The law vs. the right to know: Whose news is it anyway?

How far would you go to save a life?

How far would you go to save a business model?

The debate rages still about coordinated efforts by The New York Times and Wikipedia to embargo news of David Rohde's kidnapping from appearing in either information source. I have no ethical problem with the two organizations having done so, though I wish the practice was consistently extended to all situations in which publicity is one of the goals of the kidnapping itself. (Jill Carroll, anyone?)

The Taliban abduction of Rohde, in other words, appeared to be a means of garnering media attention to the group, and could thus be made less successful by denying them that attention. If Rohde had been kidnapped by a deranged fan who just wanted to keep the guy under Kathy-Bates-in-Misery-type control or for some other unsavory purpose, on the other hand, publicizing the situation could make the kidnapping less successful by making it less feasible for the captor to keep her actions hidden.

It's journalism in its public-service aspect -- in this case, selecting coverage topics to further the goals of the victim rather than the goals of the captor. And since there's no middle ground in that situation, the correct choice in every case is to act in the best interests of the victim. Those who say the editors have a responsibility to reveal everything they know about all topics at all times have confused editors with those poor jabbering people in the Bing commercials. Editors and writers know stuff they don't tell you about, or aren't telling you about yet. Deal.

As for Wikipedia, a decision was made to deny a particular organization a platform for self-advertising; if you cheered when they blocked the Scientologists, you should be cheering this one too. And Wikipedia is clear about disallowing not only original reporting but questionable sources. Some complain, but that's their policy and you're free to go elsewhere.

(There are arguments out there that any fact is fair game for seminating far and wide; those have mainly been made by the sort of people who aren't generally trusted with sensitive information of any sort for precisely that reason. Exhibit A is the jackass who apparently made repeated efforts to post the information to Wikipedia, whose main concern after the kidnapping was revealed was to cuss out Wikipedia because "Is that enough proof for you [expletives]? I was right. You were WRONG." Some people really are all datapoints and no database management.)

And how is it I'm explaining to security folk the reasons one might conceal some pieces of data and prevent others from revealing it? Please, you know. Because the problem I'm really wondering about today looks a little like the Rohde problem on the surface. It's another attempt to argue that to protect a particular entity, we should quash certain online information-dissemination activities. In this case, though, the people arguing for the quashing aren't working through an either/or situation, but attempting to make a situation black and white and read all over, or actually nowhere.

You may have read about Richard Posner, a judge on the Seventh Circuit Court of Appeals and a senior lecturer at the University of Chicago. On his blog recently, Judge Posner fretted about the demise of the traditional newspaper, and concluded his essay by saying, "Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion."

Shall we unpack that statement? "Bar online access to copyrighted materials without the copyright holder's consent" -- there's Google News gone, and any other news aggregator that doesn't make a deal. "Bar linking to" -- that's the Web itself, which was designed to allow linking to other resources placed on it; the original point, in fact, was to put things up to be linked. We've been arguing about getting permission to do so since the days of Microsoft and Ticketmaster battling over "deep links," but the courts have been pretty consistent in upholding the right to link.

"Or paraphrasing" -- now, he throws that in at the end, but this is where it gets interesting for me. Paraphrasing, you see, goes to not the piece of writing itself (the thing we mean to protect with copyright) but to the facts in it. In other words, you aren't allowed to cut-and-paste entire copies of Betanews stories to your own site or put them into a book, but any fact we report to you is yours to do with as you please.

We do not live in a culture where facts can be copyrighted. We have patents, where one owns for a limited time the information on a process for doing or creating something. We have trade secrets, where very particular facts are kept by businesses from the general public specifically to make a profit (e.g., the formula for Coke). Facts, though -- well, the sky is blue and I'll tell anybody I please.

Posner, on the other hand, treat facts here as primarily the raw material of news organizations. This isn't just some old guy who loves his morning paper dearly; he's genuinely suggesting that a) the death of the newspaper business model will necessarily mean the death of reportage (which he reasonably enough finds to be crucial to the democracy); b) the newspaper business model is therefore worth protecting; and therefore c) copyright law must be radically expanded to do so.

Posner's a daring thinker and has been for years -- he's no believer in a specific right to privacy; he's pro-torture and pro-legalization of pot; he's got some interesting ideas about contracts and antitrust and the free market. This isn't the first time he's lobbed a grenade into the general discussion. But it's peculiar to me that, in his eagerness to protect newspapers from those bad Twitterers and bloggers and aggregators, he's willing to gut the Net to offer protect to one relatively small constituency on it.

He is, in other words, tracing an interesting path here: acknowledging that most readers don't intend to pay for access to most news items, acknowledging that most newspapers are headed online sooner or later (and with pitiful, underpowered business models as things currently stand), and asking how best to keep information quality high under these circumstances. Where he errs is in assuming that there is necessarily greater value in primary coverage of a story by relatively few venues than in the current interplay of primary coverage and, almost instantly and certainly within the same news cycle, commentary and analysis by secondary outlets. And that the way forward is to spend readers' time, rather than (or hey, in addition to) their money.

Take What's Now | What's Next, for instance -- Betanews' daily morning news summary. One of its daily features is a summary of some of the other technology news from other outlets -- in other words, a type of aggregation, just done by human beings. As a matter of ethics and professional courtesy, we're very clear about where we get our info -- attempting as often as possible to wend our way back to the original, most primary coverage -- and trying hard to summarize each piece while convincing you to take time to read it anyway.

Richard Posner would not only like us to knock that off, but he'd like to curtail all those secondary-coverage sites too -- shut up Twitter, shut up bloggers. If the Times or the BBC or the Buttscratch Picayune-Independent reports in five minutes that Bill Gates just shot Steve Jobs (don't cry, emo kids; it's tech-journalism shorthand for a HUGE, drop-everything story), Posner would theoretically forbid linking to it or paraphrasing it without getting permission from, or more likely paying money to, that publication. Alternately we could put one of our tiny staff on a plane and fly her or him there, with the attendant barriers of time and expense.

Posner's suggestion in other words doesn't save the newspaper industry; it saves the news industry as it exists now. In the light of what's happened recently in Iran, where all the old-style-media money in the world couldn't buy the access that cameraphones and Twitter provided, it's bizarre to hear an argument that concludes that the old way is and always will be the best way.

Unlike the Rohde situation, this isn't an either-or scenario, with newspapers surviving only if the Web (or, more realistically, the part of the Web controlled by entities bound under US law) is thwarted in some nefarious plot against them. If I had to choose the path that I believe will lead to the best newsgathering and strongest journalism in the 21st century, I'd give you more for the new YouTube Reporter's Center than I would for any permutation of Richard Posner's intriguing but ultimately wrong-headed kneecapping of copyright in defense of not a life, not the republic, but simply a busted business model.