Michael Scott points us to a story of a woman who not only drove from Maryland to California to go to Facebook's offices to complain about having her account banned, but (when that didn't get the account reinstated) then she sued the site for the ban. Facebook says she was banned for harassing others. The woman, Karen Beth Young, says she was just promoting causes she was interested in, and, in doing so, friending lots of people (about 4,000 by the time the account was closed). She claims the ban violated her constitutional rights... and the Americans with Disabilities Act. The constitutional claim is almost certainly a non-starter. As a company, Facebook certainly has the right to ban pretty much anyone it wants to ban. The ADA claim also seems like it won't go very far, but as Eric Goldman notes, with so much ADA litigation, there's always a chance that "a court could have sympathy for the plaintiff." In this case, she's claiming that she has a bipolar disorder, and Facebook "does not provide reasonable accommodations to individuals with disabilities," like her. But that implies the problem was with her mental health issues, rather than her actions on the site. This seems like yet another case of someone saying that if they don't like something it must be against the law... even when that's not the case at all.

A bunch of folks have been sending over this short video by Forrester Analyst James McQuivey about the idea that people pay for access to content, not for content itself, and that this has always been the case: As he notes, in the past, content and access were often bundled together, so people confused the two. But, today, they've become somewhat separated, which is why many of the content industries are struggling. McQuivey's suggestion to people is to build business models that focus on charging for access and that's how you "get people to pay for content."

He's absolutely right that people have paid for access (a scarce good) and that getting people to pay for access is a business model that works (though, hardly the only content-based business model). However, the problem is that I think he underplays the difference between access and content, such that many people will hear his talk and assume that "paying for access" really means "putting up an artificial paywall that forces people to pay." The mistake there is in not realizing where the real separation is between access and content.

People pay for their broadband connections. That's access. People pay for their mobile phone data plans. That's access. Those are scarcities. Putting up a paywall or a micropayment system is not paying for access. It's trying to set an arbitrary limit on content. Unfortunately, McQuivey's "example" of paying for access is a bit misleading. He talks about Netflix's streaming offering. But he ignores that most of those subscribers were originally paying for DVDs, and the streaming is a throw-in. Where the real "access" that Netflix has tapped into lies in its ability to easily and conveniently get movies onto your TV. That's what people are paying for. It used to be DVDs (and still is for many Netflix customers), and more recently it includes integrated streaming. But that could come under pressure from other forms of easy and convenient access to the same content, so Netflix will need to continue upping its game.

So while I agree with McQuivey, and have said similar things in the past, I think he underplays how difficult it is to be in a position where you really can charge for "access." There really aren't that many players who can do so legitimately. I worry that many people will view this video and jump to the wrong conclusion, and try to artificially block access in order to get people to pay.

A year and a half ago, we wrote about some online/alternative journalists who sued the NYC Police Department because of a refusal to give those journalists press passes. As we noted at the time, it was difficult to see the legal justification for the lawsuit. Just because you are a reporter (alternative, online or traditional) it doesn't mean that the city has to grant you press access. This upset some folks in the comments who thought I was supporting the idea that "bloggers aren't journalists" or that this was somehow a free speech issue. It was not. The reporters were absolutely free to report on whatever they wanted and say whatever they wanted, but that did not mean that anyone had to grant them access. Hell, I even thought that the NYC police were wrong in not granting these journalists access -- but that didn't mean it was illegal.

Soon after that lawsuit was filed, the police backed down anyway and granted those journalists access, making the lawsuit somewhat meaningless, though it continued. Separately, however, a lawsuit in California proved the point that being a journalist does not give you the right to unfettered access, such as at crime scenes.

So, when one of the journalists involved in the original lawsuit, David Wallis, sent in a submission this week declaring Masnick was wrong!!!!, I thought I'd check it out -- since everything had indicated that I was not wrong. However, it appears that Wallis also seems confused about the difference between what the NYC Police should do and what they're legally required to do. The reason for the email is that NYC has smartly put in place rules and procedures for credentialing online journalists as part of the agreement to settle the lawsuit.

I think this is an absolute good thing -- and a smart move. If anything, I'm sort of surprised that such a policy didn't already exist. But, unlike Wallis' claim, this does not change my stance on the original lawsuit. While it may have pressured NYC into putting in place a policy, that doesn't mean there was any legal leg to stand on in the lawsuit. As I said, I always thought that the police should have given credentials to these journalists -- and should have had a policy in place for giving credentials to journalists who meet certain criteria, even if they're not employed by the traditional media. But that does not mean that the police have to give access to anyone who declares themselves a journalist. So I'm happy for Wallis and the other journalists that NY has changed its policy and made it more reasonable in response to the lawsuit, but that doesn't change the likelihood that the original lawsuit was not going anywhere on a legal basis.

Matt points us to an article by Martin Rowe about the difficulty of accessing and sharing information and research published by the IEEE, which he finds to be a bit of a travesty, since the IEEE should be in the business of promoting technical knowledge. He describes how he found an interesting paper that he wanted to share with his readership, but that the IEEE forbids just reposting their content (a restriction he's fine with). Instead, though, he hoped that the author of the paper would post it publicly (rather than behind the IEEE's paywall) and let him link to it. The author agreed, but since the author wasn't a member of the IEEE, he didn't have a copy of the full paper (this part seems a bit odd -- you would think at some point the author would have a copy of his own paper). So Martin agreed to download a copy for the author of his own paper -- but the IEEE stamps it with Martin's name and says that it can't be used by anyone else.

Of course, you can see what the IEEE is thinking. It wants to hoard the information in order to build up its membership ranks, fearing that if it made that information available, people would be less interested in becoming an IEEE member. I would argue that's rather short-sighted, and there are plenty of other ways the IEEE could make membership more valuable (member-only gathering, access to other members online, discounts on events/publications/etc.) while still making the papers it publishes free. In fact, by freeing up the content, and highlighting those other benefits, it could even make membership more valuable.

Late last year, we found it silly that three journalists were suing the NY Police Department, claiming their First Amendment rights were violated because the police refused to give them press passes. As we noted, freedom of the press doesn't mean that anyone has to give those journalists access. If I remember correctly, that case was eventually settled with the journalists being given press passes again, but a similar case in California has gone all the way to a ruling, with the court finding that the First Amendment does not automatically grant journalists access (via Romenesko). In this case, a photojournalist was trying to photograph a car accident scene, and police barred him from the scene and eventually handcuffed him. The judge found that while the press should be allowed to have the same access as the public had, the public isn't granted access to crime scenes, so it's entirely reasonable for the police to order the press away from a crime scene. Of course, there are separate issues here which weren't addressed, including that the police didn't just ask him to leave, but at one point said "You don't need to take these kind of photos." One could make an argument that statements like that could go over the line.

Before getting to the meat of this post, let me start out by saying that I don't believe that there's some sort of "competition" between professional journalists and community-driven journalism. I think they need to work well together. That said, I find it silly when the professional journalists insist that "citizen journalism" can't do certain things well. The same could be said for professional journalists as well. In fact, we've noted how professional journalists often fall into a form of journalistic capture, in that they know they need access and quotes in the future from certain sources, and thus reporters will often self-censor stories to maintain relationships with their sources.

However, as some are noticing, that isn't necessarily the case with community-driven journalism where the story is more important than the access. It's discussed in this writeup of how Condoleeza Rice was asked a series of detailed questions that the big name newspaper journalists had avoided (found via Jay Rose):

Why is citizen journalism like this so powerful? I think one answer is that citizen journalists don't have to worry about their future careers as journalists nearly as much as the professional journalists do. In other words, professional journalists frequently have to worry about access. They don't want to anger public officials and powerful people too much by being too aggressive, because they know that if they cross certain lines these people will stop talking to them. For instance, I saw Andrea Mitchell on Hardball the other night, and she was making a very implausible argument that Rice's statement was not a "Frost/Nixon" moment. It seemed pretty clear to me that Mitchell was trying to stay on Rice's good side. But citizen journalists don't have this problem because we're not worried about future access. We have the opportunity to be as aggressive as we want. After all, there probably isn't going to be any possibility of future access anyway.

Now, it's fair to say that the opposite point may be true too. I'm sure professional journalists will point out that "amateurs" who are given access for the first time may be so in awe that they are tamed and fail to follow through on a story. And, that's possible as well. But the idea that the "amateurs" can't chase down a story is being proven untrue over and over and over again.

As noted, I'm at the Leadership Music Digital Summit to give a keynote talk tomorrow. Today's keynote is from Rio Caraeff, the executive VP of the eLabs group of Universal Music Group. Listening to his talk, it's impressive to see that it appears someone within Universal Music Group actually seems to understand what's going on. That may seem a bit dismissive of Universal Music Group, but it's not my assessment, but what the CEO of Universal Music Group flat out said just a couple of years ago, in noting that he had absolutely no clue about digital music and didn't even know how to hire the right people.

Caraeff, however, seems focused on all the right things. He talked about how access to music is more important than possession. He talks about how it's the experience that has always made music valuable, noting "you can't steal experience." In fact, he points out that the concept of the album is dead, but that UMG (and others) need to build a true "living album" that goes beyond the music: adding a full experience that can update over time, that allows fans to access the music however they want, and that enables interaction with that music -- including fan participation and user-generated content associated with the music. And he wants it all built on open standards, to avoid a situation like the Blu-ray consortium where only a few companies have control of the system.

"How do we compete with piracy? It's creating a unique experience that can't be easily replicated through file sharing."

He then goes on to say that the business of "licensing music" is a dead end because it's just not scalable (whoo hoo!) noting that it's killing innovation. Even saying that they need to acknowledge that they need to enable letting a thousand innovators bloom.

He did admit that the team at UMG is still struggling to figure out the best way to make money in this new world -- but he recognizes this is where things are going:

"I'd rather have access to all my music, tv shows and movies anywhere on any device, rather than "own" 100 files. This is going to be a swift transition. It's taken us less than 10 years to go from plastic discs to digital files. It will take 5 years or less to go from digital files to cloud-based services, which will make the music even more valuable."

This is all good news. It's someone who clearly recognizes the shift that needs to be made by a major record label. But, the real question is how much influence he actually has at Universal Music Group. We've seen similar recognition among employees at other record labels, including Warner Music and EMI -- but the "top management" at both of those firms has continued to go in the opposite direction, focusing on stomping out innovation, rather than encouraging it.

Unfortunately, this may be a real issue. He did admit:

"Universal Music is a big company and not everyone there is on the same page, but I was put into this job to make these changes. Turning a big ship around is slow. It's not a lack of desire, but it's a question of when not if. A lot of what I do is talk and evangelize to others within UMG to try to raise the consciousness level about where our business is going, to bring us to a path to growth again. It's not about how do we stop the decline of our business, but to find another billion dollar business for us. I'm not interested in how to I sell more MP3s on Amazon or to create new competitors to iTunes. That's important, but that's not going to transform our business. It's difficult in the day-to-day grind to turn a big company around, but it starts with passion. Passion sells. This is how it works."

It's great to see some optimism coming from within one of the major labels, recognizing all of the opportunities out there. Hopefully, it actually leads to something useful.

While some of our critics like to falsely claim that the business model we describe for leveraging "free" is simply about selling "t-shirts" since they're the only scarce good that our critics can think of, it's important to point out that scarce goods are not just tangible goods, and "access" is often one of the most valuable scarce goods out there. In fact, we've definitely seen some musicians embrace this as something worth selling, but haven't seen it as much in other contexts. That's why it's interesting to see journalist/blogger Ana Marie Cox trying out a version of that business model herself. Cox, famous initially for being the original editor of the Wonkette political blog has been working for The Radar lately, but apparently it just went out of business. Cox wants to keep covering the election, and has set up a tiered sponsorship rate card:

• Anything: Good karma, knowledge that sometimes merit is rewarded. If not in this particular case.
• Over $10: A personal thank-you email (please include your email in "instructions for seller")
• Over $50: A personal thank-you phone call (please include your phone number in "instructions for seller")
• Over $100: My instant message screen name, regular personal updates via email and/or instant messages on election night
• Over $250: I will ask a senior McCain adviser the question of your choosing and send you the MP3 audio of the exchange
• Over $500: Phone call from McCain headquarters on election night, detailing hilarious antics sure to ensue
• Over $1000: One-on-one post-election dinner debrief

I have no idea if this plan will work, but it is fascinating that it basically works on a system of charging more for greater access. It will be interesting to see if Cox reports back on how well this experiment goes.