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.

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.”

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 Google.com/alerts 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.

Consider two recent failures: Los Angeles Times columnist Michael Hiltzik, a Pulitzer prize winner, lost his blog, and print column, when he was caught posting under aliases on his and other blogs, and Justin Quinn, a court reporter for the Lancaster (PA) Intelligencer-Journaller, left the paper after he was caught posting comments to the I-J’s online forums using pseudonyms.

In both cases, the reporters tried to engage the public according to what they perceived to be the rules of the game. Their intuitions, however, were incorrect. The reporters not only violated the mores of online communication, but also violated ethical principles of journalism.

Rushing reporters to interact is, in some respects, increasing a fear of interaction and confusion about how to interact. The popular impression of blog comments sections, and sometimes of blogging in general, is that the interaction is less than civil — and that the comments sections inevitably end up resembling trolled-to-death, flame-happy “echo chambers.”

That’s not the case when it comes to interaction on many popular blogs. Rebecca Blood, who has over the years written extensively on blogger ethics, gives several highly constructive don’ts of interaction in The Weblog Handbook — don’t attack others (but feel free to disagree), don’t ask for links, and don’t respond to flames. Blogging evangelist Andy Wibbles, in his book BlogWild! gives what he believes are some basic guidelines for “cultivating a climate for comments”: don’t be afraid to “unapprove” a comment, but respond to every comment posted. Even send a separate thank you e-mail. Many bloggers will follow Blood’s suggestions, and implement at least the former of Wibbles’ suggestions. Even the most ardent bloggers are often caught in a comment-response time-crunch and don’t have time to double-up on acknowledgments.

Time-crunch is a concern for the interactive newsroom, and evidence of a time-crunch for reporters surfaced in a recent article by Washington Post ombudsman Deborah Howell. In “Have You Emailed the Post Lately?” (Sunday, May 21, 2006) Howell notes that “Reporters today get more daily feedback from readers than any journalists in history,” and surveys several editors and reporters at the Post about how they manage the email they receive from the public. The response was mixed, with some reporters loving it, and others hating the “rude, crude, sexist, racist, anti-Semitic email” that seems to come as knee-jerk reactions to stories. Howell, though, having been the lightening rod for a series of hostile comments posted to Washingtonpost.com in response to a statements she made in January regarding Jack Abramoff, understands how an insufficient response to the public can harm a paper. She concludes: “The opinions can be accepted or not, but knowing them is important. And replying–even quickly,–to local subscribers lets them know they’re needed. We blow them off at our peril.”

However, when we consider that the position of ombudsman did not exist prior to 1967, and that many newspapers still do not have this sort of basic attempt at interfacing with the public in their newsrooms, how can newsrooms expect reporters to make the leap into knowing exactly how to communicate like bloggers?

When the transparent, peer-to-peer interaction necessary to interact effectively on blogs has never truly been part of the average reporter’s day to day tasks, and when negative perceptions of blog commenters seem to overshadow the positive aspects of blogger to blogger interactions, newspapers in their rush to interact online can surely expect to have some very confused people in their newsrooms. And some might end up making very big, career-costing mistakes.

But is it even necessary to even have comments on a blog? It is generally agreed upon — although often debated — within the blogging community whether or not blogs need comments to be considered “real” blogs in the first place. That ideal, though, has been challenged in the current environment of “Web 2.0,” where conversation and peer-to-peer communication are as valuable, if not more valuable, than the dissemination of information, linking to others, and good storytelling. Newspapers are aware of this, and are establishing policies that allow for interaction, but are not educating reporters on the subtleties necessary for effective interaction.

In an effort to try to figure out how reporters can bridge maintaining journalism’s ethics while developing the skills necessary for positive interaction, I recently asked conversational media consultant, freelance reporter and former editor Amy Gahran for some suggestions. First, Amy advised that reporters, “get rid of [their] egos.” When reporters blog or write about subjects that get people emotionally charged, “realize that you are not responsible for how they feel about it” when they leave a comment. Learn to intuit the syntax comments, and try to “separate what they say from the tone in which it is conveyed. Then decide what’s worth listening (or responding) to and what’s not. ”

The appropriate response will also depend on cultivating a non-reactive temperament: “Learn not to snap back at hurtful, rude, inaccurate comments that misconstrue what you say or report on. It’s okay to say things strongly, and to be clear about what you are saying, but resist the urge to react back” to readers’ negative or contentious comments. Even if they’re acting like jerks right now, on another issue later on they might be valuable allies,” Gahran said. If you disagree with a commenter, make your point and “give them some room to save face. Most will tend to take the option.” If they persist to hammer at you ” you can ignore them or take out the big guns of the witty repost,” Gahran said. Just be prepared for the consequences.

Not all comments a reporter receives, however, will be negative, and Gahran suggested that reporters guard against big-ego responses to positives as well. “Don’t too swelled a head when people like what you say. You’re not responsible for that reaction either.”

Unlike standard journalism that strives for independent objectivity, blogs function best when the bloggers’ opinions and thought processes are known. There is room for both types of communication — objective and conversational — to develop within a newspaper’s web presence. “Not all journalism needs to be conversational. When it is conversational, it should have balance. When someone points out mistakes and makes a reporter think extra-hard about what’s been said, it should give a reporter more to write about.

“Reporter-bloggers should strive to develop a level of transparency. People want to see and know that the reporter is a person and revealing one’s thought processes can help. Show how you got your information and where you got it from,” Gahran advised. This will allow readers to backtrack and discover their own perspective. They may then bring up points that cause the reporter to re-think his/her position. If readers “see that a reporter is willing to reconsider a position in the face of criticism, readers will respond well to it,” Gahran said.

Asking reporters to blog, and to then interact like successful bloggers, is perhaps at this point in time asking for a quantum leap in the ways in which reporters have been instructed to perform their jobs. Misperceptions about blogging abound — in part because of the constant negative attention that is given to contentious comments and snarky blogs as much as it comes from simply not knowing the community. Focusing on the negatives, however, only serves to feed a fear of interaction. Positive interaction can occur, but reporters must first cultivate a non-confrontational temperament and other subtle skills — such as interpretation of syntax and a level of transparency — if they are going to interact successfully.

If newspapers are truly interested in cultivating interaction, and do not want to see some of their best reporters go down in flames because of bad interactions, newspapers will need to do more than give their reporter-bloggers a “blogging policy.” Newspapers cannot expect reporters to be able to immediately intuit a form of conversational media where the manner of interaction appear to run counter to the ethics journalists must uphold in their reporting, and has its own particular communication quirks. Rather, newspapers should neither rush nor refuse their reporters the task of interaction. They should allow for exploration and for asking questions.

A strategy for increasing revenues based on increased reporter interaction cannot be rushed. To do so might not just cause more reporters to unintentionally wreck their careers, but may also have the undesirable effect of driving readers, and revenue, away from newspapers.

Can newspapers do blogs right? I e-mailed that question to several prominent online journalists. All have experience with “traditional” media and either blog or oversee bloggers in their work. Their edited responses follow:

Anthony Moor

OrlandoSentinel.com
I’m not sure we know yet what “right” is when it comes to blogs. We’re in an R&D phase here, for lack of a better term, when it comes to incorporating blogs into our “traditional” Web content. There are going to be missteps. We know that blogs are a powerful software tool for self-service, instant publishing with a built-in tagging capability that plugs us into the conversation online. We also know that blogs are fostering a new kind of editorial voice in our writing: intimate, off-the-cuff and breezy.

Now, how that powerful new force on the Internet intersects with our mission to provide accurate and credible information to our audience is what we’re figuring out. We don’t have to do what bloggers v.1.0 are doing now to incorporate blogs effectively into what we do, and I think we shouldn’t try.

What makes us journalists is our ability to gather facts, synthesize, and write about the world around us — and those are not necessarily the requirements of blogging. As long as we couple our essential skills as journalists with this new medium, I think we CAN shape blogs into a valuable new asset for newspapers.

Look, the analogy is this: When software became widely available to easily manipulate photos into photo illustrations, the public-at-large found a myriad of uses for it. And news organizations suffered some notable missteps as they began using it too. Now, however, we’ve learned how to incorporate this power into our journalism without giving up the essential things that make what we do journalism.

Xeni Jardin

BoingBoing.net and National Public Radio
Newspapers will get it right when the people responsible for designing and launching blogs for them take the time to understand the culture, the process, the dynamics and the sociology of blogs. It’s important that newspapers not launch blogs for the sake of launching blogs. There had to be a purpose to other than to have the ability to tell the world that you have a blog.

What’s the point of interacting with your audience? Is the point just to leave snippy comments on the blogs of your critics? Or is the point of interacting to provide bits and pieces and nuances of information that traditional newspaper reporting doesn’t lend itself to?

I feel like way too often it is done as a gimmicky thing. Not to name names, but some companies launch blogs because there’s someone at the company who monitors search engine traffic, and one day that person recognizes, “Hey there are a lot of people searching about babies — I think we need to have a baby blog.”

Just because the traffic shows a lot of traffic, and potential for advertising revenue, they lanuch a blog and hire some inexperienced copy writter to fill it with stuff. It’s just an excuse to have something to sell ads against. I don’t think the Los Angeles Times created its blogs as an excuse to sell banner ads against, but too often in situations like this there’s disjointed thinking. There’s this idea that you stick a blog up there, you stick unmoderated comments up there, you don’t give your reporters who are totally unfamiliar with this medium any guidance, and you’re going to expect it to turn out well?

I think the fact that people make such an unnatural distinction between blogging and writing for a newspaper is part of the problem. Behave in your blog as you would in the paper.

Lisa Stone

BlogHer.org
Of course they can. Blog, wiki and audio technologies are just like the printing presses used to publish newspapers — tools that a broad spectrum of thinkers are using to get their word out. Period. Just like in traditional newspapering, some of these blogs, wikis and podcasts are superior, others are bird-cage liner.

Newspaper blogs that work are carefully planned, openly executed exercises in public conversation about news and information. These blogs allow comments and turn into 24/7 townhall meetings about everything from the headlines to how well the paper is doing to deliver and discuss the news. Newspapers that blog well embrace the community and use the blogs as an extension of their op-ed pages. There are dozens of examples, from MSNBC’s oft-ignored Bloggermann (one of the national media’s best blogs) to brave local daily sites taking important baby steps such as Madison.com and FresnoBee.com.

Newspaper blogs that don’t work tend to dismss blogs as, in Alex S. Jones’ famous words, the sizzle rather than the steak — as useless chatter rather than as an extension of the newspaper’s journalism that deserves the same care, feeding and standards of accuracy and ethical behavior. How can newspapers expect to survive if they keep mooning their readers like this? Answer: They won’t.

The problems of failing standards of accuracy and ethical behavior among the nation’s leading newspapers are not limited to blogs. As someone who grew up on newspapers and will never give them up, the past five years have been agonizing to behold, from Jayson Blair and Rick Bragg, to Ben Domenech and Michael Hiltzik. America’s newspapers have the opportunity to leverage blogs as credibility-building exercises — but the first thing we need to do is to stop architecting our own demise. To avoid meltdowns like this, newspapers need to do exactly what exceptional blogs do: For God’s sake, assume the position of the reader and behave accordingly. Readers want to know what they’re getting, who they’re getting it from and how, so that they can trust their sources — that’s you. Here are two easy steps:

Step 1: No more rookie maneuvers. Call in a blog expert with a journalism background and have this outside person walk you through community scenarios to test what your newsroom (and management) can tolerate and what you cannot. If nudie pictures on your wiki are a no-no, you have a choice to make: (a) Don’t publish the wiki, and/or (b) Don’t publish the wiki without human and/or technical filters. But you have to have someone advising you who knows how wikis behave. Or, say, if you don’t want a blogger to violate fair use acts on this blog or in previous blogs, (a) Check out their personal records, and (b) Say so and sign them to agreement that says so.

Step 2: Repeat Step 1 in an open conversation with your readers and ask them to behave according to these guidelines too. Publish your community guidelines and ask readers what they want and why. Edit your guidelines accordingly.

Step 3: Integrate blogs into the newsroom’s efforts. Starting slow is fine — but the best blogs are a team effort. In a newsroom unused to community conversation, to groaning when readers write and call-in, is to make it part of the journo’s job description — and their editor’s too. That means a conversation with the community via blogging (including Steps 1 and 2) needs to be embraced by the people at the top of the newsroom hierarchy.

Bob Cauthorn

CityTools.net
I think it’s going to be difficult for newspapers to do blogs right because their DNA continues to be trapped in the “we talk, you listen” mode. Fundamentally, staff-written blogs are nothing different than what newspapers do now — simply spilling more of the same voices onto the public streets.

Sure, staff-written blogs have a fragile patina of interactively because some accept comments. Scuffing off that patina doesn’t take much.

1) Under the best case, newspaper blog comments are enfeebled interactivity. Only fractional percentages of readers comment on staff-written blogs. Maybe the public has simply given up on the idea of newspapers listening or caring. Consider the case of the Guardian’s staff blogs. The Guardian is one of the best online newspapers in the world and its commitment to the staff blog borders on the fanatical. They throw substantial resources at it. And yet, if you look closely at the number of comments per post (realize in many cases comments are more than a week old) and then you consider the total traffic on the site, you must conclude that the supposed interactivity of the Guardian’s blogs has failed utterly. I mean we’re talking less that 1/10 of one percent of all readers who are moved to comment! (FYI, I did a quick study of this last fall because the Guardian folks had a hissy over my post attacking the concept of staff blogs.)

2) Even if you get a few comments, the moment they turn hostile to the newspaper, suddenly the commitment to interactivity wavers. It’s happened a number of times. And indeed, the Hiltzik incident specifically highlights this. Today’s newspapers are sufficiently thin-skinned that the idea that people might use comments to attack the writers doesn’t go down well. So you either stop comments, or you remove the accounts of critics, or — as in the case of Hiltzik — you create deceptive online personas to respond to the attacks. It’s the “we talk, you listen” attitude taken to the extreme: Even if the public talks back, the media requires the last word! It’s a fatal appetite on the part of the modern newspaper. Some sociologists have pointed out that modern America can exert power on the global stage, but it no longer exerts authority (for authority comes from the nexus of wisdom, restraint, morality and cleaving to higher purposes). Newspapers are in a similar boat — they’re still powerful institutions but their authority is in shambles. OK, let’s get this straight: So we let the public speak and when a tiny number do we come rushing in with fake personas to defend the paper against attacks. We never let anyone else get the last word. That’s wrong and it’s stupid and it’s going to kill papers. Instead of stifling criticism, newspapers should embrace it and learn from it and grow wise.

(Incidentally, The fact that the LA Times perceives the Hiltzik’s actions as a violation of ethics is a *very* good thing. One of the dirty little secrets of newspaper blogs is that many, many of the comments come from unidentified staff members. I applaud the LAT for this move. It’s high time to stop this deplorable practice.)

So if newspapers blogs are not *really* about interacting with the community — and I challenge anyone to demonstrate they’ve been successful at that goal — what makes them different? They just offer the same voices you read all the time.

This is *exactly* what my beef with staff blogs is about and why I’ve been trying to get newspapers to change the approach. Jon Stewart put it nicely when he said mainstream media blogs “give voice to the already voiced.”

Look, it’s easy to get this right: don’t have staff members blog and instead bring in the legitimate outside voices. There are many ways that a mainstream media organization can do this — make a blog about *outside* blogs, point some of your traffic to outside voices (even those who, gasp, criticize you!), invite some of the best outside bloggers in your community to post right on your pages. Give selected bloggers early access to your stories — particularly enterprise stories — so that they can have same-day reactions. (Make sure these are bloggers you can trust not to jump the publication, obviously.) In other words, genuinely and sincerely embrace *outside* voices. Allow the community to have a stake in what you are doing once more.

As stand it stands right now, newspapers keep shouting louder in a room that, increasingly, is emptying around us. Maybe, before the last reader departs we can convince people to stay by letting them know we want to talk *with* our community, not *at* them.

Chris Nolan

Spot-On.com
This is a pretty big set of issues that really, I think, go to the heart of what’s wrong with newsroom culture these days. Suffice it to say that the contempt that a lot of folks on the floor feel for people working online really has to stop. The problem is that guys like Ben Domenech and Michael Hiltzik aren’t exactly helping to make that argument. I’m not entirely sure that’s anyone’s “fault” as much as it is the result of having the news business open up to its audience at a time when newsrooms are in crisis and readers are better informed than they’ve ever been — thanks to the Internet.

The idea that the Post of the L.A. Times have somehow screwed up royally by hiring folks who cut corners isn’t the end of the world as we know it. It’s a series of mistakes. It’s done. We’ve learned a few things — among them, there should be an intermediate step between running your own website and writing for a big newspaper.

Newsroom editors and writers need to spend a lot more time reading and watching the talent that’s out here on the Web. Lots of folks sitting in newsrooms are going to have to get over the fact that people outside the building really do know what they’re doing much of the time. Just as online folks are going to have to stop cutting corners and claiming that they represent a new form of “media” free of all basic rules and constraints that’s some how superior to what’s being done in the ink-and-paper format. The way you produce your story has nothing to do with what the story says to the reader.

Fundamentally, the rules of the reporting game — be fair, be honest, represent the reader as you do your job, limit the harm you do as you do it, and always be aware that there’s someone on the other side of the story — are not going to change. Part of what’s going on with Domenech and Hiltzik is that those lessons are being meted out in a very public fashion. This, by the way, is how those things used to get taught by foul-mouthed city editors who thought nothing of yelling at new reporters. I knew a few of those guys … didn’t you?

Nick Denton

Gawker Media
Reporters, trained to put aside opinion, make uninteresting bloggers. And it’s notoriously hard to manage, in parallel, a daily news cycle and regular updates for breaking news.

Instead Falco could click onto YourHub.com, the site that covers 44 local communities and is run by the Rocky Mountain News. Falco would upload his release and — zip! — watch it materialize in its entirety on all the community sites, if he hit enough keys on his computer. No editorial gatekeeper would stand in his way, much less a J.J. Hunsecker.

On Feb. 27, YourHub ran a piece of stage-center product placement that Sidney Falco could only dream about. It was headlined, “Wynkoop names 2006 beerdrinker of the year.” It opened: “Tom Schmidlin, a 36-year-old University of Washington graduate student, devout homebrewer and yeast enthusiast, won the 2006 Beerdrinker of the Year title in Denver on Saturday, Feb. 25.” An accompanying photo of the grinning winner, posted at the top of the story, was captioned, “Tom set an unofficial record for most pounds gained between the weighing in and weighing out of the finalists. He picked up 4.5 pounds thanks to his hearty consumption of a growler [pitcher] and a half of Wynkoop beer while on the hot seat.”

The author of the piece was Marty Jones, a former journalist who’s now a publicist. Jones was paid by Wynkoop Brewing Co. of Denver to generate publicity for the Wynkoop-sponsored contest, in which entrants answered brain-twisting questions about beer while quaffing large quantities of the Wynkoop brand.

YourHub liked the story so much it was featured in the No. 1 promo position on the homepage of many communities.

Jones said he originally submitted his release to the Denver Post, hoping the paper would spin it into a breezy feature. The Post didn’t bite, but routed the release to YourHub, with which it has a relationship through the Denver Newspaper Agency. (The Rocky Mountain News and the Post are partners in the agency.)

Jones said he was surprised — pleasantly — to discover that his piece appeared intact on YourHub, under his name. Nowhere in the article was Jones identified as a publicist for Wynkoop.

“YourHub is exactly that: Yours!” exclaims a statement on the site, which was launched in May 2005. “It’s a Web site built by the people in metro Denver with help from the Rocky Mountain News. People throughout metro Denver can access their own community’s YourHub.com Web site, featuring stories, photos, events, blogs and personal profiles posted by others in their community — that means you!” Within the site are 44 sub-sites covering Denver and the suburbs surrounding it. Every Thursday, a selection of postings are packaged in 15 tabloid YourHubs that are inserted in editions of the Rocky Mountain News and the Denver Post that go to the papers’ subscribers.

YourHub is called “citizen journalism” by the Denver Newspaper Agency. John Temple, the editor and publisher of the News who brought YourHub into being, calls it a “community news initiative.” YourHub Managing Editor Travis Henry calls it a “bulletin board.” What it definitely is, based on the actual content, is a place where publicists like Marty Jones can be sure their releases will be published, with every product placement intact.

Whose hub?

YourHub’s freewheeling policies about its content and how its stories are identified recently sparked attention after the online magazine New West, which mainly covers growth and environment issues in the Rocky Mountain region from its base in Missoula, Mont., carried a Feb. 24 tongue-in-cheek article about YourHub. Author Howard Rothman focused on Denver-area politicians who were using YourHub as a free megaphone for campaign ads or attacks on their opponents. The same day, two Poynter Institute columnists — Steve Yelvington, an Internet strategist at Morris Communications, and Kelly McBride, an ethics group leader at the Poynter Institute — picked up on Rothman’s story.

John Temple’s lengthy reply to the three critics was posted on Jim Romenesko’s Media News letters page on Poynter. Temple emphasized: “[YourHub] is meant to be a wide-open exchange of ideas, experiences and goods. However there is one requirement. To post, people must register … .”

But Temple was disingenuous. While YourHub registration requires name, address, phone number, e-mail address and other information, the user profiles that accompany articles (reached from a clickable byline) include only a name and community of residence. Unless registrants go out of their way to post details in a “biography” section — which few do — there is no contact information for users. Nor is there any hint of a given poster’s business or occupation — which would be nice to know in case the writer were selling something.

And, contrary to Temple’s implication, press releases snail-mailed or e-mailed to the Rocky Mountain News or Post, or YourHub, can and do wind up regularly on YourHub, completely bypassing the registration process. That’s how Marty Jones’ piece on the beer-drinking contest got in.

But many publicists do choose to register, providing just enough profile information to mask what they do.

Between Feb. 24 and March 11, various YourHub sub-sites ran 11 travel stories 31 times under the byline of Toni Barnett, among them “Puerto Vallarta Will Warm Your Soul” and “A 112 Mile Stretch of Paradise,” about Riviera Maya on Mexico’s Yucatan Peninsula. Barnett’s profile on YourHub consisted of four words: “Toni Barnett, Boulder, CO.” But Barnett is manager of James TravelPOINTS, a Boulder travel agency specializing in international tours. A general clue to the connection between Barnett’s articles and her employer can usually be found at the end of her pieces, where the firm’s phone number and website are listed, without stating that Barnett is an employee.

On the sudden blossoming of her articles on YourHub, Barnett said, “We were hoping to get the articles [published] because we just started doing print advertising with them [YourHub].” YourHub Managing Editor Henry said, “Advertising and editorial are completely separate. … If we believe a story will be interesting for our readers we will run it, whether they are an advertiser or not.”

YourHub invites users to “share stories and photos about your town.” Exactly what stories about resorts in Mexico or “floating through France on a luxury hotel barge” have to do with life in Boulder or Golden or other YourHub communities is not clear. Barnett said, “I look at it two different ways. I hope people will find it interesting, and that I’ll receive their business.”

Nonprofit businesses and area governments have turned to YourHub as energetically, if not more so, than for-profits. A Feb. 22 story on YourHub was headlined “Dolphins Splash into The Wildlife Experience!” It was written by Keith Carlson, whose profile was as modest as Barnett’s: “Keith Carlson, Parker, CO.” But Carlson is actually communications director for the Wildlife Experience museum in Parker, where the dolphins were doing their splashing. Carlson has contributed six articles to YourHub — all of them about his place of employment.

On Feb. 14, YourHub carried a story whose headline, “County and mayors to honor teens,” suggested the perfect assignment for the local paper’s junior reporter. But the article was written by Mindy Endstrom, a communications specialist for Arapahoe County, Colo. On YourHub, Endstrom was identified only by name.

But not all contributors to YourHub hide under a bushel. Between Sept. 15, 2005, and March 11 of this year, chiropractor Sean Reif contributed 197 stories (counting multiple publications across the 44 YourHub sub-sites). Even more impressive, Reif received 127 comments on his stories that give him an excellent 4.6 rating (out of a possible 5). But it turns out that the most frequent commenter on Reif’s stories was Reif himself. Reif used the comments section to give himself five-star ratings, and also to snipe at medical doctors, as in his comment on comment on Jan. 18: “Few physician attempt to manage the whole range of disorders that can occur in infants, children, and adults, but those who do must have available a broad spectrum of current and accurate information. All need more information for study and examination purposes as well as for patient care … .” Reif gave himself five stars for that dig at doctors.

A few businesses are upfront about who they are in supplying stories for YourHub. A Jan. 20 article headlined “Business owners: How much should you pay yourself?” clearly identified author Bill Werley Jr. as a member of the Werley Financial Group of Lakewood, Colo. Werley’s optional “bio” section on his user profile also made clear his affiliation.

Another example of online transparency is Allison Hefner, a public relations specialist for Adventist Hospital. Hefner is the author of five articles, all about her employer. Her YourHub profile: “Allison Hefner serves as Littleton Adventist Hospital’s Public Relations specialist.” Of course, you’d have to click through to Hefner’s profile page to find that out.

Where’s the community news?

YourHub is a “work in progress,” according to Henry. “I am always looking at ways we can do things better,” he said. Henry adamantly defended the site’s skimpy profiles of contributors. “I don’t think we’ll tinker with that — no,” he said. “On the Web, we kind of have to leave it open.”

The 34-year-old Henry, who wrote editorials for the Daily Times-Call in Longmont, Colo., before helping to start YourHub in spring 2005, said he won’t get into a debate about whether the site meets any of the criteria of the developing phenomenon of citizen journalism. “[YourHub] may seem sloppy or messy, but people can decide what they want to take, and they do.”

Does YourHub give users well-rounded takes on their communities? “Between the stories that are posted, the news updates and blogs — yes,” Henry replied.

I went to the sub-site covering Golden — population 17,550 — and checked the main categories under “news.” Since YourHub launched in early May of 2005, the Golden sub-site has had 133 “general news stories,” seven on “government,” 23 on “politics” and three on “traffic.” Most of the “stories” were handouts on coming charity or other community events. Not one meeting of the Golden City Council was covered. The hot debate over whether a beltway should be built through Golden to connect two major roads was ignored. There was nothing on the struggle to save four historic but unprotected sites in Golden, and zero on a city-sponsored survey on what residents thought of their city (most of them were quite pleased).

The daily news updates included 10 to 12 links to news stories in the News and Post and sometimes to competing papers serving YourHub communities. But on an average day, only two or three of the zoned links focused on news from specific YourHub communities. On Feb. 28, on the Highlands Ranch sub-site, two of the 12 news updates had a Highlands Ranch connection. One was about a Highlands Ranch basketball player at the University of Northern Colorado achieving an academic honor; another was about Republican Lt. Gov. Jane Norton saying she would not challenge Democrat Rep. John Salazar, whose 3rd District includes Highlands Ranch. The remaining stories were about such non-local events as the Colorado House majority leader — who represents Boulder — collapsing on the chamber floor and a controversy over whether to convert HOV lanes to toll lanes on a road that was nowhere near Highlands Ranch.

Rocky Mountain News Editor and Publisher Temple, responding to critics in his Romenesko riposte, said YourHub users “seem to get it.” But what do they get besides a steady flow of press releases? It’s true that most of the PR is about worthy causes — fighting diseases, scholarships for deserving students and fund drives for struggling arts organizations. But can you cover 40-plus fast-growing communities in a large metro area by press release?

Publisher David Lewis of Mile High Newspapers Inc., which publishes four weekly newspapers in communities served by YourHub and a website that was started in response to YourHub, said, “We’re paying attention to them, but I’m not panicking.”

Lewis said his company commissioned a survey of 500 households in one contested community, the city of Arvada (population 100,000), in September 2005. The results showed 53 percent of those surveyed got their news from Mile High’s Arvada Press, 16 percent from the Rocky Mountain News, 12 percent from the Denver Post and half of 1 percent from YourHub.

He said the zoned weekly print versions of YourHub — which run 16 to 20 pages on average, with about 65 percent advertising — have a few ads he wishes his papers had, but that some other ads were simply shifted from the Rocky Mountain News or Denver Post. The Rocky Mountain News’ Temple acknowledged as much in his Romenesko posting by saying only 40 to 50 percent of YourHub ads — print and online — represented new revenue.

Lewis said he’d rate some of YourHub’s editorial content “appealing” and some of it “pap and boring.”

Henry proudly noted that the Rocky Mountain News hired 26 “trained journalists” as community editors to help contributors report and write stories for YourHub. But here are the priorities of the editor assigned to the communities of Golden, Evergreen and Conifer, as he listed them on his YourHub blog:

1. Dogs
2. Kids
3. Everyone else from Golden, Evergreen and Conifer
4. Photos by people from Golden, Evergreen and Conifer.

These priorities may explain why hot civic controversies and threats to historic local sites don’t register on YourHub/Golden — or other YourHub sub-sites. Such issues tend to be complicated, which means they demand detailed reporting — a rare occurrence on YourHub.

Rocky Mountain News owner E.W. Scripps Co. has recently expanded YourHub to metro areas in five other states where it has print properties — California, Florida, South Carolina, Tennessee and Texas. If Scripps can get away with presenting a steady diet of press releases as “community news,” what impact will that have on grassroots journalism, which is still in its infancy?

In his column in the News, John Temple frequently talks about what journalism should mean. On Feb. 25, he wrote: “In my experience, a newsroom that produces great journalism is a newsroom that talks about values and standards.”

When will Temple, a passionate advocate of scrupulous journalism at his Rocky Mountain News, start talking about values and standards for YourHub?

Marjorie Heins, founder and coordinator of the Free Expression Policy Project at the Brennan Center for Justice at NYU’s School of Law, explained that it is “very difficult to predict” how judges will rule in fair use cases, making it important for journalists to educate themselves.

Because fair use principles form a cornerstone of free expression, in 2004 the Brennan Center started researching the health of fair use among people involved in cultural or democratic exchanges of ideas. The result of the research is contained in the recently-released public policy report Will Fair Use Survive? Free Expression in the Age of Copyright Control, written by Heins and Tricia Beckles, a former research associate at the Brennan Center.

As mounds of snow in the New York City streets turned gray and slushy, Heins spoke with Online Journalism Review at length about the report and about the state of fair use as it pertains to online journalists.

OJR: Describe fair use as it relates to news reporting.

Marjorie Heins: News reporting is one of the classic examples of fair use, but like all of the examples, it is very difficult to predict when a particular court might determine that a reporter or an editor has stepped over the line from fair use into copyright infringement. So, journalists are facing some of the same problems as artists and scholars and bloggers — and almost anybody else who wants to discuss, report on or share cultural materials faces — with respect to copyright.

There are similar problems with trademark law, which also has fair use provisions, and the courts have developed a kind of sensitivity to free expression interests so that trademark owners don’t totally control the use that’s made of their images, their phrases, their logos. But that’s also hard to predict.

The main purpose of the research we did — which is summarized in the report Will Fair Use Survive? — was: to determine how well the fair use and free expression principles, that are so important to preventing control and censorship of information and speech, are doing. To what extent people are really able to make use of them? And to what extent are the industry practices such as sending cease and desist letters that contain overly broad assertions of copyright or trademark control interfering with fair use?

OJR: What did you find?

Heins: Let me back up a bit just to give a sense of the methods we used. The first challenge was to figure out how we were going to do our research because it’s very difficult to design a truly random study of, to even identify, people who have received cease and desist letters, who have had questions or concerns or who have self-censored because of fear of being sued.

So we figured out a couple of different methods of research. We created focus groups. We talked to people, writers and filmmakers … just to have general discussions and get a sense of what their attitudes and knowledge was and what experiences they’ve had. We did an online survey.

We analyzed over 300 letters from the Chilling Effects website, both cease and desist letters and what are called take-down letters under the Digital Millennium Copyright Act, which is a law passed by Congress in 1998. The DMCA, among many other things, gives copyright owners the power, pretty much to demand from Internet Service Providers that materials be taken off their servers, just simply on the bald assertion that it violates copyright. So, we analyzed those letters to get a sense of what kind of claims are being made, and, to the extent we could, to figure out what kind of responses, how much material was actually taken down, to what extent people were able to get material back up, to what extent people were intimidated by cease and desist letters or not. And we did some telephone interviews of some people who had posted letters on this Chilling Effects website. …

So, what did we conclude after we had pulled together all this information? There is basic awareness that fair use exists. … We had lots of people who were not particularly engaging in political speech or reporting on public affairs but maybe had a small business out of their home who would get a cease and desist letter from a big company saying, “You’re using our trademark.” …

One of my favorites was the woman who was making ceramic piggy banks, and she called her website Piggy Bank of America.com. Sure enough, the Bank of America sent a cease and desist letter. She found her way to a student law clinic, which sent a response to Bank of America saying, “Go away. This is not a trademark infringement.”

All kinds of people are generally aware of fair use and of copyright law, but they, for the most part, have very little idea of what it is. That’s understandable because the fair use statute, the part of the copyright law that delineates fair use, is not very precise. …

We concluded that there really is a need for more straightforward, simple information — and it’s always a challenge to translate law into simple English — and guidance with some basic things, like how to respond to a cease and desist letter.

And another thing that’s very much needed is more pro bono legal help. A half dozen law student clinics around the country are providing very valuable service for lots of people, but it’s hardly enough to meet the need, and most people cannot afford — we’re not just talking about the very poor, we’re talking about most middle-class people — to be involved in a copyright lawsuit or in many cases even to pay a lawyer the $10,000 to $20,000 it might cost to try to head off a lawsuit. So, many people tend to cave, they tend to settle, they tend to be intimidated.

And another thing we determined [has to do] with this Digital Millennium Copyright Act, the provision [Section 512] that allows for these take-down letters. Basically, it’s called a safe harbor provision, and it says to Internet Service Providers [that they] will not be liable as a contributory infringer if [they] respond to one of these take-down letters expeditiously by removing the material that is assertedly a copyright infringement. So, the law doesn’t force [ISPs to do this], but it holds a very powerful club over their head.

The underlying question is, why should an Internet Service Provider, which is basically like your telephone company, ever be liable for what you say over the telephone line? So the law starts from an assumption that’s dubious, but there you have it. So Internet Service Providers, for the most part, are going to respond expeditiously in order to take advantage of the safe harbor and avoid what the law says would be possible contributory infringement liability. So there’s a situation where [the law] gives a very powerful weapon to copyright owners to get material taken down.

There’s another report that came out from USC. Jennifer Urban, at the law school runs the Intellectual Property Clinic, which just got started last year, and a former fellow from the Samuelson Clinic up at Boalt, Laura Quilter, wrote a paper analyzing DMCA take-down letters from the Chilling Effects website as well. And the conclusions are quite similar.

A lot of these letters have flaws, to begin with. They sort of don’t comply with the law. But ISPs tend to respond by taking down the material anyway. [We found that in] lot of the letters that do sort of comply with the formalities of the law — they give all the information required and say it’s in good faith and assert copyright infringement — [but] the claims of infringement are rather thin or questionable, or at least there would be a question for a court as to whether it’s fair use. … There are some numbers in the report which you can look at, but there are certainly many situations in which material is coming down and is not being put back up.

The person who is being targeted [sometimes] never finds out that there is a procedure for writing a counter-notice and getting the material back up, so another conclusion of the report is that it would be very useful to work with ISPs to try to encourage them to give better information and assistance to their subscribers in these situations. Very often they just take the letter at face value and respond by threatening the subscriber that they’re going to take down their whole website unless the material is removed immediately, or they’ll shut down the website without even communicating with the subscriber. …

One example that we saw a lot of on the Chilling Effects site is this group, which calls itself Avatar, and it describes itself as a planetary enlightenment group, sort of like Scientology. … Some of the critics of Avatar, people who’ve been through the process and think it’s a sham, say it’s an offshoot of Scientology. There are discussion groups, where people exchange their experiences and exchange critiques and often post parts or even all of Avatar materials. So Avatar sends these Section 512 take-down letters to Google to basically get these discussions removed from the Internet. … Certainly the primary purpose of these discussions was commentary and critique. And these are persons who are not subscribers and so under Section 512 they probably don’t even get notice that their commentaries are being removed. So here’s a case in which this company is using this DMCA take-down procedure as a method of suppressing criticism, basically.

OJR: What is your reaction to the news that the Recording Industry Association of America may not consider it fair use to copy a CD that you own to your MP3 player?

Heins: There’s been quite a lot of discussion among copyright profs about this statement — especially since the RIAA’s lawyer apparently said the opposite at the Supreme Court argument in the Grokster case. My own view is that copying a CD which you own to an iPod or other device for personal use should be fair use.

OJR: What is your reaction to the news that Google has lost a lawsuit alleging copyright infringement for images found in its Image Search results?

Heins: This decision in the case of Perfect 10 v. Google takes too narrow a view of fair use and conflicts with a court of appeals precedent in Kelly v. Arriba Soft, which held that using thumbnail images on a search engine is fair use. The judge in Perfect 10 v. Google pointed to little differences between the Google and the Arriba search engines, but its analysis is not convincing. Hopefully, this will be reversed on appeal.

OJR: What do online news publishers need to be especially aware of? Especially with the problems of unpredictability in fair use judgments as it is, and then in the rapidly changing world of the Internet — are there particular pitfalls or traps awaiting online news publishers that people should be aware of?

Heins: I think the problem is similar in journalism, both online and off, to other areas where free expression guarantees are needed. And in the context of copyright law, fair use is one of the main free expression guarantees. And in the past, news reporting has been considered a very strong case for fair use because of its obvious importance in disseminating information and the timeliness issue, the fact that even if you could get permission and could afford to pay whatever the license fee was, by the time you did so, it wouldn’t be news anymore. … I think it was the Rodney King tape which became a valuable property but was also highly newsworthy — could you use it, how much of it could you use? There are obvious copyright pitfalls with the use of any copyrighted material, even a small snippet of it.

You know there’s a lot of reproduction of articles on the Web, websites that simply take articles from somewhere else and reproduce them without permission under the theory that this is part of news reporting and commentary and is part of the exchange of ideas and it should be considered fair use. … It’s an unclear area of the law. There are some court decisions that suggest that an article, an image, a photograph, something that is taken complete and reproduced without any transformative use, … just taken and reproduced complete, there is some case law that suggests that is almost always infringement. But the Supreme Court has not weighed in on that, so these are lower court decisions. And there are important arguments why disseminating — my being able to send to you a whole article from the New York Times because I think you’d be interested and it’s the best way of sharing the information or the opinion that’s in the article — there’s a very strong argument that that kind of exchange serves one of the important purposes underlying fair use.

So, both from the point of view of journalists being able to quote freely and in a timely fashion and journalistic commentators being able to quote and critique in ways that the copyright owner might not want to permit, and in terms of the rest of us who might not be considered journalists — which of course in the online world becomes an increasingly difficult distinction — the ability of the rest of us to be able to share and exchange complete articles … ought to be fair use. …

One of the big problems that arises — and people have looked at this and argued about this for the last 30 years since the 1976 Copyright Act incorporated fair use officially; it had existed before in the case law — is this argument that people really need something more specific. [In this argument, people say]: the fair use factors are so vague, it’s so unpredictable that it’s naturally going to have a chilling effect, and added to that are the very stiff penalties of copyright law, the fact that if you lose, you have to pay the other side’s attorney’s fees, which can be literally hundreds and hundreds of thousands of dollars. All that combines to chill the exercise of fair use and people need something more specific that they can rely on. It’s a very powerful argument.

Or, alternatively, people say, “Fair use just isn’t working because of all these factors that produce such a chilling effect, so let’s just forget about it and just have mandatory licensing.” [This is] like we have if a radio station wants to play a song, they don’t have to ask permission, they just have to pay a set fee. Or, “Let’s have everybody join Creative Commons.”

Those are all understandable arguments, and I’m all for Creative Commons, and in some circumstances, mandatory licensing is very valuable too, but we can’t give up on fair use. It’s critical because it’s precisely the fact that it doesn’t depend on permission, that the copyright owner doesn’t have total control of the way in which his or her words or images are used, commented upon, reproduced. Once you send it out into the world you don’t have total control. That’s what expression and culture and communication is about, so we need to figure out ways to make fair use easier for people to take advantage of and without reducing it to a specific counting of lines, counting of words, counting of pixels, which reduces the flexibility of it and the ability of the doctrine to respond to new needs. …

OJR: What should online journalists know about linking to other people’s websites?

Heins: I don’t want to be in the position of offering legal advice to the world in an interview. Any specific situation ought to be researched. But I am not aware of any legal precedent that says simply linking raises an issue of copyright. You’re not reproducing; I don’t think you’re really distributing. The copyright law lists the rights that are within the copyright bundle: publishing, reproduction, distribution, performance, making derivative works. I don’t see a link as any of that.

OJR: What are the best ways for online journalists to educate themselves?

Heins: They should read the report. They should read the Chilling Effects website — the Electronic Frontier Foundation has good information. They should be aware that there are a lot of different viewpoints about copyright and fair use. …

You have to be careful, or at least thoughtful, about where you get your information because there are a lot of different viewpoints out there on fair use. If you go to the Copyright Society of the U.S.A. website you’ll get warnings that basically say, if you use anything but a very short snippet and if you’re not absolutely sure, don’t take a chance on fair use. Well, that’s the opinion of one group, but you get a very different view if you go to the Electronic Frontier Foundation.

Now one thing that anybody who has looked into this area much … realizes is that what is fair use is basically what a court is going to consider fair under all the circumstances, including general practices in a particular environment. So … statements of best practices are important because they can influence the law. To the extent that fair use is not used, it will shrink, and to the extent that it is used and asserted, it will remain healthy and even grow. And in the area of journalism, it’s especially important that that happen. There are lots of examples in the report of online commentators, journalists of various kinds, [who face] attempts by those who are the targets of their criticism or commentary to shut them up.

One example is this blogger Robert Cox who was angry at the New York Times, and especially Maureen Dowd, because they didn’t have a requirement that columnists publish corrections, so he created a parody website with the New York Times’ correction page logo and put up his own correction. The Times sent a take-down letter to his ISP and a cease and desist letter to him, and he started publicizing that on his website and soon got a pro bono lawyer to write a letter to the New York Times saying, “You’re wrong, this is fair use.” And so in that situation the blogger prevailed. But I think it’s a fair inference that the Times just didn’t like the criticism.

Now history could well be repeating itself. Polk County Sheriff Grady Judd arrested porn site owner Chris Wilson, of Lakeland, Fla., on 300 obscenity-related charges on Oct. 7. Wilson’s site, NowThatsFuckedUp.com also has offered soldiers free access to pornography in exchange for gory images of dead Iraqis, a practice first reported on blogs, in the Italian media and on OJR. The obscenity charges do not relate to the gory images, and the U.S. military has said that it hasn’t been able to determine if soldiers actually sent in the photos since the images were posted anonymously on the site.

When I first interviewed Wilson for the Sept. 20 OJR article, he was reluctant to tell me what he did for work outside of running the site. “Everyone asks me that, and they always wonder why I don’t want to answer that,” Wilson said. “I live in a very religious community, unfortunately.”

I asked Wilson why the site was hosted in the Netherlands. “Amsterdam is a little more laid back than the U.S. is with sexual content,” he said. “Being based out of Amsterdam … it’s more or less a business move more than anything else. I don’t get harassed as much because of it. I get a little bit of harassment here in the States. It’s to cut down on my nasty e-mails, pretty much.”

The Lakeland (Fla.) Ledger reported that Wilson was a former police officer and had been investigated since March 2003 for operating porn sites in Polk County. At one point, The Ledger found, Wilson was contacted by a police detective and warned about running pornography sites out of Florida.

Wilson did not return my calls and e-mails for this follow-up story, but his attorney, Larry Walters, told The Ledger that the high number of counts against Wilson was inappropriate and was “an additional, pre-conviction punishment.” Wilson’s family struggled for five days to pay $30,100 bail, before he was released from jail on Oct. 12.

But how can one county in Florida prosecute obscenity cases on the Internet, where obscenity might as well have its own domain suffix? Sheriff Judd told me that his jurisdiction applies to any material that begins and/or ends in his county, regardless if the server or site owner is based in another state or country.

“This might be the first [case we've dealt with] where the alleged server is out of the country,” Judd said. “But it makes no difference, because if you fed that server or you could receive information off that server in this county, then it gives us jurisdiction. … Technically I could charge someone in Kansas, if I received child pornography here, obtained a warrant and had him extradited from Kansas and tried here.”

Judd told me Wilson previously ran a porn site called Core39.com, named after his police academy class number, and at one point had applied for a job as deputy sheriff in Polk County — but he wasn’t hired. Judd said the county has prosecuted cases related to Internet obscenity and hasn’t lost any cases in court, though some defendants have made plea bargains.

The anonymous Cyber Crime Law blogger writes that obscenity cases on the Net are rare due to the proliferation of material online — leading to a select few “special” cases such as this one.

According to the Supreme Court’s 1973 ruling in Miller v. California, for content to be ruled obscene, it must meet the following tests: 1) an average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; 2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

While it’s difficult to judge the merits of the case without seeing the material that was seized, the Cyber Crime Law blogger argues the case could well have been pursued because of the notoriety of the gory war photos on the site. The blogger also says the site might have enough serious political value not to be legally considered obscene.

Kurt Opsahl, staff attorney for the Electronic Frontier Foundation, said his group hasn’t been contacted by Wilson, but would assist him if he asked for help. The EFF has posted a FAQ on its website to educate bloggers on the law concerning adult material online. Opsahl told me the EFF was worried that obscenity cases were being decided by community standards of the least tolerant places in the country.

“Under current law, the legal question of whether speech is obscene is determined partly by reference to local community standards,” Opsahl wrote me via e-mail. “EFF is concerned that these venue rules permits censorship of speech on the Internet under the standards of the least tolerant community, negating the values that the community standards doctrine was intended to protect — diversity and localism in the marketplace of ideas.”

Judd acknowledged that different communities have different standards. “I have heard descriptions vary from area to area in the country but obscene [in] our community standards goes beyond nude men and women …, ” Judd said. “When we’ve made cases, we have gone much further than what one judge refers to as ‘normal, good old-fashioned sex.’ … We look for outrageous conduct that shocks the conscience of the community. That’s all we bring before the court.”

Wilson’s site is still in operation with pornographic images, videos and the gory war photos. However, after the media attention NTFU received, there has been an uptick in discussions on the site related to the gory images and whether they are indeed helping to show an unedited version of war — or giving U.S. soldiers a bad image abroad. The site’s moderators and Wilson himself have pointed to a special blog on the obscenity charges, FreeChris.org, and Wilson has asked supporters to donate money to his legal defense fund.

Investigation stalls in military, media

As for the gory photos on NTFU and other websites, the military said it could not confirm the authenticity of the photos — or that U.S. soldiers had posted them. Army spokesman Paul Boyce told me there wasn’t enough evidence to pursue felony charges.

“If we get specific information, we will certainly look into that as well,” said Boyce. “But at this point, we are pursuing it instead from a more prudent standpoint by reminding soldiers of our policies dealing with the use of the Internet, weblogs, digital photos, personal e-mail, etc.”

I asked Boyce whether he had followed up on my previous report for OJR, which included an e-mail from someone named David Burke, who said he was a soldier in Iraq and has posted on NTFU under the screen name “diescreaming.” Boyce took note of the information and told me the Army would check into it.

But critics of NTFU’s gory photos and the possible involvement of soldiers were doubtful that the Pentagon was putting much effort into the internal investigation. Ibrahim Hooper is the spokesman for the Council on American-Islamic Relations, which helped bring the gore-for-porn story to wider attention by sending an open letter to Defense Secretary Donald Rumsfeld. Hooper told me he was disappointed with the Army’s investigation.

“[The Pentagon] decided to end whatever efforts they had because they said they hadn’t found any evidence that military personnel were involved — even though if you went to the site, somebody sent me one of the images where the person’s name and unit were clearly indicated in the photograph,” Hooper said. “All we can do is bring these things to the attention of the Pentagon; we can’t force them to do it. If they want to drop it at that point without having really gone into it, then that’s their choice. We stated at the time that we thought it was premature. There couldn’t possibly have been a full investigation in the time that was allotted and it was sending a negative message.”

Meanwhile, rank-and-file soldiers, Bush administration supporters and military bloggers have been largely silent on the issue, perhaps preferring not to fuel any possible scandal. Liberal blogger John Aravosis, conversely, has been stoking the flames by running photos taken from NTFU, with soldiers visible and gory parts censored. When the military said it couldn’t make felony convictions, Aravosis was livid.

“What exactly HAS the military done to get to the bottom of this?” Aravosis wrote. “They launched an investigation that lasted, apparently, a matter of hours. And now they tell us there’s nothing they can do, and nothing they’re going to do, about the outright racist abuse of Muslims by U.S. troops.”

While the military has been pretty silent on details of its investigations, the mainstream media, too, has tailed off quickly in covering the site and the gory photos. When they finally started paying attention to the story, the media just quickly repeated the basic details, noted the closing of the military investigation and barely any did investigative work of their own.

Bryan Bender, national security and foreign affairs reporter for The Boston Globe, wrote one of the more detailed reports on NTFU, and found that the military was indeed tightening guidelines of electronic media use by soldiers. But Bender hasn’t returned to the subject in The Globe yet because he’s had trouble verifying that the gory photos online came from U.S. soldiers in Iraq, he said.

“I am pursuing the story to determine if soldiers were involved in taking the photos and to figure out if similar photos floating around out there are also the work of U.S. servicemen and women,” Bender told me via e-mail. “I have come across quite a few on the Internet purported to be of dead Iraqis — and of U.S. troops as well. I haven’t made much headway yet, but I agree it warrants continuing attention by the media. The main hurdles are 1) figuring out if the photos are legit and 2) who took them. Some of them, quite frankly, look like they could be staged. Others appear real, but as you well know, anyone can post things on the Internet. Tracking where they originated from is not easy.”

How do soldiers feel?

Due to the sensitive nature of the website and subject matter, U.S. soldiers I contacted would not go on record for this story, even to denounce the site’s practice of posting gory photos.

One popular military blogger, who only goes by the pseudonym American Soldier, said he doesn’t believe the Army can stop soldiers from sending in these types of kill shots. “They can put out blanket warnings of UCMJ [Uniform Code of Military Justice] violations and then leave it at that,” he told me via e-mail. “The Army is all about complying but moves on and expects the rules to just be followed.”

I asked American Soldier if he thought it was a double standard when U.S. officials criticize Al Jazeera for running video of captured or dead American GIs while U.S. soldiers are possibly posting photos of dead Iraqis and celebrating the kills.

“I don’t give a fuck about dead terrorists,” he said. “They are fanatics fighting for a crazy cause. The more dead, the merrier. That’s what they want to be anyway. They are martyrs and they don’t care who they kill. Women, children, old people. There are a million differences between displaying American heroes who have fallen and these pieces of shit terrorists. So no, I don’t think anything is wrong with Americans posting pictures. Al Jazeera is nothing but a terrorist news MSM. … The Army really wants to control soldiers in general. They HATE the milblog sensation. They want to silence us.”

Another soldier who served in Iraq recently would only talk to me on condition of anonymity. This soldier thought the current generation of servicemen and women was much more numb to violence and had less qualms about exposing the world to what was happening at war.

“I think we’re desensitized now,” the soldier said in a telephone interview. “There were plenty of guys in Vietnam who took gory photos like that — and a lot of them have them now — but I don’t think a lot of them would expose them. At the time, when I was in Iraq, I had plenty of photos like that. You don’t know why. In Iraq, everyone’s pulling out digital cameras; it’s like a Kodak moment. Over there, you’re taking pictures of it and not really thinking that much of it. Then you come back and it sinks in. When you come back to normal life, you think, ‘Whoa, I can’t believe I did that.’ ”

This soldier thinks NTFU has been a PR nightmare for the Army, and thinks the military could easily figure out who shot the pictures and posted them online. But the soldier has little sympathy for Chris Wilson.

“This guy is waving the flag and the First Amendment, and how he’s supporting the troops,” the soldier said. “Bull-fucking-shit, dude. You’re cashing in on this. This is the best publicity stunt for his site ever. He’s probably dragged so much traffic to his site. He’s using these soldiers for his own good, for his own site. These soldiers are such fucking idiots, being used by this guy.”

While Wilson wouldn’t comment on his site’s aims, he has posted a quote on every page of the site, taken from the 1995 movie “The American President”:

“America isn’t easy. America is advanced citizenship. You’ve gotta want it bad, cause it’s gonna put up a fight. It’s gonna say, ‘You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’ You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then you can stand up and sing about the land of the free.”

* * *

Media Reaction to NTFU

“Horrifying? Oh, yeah. Horrifying but invaluable, because these pictures show a side of the Iraq war the American public doesn’t care to see and from which it’s been meticulously shielded. We’re spared the sight of flag-draped coffins arriving weekly to hometowns across the country even though we’re deluged with newscasts painting a shiny picture of soldiers fraternizing with Iraqi children. Death has effectively been eliminated from our media’s war coverage, as if protracted combat doesn’t involve killing, and killing isn’t gory, and the personalities of people who have to do the killing don’t eventually start warping in the most unpleasant ways.

“The photos posted on NowThatsF — Up.com strip off the blinders. Those brains splattered across a car’s dashboard? Not your usual human-interest story. The mocking commentary by the enlisted guys supplying the photos? Not so heroic. Together, they paint a picture of war as a dehumanizing hell, sans political commentary or analysis. Welcome to Operation Iraqi Freedom.” — Neva Chonin, San Francisco Chronicle, in Porn Wars, Part II

“The dissemination of imagistic truth from America’s involvement in the Middle East has been a long time coming, and, while the government might use the pornographic content of NTFU as a distraction, one must be cognizant of perhaps a more realistic motive: corralling American soldiers and closing the eyes of the American public. … The grotesque becomes something like pathos, intriguing our sympathies and altering our perceptions — the images of this war, previously censored but now presented on sites like NTFU, will most certainly redefine our gaze. With or without pants, the truth is making its way around the world fringed with photography, pornography, or, in the age of digital communication, warnography.” — Casey N. Cep, Harvard Crimson, in Warnography’s Visceral Allure

“These images produce immediate, visceral responses. That’s why they are so threatening to the authorities. They destroy the moment of rational detachment that arises when we ask, ‘Is this war (and implicitly, war in general) justified?’ … Show someone a high resolution, close-up picture of a broken corpse, where no limb is where you expect it to be. Does it matter if there are two bodies or one? If they are insurgents or soldiers? If it is war or murder? We feel an identical response no matter what the context. …

“What Wilson is doing is both excessive and necessary. As our society grows more desensitized to violence, the images that can jolt us out of our complacent and superficial posturing must become correspondingly more severe. Don’t support our troops; support our pornographers instead.” — Ken Tran, Daily Texan, in Graphic Photos Have a Purpose

“If there’s any merit to this cause [the FBI's war on porn], then the obscenity contained on Wilson’s website should undoubtedly be one of the foremost targets. After all, photographs of naked adults engaging in sexual activity are one thing; images of bodies missing heads or organs splayed in the street are quite another. While The Chronicle defended the rights granted by the First Amendment just last week, those freedoms reach their limits in this case, being at odds with the international law established in the Geneva Conventions.

“If the federal government deems the standard version of pornography to be criminal activity, then there is no justifiable reason that the content on Chris Wilson’s website wouldn’t be considered equally offensive — if not a more dangerous form of public corruption. The more time that soldiers are allowed to continue submitting these images and their comments on a site accessible by the global community, the more we have to wonder just how out of order our priorities really are.” — editorial in Columbia College Chronicle, titled The new pornography

The Internet has proven to be a vast resource of information and knowledge, but it only takes one hyperlink to get from the profound to the profane. When reading an Egyptian blog a few weeks ago, I stumbled onto a bulletin board site called NowThatsFuckedUp.com (NTFU), which started out as a place for people to trade amateur pornography of wives and girlfriends.

According to the site’s owner, Chris Wilson, who lives in Lakeland, Fla., but hosts the site out of Amsterdam, the site was launched in August 2004 and soon became popular with soldiers in Iraq and Afghanistan. When female soldiers started to appear in the nude on the site, the Pentagon blocked access to the site from military computers in the field, according to the New York Post.

But the story gets more twisted. Wilson said that soldiers were having trouble using their credit cards in Iraq to access the paid pornographic content on the site, so he offered them free access if they could show that they were actually soldiers. As proof, some sent in G-rated photos of traffic signs in Baghdad or of a day in the life of a soldier abroad. Others sent in what appear to be Iraqi civilians and insurgents who were killed by suicide bombs or soldiers’ fire.

Now there’s an entire forum on the site titled “Pictures from Iraq and Afghanistan – Gory,” where these bloody photos show body parts, exploded heads and guts falling out of people. Along with the photos is a running commentary of people celebrating the kills, cracking jokes and arguing over what kind of weaponry was used to kill them. But the moderators will also step in when the talk gets too heated, and sometimes a more serious discussion about the Iraq war and its aims will break out.

Wilson told me in a phone interview that he is “not very” political and considers NTFU as a community site.

“People say, ‘This is a porn site so why are you talking politics?’ ” Wilson said. “But it’s actually a porn community, and any time you have a community with shared interests there’s going to be other interests. Just because somebody looks at porn doesn’t mean that they have a below-60 IQ and don’t know anything. I have doctors and lawyers and police officers and teachers, and it doesn’t surprise me that there are educated people who want to discuss things. It’s interesting, and I love reading it.”

Wilson has no qualms about running the gory photos of war in open forums that don’t require registration or payment.

“I enjoy seeing the photos from the soldiers themselves,” Wilson said. “I see pictures taken by CNN and the mainstream media, and they all put their own slant on what they report and what they show. To me, this is from the soldier’s slant. This is directly from them. They can take the digital cameras and take a picture and send it to me, and that’s the most raw you can get it. I like to see it from their point of view, and I think it’s newsworthy.”

Wilson says it’s a judgment call on whether the photos he gets are really from soldiers in Iraq or Afghanistan. After months of sifting through photos, Wilson has an idea of the quality of the digital cameras soldiers use and what the terrain is like in those areas of the world.

I couldn’t verify whether these gory photos were taken recently in Iraq by soldiers. But the U.S. military is currently looking into the site and trying to authenticate the photos — and take appropriate action if soldiers are involved. “We do have people who are specifically looking at that website, and I will talk to my colleagues and my bosses here and get back to you,” said Staff Sgt. Don Dees, a spokesman for U.S. Central Command (Centcom) in Baghdad.

Two people posting gory photos to the site responded to my e-mail query into their motivations for doing it.

“I access [NTFU] from my personal computer, the government computers are strictly monitored,” one person wrote to me. “I would never try to use this site or anything like it on a government computer. To answer your question about posting the gory pictures on this site: What about the beheadings filmed and then put on world wide news? I have seen video of insurgents shooting American soldiers in plain day and thanking God for what they have done. I wouldn’t be too concerned what I am doing on a private Web site. I’m more concerned of what my fellow soldiers and I are experiencing in combat.”

Another person whose e-mail identified him as David Burke was defiant about posting gory photos and said it was a tradition of all wars.

“Yes I have posted kill photos on other forum sites,” Burke wrote me in his e-mail. “The computers are military financed if not owned by the military. I think that with all the service members who are over here it was obvious that photos of dead insurgents would surface as time went on and it is not a new occurrence. There have been pics from all wars of the fighters standing over the bodies of the enemy. The insurgents are more than willing to showcase our dead and wounded so if people have issues with what’s shown on this site then they need to stay away and quit bitching about things they know nothing about.

“I made it real clear in most if not all of my posts how I feel about the Iraqi people in general and that feeling has not changed a bit in my time here. I [put] a good friend of mine [in a body bag] just a week ago and that really clinched it for me and my teammates. We will always shoot first and ask no questions, period. The military brass will always try to sanitize the effects of war, no matter when or where, and yes if it was possible they would censor all media coming out of this country, pics and stories.”

Condemnation for site swift

The story of NTFU and its unusual exchange of free porn for gory war photos was first picked up by an Italian blogger named Staib, and then the Italian news agency ANSA. Blogger/journalist Helena Cobban, who pens a column for the Christian Science Monitor, asked her blog readers for an English translation of the ANSA article and quickly received many versions that clarified what the site was about.

Cobban was horrified by the gory photos, but tried to make sense of the motivation of people who posted them — and tried hard to grasp the idea of a serious discussion of war on a porn site. She told me that taking and posting “trophy” photos of dead Iraqis was a gross show of disrespect and a violation of the Geneva Conventions. But she put the blame on the direction of military leadership.

“The important thing is for the U.S. military and political leadership at the highest levels to recommit the nation to the norms of war including the Geneva Conventions, and to be held accountable for the many violations that have taken place so far,” Cobban said via e-mail. “What I don’t think would be helpful would be further punitive actions that are still limited to the grunts and the foot soldiers, who already have the worst of it.”

The Geneva Conventions include Protocol 1, added in 1977 but not ratified by the U.S., Iraq or Afghanistan. It mentions that all parties in a conflict must respect victims’ remains, though doesn’t mention the photographing of dead bodies. This could well be a judgment call, and the celebratory and derogatory comments added on NTFU make the case more clear.

When I contacted military public affairs people in the U.S. and Iraq, they didn’t seem aware of the site and initially couldn’t access the site from their own government computers. Eventually, they told me that if soldiers were indeed posting photos of dead Iraqis on the site, then it’s not an action that’s condoned in any way by the military.

“The glorification of casualties goes against our training and is strongly discouraged,” said Todd Vician, a U.S. Defense Department spokesman. “It is our policy that images taken with government equipment or due to access because of a military position must be cleared before released. While I haven’t seen these images, I doubt they would be cleared for release. Improper treatment of captured and those killed does not help our mission, is discouraged, investigated when known, and punished appropriately.”

Capt. Chris Karns, a Centcom spokesman, told me that there are Department of Defense regulations and Geneva Conventions against mutilating and degrading dead bodies, but that he wasn’t sure about regulations concerning photos of dead bodies. He noted that the Bush administration did release graphic photos of the dead bodies of Uday and Qusay Hussein to the media.

Karns said that commanders in the field do have latitude to make their rules more stringent than overarching military regulations, but he didn’t expect that cameras would be banned in the field.

“I don’t think it will get to that point [where cameras would be banned],” Karns said. “All it takes is one or two individuals to do things like this that cast everyone in a negative light. The vast majority of soldiers are acting responsibly with cameras in the field. But on the Internet there aren’t a whole lot of safeguards and the average citizen can create their own site.”

Karns did say that if soldiers were posting these photos online, that it would have a negative strategic impact, especially when the enemy relies so heavily on the media to win the battle of perception.

Ibrahim Hooper, spokesman for the Council on American-Islamic Relations, saw the gory photos as another black eye for the U.S. military after the Abu Ghraib prison torture photos.

“This is just another form of pornography,” Hooper told me. “I think this is something that should be strongly discouraged by military authorities. It’s going to give military personnel a bad name, it’s going to harm America’s image in the Muslim world and it’s just plain wrong. You have to wonder what this says about our military personnel, if first of all they’re dealing with pornography and why they would be reveling in the deaths of individuals in Iraq.”

Respected media outlets?

NTFU site proprietor Wilson says that the military blocking of his site upset him, but that traffic actually went up after it was blocked. He told me that if the military brass did get in touch with him, and had a good reason for him to remove the gory photos, he would.

“I get many requests for removal,” Wilson said. “I get 30 to 40 requests per day for removal for everything across the board on the site. I take each on a case-by-case basis. If [the military] wants something deleted because they think it’s a threat to national security or it’s showing too much, then obviously, yes, I’m going to get that out of there. But if they’re asking me to remove it because they just don’t like it, then no.”

Wilson says he supported Bush in sending troops to Iraq, but thinks it’s long past time that they need to be brought back home. He says he supports the soldiers, and thinks they are pretty split on whether they should be brought home or kept on the job in Iraq. Wilson has tried to obtain a less profane domain name for the site, NTFU.com, but that the domain’s owner was asking for way more money than it was worth.

Of course, the NTFU community is not alone in its fascination with the darker, more grotesque side of life. The site Ogrish.com has been around for six years, and includes photos and video of murders, cannibalism, and war kills. The owners of the site explain in the FAQ that they do not enjoy seeing this violent material, but that they are trying to provide an uncensored view of reality.

“Ogrish does not provide a sugar-coated version of the world,” the FAQ says. “We feel that people are often unaware of what really goes on around us. Everything you see on Ogrish.com is reality, it’s part of our life, whether we like it or not. We are publishing this material to give everyone the opportunity to see things as they are so they can come to their own conclusions rather than settling for biased versions of world events as handed out by the mainstream media.”

The site’s goal is pretty ambitious: “to become a respected media outlet for uncensored, unbiased news… [with] much more background and educational value to our content.” The site uses citizen correspondents in law enforcement and in medicine, much the way that NTFU depends on soldiers in the field who are armed with digital cameras.

Dan Klinker, who formerly was a co-owner of Ogrish.com and now handles PR, told me via e-mail that the site is not about glorifying violence, unlike NTFU.

“As far as I know Ogrish is one of the only sites in this niche that have been focusing on the facts rather than presenting things in a glorifying way like a lot of other sites do (including NowThatsFuckedUp),” Klinker said. “Just the name of that site makes it clear that there’s only one goal, which is to shock, glorify and entertain. The combination with bloody pictures in return for naked girls makes them lose all credibility.”

While it was difficult for me to ascertain the motivation for people who were posting gory photos to NTFU, I did talk to Steven Most, a psychology postdoctoral fellow at Yale University who has studied the effects of violent and sexual images. He helped explain what these horribly violent images had in common with the nude photographs of women.

“They both seem to be particularly arousing in an emotional way,” Most said. “Emotional stimuli can be rated in different ways. You could see something and rate how positive or negative it is. But separate from that is how arousing the image is. A positive picture of a cute puppy dog could be positive but not that arousing, whereas a picture of an opposite sex nude could be just as positive but be rated as extremely arousing. And a picture of a mutilation could be rated as extremely negative but highly arousing. Lately there’s been a lot of theories saying that what we’re drawn to is the arousing nature of an image regardless of whether we see it as negative or positive.”

The recent bad news that the Chinese government is requiring all bloggers to register with the government by June 30 or face shutdown was tempered by the fact that there’s always another free blog host somewhere in the world that’s less controlled. And when word leaked out that the new Microsoft joint venture in China running MSN Spaces was censoring words such as “freedom” and “democracy” from blog titles, it didn’t take long before Peacefire and the Committee to Protect Bloggers had a simple work-around to use those words.

The forces to fight censorship and government control around the globe are finding an increasingly more vocal and effective counter-effort to circumvent filtering and blocking.

In modern China, Internet access is exploding each year, with an estimated 130 million people coming online by the end of 2005 and about half having broadband. The bad news is that their view of the Internet is edited by tens of thousands of government censors who watch and block sites every day on subjects as varied as Taiwan, the Dalai Lama and human rights.

A recent report on China’s filtering efforts by the OpenNet Initiative called the government’s scheme the most sophisticated one in the world. “While there can be legitimate debates about whether democratization and liberalization are taking place in China’s economy and government, there is no doubt that neither is taking place in China’s Internet environment today,” the report concludes darkly.

But another bit of good news is that the popularity of online forums has been augmented with the rise of Weblogs, now numbering anywhere from 700,000 to the low millions. And alternate sources of news delivery such as SMS mobile messaging have helped spread government-suppressed news about the initial SARS outbreak and aided anti-Japanese protests last April.

As China becomes a technological powerhouse, Western high-tech companies are drooling at the prospects. The problem? How can these companies avoid becoming part of the censorship and filtering regime? Amnesty International had a scathing report last January which singled out Microsoft, Nortel, Cisco and Sun Microsystems for helping the Chinese government monitor Net users — and increasingly incarcerate them. Reporters Without Borders estimates that there are more cyber-dissidents in jail in China — 62 — than in any other country.

The technology companies largely defend their actions as saying they are only providing the tools and that people and governments use them how they wish. While this defense has served the tech companies well in a long history of working with China, the global rise of blogs has provided a counter-mechanism for worldwide protests that are outside any government’s control. The recent censorship by MSN Spaces, for instance, caused a brush fire in the blogosphere, and Microsoft blog evangelist Robert Scoble only fanned the flames with a post defending his employer.

“When doing business in various countries and, even, various states here in the U.S., we must comply with the local laws if we want to do business there,” Scoble wrote on his blog. “And, as a shareholder in Microsoft, I think it would be a bad decision to decide not to do business in China.”

Scoble argued that the Chinese people should make their own laws, and the people he met in China had an “anti-free speech stance.” But Rebecca MacKinnon, who runs the Global Voices blog project for Harvard Law School’s Berkman Center for Internet and Society, called Scoble’s view “the biggest pile of horseshit about China I’ve come across in quite some time.” The pile-on ensued and Scoble was told he was wrong by everyone from Dan Gillmor to his son and even co-workers — until he finally apologized and admitted he was wrong.

But don’t look for any of the companies doing business in China to make any apologies or pull back. Instead, they’ve put up a wall of silence of their own with the media. First the Microsoft joint venture said it was just following local laws and regulations in China, though there are no laws banning the use of the words “democracy” and “freedom.” Then MSN global sales and marketing director Adam Sohn told the AP that, “Even with the filters, we’re helping millions of people communicate, share stories, share photographs and build relationships. For us, that is the key point here.”

I tried to get a comment from Sohn or anyone at Microsoft to no avail. I also contacted Yahoo co-founder Jerry Yang and Yahoo PR but never got a response. A Google spokesperson passed me to another less responsive spokesperson on the subject.

My hope was to have a virtual roundtable with Chinese experts, bloggers, human rights officials and company representatives from Google, Yahoo and MSN. While these companies refused to comment in the roundtable, I did CC them all with every message in the e-mail discussion, so at least the conversation is in their in-box (and hopefully not in their spam folder). I also made multiple attempts to reach Chinese government officials, with no response. If any of these people decide to join the conversation, they are welcome to add their comments to the forum that runs below this column.

The following is an edited version of the roundtable that did take place over the past five days.

Andrea Leung is a Chinese-Canadian blogger raised in Hong Kong and currently living in Canada. She does project management and helps Chinese blogger Isaac Mao with projects at his Social Brain Foundation, a non-profit looking to bring collaboration and resource-sharing culture into China. Social Brain is organizing the first China Blogger Conference planned for Shanghai this autumn.

Julien Pain is the Internet desk officer at Reporters Without Borders, a French non-profit that works on behalf of journalists and bloggers around the world pursuing freedom of speech. Pain helped run the recent Freedom Blog Awards, which recognized 60 blogs around the world for helping defend freedom of expression.

Xiao Qiang is the director of the University of California-Berkeley’s China Internet Project. A physicist by training, Xiao became a full-time human rights activist after the Tiananmen Massacre in 1989. Xiao was the executive director of Human Rights in China (1991-2002) and is currently vice-chair of the Steering Committee of the World Movement for Democracy.

Anne Stevenson-Yang is the managing director of the United States Information Technology Office (USITO) in Beijing. Before that, she was the founder and president of Clarity Data Systems, a software company making management and data-analysis systems for Chinese direct marketers. Prior to forming Clarity, she was vice president of business development for Metromedia China Corporation. She also spent four years as China director of the U.S.-China Business Council, a business association of U.S. corporations that invest in China.

Online Journalism Review: China has set out a deadline for blogs and Web sites to register with the government. How do you feel about this policy? What do you think the consequences will be for those who do or don’t register?

Anne Stevenson-Yang: I’ve been surprised that the tightening did not come sooner, a testament to the lack of blog-savviness of the Chinese leadership. Of course registration is even more politically concerning than remote surveillance tools like key-word search, and it automatically classifies all unregistered blogs as illegal and actionable, while of course authorities will not take registration applications for blogs unaffiliated with someone who holds an IIS [Internet Information Services] or ICP [Internet Content Providers] license. The affiliated sites are hardly blogs anyway — they are conventional publishing operations but written in a colloquial style. Probably the next step will be to require any approved bloggers to register as journalists.

Andrea Leung: First of all, in case it is still not clear yet, the bloggers who are most affected by the policy are those who have their blogs hosted on independent virtual servers. Those who publish a blog with a Chinese blog service provider similar to Blogger’s Blogspot or Typepad are not required to register at this time.

In China, the majority of the Chinese bloggers use a pseudonym in their blogs. The new registration requirement would, in theory, leave bloggers with no options to publish anonymously. Blogs would have to display a registration number and include a URL link back to the Ministry of Information’s Web site. This would allow the authorities to easily trace the real identity as well as location of a Web site owner.

For this reason, many bloggers were angry when they first heard about the law, let alone the requirements that the registration is not a one-time process but an annual exercise; and failure to comply may result in a hefty financial penalty.

So far, many are not clear on the exact requirements of the law. This ranges from who is required to register, where to register and what is required for registration, etc. The question of who (what type of Web site) is required to register is especially confusing given the law is vague. It has spurred a lot of discussions on the Internet with both information and misinformation, making it more confusing for anyone.

Some people have obviously registered — as they blogged about their experiences of registering on their blogs. But many haven’t. There is no complete set of statistics on either case. Some people haven’t decided whether they would register at all. Some are planning to leave it to the very last minute. Some adopt a wait-and-see approach as they ponder whether the law would be well enforced.

There are also a few cases indicated that their registrations were rejected. It is too early to tell the consequences for those who fail to register.

For sure, in some provinces, those who haven’t registered have already been “locked out” from their Web sites. All they could see is a system message saying that they must register or else their site will be shut down.

There are also doubts in the blogger community about the feasibility of the law, given a.) the sheer volume registrations that the government needs to process; and b.) the government’s poor track record in enforcing its policies. After all, the legal requirements that a Web site owner needs government approval prior to publishing a Web site is not new. It has never been well enforced in the past.

Regardless of whether the registration will really be able to patrol bloggers after the June 30 registration deadline, the chilling effect has been felt. Chinese bloggers, in general, are convinced that the government can find out who they are and will watch what they write after they register their Web sites.

OJR: In Iran, the bloggers are more trusted than the state-run news sources. For a long time, Iranian bloggers were under the government’s radar but now are finding life difficult with arrests. How much does the broader Chinese society know about Chinese blogs, and what role do the bloggers play? Do they do journalism-type reporting, commentary or a mix? Due to the chilling effect of the registration rules, do you believe they might turn to an anonymous blogging service run from a Western country, if it was relatively safe from detection?

Xiao Qiang: When we talk about the role of spreading information and expressing public opinions, it is important to not just mention blogs and bloggers, but also to include BBS (online discussion forums). While blogging has been rapidly growing in China in last two years, its public influence has not matched BBS.

Since 1997, the most popular Internet portals allow users to discuss current events by posting comments on bulletin boards or real-time chat rooms linked to specific news stories. Such discussions have become popular both in the private portals and on official Web sites such as the People’s Daily‘s popular Strong Nation Forum, which has more than 200,000 registered members. At any normal hour, more than 10,000 users are online to participate in these discussions. The number of registered users for the top 10 bulletin boards, which focus on news and political affairs, range from 100,000 to 500,000, while the number of online users at any normal hour can reach 15,000. Today, there are hundreds of online forums on different subjects across Chinese cyberspace.

The blogosphere is now also increasingly important to spread information and give bloggers a personal platform to express themselves. Many bloggers are also active participants in the BBS and more and more BBS users migrate themselves to the blogosphere. Both online forums and the blogosphere are closely monitored by China’s Internet police, and their hosts meticulously control and censor comments to ensure that the discussion does not cross politically acceptable boundaries. However, because of the sheer number of blogs and the anonymity of online forums, together they still create a widespread, efficient, and direct communication space that does not exist anywhere else in Chinese society.

In online forums, there are lots of journalism-type reporting; here is one example covering the Shalan flash flood.

While in the online forums one can publish information without their real name, the blogosphere is much more distributed and interlinked for spreading information and is giving censors a big headache [when trying] to clean the space.

Stevenson-Yang: I agree that the BBS phenomenon is more socially important and, in a sense, subversive, than blogging because BBS forums have permitted just about anyone to enter public debate, while blogs are less ephemeral and so more of a risk to the individuals posting. The various supervisory groups — retiree committees associated with the Propaganda Bureau that review media for non-conforming content, departments of the local police looking out for online fraud and pornography, the different ministry personnel charged with watching online violations of their own areas (like illicit information from broadcasters overseen by SARFT, gaming content overseen by Culture, etc.) are more likely to notice established blogs than BBS, just because of the age and online habits of the people conducting the monitoring exercises.

And clearly, blogs have been and will increasingly be targeted for higher-level administration, while BBS will more or less be left to each site’s administrators, already held responsible for blocking offensive content and for caching the traffic for three months in case police want to chase down someone who’s been posting. I imagine that the real significance of the BBS will be to foster the emergence of a few, influential commentators, people like Fang Xingdong, just as the newspapers, as they’ve commercialized, have engendered star columnists who become difficult for the authorities to dislodge and who eventually influence public debate.

Leung: I concur with Xiao that the public influence of blogs is rather limited up until now considering that there are only about 700,000 blogs in China as of April 2005, according to CNblog.org’s estimate. This is less than one percent of the total Internet population in China, which is now estimated at around 100 million. Nonetheless, it was growing at a very fast rate over the past two years.

Only a very small percentage of Chinese blogs focus exclusively on politics and current affairs. (For more details on this, see this paper.) But their potential as an alternative information channel should not be underestimated. While most blogs are personal in nature and focus mostly on any topics other than politics, at times when a local injustice occurred, bloggers would halt writing on their regular topics and be the first ones to break news, often in the form of eyewitness or first-hand experience accounts, while mass media remained quiet. The Niu Niu scandal; news of restricted public access to Tsignhua University’s BBS; anti-Japanese street demonstrations are some examples, just to name a few.

Given the blogging network is highly distributed, interconnected and instantaneous by nature, blogs enjoy a narrow window of opportunity to rapidly relay controversial news across the country through desktops as well as Web-based blog aggregators — and through linking, re-posting or commenting on a blog post.

They also foment public discussions online across multiple blog clusters and offline in a blogger’s personal network of friends and family until the topic comes to the authorities’ attention — at which point, the authorities either yield to public pressure and address a public concern (as in the Niu Niu incident), or order the silencing of a topic. An example of the latter was on April 17, when the state ordered all Internet content providers, including Chinese blog service providers, to refrain from publishing anti-Japanese content and the Internet was instantly sanitized overnight on topics related to anti-Japanese. Some bloggers would delete politically unacceptable content to avoid troubles such as threats of having their blogs close down or other forms of retributions.

Of course, this picture may all be changed if bloggers felt that their content was heavily scrutinized and relaying sensitive information may have serious consequences.

During and after the recent anti-Japanese protests, some bloggers have set up an alternative blog on international sites such as Yahoo 360 and MSN Spaces. They perceived international sites as safer places where there are no content policing and they could blog anonymously. These are the only solutions that they are aware of and are accessible to them from a usability standpoint (i.e. doesn’t require any advanced technical skills to set up and operate).

They would use international sites whenever they want to express opinions that may deem politically sensitive. But they would also continue blogging on their existing sites that are in China for a variety of reasons (e.g. they’re happy with their existing blog software and didn’t want to switch to another platform; emotional attachment to blog’s URL address; fear that their sites would be blocked or would take a long time to connect to if hosted outside of China).

OJR: How should an Internet company such as MSN, Yahoo or Google do business with China in an ethical way? Knowing that the government wants certain words censored and might well ask for identities of people who use their services for reasons of prosecution, how does a U.S. or other Western company enter into these arrangements without becoming a collaborator on chilling free speech? How can the companies NOT do business with China and rationalize that to shareholders?

Stevenson-Yang: I can’t comment on Microsoft, but we should remember that all commercial sites operating in China deploy such tools, whether or not automated (some just have people watching the traffic), and posting error messages saying that you can’t use certain words is more transparent than the practices of most sites.

Julien Pain: That’s not an easy question to answer. But it is an issue that any information technology company should tackle before doing business in China. I believe that private companies should take into account the consequences of their activities in terms of freedom of expression. If they don’t want their activity to be regulated by the American government, which is fair enough, they have to respect some basic ethical standard.

I understand that the competition between these companies is very harsh, and that they fear they could lose markets. But they should always respect the universal values defined by the U.N. declaration on human rights, including its Article 19 on free speech. I’m not saying that they should fight for freedom of expression. But they should at least refuse to collaborate on the Chinese censorship system. And that’s what they are doing in China.

When you censor yourself, your search engine or blog tool, you collaborate on the Chinese censorship. I mean it: You don’t only comply with its laws, you collaborate. And there’s no excuse for that. I know that the question was more precise. But I can’t give these companies complete answers about what their policy should be. The only thing I would preach here is: dialogue. I believe that it is through dialogue that these companies will find acceptable solutions.

First, dialogue among competitors. Instead of competing without rules, maybe they could find agreements on the principles none of them should ever break. Is that so difficult for Microsoft, Google and Yahoo to meet once and decide that none of them should collaborate with the Chinese censors? They’ll probably answer that this would give the market to Chinese firms. I don’t think so, because the Chinese IT companies are not yet as efficient as the American ones. In other words, they still need you.

And make no mistake. They may let you enter their market. But in the long run, they’ll do their best to favor their own companies and make you bankrupt if they can. Second, engage in a dialogue with us, the human rights organizations. We don’t demonize private companies. We’re willing to discuss and help them find acceptable compromises. But so far, none of these companies have ever accepted to talk to us.

Finally, I think if you stick to universal values, your customers will trust you. Otherwise, you will tarnish your image, in the Western world as well as in China. And in the end people will use other blog tools, other search engines. Is it really worth it? Is China that powerful that you have to comply with all of its demands? That’s your choice. But we’ll keep on alerting public opinion if you don’t respect the values we stand for.