From our friends over at Dealbreaker, we learn that those bastions of professional journalism, Reuters, published a premature obituary for George Soros (where they left in the XXs for his age). Upon realizing this, Reuters issued an apology, but apparently left the original story up for about an hour before someone realized that perhaps they should pull it down. Hey, everyone makes mistakes, but it seems a little silly when people want to argue that bloggers are untrustworthy and that the mainstream media is careful about these things. Following their massive fuck up concerning the Boston Marathon bombing and then followed by stories like this, I think it's safe to note that mistakes happen across the board -- though it seems as if amateur blogs and the like often seem a lot faster about making corrections...

The death of journalism and fact-checking has long been the mantra of the major media in response to so-called internet journalism (which should just be called journalism, by the way). This, despite the fails of major media and the wins by journalistic websites, reveals a sort of paternal arrogance on the part of the still-major players in traditional reporting. It's always interesting when the roles are massively reversed, which was on full display in the Boston Marathon bombing aftermath.

Deadspin notes, with a hysterically cut up video montage, the full failure of major media reporting on possible suspects in the aftermath.

We thought we'd condense today's mess of media reporting into something easily consumable for the crowd that may have been working and thus wasn't privy to the disaster taking place on television airwaves. Here, then, are your trusted news sources reporting, misreporting, backtracking, and scapegoating their way through the day.

You have to see the video for yourself, which I frustratingly can't seem to find an embed for, to have the magnitude of mistakes and misreporting fully hit home. In a matter of hours, major news sources reported that a suspect was about to be arrested, had been arrested, was of brown-skin, white-skin, was taken by U.S. Marshals, then wasn't arrested, then was re-arrested and was on his way to the courthouse, was then again un-arrested, culminating with the reporting that no suspect was even known by name, let alone arrested. In fact, there are times when the supposed fact-checking media can go even further and splash the pictures of people they claim are suspects on their front page, who definitely are not, for no apparent reason beyond that which seems to be they are brown-skinned. It's enough to take one's breath away.

Now, it should be noted that this isn't to suggest that news sources on the internet aren't capable of misreporting as well. Media, in general, is subject to a drive to draw attention by having the latest information, which often results in a rush to report what hasn't been verified. But that is a characteristic of media, not traditional media or internet media. Just media. On the other hand, if you want the most extensive available investigation into the matter, your best choice isn't the television or the papers, but Reddit, which has organized their own crowd-sourced investigation. That's the power of the internet.

This may seem like the sort of statement usually delivered by an overblown narrator as rockets and lasers go zooming* by, but here goes: In the world of journalism, the future is now! Granted, it's the kind of future that often makes waves in the present and raises at least as many questions as it answers, but if you wanted a bright, problem-free future, you'd have to travel back to the divergence point somewhere between Philip K. Dick and The Jetsons... and then eliminate the dystopians.

*Yes, I realize lasers don't make noise or "zoom" by, but that hasn't prevented George Lucas from becoming insanely rich, has it?

But you can't, so here we are, discussing journalism... by robots! [INS FANFARE/LASER NOISES]

Journalist Ken Schwencke has occasionally awakened in the morning to find his byline atop a news story he didn’t write.

No, it’s not that his employer, The Los Angeles Times, is accidentally putting his name atop other writers’ articles. Instead, it’s a reflection that Schwencke, digital editor at the respected U.S. newspaper, wrote an algorithm — that then wrote the story for him.

Instead of personally composing the pieces, Schwencke developed a set of step-by-step instructions that can take a stream of data — this particular algorithm works with earthquake statistics, since he lives in California — compile the data into a pre-determined structure, then format it for publication.

His fingers never have to touch a keyboard; he doesn’t have to look at a computer screen. He can be sleeping soundly when the story writes itself.

This isn't exactly new news. (Then again, neither is the morning paper, but that's a discussion for another time...) Algorithmic story generation has been around for a few years now, with Narrative Science leading the field. A couple of years ago, Narrative Science was the story, rather than just the automated recap. George Washington University's website had covered a GWU baseball game with a longish recap that only got around to mentioning the opposing pitcher's perfect game in the seventh (out of eight) paragraph. Speculators wondered if a bot was behind this "ignoring the forest for the trees" recap. Narrative Science's techies were highly offended and responded by producing two algorithmically-generated recaps -- one from the home team POV and a more neutral piece.

The first concern with robo-journalism is often expressed by the journalists themselves: are we getting pushed out?

Kristian Hammond, co-founder of Narrative Science, doesn't see it that way.

This robonews tsunami, he insists, will not wash away the remaining human reporters who still collect paychecks. Instead the universe of newswriting will expand dramatically, as computers mine vast troves of data to produce ultracheap, totally readable accounts of events, trends, and developments that no journalist is currently covering.

This is somewhat echoed by L.A. Times reporter Schwencke, who sees the algorithmic output as a boon for busy journalists.

Schwencke says the use of algorithms on routine news tasks frees up professional reporters to make phone calls, do actual interviews, or dig through sophisticated reports and complex data, instead of compiling basic information such as dates, times and locations.

“It lightens the load for everybody involved,” he said.

Schwenke's "bot" is rather simple, functioning best with a limited dataset and a minimum of formatting. Narrative Science's output is a bit more complex, allowing customers to adjust the "slant" of the generated stories. Not only that, but the software can cop an attitude, if requested.

The Narrative Science team also lets clients customize the tone of the stories. “You can get anything, from something that sounds like a breathless financial reporter screaming from a trading floor to a dry sell-side researcher pedantically walking you through it,” says Jonathan Morris, COO of a financial analysis firm called Data Explorers, which set up a securities newswire using Narrative Science technology. (Morris ordered up the tone of a well-educated, straightforward financial newswire journalist.) Other clients favor bloggy snarkiness. “It’s no more difficult to write an irreverent story than it is to write a straightforward, AP-style story,” says Larry Adams, Narrative Science’s VP of product. “We could cover the stock market in the style of Mike Royko.”

This leads to the ethical quandary presented by the use of bots. Is robo-generated journalism really journalism, and is the use of algorithms a betrayal of readers' trust, especially when a familiar name is on the byline? If factual errors are discovered, does the blame lie with the software, or with the journalist who agreed to let the article "write itself?"

The answer here isn't simple (and the question likely isn't even fully formed yet), but the key is transparency.

“People are already reading automated data reports that come to them, and they don’t think anything of it,” said Ben Welsh, a colleague of Schwencke’s at the Times.

Welsh says that responsibility for accuracy falls where it always has: with publications, and with individual journalists.

“The key thing is just to be honest and transparent with your readers, like always,” he said. “I think that whether you write the code that writes the news or you write it yourself, the rules are still the same.”

“You need to respect your reader. You need to be transparent with them, you need to be as truthful as you can… all the fundamentals of journalism just remain the same.”

Questions involving intellectual property are also raised, although they aren't discussed in these articles. Who holds the copyright on the generated articles? In Schwencke's case, these rights are likely retained by the L.A. Times. In the case of Narrative Science, it's probably defined by contractual terms with the end user. Once the contract is up, the generated articles' copyright reverts to the end user.

Schwencke's homebrewed algorithm is a different IP animal. If he switches papers, does he retain the right to the "bot?" Or is that algorithm, developed while employed with the L.A. Times, considered a "work for hire," and thus, the paper's property? Arguably, his algorithm is an extension of him, covering his area of expertise and designed to emulate his reporting. What if Schwencke generates a similar piece of software for his new employer? Would he be permitted to do this, or would this be prevented by additions to "non-compete" clauses? Is it patentable?

The more ubiquitous "robo-journalism" becomes, the more issues like these will arise. Hopefully, IP turf wars will remain at a minimum, allowing for the expansion of this promising addition to the journalist's toolset. With bots handling basic reporting, journalists should be freed up to pursue the sort of journalism you can't expect an algorithm to handle -- longform, investigative, etc. This is good news for readers, even if they may find themselves a little unnerved (at first) by the journalistic uncanny valley.

Perhaps it's time we codified this, but it appears that for every horrible occurrence there will be an unequal, disproportionately large reaction to it. I humbly suggest we refer to this as Geigner's Law, because why the hell should Mike and Godwin be the only people with their name's attached to things? Regardless, it seems to me that this odd rule has been more greatly followed in the age of the internet. Terrorism got you down? Well, then obviously everyone should censor all things even remotely terrorist. A bunch of people lost their marbles and went on shooting rampages? Surely this means protected speech like videogames should face the consequences.

And, now that anyone remotely interested in college basketball had to spend Sunday evening figuring out how to get their previously eaten Easter dinner out of their carpeting thanks to Kevin Ware's disgustingly awful injury on live television, it's apparently time to call out any news outlet that showed the injury in the aftermath.

Don’t give me the Deadspin “Warning: Very Gross” alert either, as though that somehow absolves you from any sin; hell, the video embedded in that Deadspin post is stuck on a preview frame that pretty clearly shows Ware’s shin bone sticking through his leg. Even if you don’t want to watch the video, you don’t really have a choice.

Sites like The Big Lead may have one-upped even the freeze frame preview; by initially including a fully animated GIF on their immediate blog post about the injury before pulling that GIF in favor of just the reaction shot of the Louisville bench, TBL managed to not only generate thousands (and possibly tens of thousands) of hits, but then were able to play the high and mighty, “we’re not going to show that anymore” card a couple hours later – presumably after searches for “Kevin Ware Injury” had died down. It’s hypocrisy of the highest magnitude.

Look, let me be super clear here: the Ware injury footage is brutal. The guy's shin bone snapped in half and the angle of the shots show it with cookie-tossing clarity. In my opinion, you shouldn't watch it, unless you've ingested some kind of poison and you're looking to throw it up. I wouldn't even think of embedding the video here. It's that bad.

And that it's that bad is also my opinion. The simple fact of the matter is that sports is news, this injury is news, and the footage of it is news. We can argue all we want about whether that footage has value for the news consumer, and I'd argue it does as a matter of public inquiry, but that it's news cannot be doubted. There really is no argument to the contrary, as the article's author themselves note.

I don’t care that it’s “newsworthy” – write the story, and let the gawking onlookers go find the video for themselves.

Follow the two logical problems in these statements. First, don't show the footage, because everyone can already find it everywhere else. Surely calling on the media to censor themselves would never result in calls for similar censorship elsewhere, eventually disappearing this and perhaps even more newsworthy footage altogether. What could possibly go wrong? Secondly, if uncomfortable but newsworthy footage can be buried for something like sports under the notion that nobody should be getting "clicks" or money as a result of someone else's pain, does that also hold true for news items about war, gun-violence, murder, drugs, etc.?

The fact is that the original premise was right, just pointed at the wrong target. Yes, in the age of the internet, people have choices in how they consume the news. What that means is not that the media should self-censor upsetting footage. It means that anyone, like me, who wants the news without that footage can indeed get it elsewhere.

The Wall Street Journal's former publisher, Gordon Crovitz, has apparently decided to follow the lead of the NY Times' former managing editor Bill Keller in misrepresenting things having to do with Bradley Manning and Julian Assange to new and impressive heights. Crovitz has a history of being fact-challenged, especially when it comes to the internet, and his latest opinion piece entitled Aiding the Enemy Isn't Journalism is an impressive work of bad journalism. Let's start from the top.

It looks as if Pfc. Bradley Manning and Julian Assange will go down in history as outliers, not trend setters. There have been no copycat leaks of massive quantities of diplomatic and intelligence documents, despite how easy the Internet makes it to leak and the fact that more than four million Americans have clearance to access government secrets.

Um, might that have something to do with the fact that the US government went absolutely apeshit over the release and charged Manning with a variety of offenses that have the possibility of capital punishment? We've already discussed the fact that the administration's reaction likely created massive chilling effects for whistleblowers around the world. Pointing to the lack of anyone willing to step into that breach doesn't mean Manning was necessarily an "outlier." It just means the government's intimidation campaign against whistleblowers may have been quite effective.

Furthermore, requiring an exact "copycat" as the standard for whether or not leaking government docs was a one-time ordeal is just silly. Prior to Manning's leak, Wikileaks had a regular stream of important documents leaked to it, so I'm not sure what Crovitz thinks he's proving here.

Among the prosecution's more than 100 witnesses will be a Navy SEAL who participated in the raid in Pakistan that killed Osama bin Laden. He'll testify to finding Manning-Assange documents on the terrorist leader's computer. Prosecutors are seeking a sentence of life in prison without the possibility of parole.

How much do you want to bet that terrorists have read the Wall Street Journal as well at times? How does that matter?

The key element of this espionage charge is intent: Did Pfc. Manning mean to give intelligence to the enemy? In his 35-page plea, Pfc. Manning describes himself as a whistleblower, but he doesn't explain what he was blowing the whistle on. The documents didn't disclose government wrongdoing. Instead, WikiLeaks posted unedited diplomatic and intelligence cables that identified by name Iraqis, Afghans and others who were helping the U.S. war effort. People were outed as homosexuals in countries where that makes them a target for deadly violence. Prosecutors will identify a long list of victims.

And here, Crovitz is just lying. Either that or he's ignorant. First off, Manning highlighted some key things that he was blowing the whistle on in both his chat with Adrian Lamo and in his plea. Things like the "collateral murder" episode, in which US military helicopters shot reporters. I'd consider that (and the ensuing coverup) to be "government wrongdoing." Furthermore, it's simply untrue that Wikileaks just "posted unedited diplomatic and intelligence cables." Wikileaks worked with a small group of newspapers -- including the NY Times, The Guardian and others -- to sort through the leaked cables, redact sensitive information, and highlight which stories were important.

Building a case that Pfc. Manning knowingly gave intelligence to the enemy seems open and shut. The more interesting question is how this requirement of intent applies to Mr. Assange.

No, it doesn't seem "open and shut" at all. Having the press report on something embarrassing is not "knowingly giving intelligence to the enemy." If it is, then shouldn't Bob Woodward and his White House sources be facing similar charges? After all, Woodward's book Obama's War was recommended by Al Qaeda for people to read after the death of Osama bin Laden. Woodward's book contained much more classified info, including the code names for NSA programs, details of CIA activities in Afghanistan, and details about Chinese hackers breaking into Obama's computers. But somehow that's considered legitimate reporting, but Manning's activities are "an open and shut case" of knowingly giving intelligence to the enemy? That's ridiculous. Manning gave information to the press. It may have embarrassed the US at times, but that's not the same as giving "intelligence to the enemy."

President Obama has used the Espionage Act often, invoking it six times to bring cases against government officials for providing classified information to the media—twice the number of such cases brought by other presidents since the law was passed in 1917. So it's at least curious that Mr. Assange hasn't been charged.

It's not that curious at all when you realize that Wikileaks didn't "leak" information it had privileged access to, but rather worked with other news organizations to publish information that had been leaked to Wikileaks.

Bill Keller, a former executive editor of the New York Times, recently wrote: "As a matter of law I believe WikiLeaks and the New York Times are equally protected by the First Amendment." That misses the point. Unlike WikiLeaks, the mission of newspapers is to inform the public. Mr. Assange's stated mission is to undermine the U.S. That ought to make it much easier to prove that he intends to help the enemy.

This is a total whitewash of actual history. We actually wrote about Wikileaks right when it launched, and its goal from the beginning was also to "inform the public." And, early on it had little interest in the US. When it launched, we noted that it was focused on Asia, the Middle East and Africa -- areas where they were interested in exposing corruption, which is a public service. It's only the rewriting of history that suggests Wikileaks was about anyone trying to "undermine the US." I'm sure that, now, having seen everything the US has done to go absolutely apeshit about Wikileaks, that Assange doesn't have pleasant feelings towards the country (of which he is not and has never been a citizen), but it seems like an incredible leap beyond basic facts to argue that the mission of Wikileaks was to "undermine the US."

"An authoritarian conspiracy that cannot think efficiently," [Assange] wrote in 2006, "cannot act to preserve itself."

It might help to read where that came from, and note that it actually builds off a quote from Teddy Roosevelt, which says: "Behind the ostensible government sits enthroned an invisible government owing no allegiance and acknowledging no responsibility to the people. To destroy this invisible government, to befoul this unholy alliance between corrupt business and corrupt politics is the first task of statesmanship." Assange's "manifesto" may have been naive and silly, grandiose and full of itself, but that hardly makes it evidence of a plan to undermine the US specifically. It is a general call for stopping authoritarianism around the globe by increasing transparency and stopping the powers that be from communicating too much in secret, something that many people feel is a reasonable goal.

But news executives and media lawyers should think twice before treating Mr. Assange as if he were a journalist. If leaders in the news industry blur the distinction between their journalists and self-proclaimed enemies of the state like Mr. Assange, they may encourage prosecutors to make the same false equivalence.

Frankly, I'm no fan of Assange, who often seems incredibly self-important for no good reason, but Crovitz's willingness to toss out the press freedom he relies on, based on taking a few quotes and actions completely out of context to claim that a media organization can be declared the "enemy of the state" for wishing to change government to make it more open and more responsive to the will of the people is really frightening. That he doesn't realize how that can be twisted and turned around on himself and the wider Wall Street Journal directly is even more troubling.

Just for fun, how difficult would it be to make the case that Crovitz himself is an "enemy of the state"? Let's make this clear: in the following paragraph I am deliberately taking Crovitz's comments out of context, in the same way he did with Assange's (though, unlike Crovitz, I actually link to the original sources -- Crovitz just implies what he thinks Assange and Wikileaks have said most of the time). Let's go: In one recent column, he supports "a march on Washington" to change US policy to make it more immigrant friendly. So, he's advocating attacking our own government for the aid of foreigners? Hmmm... In another column, Crovitz actively calls for tech companies to become "united to go after overreaching government." That same column complains about the US government and laws they pass. That sounds like a call for revolution and overthrowing the US government. Clearly, he's an enemy of the state. In another piece he calls for ramping up the police state in the US, cheering on entrapment, which seems to clearly go against American ideals. In another piece, Crovitz cheers on France while criticizing the US government. In another story, he calls for using US taxpayer money to help Iran and China!

And that's just with a very, very quick stroll through some of Crovitz's recent opinion pieces. Meanwhile, the organization he writes for, The Wall Street Journal, is in the news today for supposedly bribing Chinese officials. Hmm...

Yes, my paragraph about Crovitz is totally bogus, but if he's willing to toss out freedom of the press, and twist statements about seeking more transparency and being against authoritarianism as being an "enemy of the state", well, he shouldn't be surprised when people show that he, too, is an enemy of the US.

We've discussed before just how secretive the court martial process has been for Bradley Manning. Part of that is that there is no recording allowed in the courtroom, and thus there was no recording or official transcript of Manning's long statement to the court, even though some reporters tried to piece together a statement from their notes. However, it appears that someone snuck a recorder into the room, and recorded Manning's statement, which has now been leaked by the Freedom of the Press Foundation. As they note, this is actually the first time that the public has been able to hear Bradley Manning speak. As the FPF notes:

A group of journalists, represented by the Center for Constitutional Rights (CCR), has been engaged in a legal battle to force the court to be more open. While the government has belatedly released a small portion of documents related to the case, many of the most important orders have been withheld—such as the orders relating to the speedy trial proceedings or the order related to Manning’s prolonged solitary confinement.

Michael Ratner, president emeritus of CCR, called the government "utterly unresponsive to what is a core First Amendment principle." Ratner noted this is a public trial, the information being presented is not classified, and that contemporaneous access to information about the trial is necessary to understanding the proceedings. Nonetheless, the lawsuit has been tied up in the appeals court for months.

Meanwhile, Glenn Greenwald highlights why this is so important:

The US government and its military has carefully ensured that people hear about Manning from the government, but do not hear from Manning himself. It is way past time for Manning's voice to be heard.

Greenwald has also broken down the statement and highlighted some key points. For example, he notes that many of Manning's critics argued that Manning released information willy nilly with no concern for what was in the documents, and whether releasing them would cause harm. From the transcript, we learn that this is simply untrue. He did review the content, and came to the conclusion that the documents he was releasing needed to be released for the benefit of the US, and not to harm the US. He admitted they might be embarrassing, but that's very different from harmful.

Up to this point, during the deployment, I had issues I struggled with and difficulty at work. Of the documents release, the cables were the only one I was not absolutely certain couldn't harm the United States. I conducted research on the cables published on the Net Centric Diplomacy, as well as how Department of State cables worked in general.

"In particular, I wanted to know how each cable was published on SIRPnet via the Net Centric Diplomacy. As part of my open source research, I found a document published by the Department of State on its official website.

"The document provided guidance on caption markings for individual cables and handling instructions for their distribution. I quickly learned the caption markings clearly detailed the sensitivity of the Department of State cables. For example, NODIS or No Distribution was used for messages at the highest sensitivity and were only distributed to the authorized recipients.

"The SIPDIS or SIPRnet distribution caption was applied only to recording of other information messages that were deemed appropriate for a release for a wide number of individuals. According to the Department of State guidance for a cable to have the SIPDIS caption, it could not include other captions that were intended to limit distribution.

"The SIPDIS caption was only for information that could only be shared with anyone with access to SIPRnet. I was aware that thousands of military personnel, DoD, Department of State, and other civilian agencies had easy access to the tables. The fact that the SIPDIS caption was only for wide distribution made sense to me, given that the vast majority of the Net Centric Diplomacy Cables were not classified.

"The more I read the cables, the more I came to the conclusion that this was the type of information that should become public. I once read and used a quote on open diplomacy written after the First World War and how the world would be a better place if states would avoid making secret pacts and deals with and against each other.

"I thought these cables were a prime example of a need for a more open diplomacy. Given all of the Department of State cables that I read, the fact that most of the cables were unclassified, and that all the cables have a SIPDIS caption.

"I believe that the public release of these cables would not damage the United States, however, I did believe that the cables might be embarrassing, since they represented very honest opinions and statements behind the backs of other nations and organizations."

It really is a travesty that the US government has kept all of this so closed, and has refused to release a recording or a transcript. Are they really so afraid that the public might hear Bradley Manning explain himself?

Update: Since this morning, National Post seems to have disabled this feature. Whether the change is permanent or not I can't say.

Despite three years of journalism school and several more working at newspapers, I'll never understand the double standard that journalists and publishers have when it comes to copyright and fair use/fair dealing. The act of reporting relies heavily on the latter, and the news business would be a very different place if newspapers were expected to pay licensing fees on the quotes they gather from experts, reports and other sources. Thus, newspapers have traditionally been staunch defenders of fair use—that is, until they find themselves on the other side of the equation.

Through Michael Geist we learn that Canada's National Post (disclosure: I used to work for the paper as a freelancer) is trying out a highly disruptive new "feature" that attempts to scare people out of quoting the articles without paying up:

If you try to highlight the text to cut and paste it, you are presented with a pop-up request to purchase a licence if you plan to post the article to a website, intranet or a blog. The fee would be $150. ... If you click no to the pop-up, you cannot copy the text. If you click "quit asking me", the request stops.

I've seen newspapers with "license calculators" for quotes before, and of course we've all seen websites that frustratingly interfere with your copy-and-pase or right-click abilities—but this is the first time I've seen the two combined. The system is driven by iCopyright, a plugin that promises to make it "super easy" for people to license your content, but I guess not so easy that people won't hopefully feel compelled to pay.

This isn't just a dumb idea—it's a really hypocritical game for a newspaper to be playing. Geist underlined the irony by pointing to the regular Post feature Full Pundit, in which writer Chris Selley does a roundup of editorial and opinion columns from the week in Canadian media. Naturally, this involves lots of quotes and snippets from these other media sources, which Selley then expands on or disagrees with or otherwise comments upon—all unlicensed quotes, the use of which is clearly protected under Canada's fair dealing laws for commentary and criticism (and would be equally protected in the US under fair use laws). But if you try grabbing a snippet from Full Pundit, you'll be asked to pay a license. Worse still, if you try to grab one of the quotes from another newspaper on the National Post site, you'll still get the same popup telling you to look into licensing options... for a quote they don't own and are themselves using for free on the basis of fair dealing.

The popup does not mention fair dealing or fair use. It takes some digging to find iCopyright's fair use statement, which is a masterpiece of menacing disingenuousness. As we've noted in the past, the fact that the boundaries of fair use and fair dealing are often unclear creates a massive chilling effect, since people are unsure about their rights and not always willing or able to fight for them, and iCopyright relies on that very effect to scare people into paying up:

The use of excerpts from others' works without a license is permitted in certain limited circumstances under the "fair use" doctrine of U.S. Copyright Law and the "fair dealing" doctrine in Commonwealth nations. However, republication on the internet, without a license, of even a small portion of a work can constitute copyright infringement.

The distinction between "fair use" or "fair dealing" and infringement is not easily defined because each re-use has unique characteristics that must be analyzed. For example, there is no specific number of words or lines that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. For additional information you may want to do an internet search of "fair use checklist" and "copyright myths."

Got that? "It's pretty hard to know if something's fair use, so you probably shouldn't bother." The page then offers a list of factors that often come up in fair use analyses, and suggests that if any of them apply to your use, it is "cause for serious reflection" on whether or not you are protected:

• Is the excerpt such that the reader may feel he/she already has the gist of the original work and no longer needs to read it?
• Is it your intent to earn money, whether through ads, subscription revenues, or otherwise?
• Is the work that was excerpted highly creative?
• Are you choosing not to exercise an affordable and accessible licensing mechanism?
• Are you publishing the excerpt widely, such as on the Web?
• Is the work of excerpted authors the main draw to your work as opposed to serving as a "footnote"?

Now, it's true that all of those are factors that can matter, but it's also true that you could answer 'yes' to virtually all of them and still be within the bounds of fair use/fair dealing. This is easily demonstrated by looking at the snippets within the National Post Full Pundit columns, which are a definitive "yes" on all but the first item. The issue of quote length is doubly amusing, since the Post recently lost a lawsuit it brought against an internet forum, because the Supreme Court declared that posting large snippets (multiple paragraphs) of articles can still be fair dealing, and that the established fair dealing exceptions for "news reporting" can include things like online forum discussions.

And that's where we see the double standard emerge. For a long time, newspapers really were the only source for news reporting, and thus over the years they got some special considerations in the laws and in the courts. Today everyone is a reporter, a photographer and a publisher, and these non-ink-stained wretches are quite rightly utilizing the same rights that "official" news sources have, for the same purposes. Newspapers like the National Post seem to have a hard time getting their head around that, so they launch lawsuits against forums and stick pointless bullying popups on their websites. It strikes me as a matter of arrogance more than anything else.

And, of course, it has to be asked: what is this going to accomplish? It's certainly not going to become a massive revenue stream for the paper, with bloggers (who are becoming well-versed in fair use and fair dealing themselves) forking over $150 every time they want to quote the National Post. There is another possibility, which is that it's a legal tactic: in future lawsuits, the Post could point to this popup tool as an "available and affordable license" that someone chose to forego, giving them a slight leg up in an anti-fair-dealing argument.

Either way, it's a hypocritical and even somewhat despicable move. The National Post is fighting against an important legal protection that is vital to newspapers themselves and to free speech as a whole. Here's hoping that the writers featured in Full Pundit columns, and anyone else quoted in the Post, calls up the newsroom and demands a $150 licensing fee.

Mobile World Congress, the big trade show for mobile devices, just wrapped up. It's become sort of the go-to place for mobile device makers to announce their new products (even though two of the bigger Android developers, Samsung and HTC, decided to do their big announcements outside of MWC). For the tech press, it's the the "next big show" after CES. As you may remember, there was a bit of a kerfuffle as CNET's parent company, CBS broke down (with sledgehammers) that big wall between business and editorial by forcing CNET to take away the "Best of Show" award they had chosen to give Dish's latest DVR, all because CBS was suing Dish over the product. So, when I saw that CNET had awarded the Ubuntu Touch as "Best of Show" for MWC, all I could wonder was what products did CBS ban CNET from covering at MWC. Once tainted, it's difficult to trust their reviews ever again, which is a real shame.

As he made clear last year, Bradley Manning has now pled guilty to 10 of the lesser charges brought against him, while pleading not guilty to 12 charges, including the more serious charges of "aiding the enemy" and that he leaked the info to Wikileaks knowing that it would harm the US. He's also pleading not guilty to violating the CFAA. He has argued, in the past, that he believed what he was doing would help the US by exposing bad actions that were being swept under the rug. The case will now continue on those other charges (and possibly the ones he's pled guilty to, as the judge can still choose whether or not to accept the pleas). This is not a plea bargain situation -- he's just taking some of the charges out of the trial phase by flat out admitting to them.

However, the much more interesting revelation is that prior to releasing the information to Wikileaks, Manning claims that he approached both the NY Times and the Washington Post to see if they were interested in the infamous Collateral Murder video. Both ignored him. According to Manning's claims, he felt that the data and information he had collected showed that the US strategy in Iraq and Afghanistan was problematic and doing more harm than good:

He thought about what to do and was convinced that the United States was "risking so much for people who felt so unwilling to cooperate with us" and it was "leading to hatred and frustration on both sides." Manning was upset with counterinsurgency operations that consisted of the "capture and killing of human targets."

So he felt that revealing the information he had collected might "spark a domestic debate on the role of the military and our foreign policy in general." In order to do that, he reached out to a few publications:

He called the Washington Post. A woman answered who seemed to not take him seriously, even though he suggested the information would be valuable to the American public. Then, he decided to contact the New York Times. Nobody answered the phone so he left a message explaining he had information that was "very important." He left the Times his email and a Skype address but never received a reply.

That's a pretty big revelation, and once again, shows how Wikileaks was providing a service where the mainstream press completely fell down on the job. People -- including the judge in the case -- have wondered that if the NY Times had published this kind of information, rather than Wikileaks, would there still be the same hysteria and prosecution over the leak. The prosecutors have insisted they would have gone after Manning just as much in that case, but their own actions following other NY Times-published leaks suggests otherwise.

For what it's worth, the NY Times denies that Manning contacted them:

"This is the first we're hearing of it. We have no record of Manning contacting The Times in advance of WikiLeaks."

Separately, it's worth pointing out that Manning also noted that the information he leaked was hardly secret, and was available to tons and tons of people.

"I view the SIGACTS as historical data," Manning stated. It is a "first look impression of a past event." They show IED attacks, small arms fire engagement or engagement with hostile forces.

The reports are "not very sensitive." The "events encapsulated involve enemy casualties," that are "publicly reported" by the Public Affairs Office of the military or reported by "embedded media pools." They are like a daily journal or log that captures "what happened on an immediate day or time and they are constantly updated."

Either way, it seems likely that the government will continue to go after him on those bigger charges, so this case is far, far, far from over.

For media watchers, the very public argument this week between Tesla and the NY Times has been quite fascinating. In case you happened to not be obsessively following each back and forth (what, you have lives?!?), it all began with a NY Times' less than enthusiastic review of the experience of trying to drive a Tesla S (the company's flagship electric car sedan) between a pair of Tesla's new "superchargers." You can read the full review yourself, but the short version is that it did not get the mileage expected, and at one point a flatbed truck needed to come pick up the totally dead car. I will admit that I'm impressed by the Tesla car in general, and most of the reviews have made it out to be about as close to a perfect car as you can imagine (which is pretty impressive considering that it's the first year of the car's existence and it's the first "mass" produced Tesla vehicle). But this review was less than thrilled, since the whole point was to test out the ability to drive between these "superchargers."

Upon publication, Tesla's famous CEO, Elon Musk, began tweeting up a storm about how the article was "fake" and that he had the vehicle logs to prove it. The author of the review, John Broder, responded to many of the tweeted charges, arguing that Musk was misrepresenting things -- leading many watchers to suggest that Musk was making a big mistake in attacking the NY Times.

Then, Musk published a blog post with a graphical representation of the log data they had, in which he argues that Broder lied and even purposely tried to run the car out of juice in order to write a negative story. Musk claims that after their dispute with Top Gear, they now keep logs on any media test drives (though it's unclear if they tell reporters that before giving them the cars). And, suddenly, a lot of people flipped sides, arguing that the data won and clearly the NY Times and Broder had some answering to do. After all, there were charts like this one: Except... then some people started to look more closely at the data and realize that perhaps Broder's story wasn't so crazy and Musk made a number of assumptions that aren't necessarily backed up by the data. For example, Musk insists that Broder claimed he turned down the climate control to low to conserve energy at 182 miles, and points to the fact that at 182 miles, Broder actually increased the temperature over 72 degrees. However, as Rebecca Greenfield points out, in her piece (linked above), it really looks like Musk may have simply assumed incorrectly that the point where this happened was 182 miles, and at about 250 miles it's quite clear that Broder does turn the climate control way down and keep it that way for a while (Greenfield added the purple box below). Then Broder chimed back in as well explaining away most of the accusations, including the charge by Musk that Broder drove the car around trying to run it out of energy:

When he first reached our Milford, Connecticut Supercharger, having driven the car hard and after taking an unplanned detour through downtown Manhattan to give his brother a ride, the display said "0 miles remaining." Instead of plugging in the car, he drove in circles for over half a mile in a tiny, 100-space parking lot. When the Model S valiantly refused to die, he eventually plugged it in.

Except, Broder notes, the "unplanned detour through downtown Manhattan" was not "unplanned" and had been communicated clearly to Tesla beforehand, did not actually go into "downtown" Manhattan, was partially recommended by Tesla employees who thought that the "regenerative braking" might help increase the range and only added two total miles to the trip length. Furthermore, as for the charge of driving around in circles in a parking lot?

Mr. Straubel said Tesla did not store data on exact locations where their cars were driven because of privacy concerns, although Tesla seemed to know that I had driven six-tenths of a mile “in a tiny 100-space parking lot.” While Mr. Musk has accused me of doing this to drain the battery, I was in fact driving around the Milford service plaza on Interstate 95, in the dark, trying to find the unlighted and poorly marked Tesla Supercharger.

Ouch.

In the end this is a fascinating story on many different levels. Dan Frommer makes an excellent point that "everyone's a media company now," noting that it's possible for companies to speak out on their own behalf if they disagree with a story. That used to be a lot harder. He compares that to the Quirky / OXO story we recently covered as well.

But, of course, if you're going to rebut charges made in a newspaper review, the information had better hold up, and it's not clear that it does here. Even worse, it really seems like Musk is making a much bigger deal of this than ever needed to be made. Sure, the initial review wasn't great, but it really didn't strike me as that bad. It basically said that if you try to drive it too far, or if you're unable to charge it enough, you might run out of juice. You know what? Same thing is true of a gas-powered car as well. But Musk has called much more attention to the story in a manner that doesn't necessarily lead to Tesla coming out on top. Carl Malmud's summary seems instructive:

Musk was offended that a reporter didn't operate the hardware properly. Blame the manual, tech support, PR, but not the user.

Musk is obviously quite passionate about the companies he runs and their products. And that's something that's actually quite appealing. Having followed his work for a while, you know that he really is striving to build "insanely great" products. So I can absolutely understand how his first emotional reaction is to lash out at someone who wrote a less than kind review (I've been there myself too many times). But, in the end, it seems like there would have been much better ways to handle this. I'm still a huge fan of the Tesla, and still dream of one day actually getting one, but I'd say that Musk's response probably made me more skeptical of the company than Broder's original article ever did.

When "everyone is the media," amazing and powerful things can happen. And, certainly, the ability to correct the record against questionable stories is something that really changes the game. But, at the same time, everyone is now a fact checker, and that makes for an interesting dynamic for both traditional media companies and those who wade in to respond to them.