The free press in not-so-free nations: Q&A with Adrien Wing

In late October, Reporters Without Borders released its annual global survey of press freedom, identifying such countries as North Korea, Turkmenistan and Eritrea as major violators’ of the right to free expression. Paradoxically, many of the countries that habitually appear on the human rights’ group list of worst violators have constitutions that guarantee the right to freedom of speech and association. To understand this paradox, we consulted Professor Adrien Wing, a professor of comparative constitutional law at the University of Iowa College of Law. Professor Wing’s expertise in constitutional law comes from practical experience, not just study: she advised the “founding fathers and mothers” responsible for crafting the constitutions of post-apartheid South Africa, the Palestinian Territory and post-genocide Rwanda. She also blogs on human rights issues at

OJR: I noticed that a lot of the countries where we hear about repression of free speech have in their constitutions varying degrees of protection of free speech. So is there a different concept of free speech and a free press in these countries? Can you help me understand that?

AW: Yes, well, almost every constitution in the world is going to have some type of a clause that says that the country supports free speech or free association, et cetera. And they’ll be pretty much the same. In other words, what we call the legal rule is pretty much the same in terms of the words.

However, what we call the legal penetration of the rule or the enforcement of the rule is different in every country. Now, maybe in our media, you know they will focus on countries that our media believes are backward or primitive or cruel or whatever; but you have these issues of differences in legal penetration even in countries that are our closest allies, whether it’s in Canada or in England or France or Germany, much less any of the developing world countries. In every country, no matter how they define it on paper, in terms of freedom of speech and expression, there will be limitations on that expression.

Some of those limitations may be in the actual constitution, or either in that clause or in some clause at the very beginning or end of the human rights section. It’ll say ‘this section is limited according to the law’ or some other phrase that means basically if the government decides to limit speech in some way for some reason, it’s going to be allowed to do so.

Now, in some constitutions, there’s not any limitation that you can see in the words, but in the actual penetration of the section through different statutes that have been adopted. In the case of countries that are commonwealth countries like the US and Great Britain and all of the former colonies of Great Britain, the case law, you know, the courts will interpret that freedom of speech clause very differently with limitations.

So for instance, in the US, one of the well known examples is you can’t yell ‘fire’ in a crowded theater, even though normally you’d think ‘well, what does it matter what I yell?’ Well, because people know it’s a stampede and the courts will uphold that you just can’t say whatever you want. You can’t, when you go up to a security counter in the airport, joke about the president or bombs or anything like that and those are just easy-to- understand examples in our country.

So in every country, either through case law or through statutes that have been passed pursuant to the constitution there will be limits. There will be very great limits perhaps. Especially, every country, when there is war or times of rebellion or whatever they consider are national security concerns, they will generally not abide by the same principles that they do when there is no war or no uprising.

OJR: So basically, you’re talking about restrictions that have to do with the maintenance of public safety and stability.

AW: Yes, you could have those sorts of restrictions. You could have time, place, and manner restrictions. So in other words, you can march, but you can’t march early in the morning or late at night or in front of the abortion clinic within so many feet. But there can also be restrictions that have nothing to do with these sorts of issues, but have to do with issues that are unique for that culture. So, for example, in Germany there’s a freedom of speech clause, but in Germany they do not permit advocating returning to Nazism. In South Africa, there’s a freedom of speech clause, but you cannot advocate for Apartheid, the return of legal segregation. So those have to do with unique historical aspects of those countries.

And the fear, the very real fear in those countries that those who would spout such things of the past are still around and might come to power and they don’t want the populace getting riled up by people advocating these sorts of ‘-isms’, which in the case of Nazism led to a whole world war that left millions of people dead all over the world.

OJR: The kinds of restrictions that tend to worry a lot of journalists and human rights activists are the restrictions that are seen as having the intent of crushing legitimate dissent.

AW: Yes, that’s true, and that is one of the big problems. Our government will say whatever that journalist is saying or that blogger, it could be a blogger, that these are things that threaten the security of the nation. And so [they]’ll arrest people who they’ve caught on the Internet even, accessing certain types of websites or doing their own little personal blog, much less a journalist for a newspaper, reporter, or author or something like that.

The Internet is new area in which we’re seeing a lot of restrictions by many governments. I took this as an example, for instance, in France, you cannot buy Nazi paraphernalia. So they restrict their websites that comes in and out of their country involving that topic. And you would think ‘oh, France, why are they worrying? They’re a great democracy’, well, they were also under Nazism. They were occupied.

Now, a human rights activist who favors the broader understanding of freedom of speech might see the repression of someone who has a blog that talks about repression or corruption as a free speech issue. Yet governments around the world, whether they call themselves democracies, monarchies, dictatorships may determine that those same words or that same blog is somehow a threat to the security of their nation and then round up a whole bunch of people. Only a few of those people will be brought to international attention.

OJR: Why is that countries such as South Africa have press systems that resemble our own while others such as Zimbabwe are notoriously repressive? Are the differences constitutional, political, or cultural?

AW: I really think the differences have to do with leadership. Just as the example of the difference between Zimbabwe and South Africa. Zimbabwe, I was involved in that movement to help get Zimbabwe independence when it was Rhodesia, and we were all very hopeful that Robert Mugabe, the head of one of the movements, ZANU was going to be a great leader, a great socialist. Well, he’s been in power since 1980, right? So he’s basically a president for life and he’s turned into a very repressive person, who doesn’t believe in freedom of speech, who imprisons people all the time, terrorizes people, throws journalists in jail, believes homosexuality is a sin, et cetera, and arrests people who exhibit any talk about homosexuality. And so there you have a kind of classic example of someone who started out, what many people thought he would be good, thought he would be in favor of human rights and freedom of speech, especially since he had been victimized by the British, by the white Rhodesians in the liberation struggle.

On the other hand, Nelson Mandela, who spent all those years in jail, he became the first president of a democratic South Africa and he only stayed in one term, one five year term, and he was a very conciliatory individual, where he did not retaliate militarily against those who had been in favor of Apartheid. And so that whole culture, legal culture we call it, that developed in South Africa under his leadership was totally different from the legal culture that developed in Zimbabwe under 30 years almost of dictatorship by Robert Mugabe.

As a result, the realities of the two countries are totally different and yet could have turned out the same if maybe Mandela stayed in two or three terms and then became dictatorial or get other members of the party, the [African National Congress] party, to be very dictatorial. But those are two good examples where the countries are next to each other and have some overlap in terms of what ethnic groups are there and their history, and yet their realities are different. Some would say that South Africa is unique, that there are many more countries like Zimbabwe that have had dictatorial leadership, no matter how nicely they started out.

Some would say the same about Cuba: it started out well, the revolution was great, but hey if you’ve been in power 40 years there’s no way you can attempt to say what you’re doing is appropriate including repression of freedom of speech. In Cuba, people feel Fidel has been in too long or that his government now led by his brother, temporarily or permanently, has been very dictatorial in terms of these human rights issues, even though it’s been great on other human rights issues like provision of healthcare and education and race discrimination. Is that the price you have to pay? You know, give up the freedom of speech or criticism of the government in order to have advances in these other areas.

OJR: In some countries, websites are banned and communications are monitored and people are in prison for disseminating banned material online. Has international law tried to grapple with these issues at all?

AW: International human rights law looks at these kinds of issues, but basically international human rights law is kind of has to be culturally specific. So there is not one answer. If you are what we call a cultural relativist of some type, meaning that you believe that human rights need to be seen in cultural context, then you have to have a more nuanced view on an issue like freedom of speech. And if you are what we call a universalist, meaning that in its most extreme form, everybody everywhere around the world should treat freedom of speech the same way.

I lean more towards cultural relativism. In other words, I believe that the reality in Germany and South Africa about what they might permit for freedom of speech is not going to be the same as for the United States, which was never in jeopardy from being taken over by Nazis. And so we in the US could not just say ‘well, Germany you’re just wrong if you decide freedom of speech will not permit Nazis to march through Berlin.’ So I kind of lean that way.

Human rights organizations and activists will be all along the spectrum. And that spectrum can be both in terms, it can be in terms of country, what they think countries should do, or it can be an issue. People may say ‘yeah, we need to permit as much freedom of speech as possible, but it could differ from country to country.’

But when we talk about a right against torture, we should not say that the right against torture should be different in Zimbabwe than in France. You know there should be some universal standard on the right against torture, that means I don’t care where you are, you should not hang up people by their nipples and use electric prods on them.

OJR: On that topic, are you concerned about some of the measures that the United States has been taking as part of this anti-terrorist efforts? For example, our government has detained people without charges, including one journalist who works for an American news organization.

AW: I haven’t even heard about this. Who does this person work for?

OJR: There is an AP photographer [Bilal Hussein], working in Iraq, whose been detained without charge for the last several of months. The Associated Press has been trying to get the United States to either charge him or release him.

AW: It doesn’t surprise me because under the USA Patriot Act, a lot of rights we thought we had, we don’t. So the U.S. government has felt free to round up mainly foreigners, but also some U.S. people and you know some of the cases have made it to the Supreme Court and many others haven’t. But it’s not very surprising.

And yes, I’m very concerned that since we in the United States hold ourselves up as a democracy and we are the only global superpower, that we should hold ourselves to a higher standard in terms of our conduct when maybe some other countries are going to be under. I don’t expect one of the poorest developing countries in the world to necessarily have the ability to give human rights protection to offer citizens, where they can go to court and have lawyers and do certain things if you have a very, very poor country.
I hold my own country to the highest standards because we do have resources at our disposal, more so than almost any other country in the world. And especially, if we’re going to be a so-called global leader, then we should set a standard for the application of human rights like freedom of speech.

OJR: I don’t know whether you are familiar with this, but Rep. Chris Smith has sponsored a bill that would make it illegal for Internet companies such as Google to accede to the demands of governments for private information on Internet users or for the censorship of websites. It would also require Internet companies to turn over information on banned search terms and sites and queries to an office of global internet freedom that would be created. And it would also give individuals the right to sue if privacy was violated. Critics say that this bill would unfairly restrict the ability of U.S. Internet firms to compete in international markets. I wonder what you think of a measure like this from an international law perspective.

AW: Well, to me, this is like, the U.S. can pass a statute that bans the sale of cattle prods for torturing animals and so some company that makes prods can say ‘but look we can’t compete globally.’ Well, there’s certain areas of competition we don’t need to be in. If it’s something that’s so heinous, the product, or if it’s going to directly support blatant dictatorships like China, well then Google doesn’t need to be in that market. Yeah, I know it’s a big market. There was a big market for slavery. So does that mean we still need to have it today? There could be certain things that morally we would say ‘I’m not going to be permitted or not be encouraged even if that means a company loses its profit.’

Profiteering should not be the standard by which we would judge the provison of internationally human rights. And yeah, that would mean some other Chinese company will be more than happy to invent a mechanism that its government can use to censor as they do the words and the searches of all the people here.

In my travels to various countries, I have had experiences browsing the internet where I’m doing something that seems very innocuous to me, but all of a sudden some site won’t work, at all or some little sign will come up about restricted access or unavailable. This is from all kinds of countries. The fact that somebody must be monitoring every website that I was trying to go to, you know, is a pretty scary thing.

OJR: As you look at the evolving situation in terms of press freedom, especially online, are there things that cause you particular concern or give you particular reason for optimism?

AW: I’m not optimistic at all because I think the ongoing war on terror, is only going to get worse. The more we do these actions, the more future terror we create, and so then the more desire or need the governments will feel to repress those people. So I think we’re going to see even harsher standards of censorship than what we see now. We may very well get to a total Big Brother situation where all of our email and all of our mail and phones calls are just monitored electronically on a regular basis.

These little GPS devices that not only are in cars, but now are in the cell phones, people can track you where ever you are. It’s nice if you’re lost and your car goes in a ditch, but we get really toward a science fiction nightmare. We all could be tracked at every minute where ever we are, that there’d be no privacy. I’m not in favor of terrorism, whether terrorism is done by government bombing villages or terrorism that is done by an individual suicide bomber. I’m not in favor of that, but I’m also not in favor of a total loss of all kinds of freedom of speech, an assembly, an association.

OJR: And what do you think then that citizens and particularly journalists can do? And do you think journalists have an obligation in this or an opportunity in this situation?

AW: Well, I think all of us, regardless of profession, have an obligation. I know there are several prominent national and international journalists’ groups that advocate for human rights and blow up the cases of journalists all around the world who are victimized by governments or private individuals. So I think those organizations, which already exist, need to be supported to a greater degree even by not only journalists, but by the public, so that the word can get out. Because the only way we know what’s going on in a lot of countries is because of brave journalists, who dare to speak out or who dare to go into horrible situations and risk their lives and report out. If those journalists are removed then the rest of us will have no idea what is going on in a lot of countries.

And I realize a lot of journalists will be self-editing on a lot of issues. Whenever you do a story you have to decide what’s important and not important, what’s going to sidetrack you, and what is going to be some kind of problem. So I think it’s important, for the public, to support responsible journalism that will help us see how human rights, including human rights for journalists who are reporting, are being restricted.

OJR: Any final thoughts, particularly from a constitutional lawyer’s perspectives?

AW: No, I just think that it’s important for people to realize that words on paper in any constitution, including the U.S., are only a starting point. It really takes very careful study of cases or statutes or other parts of an entire culture to get a good grip on whether or not very bold or noble statements about human rights have any basis in the day-to-day reality in a particular country. So I hope this is the beginning of everyone deciding that they want to get more involved in trying to understand how do rights actually operate.

Josh Wolf: video blogger at the center of controversy over journalists' rights

In some ways, Joshua Wolf cuts an unlikely figure as a crusader for the rights of journalists. The 24-year-old California videoblogger’s journalistic portfolio is “thin,”, according to Anthony Lappe, executive editor of Guerilla News Network. Some traditional journalists are discomfited by the Wolf’s sympathy for the anarchists whose activities he often covers.

But Wolf’s willingness to go to prison rather than turn over unpublished video of a July, 2005 anti-globalization protest in San Francisco to a federal grand jury has earned him the support of journalists and civil liberties advocates across the United States. Prosecutors say they need the video outtakes to help them determine how a police officer was injured and a police car was damaged. Wolf and his lawyers say the video contains no information about the alleged crimes, and that as a journalist, he should not be compelled to turn them over. Further, they charge, the prosecutors’ actions in this case endanger not only the First Amendment rights of journalists, but the civil liberties of ordinary citizens with dissident political views.

After a six-month court battle that has gone as for as the Ninth Circuit Court of Appeals, Wolf was imprisoned on charges of civil contempt on September 22, 2006 at the Federal Correctional facility in Dublin, California.

“As unconventional and non-traditional as [Josh Wolf’s] work in journalism may be in many respects, he is contesting an age-old argument… and that’s that journalists never should be arms of law enforcement,” says Christine Tatum, president of the Society of Professional Journalists. “Josh has, at great personal cost, taken quite a stand – an admirable stand, and he has said…, ‘I am not divulging unpublished, unedited, unaired material…for a grand jury’s review. And we stand wholeheartedly behind him.”

So much so that the SPJ donated $30,000 for Wolf’s legal fees and convinced his lawyers to cap those fees at $60,000. Tatum said the grant is SPJ’s largest-ever award from its legal defense fund.

According to an e-mail from Luke Macaulay, a spokesman for the U.S. Attorney’s office, “The incident is under investigation so that the [Grand Jury] can determine what, if any, crimes were committed… As we have argued in our court filings, the GJ is therefore entitled as a matter of law to all of the evidence in Wolf’s possession related to the demonstration. Six separate judges or panels have now ruled unequivocally that we have lawfully issued a subpoena for a legitimate investigative purposes, and that the material in question should be furnished to the grand jury.”

The case law on journalists’ efforts to withhold information from grand juries rarely favors reporters. The most frequently cited precedent is Branzburg v. Hayes, a 1972 Supreme Court case in which it was determined that, with rare exceptions, journalists have no greater protection than other citizens when it comes to complying with a grand jury. The exceptions are when the prosecutor’s actions can be reasonably considered harassment, or when disclosure would violate the journalists’ Fifth Amendment protection against self-incrimination.

Coincidentally, at the time Branzburg was handed down, the presiding judge in Wolf case, William Alsup, clerked for Justice William O. Douglas, author of a key Branzburg dissent. Douglas wrote:

“Forcing a reporter before a grand jury will have two retarding effects upon the ear and the pen of the press. Fear of exposure will cause dissidents to communicate less openly to trusted reporters. And fear of accountability will cause editors and critics to write with more restrained pens.”

However, in a redacted transcript of Wolf’s June 15, 2006 hearing before Alsup, the Judge departed from Douglas’ view, declaring, “The U.S. Supreme Court said there is no journalist newsman’s privilege under the First Amendment.”

For Wolf’s supporters, one of the major problems with his case is the fact that it’s being prosecuted in Federal court. Normally, they maintain, such a case would be tried at the state or local level, where California’s shield law would apply. That law protects journalists from being required to disclose unpublished information gathered for a news story. According to news reports, federal prosecutors say the case falls within their jurisdiction because the San Francisco Police Department receives federal funding and thus, the damaged police car is federal property. In an August, 2006 interview, Wolf asked, “If an S.F. police vehicle is considered federal property, then what isn’t federal property?”

Tatum agreed. “That this is a ‘federal’ case is absolutely positively laughable,” she said, adding, “This is just an example of the federal prosecutor over-reaching to make a point, and to stick it to the news media, just to see if he or she can.”

But according to Macaulay, “This office did not initiate a federal investigation in order to circumvent the California State Shield laws.” Besides, he noted, the September 1 ruling handed down by the 9th circuit court declared that Wolf failed to prove that he met the California law’s definition of a journalist – someone connected with or employed by a newspaper, periodical, wire service, press association or other recognized news outlet.

Wolf’s status as a journalist has, indeed been open to debate. Part of the problem is that existing law hasn’t caught up with the ways in which the Internet has affected the newsgathering process, according to David Bodney, a media lawyer with the Phoenix office of the law firm of Steptoe and Johnson, and an adjunct professor of media law at Arizona State University. “Legislators are struggling with how best to define journalists for the purpose of establishing a statutory privilege,” he said.

For Jane Briggs-Bunting, director of the Journalism program at Michigan State University, the problem is Wolf’s objectivity. “You can’t step in and out of being a journalist,” she maintained.”You can’t become an advocate. ” Tatum added, “There is a degree of discomfort that I’ve felt with some of his assertions, as far as viewing himself as an advocate. I think that it’s very important for online journalists to begin to understand.. that it’s very, very important that you do maintain some sort of objectivity and distance.”

However, Wolf’s lawyer, renowned First Amendment advocate Martin Garbus says the government isn’t really after information about the alleged crimes committed at the demonstration. According to Garbus, “This was the use of an FBI anti-terror law to get information on people they can’t get information about, such as anarchists. They know he knows nothing about the actions involving the police car.” Garbus says what federal officials really want is to know who the demonstrators are. He calls the prosecutors’ actions, an “abuse of the grand jury,” and an “expansion of the anti-terrorism investigation to other dissidents.”

For this reason, Garbus maintains that Wolf’s case is very different from that of former New York Times reporter Judith Miller, and San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada, all of whom were jailed for refusing to reveal confidential sources to a grand jury.

Miller, who served 85 days for withholding information from investigators looking into the Valerie Plame leak, is among Wolf’s supporters. In August, 2006, Miller videotaped a statement supporting Wolf outside of the prison where he was held pending a bail request. “I feel that the Josh Wolf case and my case and others like it are really going to have a chilling effect on the press,” she said, “and a chilling effect on the willingness of sources to come forward, to report instances of wrongdoing or abusive behavior by government or powerful corporations.”

Miller, Tatum and others consulted for this story insist that Wolf’s case demonstrates the need for passage of a Federal shield law, such as the proposed Free Flow of Information Act currently before the U.S. Senate. That measure, sponsored by Sen. Richard Lugar (R-Ind.) would limit prosecutors’ power to compel journalists’ disclosure of confidential or unpublished information. In the case of a federal criminal investigation, the government would be required to demonstrate that the information is essential to solving a crime and cannot be obtained any other way. But passage of the law won’t occur any time soon: consideration of the bill has been postponed after the Justice Department objected to provisions concerning the disclosure of national security information.

Tatum said, “The Circuit Courts are a big mess, in terms of the way they’ve interpreted Branzburg v. Hayes.” Indeed, the a summary of district court rulings from the First Amendment Center reveals wide variations in interpretation. Decisions from the Sixth and Seventh Circuits reject the notion of journalistic privilege, and for the Eighth Circuit, it’s an open question. The other courts recognize varying degrees of “qualified” privilege. Tatum and others insist a federal law would set a consistent standard that everyone can follow.

Wolf has said that his next step is request an appeal en banc — a hearing before the full panel of judges on the Ninth Circuit. But even his Garbus is not optimistic. In a September 29, 2006 post to Wolf’s blog, he lamented, “Unfortunately, the probabilities are that [Wolf] will wind up being the longest-jailed journalist in America.”

Protecting your business by fighting plagiarism online

Jonathan Bailey is the founder and editor of Plagiarism Today, a weblog devoted to tracking incidents of plagiarism online and helping online writers to protect their work from plagiarists. Bailey graduated in 2002 with bachelor’s degree in journalism and mass communications from the University of South Carolina.

The ease of publishing online has helped transform plagiarism from an ethics problem to an economic one. Automated bots scrape content from the Web, and unethical webmasters cut and paste others’ work on to their own sites, to create massive number of pages on which to serve pay-per-click advertisements. A recent discussion at Webmaster World detailed how “Made for AdSense” sites [MFAs] parlay often-plagiarized content into big bucks, at the expense of deserving writers, who lose both readers and advertising clicks to the plagiarists.

Fortunately, Web publishers have legal weapons with which they can fight back. The Digital Millennium Copyright Act gives copyright owners strong powers to go after and shut down plagiarists online. Creative Commons licenses allow writers a way to control the terms under which their work can be republished and shared. Bailey recently spoke with OJR over the phone, about these and other issues in the dark world of plagiarism online.

OJR: Why did you start Plagiarism Today?

BAILEY: Well, it was a little bit over a year ago. I was doing some pretty standard anti-plagiarism work, informing some hosts of my work being abused, especially trying to work on getting some of my work being taken down. And one of them shot back saying it needed additional information from me. And it kind of caught me off-guard.

So I took a look at the information they required of me, the DMCA information, and they’re absolutely correct. I’m supposed to provide this information. And they had every right to call me on it. So I realized that I kind of have to keep up to date on this. I can’t be slacking anymore. I searched high and low for a new site on this issue over the course of three days. And when I didn’t find one, I just decided to go ahead and make it.

OJR: How do you define plagiarism? Is it simply the flip side of fair use or is there something more to it?

BAILEY: Well, personally, with my work, I’m very liberal about allowing just regular re-use. I mean if you wish to you know re-use it on your site, so long as you do with an accredited link back, I have no real problem with that. So if people use Creative Commons licenses and other things to make that perfectly legal, I encourage it.

What I’m specifically interested in is the taking of someone else’s words and claiming them as your own. You know, copyright law doesn’t protect ideas which is actually a very good thing, because journalists would be as screwed, just as I would be. So even though plagiarism of ideas might be technically plagiarism in an academic sense, I’m more interested in plagiarism in terms of the copyright law sense which means actually taking someone else’s words and claiming it as your own. Actual copy and paste plagiarism.

OJR: Traditionally like has been seen as an ethical problem for journalists and publishers. But would you agree that the Internet is making it even more of an economic problem?

BAILEY: Oh, there’s no doubt about that. It doesn’t really matter these days if you’re running the site yourself or if you’re you know part of a major online organization producing a website. The content is expensive. It takes either a lot of time or a lot of money to obtain it and create it. And you know when someone takes that content from you like that as their’s, it’s actually considered an unfair business practice for one. And we’re seeing a lot of lawsuits coming up like that lately. They’ve been filing not only for copyright infringement and the usual array that comes with it, but also on fair business practices, because they’re essentially using your content, your work that you paid for, you put the effort into to their financial benefit. And that hurts you because in the case of search engines and so forth, you’re competing illegal copies of your own work and, you know, you also have the reputation issue that comes with it.

I was just speaking with a guy online today who has work plagiarized, and an individual stranger called it, and then wrote him thinking he was potentially the plagiarist. So, and you know as any journalist will tell you, reputation is their stock in trade.

OJR: How big of an economic threat at this point do you see so-called scraper sites being? And what do you think the trend is gonna be with that technology? Is it just a blip at this point? Or is it becoming a real money threat?

BAILEY: Well, it’s definitely becoming a real money threat. It’s already a real money threat to anyone that relies heavily on search engines for traffic. I mean, all this talk about search engine optimization (SEO), if you do a lot of that, you depend upon it heavily for traffic. And someone else is stealing your content and competing at you, that’s pretty much the technical equivalent of ripping your own arm off and beating you over the head with it. It ain’t pretty, but it’s what’s going on.

So, you know, if you put in a lot of time and money into getting that number 1, number 2 ranking and someone else just comes along and steals it and achieves a similar result, automatically that’s a definite money threat. So anyone that relies heavily on that [SEO] is feeling it now. Others that don’t rely on it so heavily aren’t gonna feel it. It really comes down to how much do you depend upon the search engines at this time.

But the real economic threat in a lot of ways on this issue actually is the search engines themselves, because they’re the ones having to spend the money to fight and eliminate these sites and try to clean up their own databases. And that’s money they could have been putting in other things.

OJR: How can a publisher whether they be a large newspaper company or just an individual blogger protect itself against plagiarists online?

BAILEY: Well, bloggers kind of have an advantage over the majority of people, because they realize that most of the plagiarism involving their work isn’t gonna be just traditional [manual] copy and paste plagiarism. It’s gonna be the scrapers we’ve been talking about. That kind of gives you a heads-up. And there’s a product called Feedburner that will take your feed and it basically makes another version of your [RSS or Atom] feed. And originally Feedburner’s only goal was statistical analysis kind of you know let you know how many people subscribe to your feed, that kind of cool thing. In that regard, it’s worth its weight in gold already. I mean as a webmaster, I’m obsessed with statistics, so Feedburner is a great tool there.

But it also now has got a good feel for what is a normal use of a feed versus something that seems a little weird. And they can spot those uncommon uses. And if you check that regularly, you’ll pretty much seeing those scrapers. That’s one thing.

The other solution that a lot of people have taken to doing is basically truncating their feed by publishing the headline and the first few programs in a feed. The legitimate reader can just click the actual article. That’s only a temporary solution at best, because we’ve already got scrapers they can pull from the site. So how long that’s actually gonna be effective is up for debate.

If you have a lot of static content, like in my original experiences, it dealt with a large poetry library, what you can do is visit and it performs automated Google searches for whatever string you provide, in the background, and e-mails you when something new pops up. So all you have to do is take a quote or two from your static piece of content, put it in there, and watch it kick out the results for you. And every time you get a new result in your email box, you just follow-up on it and make sure it’s a legitimate use or see if it’s a plagiarized copy.

OJR: What happens if it is a plagiarized copy? What do you do from there?

BAILEY: Well, everyone seems to have his own system. The system that I’ve used I’ve honed to what I think is about the best resolution percentage you can have. What I usually do is I first try to contact the plagiarist directly. I mean my experience is plagiarists will, when contacted and presented with this, will remove the work about half the time. But I consider it a gentlemanly thing to do. If there is a means of contacting the plagiarist, which is increasingly becoming harder to find, I have a cease and desist letter that I have ready. I mean I can literally paste it into any form, any time, any place, drop it and send it, and then hopefully they’ll cooperate and all will be handled.

If not, you have to contact the host. If the host is American, then the host has to comply with the DMCA, the Digital Millennium Copyright Act of 1998, where if you send a specially formatted complaint that has all the required information that a DMCA complaint should have — identifies the work, your personal information, statement of penalty of perjury, those are various requirements of it — you send that to the host, pretty much you can guarantee the work comes down, because in the United States and the European Union now when a host is notified of copyright infringement being taking place on their servers, they have to delete the work.

So, by the time you get done with the host level, you’ve already resolved over 95 percent of complaints. Half can be resolved at the plagiarist level. Forty-five percent or more can be resolved at the host level.

From there, I’ve run into problems, for example, with a South Korean host or a Japanese host where they don’t have any set rule. And you contact them and politely make the request, and they don’t do anything.

But you discover that this Japanese host who’s so proud of being a Japanese host actually is leasing their servers from America. If you climb the ladder one step, it might be a Japanese company, but their actual computers are sitting somewhere in California. And you can just contact their host and say, “Hey, look, this is the situation, this is what I tried to do,” and usually they’ll step in, since nearly all hosting companies either operate out of the U.S. or the E.U. It’s usually a pretty simple matter of just finding the right person.

And if all that fails, you can contact all three of the search engines, Google MSN, Yahoo! They’re all American and you get the site removed from those search engines. And if they have their own domain, you can contact the domain registrar too. Most major registrars, though not necessarily obligated to, will delete access to a domain, if it’s been proved to be a domain vault for copyrighting infringement purposes. It’s like a ladder. You just keep climbing.

OJR: Do you think that search engines have an obligation to do more to protect writers and publishers from those who misuse or copy their work?

BAILEY: No. Really I have never personally in any of my cases reported anyone to a search engine to get them removed from that. I don’t think that’s necessarily a great strategy for a lot of reasons. And I’m kind of nervous about the idea of Google, Yahoo! and MSN being the search engine police, I mean, the copyright police of the web. That idea really bugs me.

OJR: Why so? Why does that bug you?

BAILEY: Well, I don’t think an issue this big, enforcement of an issue this big should be relegated to a handful of individuals or a handful of companies. I think it’s just way too much power and control, because if we all look to Google as being the copyright police, any minor change in Google’s policy will be felt all across the world in major ways.

I would be very worried if there was anyone with that kind of power to do so, because if Google just woke up and said, “You know what? I don’t feel like doing copyright enforcement anymore,” yeah, it would be illegal, but what if they moved to Russia or something? They could just you know pack up and move, then the whole world, if we’d been using Google as the copyright police, would be out of luck.

I personally don’t use search engines to fight my battles like that. I try to deal with hosts. Hosts are the ones that can actually take a work down. Search engines just make it harder to find. And in a way that’s kind of destructive to you too, because now you know there’s a plagiarized copy out there, you just might not be able to find it again. I personally don’t think search engines should be the ones bearing that responsibility, but it is there. And if I ever ran against that wall truly hard, I probably would use it, but it has not come to that point yet.

OJR: On the legal side, do you think that the current laws regarding copyright in the United States are where they need to be? Or do you think that there needs to be statutory changes in this area?

BAILEY: The DMCA is a very controversial law. Just do it a search for it, and you’ll find all kinds of people that hate lots of it. The area that I deal with, the Safe Harbor Provisions, which is where you get DMCA notices from and all this notice and take down, isn’t nearly as controversial as other elements. And the other elements of the DMCA do bother me too, the anti-circumvention which makes it illegal to circumvent any digital rights management software for any purpose. That unnerves me. And there are other things in the DMCA which I find disconcerting.

But as far as dealing with plagiarism enforcement, I think the laws are more or less there. I think they’ve got the right idea. I think they’re trying, in the United States at least, I think they did a moderately good job in this one particular area of balancing free speech, access to the Internet and free speech with copyright.

I would like to see some kind of a copyright infringement small claims court, because as of right now, a cease and desist letter threatening a lawsuit’s a pretty empty threat, because I would have to go to California, get a lawyer, file a motion, do all that expensive stuff. And even though I probably would be able to recoup the cost in a plagiarism case, it would just be an incredible expenditure of time and money. It would be much easier if there was a small claims court of some variety that didn’t require lawyers and formal motions, or much like you know your regular small claims court to deal with cases that do not have a large amount of statutory damages. I think that would be a nice idea, but I’m not sure how it would work. There’s a lot of details to that that would have to be ironed out.