The Prior Art

Is the Patent Troll Tracker a reporter?

That’s the question at the heart of a flurry of documents filed in a San Jose federal court over the  past few weeks—and while the answer won't come in the instant dispute, the debate will weigh heavily on the lawyer-blogger during the defamation case pending against him in Texas.

Rick Frenkel lays out the background:

    Starting in May of 2007, Frenkel created the PTT to report on issues of interest to the patent community and the general public. The PTT advocates reform of the patent law system; it does not “systematically attack judges, lawyers, and parties to lawsuits” as Movants claim. Initially, postings on the PTT were not signed.
    Movants’ counsel, Raymond Niro (“Niro”), a lawyer specializing in intellectual property disputes, including patent cases, has a contrary editorial viewpoint that competes with the PTT. The two attorneys have traded lively, and sometimes heated, exchanges over patent issues; Niro in interviews with the press, and Frenkel on his website. Niro publicly alleged that a death threat aimed at him and his family was sponsored by the PTT, an allegation Frenkel denied. Niro also established a reward for anyone who would unmask the identity of the person behind the PTT, raising it from an initial offer of $5000 to $10,000 and finally $15,000 before Frenkel revealed himself as the author of the PTT. The reward, we understand, remains unclaimed.

Frenkel goes on to argue he’s a “non-party lawyer-journalist,” protected from compelled testimony by "the free press and speech protections of the First Amendment to the United States Constitution, as recognized by the common law Reporter’s Privilege doctrine, and the California Shield Law." Harris’ subpoena would compel him “to provide testimony and produce documents regarding confidential sources and unpublished information" protected by those laws, and is thus unjustified.

Frenkel cites Branzburg v. Hayes, a 1972 U.S. Supreme Court case that sets the rules on when a journalist can be subpoenaed, as well as the well-established California laws. Forced testimony “would result in a serious detriment to Frenkel’s future ability to gather and disseminate news,” he writes.

“The newsgathering efforts of a reporter such as Frenkel should not be made part of civil discovery between parties without a showing of the required elements set forth above… this type of burden is exactly what the federal and state common law and constitutional protections are designed to prevent.”

“Frenkel is and was engaged in the gathering and dissemination of news about intellectual property litigation on his Patent Troll Tracker website. The fact that Frenkel chose to disseminate news on a website, as opposed to a more traditional source of journalism, is irrelevant.”

What does Raymond Niro think of all this? He scarcely knows where to begin; the brief sizzles and jumps through Frenkel's various sins, calling him unqualified, unethical, threatening, a corporate stooge for Cisco, a writer of devilish anagrams and haikus, and most importantly, not a reporter. It also draws thin or non-existent connections between Frenkel, various Fish & Richardson attorneys (one of whom who appeared at a webinar with Frenkel; as in, the World Wide Web), and Google's Head of Patent and Patent Strategy, Michelle Lee. (Frenkel says he's never spoken with Lee, who is Google's top patent lawyer; Ray Niro, by way of contrast, sends correspondence her way quite often, if you catch my drift.)

Sin #1: Unqualified. Frenkel is an engineer and a lawyer, writes Niro, but...

"Frenkel has no degree in journalism; no professional training as a reporter; and has never been employed as a reporter or journalist. He has no public relations responsibilities at Cisco.  Indeed, after he was finally forced to admit he was the author of the ‘patent troll tracker’ blog, Cisco promptly muzzled him by insisting that his blog could continue to operate 'by invitation only.'"

(Frenkel shut down his blog only after he was sued twice for defamation; Cisco denied having “muzzled” him,  writing in court briefs that Frenkel’s decision to shut the blog down was “his alone.”)

Sin #2: Uncivil. Niro doesn't care for Frenkel’s sense of humor or wordplay. The brief condemns "offensive haikus" such as these:

Scott Harris lost his job ‘cause he wanted his Fish
And to eat it too.

Pesky ethics rules. Conflicts mean nothing to trolls
Help me, Ray, Help me!

And the anagrams... Those damned anagrams! ("Niro Scavone = Naive? Or Cons?")

Sin #3: Corporate stooge. Harris/Niro/ICR write: 

He was not engaged in “gathering news” but, rather, in promulgating propaganda favorable to his employer Cisco, in utter contempt for the ethical cannons that bind real reporters.

Frenkel’s covert attempts to promote the interests of Cisco make his blog into what
amounts to a paid advertisement for Cisco – and Cisco has effectively admitted as much… The shield law does not extend to Frenkel’s puffing for a commercial business such as Cisco.

Sin #4: Unethical. Frenkel’s blog is the “antithesis of journalism," writes Niro:

"Nowhere, however, does Frenkel confront or even acknowledge the principle that there is more to being a "reporter" who is gathering and disseminating "news" than typing words into a computer and broadcasting them to all and sundry over the internet.

It is for good reason that Frenkel and Cisco don’t examine too closely (or at all) what it  means to be a "reporter."  Whatever terms might be applied to Frenkel’s activities (and some of the labels that come to mind are not very complimentary), "reporting the news" isn’t one of them.

As set forth in the Statement of Facts, above, Frenkel has no education nor training whatever as a journalist.  If he had, he would have learned that his activities in connection with his “troll tracker” blog were the diametrical opposite of what “reporters” do.

Then Niro pulls out the Society of Professional Journalists' Code of Ethics, along with an ethics code from U.S.C.’s School of Journalism, and says that Frenkel regularly violated ethical principles of journalism, by 1) writing anonymously, 2) not revealing his sources (!), 3) writing unfair headlines, 4) concealing conflicts of interest that stemmed from his position at Cisco, 5) engaging in advocacy, and 6) being annoying. They lay it all out in an amazing chart that compares "What Journalistic Ethics Require" with "What Frenkel The Self-Proclaimed 'Reporter' Actually Did." (see pages 11-12 of ICR/Harris response brief, linked below.)

But of course, nobody needs a license or a degree to be a journalist (good thing, too.) Even before the age of 'participatory media' that's now blurring all the lines, the practice of finding and verifying facts is just that—a practice, one that's open to anyone in a free country.

And "propaganda" is in the eye of the beholder. Since I would maintain that anyone can be a journalist—even if you write articles favorable to your employer, (or unfavorable!) and even if they don’t have “formal training” (which until recently nobody had).

As to advocacy, there’s a long tradition of advocacy reporting that’s not any less legitimate than "mainstream" reporting, and having an opinion and expressing it doesn’t boot you out of the realm of journalism (and what a lofty realm it sounds like in this brief!) Whether or not a reporter has followed the SPJ "rules" doesn't have much to do, in my opinion, with whether they deserve protection or not. There simply is no journalism rulebook. Ethics policies are debated all the time, and change over time.

But the most backwards argument is that to qualify as a “real”reporter Frenkel would have to reveal his sources. What an obscene misreading of these professional codes attached as exhibits. For Frenkel to reveal who sent him news tips, emails, or other correspondence would be a betrayal of trust that no responsible journalist would allow. This is the plain difference between being transparent and betraying your friends.

Putting aside the anonymity aspect, Frenkel’s blog could be thought of as quite conservative, journalistically speaking. From day one he insisted that he would refuse to receive any non-public documents; some very successful reporters have built careers on making it clear they do accept such paperwork (e.g., the leaked grand jury transcripts that led to the BALCO stories). The PTT reporting was almost entirely opinion and public documents, and those who did fact-check his research, as Patently-O author Dennis Crouch did, found it accurate.

It’s a good question how far the reporter’s privilege should be extended; not everyone with a domain name can be allowed to evade a civil subpoena. But I don’t think Frenkel’s blog was even a close call. There’s no doubt in my mind that Frenkel was reporting the news, and will continue to be if and when he re-starts his blog; more than anything, he was my competitor.

Finally, anonymity. Writing anonymously, by definition, flunks the “transparency” test of—and the modifiers are important here!—contemporary, mainstream, professional journalism. But of course there is a long and proud historical tradition of writing anonymously about public issues, from the Federalist Papers onwards, well covered in Frenkel’s brief and by advocacy groups like EFF, which has defended anonymous bloggers in court. (Is it any surprise that a blogger with a $15,000 bounty on him would start sporting the EFF Bloggers' Rights logo?)

But there's a lot more to say about anonymous speech in the Internet age; and I would argue that the Patent Troll Tracker blog, more than other publications I've seen, raises weighty questions about anonymity, media, and power in the digital age.

That's all be too much for this already long post on an already long day. There's still some sunlight in San Francisco, and I need to catch a bit of it. Tomorrow I'll publish the fourth and final installment of this Patent Troll Tracker series: anonymity, the media, and the JPEG patent.

Other posts in this series:

• Part One: Scott Harris' lawyers drop Troll Tracker deposition demand.
• Part Two: Patent Troll Tracker speaks—and vows to return.

Documents related to the Patent Troll Tracker subpoena:

• ICR/Scott Harris Motion for Discovery in Chicago litigation (February 28,2008)
• Deposition topics demanded by ICR/Scott Harris
• Rick Frenkel Declaration (April 4, 2008), see also here.
• Rick Frenkel Motion to Quash asserting reporters’ privileges (April 7, 2008)
• Rick Frenkel’s Opposition to Motion to Compel  asserting reporters' privileges (April 21, 2008)
• Cisco Systems Motion to Quash (missing cover and signature page)
• ICR/Scott Harris Response to Motions to Quash (April 22, 2008) (document quoted in this post)
• Rick Frenkel’s Reply to ICR/Harris Response  (April 29, 2008)
• Cisco Systems Reply to ICR/Harris Response (April 29, 2008)

SF Weekly must pay Bay Guardian $15.6 million

The newsroom here is abuzz that the  San Francisco Bay Guardian just won a jaw-dropping $15.6 million in its unfair competition lawsuit against the local SF Weekly. That's far higher than the damages suggested by the Guardian's own expert, who set a range at $4-$11 million. Village Voice/New Times editor Mike Lacey says he will appeal.

I saw a small piece of the closing arguments last week and it was fascinating. The Weekly's closing argument was a crash course in the sad economics of Bay Area newspapering since 2001.

For now I'm far too busy on other projects to pay attention now, but I'll get some of my observations on this later tonight.

The two newspapers have both maintained blogs about the trial (SF Weekly here, SFBG here.)

New Media, Old Media, and the Google factor

Last week I heard NYT columnist Jason Pontin refer to Google as a "giant parasite," video here, I wrote why I disagreed with him here, and he promptly responded here. Well, I’m not going to win the “fastest blogger” award for this response, but I did want to come back to this briefly.

First, my original post on Pontin’s comments was a bit too snarky, so I apologize for that, and I appreciate his response. I do continue to disagree with him and here’s why.

“I have to make money to survive, despite our ownership by MIT. Sam Zell doesn't determine what profit margins are acceptable to Wall Street's analysts and investors. Both Zell and I must live in real markets, not within the speculative future of a media blogger, and those markets have become punishingly difficult.”

Agreed. But, getting more non-profits to own media outlets is a good strategy toward relieving part of that market pressure. So is taking companies private, something that Cox Communications did a couple years ago.

For public companies that can’t escape the demand for 20 percent plus profit margins every quarter, I don’t see how they’re going to make it in the long run. I don’t see a way out for Gannett or MediaNews. Investors in those companies have become convinced they can see monopoly-sized profits every quarter. And they can, for a time, while they drive these papers into the ground. But unless a publication has some kind of insulation from the public markets, like the family ownership structure of the Times or the Post, I don’t see a rosy future for it. The solution is to buckle down, invest in web sites, and capture some of the billions pouring into online ads; which have were up 25 percent year-over-year throughout 2007.

"If you want the journalism upon which all three parts of the media industry depend, who is going to pay for it? Readers won't, if they can get content for free (and as you say, both the Times as well as many other magazines have abandoned pay-to-play.). Advertisers won't pay enough, because AdSense and AdWords and similar networks are cheaper and more effective than display."

Well, one could argue the advertisers are in a more transparent market now, and they are getting a better deal for their money. They just didn't have many options before, and the newspapers could force them to accept higher rates.

The Times' abanonment of its pay model seems a success story to me, not a failure. They had over 200,000 online-only paying subscribers, I believe, (including myself.) They made a calculation that it was better to make that paid content freely available so that it could be found through search engines. The online ad revenue will more than make up for the subscription money of TimesSelect folks (that’s the plan, anyway).

Yes, it’s unfortunate that readers aren’t willing to pay much for print content. But throughout the entire pre-digital age, not many newspapers made it past the 25 cent mark in any case. And we’ve always been competing with free (television). So consumers have been trained to put a pretty low price on the news in any case. The future of for-profit print media is going to come from advertisers.

It is happening. Some web publications are starting to make money, like the sites represented by Federated Media. I know in the legal media there are a huge number of lawyers who are blogging a variety of topics, and it’s tough for us reporters to figure out what we have left to contribute when the events are followed so closely.

The Sunday papers in San Francisco, like most big cities, are full of inserts. Those inserts account for an enormous amount of the newspapers’ profits. In a sense, the journalism business has been subsidized by the coupon business. That game is ending. We’re actually going to have to get read, by someone who cares, and can’t just say ‘we’re the experts, pay us.’

"How are we pay for this very expensive enterprise of creating first-rate, quality journalism? It's not clear, although I am working on the problem, because Google isn't going away."

Very few metro papers are going to be able to have the kind of independent globe-spanning coverage they had in the 1980’s. Papers are becoming more locally focused. And that makes sense, since readers—increasingly coming through search engines—have lots of other choices, often better choices, about how to get world news.

Overall, I think Jason’s critique is aimed more at the Internet as a whole than at Google. And I’m not being pollyanna-ish about the real dangers that are posed to journalism. But I think those dangers are posed by competitors—people who have a right and ability to express themselves, whether they do it for money or not. I don’t think those people, or the search engines they use, are “parasites” on the media business. There are grandmas who want to talk about when to plant azaleas in Baltimore, to paraphrase a recent interview I had with an executive at a new media company. Much of that “evergreen” or seasonal content in the Home or Style sections has been giving a free ride to us serious-furrowed-brow journalists, too.

NYT's Jason Pontin on Google: swing and a miss.

Since I’m already bashing my own industry, I thought I'd comment on this ridiculous commentary on Google by New York Times columnist Jason Pontin that came to my attention today. 

In a two-minute clip, Pontin manages to be wrong on about five different levels. It’s hard for me to believe that someone who edits a technology magazine would have a view of the Internet economy that’s so simplistic and flat. To wit:

“Google is like a gigantic parasite that hollows out existing businesses.”

Google is just a service provider, albeit a dominant one. Its search abilities rest on top of an almost infinitely efficient distribution system for information. They’re in the business of distributing and sorting, not producing, content produced by the media. Calling Google a parasite makes about as much sense as Pontin running out of his office at Technology Review and screaming at the truck driver who deliver his magazines. I mean, isn’t that guy a “parasite” as well? He doesn’t produce anything, after all. He costs more than Google, too.

“They hollowed out the existing classified business.”

Google doesn’t have classified ads. Blame craigslist.

“Then they began to hollow out the existing news businesses.”

No, the news business started giving itself away for free, because it didn’t have any other choice. If you don’t want Technology Review to be “hollowed out,” then keep Google out, or insist that users pay for your content. It didn’t work out for the New York Times, but hey, give it a go. (It still works for some parts of the legal press).

Then he gets to his real gripe: online ads don’t pay him as much as the print ads. He doesn't get enough money. Well, arguably the advertisers had been paying too much for print ads, and are enjoying a more efficient market. In any case, they have a lot more options.

“In the long run, that’s bad for Google. Unless they can find some way that I can have some value to attach to this incredibly expensive enterprise of creating clever, thoughtful, groundbreaking content, they’re not going to have anything to live parasitically off forever.”

It's true--good journalism is expensive. But newspaper stock prices are only dropping because investors don't see the monopoly profits of yesteryear. Ousted LA Times editor Jon Carroll told the New York Review of Books that if the new boss was willing to take 10 to 15 percent profit margins--extraordinary in most businesses--the paper would be a journalistic "juggernaut."

Essentially, Google is a "parasite" because it’s harder for Pontin to make money. The new media universe is tough, and there’s a lot more competition. But competition is generally a good thing, especially in the information business.  Pontin may have successfully isolated himself from those pressures, since Technology Review is owned by a non-profit, MIT.

But as he points out, Google doesn’t make any content. Pontin's ad dollars have been competed away, and he’s shooting the messenger. Pontin is a smart guy and I like his writing in the Times, but here he sounds like a sore loser who has had two magazines die on his watch.

SF Chronicle on RIAA lawsuits: swing and a miss.

Today’s San Francisco Chronicle fronts the Business section with a piece on the RIAA lawsuits, focusing on a UC Santa Cruz student who has received one of the many thousands of pre-litigation letters sent out by the record companies.

In these dark days for the newspaper business, lots of editors are spending time figuring out how to capture the attention of younger readers. I can’t understand why they wouldn’t pay more attention to the RIAA litigations over music downloads. It’s an issue every young person in the country is at least aware of, and whatever side you come down on, it certainly strikes me as a novel and newsworthy story. But the newspapers haven’t covered it much, and it’s no wonder they’re having their lunch eaten by online coverage from sites like Wired's Threat Level blog and Ars Technica.

Not coincidentally, the coverage in those outlets is far more skeptical of the RIAA’s actions. The Chron’s writer, Verne Kopytoff, certainly lets the accused student have her say here, but the article is missing an important adjective (or two) in its broad description of peer-to-peer networks. Take this passage (emphasis mine):

The crackdown is part of a broader, yearslong effort by the association to curb online music sharing, a wildly popular practice that allows consumers to download music for free through online services Limewire, Ares and Gnutella. Called peer-to-peer, or P2P, networks, the services allow users to tap into and download songs from other users' collections. Adhering to copyright laws is left up to the users.

Music companies complain that file sharing, which violates copyright laws, is cutting into their profits, and they point to falling album sales as evidence.

All file sharing? Like, the Word documents I send to my editor? It would have been easy to specify that it was illegal file sharing that violates copyright laws. Legal uses of peer-to-peer technology are growing by the day. Consider Vuze, which uses the BitTorrent protocol to move high-definition video quickly and legally over the Internet, including TV programs from CBS-owned Showtime.

As a journalist, I appreciate the bind of having a very short amount of space to explain a complex idea. But this is just too vague; a little specificity--indeed, just one extra word--would have gone a long way. And of course "file sharing" is not synonymous with "music sharing," but, one thing at a time.

What should parents and students do about the dangers of file-sharing? The Chron’s tip box says, “Don’t share you (sic) computer with others."

That's a sad conclusion to reach. But maybe I'm biased. I confess to a long and complicated relationship with tip boxes and the editors who love them.

Having said all that, I give the Chron points credit for at least covering the story, which got over 100 comments despite the fact that it was buried deep in their Web site.

The most interesting fact was this: even though she has not yet been sued, an unnamed collection agency has already called her parents urging them to pay up. Urging someone to accept a particular settlement offer sounds more like legal advice than debt collection, and I wonder how that squares with the federal debt collection law. Allowing someone to try to collect a $3,000 "debt" and then asking for much more at a trial sounds like getting two bites at the apple.