTube video featuring a toddler dancing to the song “Let’s Go Crazy” by Prince.

In a September ruling, it agreed with a district judge who had held copyright owners must consider fair use before issuing takedown notices under the Digital Millennium Copyright Act (DMCA).

Fair use is a provision of the copyright statute which allows for use of a copyrighted work under certain circumstances that have negligible impact on the market for the work. The statute lays out four factors for a determination of fair use: the purpose and character of the use; the nature of the work used; the account of the work used; and the effect on the work’s value.

On Feb. 7, 2007, Stephanie Lenz posted to YouTube a 29-second video of her children running and dancing in her kitchen as “Let’s Go Crazy” played in the background. Most of the video, which is available at https://youtu.be/N1KfJHFWlhQ, focuses on the younger child, leading it to be called the “dancing baby” video.

Universal Music, which was authorized by Prince to administer the rights to the song, discovered the video through its routine monitoring of YouTube for material infringing its copyrights, and sent a notice to YouTube under DMCA, seeking that the “dancing baby” video be removed.

Under DMCA, web sites such as YouTube that allow posts and contributions by users can avoid liability for infringement for user contributions if the site follows the DMCA process for copyright owners to request removal of infringing material. Under this process, the web site must “expeditiously” remove or disable access to the material and inform the poster, who can then challenge the removal. Upon receipt of such a challenge by the poster – known as a counter-notice – the website must restore the material unless the copyright holder files suit against the poster.

Universal’s takedown notice for the dancing baby video was one of 200 the company sent to YouTube for alleged infringements. YouTube removed the video on June 5, 2007, and informed Lenz of the removal. After Lenz objected, Universal reiterated its position that the video infringed on the song’s copyright. Lenz sent a second objection on June 27, which led YouTube to restore the video.

She also filed suit against Universal, claiming that its takedown notice to YouTube was improper because it did not account for fair use.

The district court denied Universal’s motion to dismiss the case in 2008. After discovery, both parties moved for summary judgment in the case, arguing that no trial was necessary in order to resolve the case. But the federal district court denied both motions, which would allow the case to proceed to trial. Both parties then appealed to the 9th Circuit.

The appeals court’s decision in September agreed that the case couldn’t be decided on summary judgment without a trial.  It also held that copyright rights holders must consider fair use before issuing DMCA takedown notices.

The court’s decision, written by Circuit Judge Richard C. Tallman for himself and Circuit Judge Mary H. Murguia, dwelled on a provision of the law which requires a DMCA takedown notification to include a “statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The court said that language included a requirement that the use of the copyrighted work be evaluated as fair use before the takedown notice is sent.  In other words, the copyright holder has to determine before the notice whether fair use is a use “authorized by … the law.”

The appeals court held that it was, affirming the district court and allowing the suit to proceed to trial. The court also held that Lenz need not show actual financial damages to proceed with her lawsuit.

In addition, the appeals court held that jury must determine whether Universal’s procedures before issuing the DMCA takedown notice were adequate to form a good faith belief that Lenz’s video infringed on the “Let’s Go Crazy” copyright.

If a jury finds that Universal had a good faith belief that the video infringed the copyright, the appellate court held, the company would not be liable for any misrepresentation in the takedown notice. The court added that “a copyright holder’s consideration of fair use need not be searching or intensive” in order to avoid this liability, noting that it may be possible to use computer algorithms, combined with human review, to conduct this evaluation.

Circuit Judge Milan D. Smith, Jr. dissented in part, disagreeing with the majority’s holding that the statute’s prohibition against misrepresentation in DMCA takedown notices required a prior fair use analysis by the copyright owner. But he otherwise concurred with the majority, and in the result.

After the decision of the three-judge panel of the 9th Circuit, the Electronic Frontier Foundation, which represents Lenz in the case, sought en banc reargument of the case before a larger panel of the Court of Appeals.  EEF argued that the appellate court should have granted summary judgment to Lenz – in other words, given Lenz the victory without a trial. Universal responded that the appeals court should not have heard the appeal in the first place.

If the 9th Circuit declines to rehear the case and its prior opinion holds, the case would go to trial before a jury. If a jury finds that Universal had a good faith belief that the video infringed the copyright, the company would not be liable for any misrepresentation in the takedown notice.

So the case of the dancing baby video may continue to trial, unless a settlement is reached. Copyright owners are put on notice that they must consider fair use before issuing takedown notices for alleged infringement online. Posters to the web are given more protection from removal of their posted material if it is protected by fair use. As babies can “go crazy” to a song in the background, and have the video posted online.

The ruling, Lenz v. Universal Music Corp., is available at http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/13-16106.pdf.

 

Author’s note: Eric P. Robinson is co-director of the Press Law and Democracy Project at Louisiana State University and of counsel to the First Amendment law firm The Counts Law Group.

Charter must do better with its Spectrum app and support

Charter Communications, which is now using the marketing term “Spectrum” for its TV, Internet and phone offerings, is supposed to be a high tech company. But when it comes to its app for iPhones and iPads, it has a ways to go.

In this age of mobile apps, high-tech companies have to perform well in multiple areas while making it easy for consumers to use their products. Too bad that Charter has yet to figure this out.

This article is based on the iOS version of Charter’s app.

The app promises you can watch most stations live on a mobile device when using your home network. A glaring omission is ESPN, which is not available.

The Spectrum app was a bit hard to navigate intuitively, and instructions like these, which were found on Charter’s website, show why: “To search for a specific channel number, you must select Watch on TV at the top of the screen and then you can tap Sort to quickly locate channels. Tapping Sort a second time sorts channels in alphabetical order.”

The app was cluttered, and while better on an iPad, was very tough to navigate on an iPhone. Recently, the app failed to show local stations live.

Many people were clearly upset with the app’s problems. Of the 61 reviews at the time of this writing (Nov. 4), only a handful were higher than the lowest one-star rating.

Braymeister’s late October review titled “Really?!?!” said: “The reviews have been bad for as long as I have been watching. I tried the app a couple of times but it won’t even load.  What’s more, I go to the website and it’s almost useless.” Braymeister called it “the stinking app.”

Jpharrisjr, a new Charter customer, wrote, “I am not impressed with the app because, well it doesn’t work.  A technology company really ought to do better than this.  Seriously.”

My frustration began with the first call to tech support. The tech had no clue as to what I was talking about. After being transferred to the Internet division, the person on the other end of the line also knew nothing about the app.

Later, after a call back, a second person knew about the app but had not heard of any problems. Why? Don’t the people at Charter read the reviews of their products and inform their tech help how to respond? The answer is apparently “no.” They should be aware of the negative feelings and be trained on how to handle those calls.

And indications are, given the statement from the Charter spokesperson below, they were aware and working on the problem. So the rep I spoke with was either never made aware of the problems, a bad thing, or, the rep lied, also a bad thing.

Anyway, they promised a tech would call back within 48 hours. Then, just ten minutes later, Charter called to ask if they could call back that afternoon, would someone be available? But that callback never came. And no word from Charter after 48 hours as well.

After I made another call to support, the new promise was that a callback would be made within five days. It never came.

While not answering specific questions, a Charter spokesperson responded in an e-mail, “Charter is aware of these issues; some of which are already resolved, and others are being actively addressed.”

The local station problem appears to be resolved.

Companies like Charter, Comcast, AT&T U-verse® and others have to see more and more people are dropping their cable subscriptions in favor of finding programs in other ways – with services from Netflix, Amazon and even networks offering alternative ways to watch.  Called “cord cutters,” many experts predict the trend toward ala carte selection of programming will continue.

Unless these companies plan to make all their money from Internet access, they need to address their problems of poor customer service and improve the quality of executing their apps. Failing that, their future is not very bright.

A foul call

Sports reporters are having a heyday with Los Angeles Dodgers’ Chase Utley’s recent post-season slide into New York Mets shortstop Ruben Tejada.  Most sports media pundits agree Utley went in too late and too high. As a result, Tejada’s right leg was broken.

Sports pundits now are debating whether or not Major League Baseball’s chief baseball officer, Joe Torre, was correct in suspending Utley for what many seem to agree was a dirty play where the Dodgers’ infielder was more intent on taking out Tejada than in reaching second base. As FOX Sports reporter Ken Rosenthal put it, “I’ve got no problem with baseball suspending the Dodgers’ Chase Utley….” http://www.foxsports.com/mlb/story/chase-utley-ruben-tejada-slide-2nd-base-broken-leg-2-game-suspension-new-rule-mets-dodgers-101115

But while sports journalists are debating whether Torre’s two-day suspension is or is not excessive, it’s curious why these reporters are arguing over what amounts to a mere slap-on-the-wrist warning.  Why, for example, are sports writers not recommending suspending Utley for the entire time Tejada is sidelined with a broken leg?

A two-day –- or less –- suspension will do nothing to curb Utley’s future play, protect other shortstops or help put an end to dirty plays.  A suspension with teeth will send a message to baseball thugs.

Sports writers, those call-it-like-it-is journalists, are missing this story in the same way umpires missed the Utley-Tejada call. And two wrong calls don’t make a meaningless suspension right.

All that said, no doubt all’s well that ends well as the Mets beat the Dodgers Thursday in game 5.  Fittingly, Utley lined out as a pinch hitter in the Dodgers’ futile 9th inning.

Media surge to cover Trump’s media surge

The media have turned their attention to Donald Trump in recent weeks, and now columnists are in turn opining on Trump coverage itself.

On the Washington Post’s Monkey Cage blog, political scientist John Sides wrote in his article “Why is Trump surging? Blame the media,” that “the answer is simple: Trump is surging in the polls because the news media has consistently focused on him since he announced his candidacy on June 16.” This attention alone has propped up his poll numbers, Sides says, but the “discovery phase” won’t last. The next phase will be “scrutiny from the news media, aided and abetted by the competing candidates.”

Last week, the Huffington Post announced it would cease covering Trump’s sideshow as politics, instead filing it under entertainment. “We won’t take the bait,” they said. Then Trump took a swipe at John McCain’s war hero status. The media cacophony became louder. In response, Huffington Post compiled a list of 162 people asked to comment on Trump’s latest bait.

Media Matters’ Eric Boehlert took a different tack, explaining “How the media missed the Donald Trump surge.” Boehlert says Trump’s ascension should surprise no one who’s paid attention to the radicalization of the right in recent years. “Yet during most of that span, the D.C. media stoically pretended the GOP hadn’t taken an ugly, radical turn. And that’s why so many seem baffled by Trump’s rise.”