Kenny Be summed up Scott Gessler’s moonlighting problem nicely in Westword last month, depicting Colorado’s Secretary of State with a phone on each ear.

If you’re The Denver Post, the two phones in the cartoon would have caught your eye, because the newspaper waged a multi-faceted campaign to get Bill Ritter to turn over his personal cell-phone records for public review…-with his personal calls excised.

Ritter refused to do this, even though he apparently conducted state business on his personal cell phone, because he said it was an invasion of privacy.

The Post got pretty upset at Ritter. There weren’t any front-page editorials, but it hopped up and down on the editorial page, calling for the release of his cell-phone records, and even filed a lawsuit that drags on to this day. (Two decisions have gone against The Post, and the daily has appealed to the Colorado Supreme Court.)

Ritter has come and gone and, unfortunately, we never reviewed the state calls he made on his personal cell-phone.

But The Post’s campaign paid off.

John Hickenlooper  told a conservative journalist that he’ll use two cell phones, one for conducting the people’s business and another for personal and campaign work.

He’ll make records of calls on his “government cell phone” available for public review. And he plans to have a neutral party review the records from his private phone to make sure he’s not hiding state biz there.

Former Post Editorial Board member and current Post reporter Chuck Plunkett discussed Hick’s cell phone policies on Jon Caldara’s “Devil’s Advocate” TV show on KBDI. (The name of the show should actually be “The Devil,” dropping the “Advocate” part, but who am I?)

Caldara and Plunkett couldn’t say enough good things about Hick’s cell-phone policies. And a Post editorial patted the new gov on the back.

Recent news cycles have illuminated other state officials whom The Post should now call on to follow Hick’s lead.

I’m thinking of Colorado’s proliferating crop of moonlighting public officials. Among other things, we need to be sure that their “conflict of time,” as The Post put it, doesn’t blend their two jobs together on their personal cell phones.

So that means these guys: GOP Attorney General John Suthers, who’s teaching law classes; Secretary of State Scott Gessler, if he starts down the moonlighting path again; and Dwayne Romero, whom Hick appointed to lead the Colorado Office of Economic Development and International Trade.

Of most concern, when it comes to transparency, is Colorado Treasurer Walker Stapleton. He’ll be raking in to $150,000 per year, at $250 per hour, working for his old real estate firm.

This works out to 600 hours or over 11 hours per week. That’s over quarter time, based on a 40-hour work week. Of course, Stapleton’s weeks will likely be longer, but it’s a lot of time.

I mean, with 600 hours of out-of-state business to conduct, Stapleton will have to be on the phone so frequently that some state matters could slip onto his personal phone, despite his best intentions. He might just get mixed up about whose clock, I mean, phone he should be on, as he makes quick calls for his own business and then the people’s.

I asked Stapleton’s Communications Director Michael Fortney whether his boss would be following Hick’s example on the cell phone issue.

He said he’ll have one cell phone for personal use and another for matters relating to his state work.

“He’s going to do his state business either on his land line or state-issued cell phone,” Fortney told me. “He won’t do state business on the personal.”

Fortney has not yet discussed with Stapleton whether he will let a neutral party review records for his personal cell phone, as Hick says he’ll do, and weed out anything that should be made public.

The Post, which has waged the good fight on the cell phone issue, should stay the course, with a focus mostly on Stapleton, but all the moonlighters should be urged to follow Hick’s lead.

Here’s a video of Plunkett explaining this issue.

Colorado Attorney General John Suthers has offered different explanations for filing a legal brief in support of a section of the federal Defense of Marriage Act (DOMA) that bars gay and lesbian married couples from receiving  federal marriage benefits. Reporters should find out what Suthers is really thinking.

Massachusetts is suing the federal government to enable gay couples, married there, to receive the same benefits given to other married couples, and Suthers’ office joined the feds in defending DOMA against the Massachusetts challenge.

On KHOW’s Caplis and Silverman show, Suthers said Monday there was no anti-gay-marriage political agenda behind his action. It’s about federalism, he claimed.

He went on to say he’s trying to stop the feds from forcing Colorado to recognize a gay marriage performed in Massachusetts.

“I’m getting all kinds of grief about filing an amicus brief in Massachusetts’ constitutional challenge to the Defense of Marriage Act,” said Suthers on the radio. “And it’s very apparent to me that people are attributing political motives to me, being anti-gay marriage, when in fact I think this is another case that really bears upon federalism….We don’t want Massachusetts to be able to impose on the federal government or the state of Colorado its definition of marriage.”

So what’s motivating Suthers? The gay-marriage part? Or the states-rights/federalism part?

It’s confusing, especially to people like Brian Moulton, Chief Legislative Council for the Human Rights Campaign, which has been tracking the issue.

He told me that, in response to questions about the case, Suthers’ office has sent emails to constituents stating that Suthers decision to get involved in the Massachussets case was to defend Colorado’s Amendment 43, which defined marriage here as between a man and a woman. Moulton said that Suthers’ email stated that his office is obliged by law to defend Colorado’s laws, and that’s what he is doing.

Moulton told me:

“So certainly, at least initially, he was telling his constituents that he was defending Colorado’s marriage laws, and that was the initial response he gave to The Denver Post when they inquired about it. It’s all fine and good to say you’re concerned about federal involvement with the states….But certainly that was not the initial response of the AG’s office, and I’m finding it hard to square the circle. It’s hard to know which of the messages to believe.”

It’s particularly hard to square the circle because the case that Suthers has decided to join isn’t really about gay marriage. It’s about whether gay couples, who are already married in Massachusetts, have a legal right to federal marriage benefits.

We’re talking about stuff like allowing gay couples to be buried together (OMG, what will they do?) in a veterans’ cemetery and to get spousal benefits under Medicaid, according to Moulton.

Is Suthers, on behalf of the people of Colorado, saying gay couples from Massachusetts should not be allowed to be buried together in a veterans’ cemetery? We don’t know because neither Caplis nor Silverman asked him. But fortunately, Silverman promised on the radio to have Suthers back on the show to talk more about the DOMA issue.

Here are some questions Caplis and Silverman should ask him (And for you skeptics, these are the types of questions they ask regularly on the show.):

First, there’s the question above about how Suthers will feel if he successfully prevents gay veterans, married in Massachusetts, from being buried together.

Then there’s a question that flows from something both Moulton and Suthers’ office (as quoted in Tuesday’s The Denver Post) agree on: The Massachusetts case involving DOMA won’t invalidate Colorado’s marriage law, but, theoretically, if Massachusetts wins its case, Colorado’s ban on gay marriage could possibly be a little bit harder to defend down the road. Is it right to support a lawsuit that strips gay couples, married in another state, of the right to be buried together or to receive Medicaid benefits, simply because having those benefits might, theoretically, make Colorado’s ban on gay marriages slightly harder to defend? Does this put any stress on Suthers’ conscience?

Another question: If Suthers’ underlying motivation is related to states rights, why pick this case? As Moulton pointed out: “In this case, what Massachusetts is saying is, our state’s rights are being impinged upon because what the federal government is saying is, here’s some money for a federal program, but if you have to use it, you have to discriminate against some of your own lawfully married citizens under your own law. They are arguing that (DOMA) is infringing on their rights as a state. It does seem odd to have some other state [Colorado] say, no no, that’s not okay.”

And this question, posed by Moulton, gets to the heart of the matter: “At the end of the day, if what you’re really doing is just attacking Massachusetts because they’ve decided to stand up for their gay and lesbian married citizens, because you have some fear that one day in some hypothetical case that doesn’t exist, your marriage law might be in jeopardy, doesn’t this seem pretty mean-spirited and maybe not the best use of state resources right now in this time of fiscal stress?”

Attorney General John Suthers: You know, you can’t get into these things based on what’s going to be the politically greatest route. I don’t know if you’re watching it today, but I’m getting all kinds of grief about filing an amicus brief in Massachusetts’ constitutional challenge to the Defense of Marriage Act. And it’s very apparent to me that people are attributing political motives to me, just being anti-gay marriage, when in fact I think this is another case that really bears upon federalism. The federal government in DOMA is not attempting to define marriages under state law. In fact they say, we’re simply defining marriage for purposes of federal law and federal benefits and for our purposes, marriage is between a man and a woman. States are free to do what they want. Massachusetts says, you can’t define it between a man and a woman. That discriminates against our gay couples in Massachusetts. And we in Colorado, the voters in 2006, chose to define in our constitution marriage as between a man and a woman, and we support the federal government and the states as being able to define it for their own purposes, and we don’t want Massachusetts to be able to impose on the federal government or the state of Colorado with the definition of marriage.

Craig: Mr. A. G., we can’t go on that tangent, though it’s interesting, and we’d like to talk to you about it on another day that’s not so newsy.

There’s a feast raging on the Internet. Websites and bloggers are helping themselves to huge servings of whatever newspapers offer online.

People who run content-starved outlets steal articles from newspapers’ websites and post them on their own sites, without payment.

Who cares, you might say. Most newspapers post all their articles on their websites, free for anyone to read, whether they’ve got a subscription or not.

But many newspapers definitely care, because they make money when people visit their websites to read articles. Web advertisements are an increasingly important part of newspapers’ shrinking revenue stream.

When an entire article is copied from a newspaper’s website and posted on another website, fewer people go to the newspaper’s website to view the original article, and the paper makes less money.

Some newspapers are trying to protect their articles from being stolen. They’re trying to develop clearer “fair-use” policies, specifying for example how much of an article can be copied by a blog or website without violating the newspaper’s copyright.

The Las Vegas Review-Journal has gone further. Its parent company, Stephens Media, has helped grubstake a law firm called Righthaven, which is suing Internet entities that post articles from the paper without proper authorization.

Righthaven buys the copyright to a specific newspaper article and then sues the website or blog that posts all or even part of it, typically for $150,000 and the rights to the domain name of website that allegedly commits the offense. Most of the approximately 200 lawsuits filed against organizations, ranging from the Democratic Party of Nevada to GOP Senate candidate Sharron Angle, have been settled out of court.

In December, on behalf of MediaNews, owner of The Denver Post, Righthaven sued the Drudge Report for allegedly publishing The Post’s content in violation of copyright law.

Critics, including the Electronic Frontier Foundation, say Righthaven is abusing copyright law by buying copyrights to articles it will never use and by demanding excessive damages, particularly from small-time bloggers who can’t afford to defend themselves.

Critics also don’t like Righthaven’s tactic of filing lawsuits without sending a warning letter first. These warnings, referred to as “takedown” or “cease-and-desist” letters, would give a website owner the chance to remove the offending content to avoid a lawsuit.

Courts in Nevada are sorting out the complexities of whether a website’s copying of a newspaper article–even if it’s used in its entirety and deprives a newspaper of potential revenue–can be justified under “fair-use” doctrine. Critics say the doctrine is more complicated than the Righthaven legal briefs would have you believe.

These critics have a point, but in the bigger picture, the newspaper industry’s cause is just.

The Righthaven approach, imperfect as it is, gets to the heart of one of the most important questions in journalism: How do newspapers protect online content?

Organizations shouldn’t post entire news stories on their websites, and bloggers shouldn’t reproduce newspaper articles in their online diaries.

Here’s why: News articles are written by journalists, who need to be paid. And most of their salaries come from advertisements. (There are exceptions of course, including OtherWords, the non-profit editorial service that happens to be distributing my op-ed to newspapers and new media.)

Newspapers’ advertising revenue has tanked in recent years. For journalism to survive, newspaper websites must sell more ads.

The routine looting and scattering of a publication’s website content across the blogosphere, where newspapers have no prayer reaping any profit, amounts to one more nail in the coffin of journalism. Advertising dollars will then flow to any online outfit that posts stolen news stories.

That’s not only unfair, but it’s bad for our democracy. We need journalists to play a watchdog role now more than ever.

Sure, Righthaven is unseemly in the way it’s suing people, including “little” people. But if you have a better idea on how newspapers should safeguard their online content, lay it on me.

A former media critic for the Rocky Mountain News, Jason Salzman is board chair of Rocky Mountain Media Watch and author of Making the News: A Guide for Activists and Nonprofits. www.bigmedia.org

This column was originally distributed by the OtherWords syndicate.

Just before Thanksgiving, when I was thinking of smoked turkey, I read in The Denver Post: “McInnis back on his feet, open to another office run.”

McInnis has his boots on again, I thought to myself. Who’s surprised, seriously?

But still, a couple sentences in the story made me scratch my head more than I usually scratch it when I read about McInnis.

The Post’s Penny Parker, who snagged the great interview, in an subsequent interview with Dan Caplis and Craig Silverman, said she called McInnis after the article was published to find out if he thought it was fair, and McInnis told Parker that he was ok with it.

I couldn’t locate McInnis at Hogan Lovells, because, you recall, he left the firm and moved to Grand Junction.

I tried calling Rolly Fischer, because it certainly appears, from the McInnis quote above, that McInnis has Fischer in mind for a star role in clearing up his name. A very nice person answered the phone at Fischer’s place Friday and told me he probably wouldn’t call me back because of the “situation right now.”

So I emailed Penny Parker. She replied, “I haven’t heard word one from him since he moved back to Grand Junction.”

So, the clock continues to tick, and the Big Question hangs out there:

How in the world will McInnis clear up this bee-sting-like plagiarism misunderstanding and when will he do it?

In October, you may recall, Jose Nevarez-Coronado was charged with vehicular homicide in the death of Prof. Yvonne Frye of the Community College of Denver.

On the radio Oct. 8, a couple days after the crash, Peter Boyles, who has little good to say about The Denver Post these days, except about reporter Karen Crummy whom he praises, ripped into the newspaper’s coverage of the crash.

The Post had reported that Nevarez-Coronado had a criminal record showing multiple arrests for theft, and he was on probation for one of them.

Boyles claimed that the suspect, Nevarez-Coronado, “stunk to me” and “used nine different names, three different places of birth, and he has a criminal record that’s really lengthy.”

Boyles went on: “Guess who this guy is, right? Now, The Denver Post isn’t going to tell you who this guy is. The Denver Post actually did an editorial saying Denver is not a sanctuary city. Just Google sanctuary city, and Denver comes up. And they’ve endorsed the sanctuary mayor for governor.  So none of this is surprising.”

But guess what, you Boyles listeners, and there are a lot of you because his program tops the rating charts for Denver radio in the mornings.

Nevarez-Coronado turns out to be an American citizen, born in Albuquerque. He’s not an illegal immigrant. (Boyles’ much-hated Denver Post editorial board got Nevarez-Coronado’s citizenship wrong, too, and posted a correction.)

But the point of this blog post is not to beat up on Boyles for speculating about Nevarez-Coronado, even though his conjecture, and the hateful way he delivers it on the radio, makes me sick personally, and it should make Boyles himself ill because of the hatred this can whip up toward innocent people.

But, putting that aside, the question is, how can this be avoided next time? How can journalists and talk-show hosts like Boyles report or discuss the news and respect Hispanic citizens?

Last week, I asked Post City Editor Dana Coffield what The Post’s policy is on reporting the citizenship status of criminal suspects.

I had noticed that in its coverage of the Aurora Central High shooting in December, it reported repeatedly that the suspect has an ICE hold and is “believed” to be an illegal immigrant, according to police.

Coffield emailed me:

“We only report a person’s immigration status when it becomes part of and material to the public record. If I recall correctly, Aurora PD made a statement regarding the arrest of Luis Guzman-Rincon that included a mention of the ICE hold pending investigation of his immigration status.

The public records databases that we have access to do not let us know whether a person is a U.S. citizen or not (imagine looking yourself up in ACURINT …• you get age, name, voter registration, property ownership, licenses, stuff like that, or the criminal records database, which shows charges and disposition.) I know that police have access to more detailed records that may detail immigration status, but they’re not something we’re allowed to look at.”

I asked Coffield if she thought she’d get more information under the new Secure Communities program, which uses fingerprints to determine if a suspect is a known illegal immigrant. Coffield said she didn’t think this would change anything.

Coffield wrote:

“[It seems inappropriate to presume that anyone is NOT a citizen or legal resident of the U.S. When Weld County deputy Sam Brownlee was killed in Evans in November, people were quick to presume Rueben Reyes was not a citizen (and were wrong). Would they have done the same if the assailant was named Jason Salzman, presuming that a shooter by that name was in the country illegally from Austria, or named Peter Boyles, presuming that a shooter by that name was in the country illegally from Ireland (who had intentionally changed his appearance using plastic surgery to evade identification by police- I joke, but-)?”

I asked Boyles if he thinks The Post should speculate about a suspect’s citizenship status, whether he or shie is Hispanic or half Polish like me.

He said no. Boyles does not want The Post to speculate.

“What should they report?” I asked Boyles.

“They ought to say that the suspect has given multiple DOBs [dates of birth] and POBs [places of birth],” he answered.

“It’s easily found out,” Boyles said. “You tell us. Those aren’t tough records. People run those records all the time.”

Coffield wrote that if this information is in the public record, The Post will report it, but she added that this type of information is found in the police databases that are not public.

So, a way forward emerges.

I’m hoping that next time a Hispanic suspect is arrested, Boyles will be more humane and refrain from speculating on the person’s immigration status or accusing The Post of deliberately hiding part of that suspect’s criminal record, if it’s not available in public records.

And if Boyles knows details about a suspect’s criminal history that aren’t publicly available, he will tell us where they came from and how he got them and where, specifically, The Post can find them.

Then before bashing The Post, he might ask someone there why something was left out.

You hate to see Mike Littwin being shuffled back to the commentary section of The Denver Post.  But it was the right move.

I loved reading Littwin on Page two, and I’m sure lots of people who hate Littwin also loved reading Littwin there. He’s one of the best things the paper has to offer.

But I agree with the old argument that newspapers will survive in the long run only if they can convince us that they’re fair and accurate. That’s the niche that might possibly allow them to survive in a blogosphere full of news that you can’t trust. Not all of it, of course, but a lot of it.

The Post’s future depends more on its credibility than the quality of its opinion writers. Littwin is a great writer, and he’ll still be there. In fact, The Post should put a little note on page two every day for the next year telling readers where to find Littwin.

But a left-leaning political column like Littwin’s, surrounded by the news pages, creates the perception that The Post’s news content is also biased.

Asked via email why he move Littwin, Post Editor Greg Moore wrote me:

“I think it is fairly obvious why Mike is in op-ed. It is a perfect place for the type of column he writes, one we value. I created Page 2 exposure for him and Tina to signal to our broader audience we had embraced two high profile Rocky columnists and frankly I had no place else to put them and give them visibility. I had known for a while that Littwin really was writing an excellent op-ed column and we had achieved what I wanted on page 2. So we made the move.”

The move also puts Littwin on the editorial board of The Post, which needs dose of air from the left.

In his debut column from his new location, Littwin didn’t sound very hopeful about winning over the editorial board, but at least he’ll be there some of the time. Just looking at Littwin might frighten a guy like columnist Vincent Carroll, who is also on the editorial board.  Littwin wrote:

“They’ve promised I can skip as many board meetings as I like and that I don’t have to wear a tie and I still can go on the road to follow Palin and Huckabee and the rest of the Fox News Republican primary next year, but only after poking as much fun as possible at Mejia, Romer, Boigon, Hancock, Linkhart and everyone else running for the honor of taping the welcome-to-Denver greeting at DIA.”

UPDATE: This post was corrected Dec. 16 after a reader pointed out that Stephens Media, which is connected to Righthaven, does not own the Las Vegas Sun, which has been reporting extensively on the Righthaven lawsuits. Since March, Righthaven has been suing entities that post content from Las Vegas Review-Journal, not the Las Vegas Sun. But the Review-Journal, like the Denver Post, did not report a peep about this, until September, when it published a story about Righthaven suing Senate candidate Sharron Angle for alleged illegal use of Review-Journal articles.  The Review Journal ran a second article last week when Righthaven began suing to stop alleged illegal use of Denver Post content. Last week, the Review-Journal ran this and this blog post. Still nothing in The Denver Post on this topic. I’m sorry for my error.

——-
You may have heard about a Las Vegas law firm, called Righthaven, that’s buying the copyright to Denver Post content that is allegedly being used illegally, in violation of The Post’s fair-use policy, and then suing the alleged violators, typically for $150,000 plus the rights to the offender’s domain name.

Or, more likely, you haven’t heard about the firm, because shamefully, as far as I can tell, neither it nor its activities have been mentioned at all in The Post. (Please correct me if I’m wrong here.)

But the legal strategy to stop alleged copyright infringement has been comprehensively reported in Las Vegas Sun, and locally Westword picked it up, as did The Colordo Independent, among others.

On Monday, The Denver Daily News weighed in with the most comprehensive local coverage so far, interviewing the co-founder of Righthaven as well as representatives of some of the blogs and websites that have been sued. Righthaven, with the apparent blessing of The Post, is suing entities large (Drudge Report) and small (lowcountry912.wordpress.com).

I’m glad The Post is trying to protect its content, because I don’t buy the argument, nicely summarized today in the Sun, that newspapers are giving away their articles on their websites for free to anyone who wants them.

Still, you have to wonder about the Righthaven approach when you read a quote like this, in the Denver Daily News piece, from Steven Gibson, founder of Righthaven and reflecting comments he’s made elsewhere:

“It does not appear that an approach to addressing the infringement of copyrights that is based upon merely sending out takedown letters is a very effective way of dealing with that issue,” said Gibson. “There are literally millions, if not billions of infringements out there.”

“If a newspaper were to add the requisite staff to identify the infringements, to properly identify the infringers, and spend the time drafting appropriately worded letters, and kindly ask each one of those infringers to stop infringing, it would cost a newspaper an unmanageable amount of money to do that,” continued Gibson.

So Righthaven is suing without warning.

I called Righthaven founder Gibson, and he confirmed cease-and-desist letters are not sent because they do not work and the process is too expensive. He said:

Gibson: Think about it a minute, Jason. You are managing a newspaper’s legal department, and you have to go to management to say I need to fund the effort to staff enough people who will have notice of an infringement, then do due diligence to make sure you’re sending the letter to the right place, and then draft an appropriate letter, and follow up to make sure that the infringer received the letter because more likely than not you might not receive a response. How long do you wait in order to receive a response? That’s a lot more than one minute.

Then let’s assume that the receiver [of the letter] takes down their infringement, and says you take it down if you don’t sue me. And let’s assume there are tens of thousands of infringements out there.  And how long does it take you to develop a story? And how much are you being compensated? The newspapers are already financially strapped, and adding the capacity to write people gentle letter to say would you please take down the infringement.

And the other thing is that then the other people who know you are doing it say, ok well, they have another 9,999 letters to go before they get to me, and if all they are going to do is send me a letter saying take it down then there is no real risk to me for posting the infringing content. All they are going to do is ask me to take it down. So, you know, whoop-tee-doo, I’ll just post the infringing content and see if they ever get around to writing me a letter.

Well, our experience here in Colorado shows Gibson to be wrong about the deterrent effect of a takedown letter. One measly letter was sent to ColoradoPols, and now you rarely see any of the Post’s content in Pols, and there’s been nothing close to a violation of The Post’s fair-use policy since the letter was sent.

But Gibson has a point, no doubt, that the prospect of a no-warning lawsuit is much more frightening  than the prospect of receiving a takedown letter. I am ashamed to admit to having used copyrighted content in past lives knowing that a cease-and-desist letter would probably arrive before a lawsuit. Had I expected a lawsuit first, I may not have done broken the law.

He’s less convincing about the resources required to send warning letters. I mean, interns could do it. It just doesn’t seem that complicated to me, even if it takes a little longer than you might think at first blush. In any case, the fact that Righthaven has reportedly taken in a quarter million dollars from these lawsuits makes you wonder if there’s a better way to fund copyright enforcement.

Actually, I’m hoping that the no-warning lawsuits are part of an initial PR strategy that will be abandoned once the word gets out that newspapers are serius about protecting their content. 

I thanked Gibson for making himself available to me, and I asked if this was part of a PR strategy to let scare the world to stop stealing content. He denied this, saying:

I believe that Righthaven is going to ultimately be recognized as doing the right thing. Money is not everything. And we believe that we are advancing a social purpose, independent of whether there is a deterrent value. We believe that protecting the ownership interest in copyright is an appropriate thing to do and is forward looking, irrespective of the deterrent. And while we are running a for-profit business, we like to believe that the propriety of Righthaven’s approach will be proven over time, as issues are more fully addressed by the courts, in both Righthaven cases and otherwise that we will create a greater and broader understanding. That’s why I try to make myself available to member of the press….

Let’s go back to the basics. Copyright law is in the Constitution. It comes from the Constitution where our forefathers said, we’re going to protect inventors and artists, effectively. It’s important that at the very founding years of our country that we are going to advance the protection of the people who engage in the creative capacity, such as you. You’re going to write this article, and people should respect that. And so all of these folks out there saying, we’re attacking people, that’s very strange.

Gibson goes further:

Jason: I just think in the spirit of public discourse, which actually a newspaper tries to promote, you try to solve things without this kind of harsh—

Gibson: What’s harsh?

Jason: Filing a lawsuit when you could send a letter first.

Gibson: First of all, that presupposes that that’s harsh…-who is it harsh on? You don’t factor in the fact that we have $350 filing fees, we have $100 more of service and process fees on these defendants. So, you know, the plaintiff in these cases, Righthaven, has to expend hundreds of dollars, and arguably thousands of dollars, there are copyright registration fees and application fees. We put our money where our mouth is, if you will. This isn’t easy or inexpensive.

And, again, the question is have takedown letters succeeded in addressing the infringements. Can anyone argue in all of these blogospheres that the takedown approach will ever be successful in stemming the tide in infringement?

Jason, here’s a fantastic story for you, because your approach to this has been a bit more balanced and objective and you’re generally asking some good questions. Think about the future of the American economy. Think about 20 or 30 years from now. Think about the evolution of the American economy. Think about where value is going to be created in the future. And that is, more likely than not, our society to continue to advance, and the creation of intangible assets, content, will continue to be much more important in the future. You follow me?

Jason: Hmm mmm.

Gibson: And we continue to migrate from a post-industrial economy, whereby a vast part of the American economy is the management of information and the development of content. If you think it’s important today, look at how important it is going to be decades from now. And as such, isn’t Righthaven recognizing today what is going to be readily apparent 20 to 30 years from now, and that is, when a good part of our economy is relying on people respecting that which drives our economy, i.e., the creation of intangible assets in the information economy.

So what to do if you’re in The Post’s shoes?

Obviously, the Post should milk the PR value of this exercise by having their execs talk about it! Explain to the masses why you’re trying to protect your stories, and give people the basics about fair use.

The Las Vegas Sun is reporting on it extensively. But the Las Vegas Review-Journal, whose parent company is associated with Righthaven, has only published two articles, as far as I can tell and at least one blog post. (See the Update above.) The Post should start reporting and commenting on the Righthaven lawsuits.

The Post should take responsibility for its own lawsuits, and divulge its apparent relationship with Righthaven. Righthaven is actually kind of like one of those 527 political groups, acting “secretly” for the newspaper. And the Post’s editorial page seems to hate 527s.

The Post should also instruct Righthaven to go after the larger entities first, the ones who are more likely to know better. That’s basic kindness.

And also, The Post should insist that for every no-warning lawsuit that’s filed by Righthaven, ten cease-and-desist letters are put in the mail. This approach is more humane, while recognizing the real-life deterrent value of the no-warning lawsuit. How much time could it possibly take to write boiler-plate warning letters to copyright violators and track the responses.

In any case, if the current approach by Righthaven continues indefinitely, The Post will look seriously bad, and it looks pretty bad already, which is unfortunate because in the big picture, its cause is just.

In a public discussion Wed. of media coverage of the 2010 election, The Denver Post’s political editor Curtis Hubbard said if The Post reports on a news story that’s appeared previously in another outlet, the newspaper is committed to giving proper credit to the news outlet that broke the story.

The Post is “trying very hard to give credit where credit is due,” he told the audience of about 50 people. He said that, for his newspaper, this is a “sea change” in culture, but it’s only fair, he said, given that The Post wants credit for its work.

I called State Bill Colorado Editor Don Knox, who previously quoted Post a post editor saying the same thing, to discuss Hubbard’s statement, and he told me Friday that he’s seen “positive signs” at The Post lately.

“What I sense is that everybody is getting a bit better about it,” he told me. “But in the end, there’s no police, so you have to have the integrity to want to attribute.”

That’s the bottom line, and as Knox points out, if reporters do a Google News search prior to starting a story, they can usually determine if their story has been reported previously.

That part is easy, which isn’t meant to imply that reporters or bloggers or others always do it. Or that it always works for various reasons.

But this issue has layers of complicating factors.

When does a news story become sufficiently established as to become a fact of life, free for the taking without requiring a tip of the hat or a wag of the finger to anybody?

Knox says the length of time you continue to give credit for a scoop depends on the circumstances. “If you come in a month later, and write a story about it, and act like you’re breaking it, that’s where you should recognize other people’s entrepreneurial journalism.”

Semi-retired Post columnist Fred Brown, who’s written on journalism ethics for the Society of Professional Journalists, told me that once the “candidates are making a big issue of the story, the originating organization loses ownership of it.”

He also said: “I think one of the ways you make the story part of the accepted history of the campaign [so as to no longer require credit] is to further it. If you turn up a new fact, you credit the originating organization once, but after that, it’s as much your story as theirs because you’ve done reporting.”

What about a reporter who gets a story idea from another publication and then confirms the story independently from the same or a different source?

Knox says this is a “red herring.”

“It doesn’t matter whether I got it from an individual source or a publication, I still acknowledge the publication that had it first,” he said.

I asked Brown what he thought a news outlet should do if it discovers later that it failed to credit the work of a publication that reported on a story first.

He first said he sympathizes with reporters who might miss something due to the large number of news sources out there.

Then he said he’d first have to be convinced that another news organization had the story right. If so, he said, to be fair and credible, he’d write a clarification, possibly for the archive, or mention it in a follow-up story, if there were one.

“It’s not a huge ethical issue,” he said. “It’s more a matter of manners, to go back and give credit to the originating organization.”

Brown goes on to say that the public doesn’t care about who got it first.

And even big scoops can’t do much for newspaper sales these days, when news consumers get the same big news instantly as it spreads across the media.

But scoops are far from meaningless. In fact, they’re really important. They show people that a news organization is doing its job, doing reporting, breaking news.

Giving a news organization proper credit for its work, and abiding by reasonable fair-use policies, displays a basic understanding that journalism isn’t free. Proper credit helps the outfit that dug up the news pay its bills, through its ads that you see when you click through to its website to read more.

The name recognition for getting proper credit also helps. The links help. The respect helps. It adds up, and gives everyone, bloggers and legacy media, a chance to survive based on their own work.

Why do I feel like a freak in America for loving elections?

Because most people apparently feel the opposite way about them. That is, happy that the election is finished, the ads gone, the polls stopped, the metaphorical litter off our doorsteps.

How should a journalist deal the reality that, on one hand, most Americans seem to hate politics and modern elections, but on the other hand, there are plenty of reasons some people love them: Because they’re so important. Because they’re such a spectacle, especially this year in Colorado. Or for the challenge they present in deciding how to vote. Or, actually, for their depth and complexity.

It’s obvious that a reporter should cover the things that people hate and love about politics…-to air out the anger and the issues involved.

But one thing political journalists should not do, IMHO, is make broad interpretive statements about how much Americans hate the political season, in the course of reporting stories that aren’t focused on people’s attitudes about the election process.

And, unfortunately, it isn’t hard to find evidence of Colorado journalists doing this:

For example, during a news show before this month’s election, a Fox 31 anchor turned to a political reporter and asked:

“Don’t you think there’s going to be a collective sigh of relief when this is over, not only for the candidates but for all of us?”

Similarly, during its 10 p.m. broadcast the night before the election, 9News concluded its piece on the next day’s voting with a shot of snowy mountain peaks and orange leaves falling in Denver, while the voice over stated:

“After tomorrow we can get back to why we love Colorado, but I’m sorry to say that the 2012 election and those images we’re sick of (image of ad with clip …billions of new job-killing taxes’) are not so far away.”

The Denver Post’s Spot blog lobbed a subtle and unnecessary salvo in mid-October, when it reported on a Michael Bennet event in Estes Park:

“It was the kind of blue-sky, golden-leaf fall day that can kick politics far down the list of local concerns-.

The underlying assumption in each of these cases is that if we don’t hate politics, we certainly don’t like it much, and, especially in the TV examples I found, we want the election to go away as soon as possible.

Maybe that’s mostly true about Americans today, but even so, why should a reporter reinforce this anti-election attitude, in such broad terms and in news stories that have nothing to do with analyzing the election process?

Doing this amounts to an anti-election bias.

Ironically, journalists who report in this one-sided way are undermining their own jobs by turning more people off to politics and helping to convince them to change the channel when the news comes on.

It’s also not in the public interest.

Asked about this via e-mail, 9News Political Reporter Adam Schrager pointed out a few of the ways that 9news’ networks’ election coverage serves the public interest.

He listed the “thousand-plus voter questions” posed to candidates, the series of hour-long commercial-free debates, the more than 50 “long-form analyses of political commercials,” other election-related coverage, and more.

He also wrote that “voters, myself included, are frustrated because they’re not shown the respect I’d argue they deserve in this process. I share that with the candidates and campaigns themselves so I don’t feel like I’m being two-sided in any way.”

Schrager thinks candidates and the public want elections to focus on a candidate’s “merits rather than on someone else’s demerits.”

He wrote:

Am I frustrated with how campaigns are being run? Without question.

Am I disappointed that candidates are being taken out of context in order to make a political point? Indeed.

Most importantly, am I saddened with how Colorado voters continue to be treated without the respect they deserve by candidates and interest groups that hide in the shadows peddling half-truths, empty rhetoric and outright falsehoods? Most definitely.

I always sign my latest book, …Democracy needs to be a participatory sport.’

There is nothing I do, either professionally or personally, that in any way turns people off to voting or …trashes elections.’

If I may be so bold, the folks who are paying you to blog and others on both edges of the political spectrum are already accomplishing that goal nicely.

Asked about his reporting from Estes Park, Denver Post reporter Michael Booth wrote:

“I’d have to say that of all the things I worried about with my reporting on politics, this was not among them. I agree that politics is policy, and people should care, and that it’s silly to continue bemoaning the nastiness of elections all the time. A good fight over policy and positions is exactly what makes these things interesting. But it’s also true that every time I met someone from outside the politics/journalism field, friend or new acquaintance, the first thing they said to me was, …I’m so sick of all the ads and I just want this to be over, don’t you?’ So there’s a benefit to occasionally let readers see in print that we acknowledge their pain, and that we understand not everyone is thinking about these things 24/7. Many, many of our readers would rather know it was a beautiful fall day in Estes Park, and keep that image in their heads the rest of the day, than to know Michael Bennet was up shaking hands in an Estes Park jewelry store.”

I acknowledge that my point is nitpicky, when you look at the enormous body of election coverage in, for example, The Post, and on 9News and Fox31.

And I know that journalists are right about people’s dissatisfaction with politics, and there’s plenty of evidence to back this up, like low voter turnout, hatred of Congress and political advertising, and a political culture that’s shallow and ill-informed.

And no one wants Suzy Sunshine reporters running around saying how great the electoral process is and that everyone loves it, especially on sunny days.

We don’t want to hear a reporter say: “We know you’ll be sad when the election season ends tomorrow. But look on the bright side. The 2012 election is just two years away, and meanwhile Colorado is a great place to live.”

So news stories addressing the dark and unpopular side of politics should be aired early and often. I definitely agree that our election process is flawed.

But the public interest isn’t served when journalists make sweeping statements, in the course of covering election events, about how much we all dislike politics and the election and how happy we’ll all be when it’s over.

That’s a form of media bias, however subtle, that could cause more destruction than liberal and conservative media bias combined.

At a campaign stop in 2006, the former Senator (R-VA) was repeatedly referring to a young man of Indian descent–who was volunteering for Allen’s rival Jim Webb–as “macaca.” Webb won. Allen’s videotaped “macaca moment” may have cost him the election.

Allen’s “gaffe” was serious–the term is a racial slur.

Still, with video cameras rolling at events large and small, from the beginning of a campaign to the end, we should take candidates’ gaffes with a grain of salt, because political campaigns shouldn’t be won or lost with the single slip of a tongue.

However, the ubiquitous video cameras on the campaign trail do more than catch gaffes.

They also show how politicians change their messages in front of different audiences.

That’s particularly important, nowadays.

Fewer journalists are assigned to trail political candidates, which makes it harder for us to know how candidates are fine tuning their stump speech and talking points as their campaigns progress.

This past electoral season here in Colorado, GOP Senate candidate Ken Buck was caught on video early in his campaign making statements that arguably later led to his narrow loss to incumbent Sen. Michael Bennet.

But Buck’s video-taped statements weren’t slips of the tongue. They weren’t “macaca moments.” They were policy positions that appealed to conservative voters in the GOP primary.

Republican primary voters were deciding between Buck and his Republican rival Jane Norton. Norton was viewed as more of an establishment Republican, while Buck was embraced by Tea Party groups.

With backing from the GOP’s  far right wing, including social conservatives, Buck narrowly defeated Norton.

But after Buck won the Republican Party primary, videos of Buck’s right-wing statements came back to haunt him.

They were used both by national groups and state campaigns to paint Buck as “too extreme” for Colorado.

In assessing his Senate bid after his loss, Buck told The Denver Post that Democratic trackers recorded video of him at 600 public appearances and took his words out of context.

A review of his statements, however, shows that videotapes of Buck mostly illuminated straight-forward policy positions that voters in the general election, as opposed to conservatives in the GOP primary, found disagreeable.

Many of the videos that hurt Buck weren’t shot by his opponents at all, but by his supporters, eager to spread the word about Buck’s ultra-right conservative views.

The statements that damaged Buck in these videos for the most part weren’t  gaffes but policy statements, which may never have come to light had they not been recorded on the campaign trail.

Video clips showed Buck telling various conservative audiences that Social Security is a “horrible policy,” the Veterans Administration and big chunks of the federal government should be privatized, and the Department of Education abolished. He also questioned the federal separation of church and state and the federal student loan program.

One clip aired repeatedly in TV ads showed Buck telling a Tea Party group during the primary: “I am pro-life, and I’ll answer the next question. I do not believe in the exceptions of rape or incest.”

The passion in his voice on the video contrasted with his statements later that he wasn’t campaigning on social issues, like abortion.

So campaign-trail videos, at least in Colorado’s U.S. Senate race, helped bring to light Buck’s policy positions–and also illustrated his heart-felt dedication to them.

That’s a role that journalists used to play in covering a campaign. They’d write about these kinds of policy shifts and nuances from start to finish. But with their ranks depleted, more of that role, especially in the early part of a campaign, is left to individuals, holding small video cameras near candidates in church basements or back-yard picnics.

I’d rather see professional journalists doing this. But at least we’ve got cameras on the candidates–even if some of them are operated by paid political operatives.

This op-ed was distributed by the Other Words syndicate.