Are Media Sites Delivering Their News All Wrong?

In February of 2017, the Director for Ad Engineering for The Washington Post’s Research, Experimentation and Development group, Aram Zucker-Scharff, posted to his personal blog about a better model for delivering the news.

Aram's specific gripe? A lack of evidence to support the design choices news organizations were making online: 

"Few, if any, media companies are backing up their design with user experience science."

Aram argued that not enough attention was being paid to actual user experience. 

By copying what the big guys were doing (e.g., innovating with screens cluttered with ad videos and too many choices), media sites were becoming less, not more, readable.

"The first value every site design should solve for is readability. The people who come to news sites are there to read. Yet bad design patterns that challenge readability don’t just abound, they multiply."

Aram's article struck a chord with me, because I've been urging the educators training tomorrow's filmmakers (and XR experience designers), to instill a deeper understanding of how human anatomy and human perception work.

Here's what Aram wrote about that:

"Understanding how our readers eyeballs work in the general sense means building designs informed not by trends or other news orgs, but by science. Much of that science is publicly available, waiting for us to use."


Aram came out in favor of inviting the users to participate in the design process. Because the tools for delivering connected experiences are increasingly two-way, opening up (in previously unrealistic ways) to user interaction is not only possible, it can actually help to build a sense of community and ownership.

"With better tools and connections into the community we can start driving better choices to impact how we build the news. The news media can start looking at atomic, delayed, or personalized news with the confidence that we can build whole new workflows for reportage that create better engagement with our audience."

German Federal Courts: Where IP Optimism Goes to Die

Remember what I said about Germany's highest Court recognizing an untrammeled right to sample a small portion of an existing musical recording

Because that's how hip-hop works.

Remember how excited I was when Germany's Constitutional Court - back in 2016 - wrote so eloquently (and logically) about how a 2 second long drum sequence from Kraftwerk’s 1977 "Metall auf Metall" (Metal on Metal) could be looped under Sabrina Setlur’s 1997 "Nur Mir" (Only Me) without requiring endless years of litigation - or paying hundreds of thousands of Euro's to lawyers and record companies?

Was I wrong to hope, back then, that the evolving American legal decisions - written by enlightened Judges, who favor a transformative fair use for economically inconsequential excerpts - had found a sympathetic ear in Germany's highest Court?

Well. Yes. And no.

While the highest Court in Germany clearly got how sampling could work in the 21st century, they also referred the matter back down to Germany’s Federal Court (mired in the 19th century?) to be reassessed.

And it's in those dreary German Federal Courts where optimism (for example, about copyright law evolving to suit the times) apparently goes to die. 

It isn't over yet. 

But, the latest news is grim.

In the now never-ending case involving that 41-year-old 2-second rhythm sample from Kraftwerk, Advocate General Szpunar writing for the German Federal Court ruled on December 12th, 2018 that:

"The aim of sampling is not to enter into dialogue with, be used for comparative purposes, or pay tribute to the works used. Sampling is the act of taking extracts from other phonograms, which are used as raw materials, to be included in new works to form integral and unrecognisable parts. Moreover, those extracts are often modified and mixed in such a way that all original integrity is lost. It is not therefore a form of interaction but rather a form of appropriation... I do not believe that it is customary in hip hop or rap culture to indicate the sources of the samples that make up the works belonging to those genres of music. In any event, it is not apparent from the order for reference that the appellants tried to indicate the source of the extract used in the song Nur mir or the names of the respondents... I therefore propose that [an exception similar to US notions of fair use provided for in Germany's Article 5(3)(d) of Directive 2001/29]... does not apply where an extract of a phonogram has been incorporated into another phonogram without any intention of interacting with the first phonogram and in such a way that it forms an indistinguishable part of the second phonogram."

In short?

You still can't sample in Germany without getting permission.

Even after the highest Court in Germany wrote in 2016 that Sabrina Setlur’s sampling of Kraftwerk's then 20 year old song had a “negligible” impact on Kraftwerk and therefore “artistic freedom overrides the interest of the owner of the copyright.” 

Address your outraged complaints to Advocate General Szpunar in the German Federal Court. (That's his picture above. And no. I didn't get permission to use the picture from CommRisk. Sue me.)

Knowing What is Unimportant

"What you know, you know, what you don't know, you don't know. This is true wisdom." 
- Confucius or 孔夫子 (551 B.C. – 479 B.C.)
On East 125 St. in Harlem there was a run-down storefront that I never visited. But? Whenever I rode the M-60 bus on my way to LaGuardia Airport, or returning home from a trip, I made sure to look out at the sign over the storefront offering "The Knowledge That You Know, But You Don't Know That You Know".
Logic told me that anyone selling that kind of true wisdom would have a better location. (The same process still has me suspicious of those neon signs offering psychic advice on the seedier sides of town.)
Nevertheless, I remain intrigued by that Harlem "Knowledge" sign. And worried. 
Am I spending too much time pursuing what I don't know (apparently vast)? 
Or? Put another - more foundational - way? Am I focused on the right things? What do I already know that is truly valuable? And what do I need to learn? And how should I learn? Can my personal learning and my teaching of others emphasize more internal and less external?
Why am I writing this today?
A provocative new (Sept. 2018) book by historian Yuval Noah Harari rekindled some of these lingering thoughts. E.g., How do I discern the useless knowledge that I already know from the useful knowledge that I already know? And? Is there knowledge that I might soon know? If only I knew how to access it?
In 21 Lessons for the 21st Century, Hararai writes that today's educators are wasting valuable time: Lecturing about substantive knowledge that is growing out-of-date faster than it can be learned.
One of Harari's key arguments is in favor of reshaping education's current emphasis on quickly outdated substantive knowledge with the ‘four Cs’ - critical thinking, communication, collaboration, and creativity.
OK. This may not be easy. But the sentiment rings true to me.
First, let's consider the downside: Would the world fall apart (or improve?) if teachers shifted their emphasis as Harari suggests to teaching how to "tell the difference between what is important and what is unimportant, and above all, to combine many bits of information into a broad picture of the world.
Second, let's consider the benefit of a radically different approach on the lives of today's teachers. 
One of the paradoxes my fellow educators are dealing with right now? We are paid to transmit knowledge but we know that new technology is making old ideas and old truths irrelevant at an amazing clip. 
Thoughtful teachers realize this. And as the most-dedicated (those who haven't simply given up) struggle to keep up with the tide of new information, I see many good young teachers burning out.
It's understandable. 
The ocean of available information (driven by mobile device connectivity, AI, social media, etc.) is threatening to inundate many old academic disciplines. 
The answer?
Perhaps students need to be exposed to a multidisciplinary approach -  co-taught by teachers from different departments - in modules where critical thinking, collaboration, communication, and creativity are encouraged. And teachers aren't required to share a corpus of facts.
After all, when simply sitting quietly to acquire knowledge yields rapidly diminishing returns, what do teachers and students really need to know? 
Maybe the answer is NOT to teach substantive knowledge at all. But instead? A new approach to learning.
A (close to home) example? Students enrolled in communications and cultural industries programs, if they are lucky enough to have a teacher who understands the current technology and business (rare), will almost certainly find their teacher exhausted. And the "information" the teacher can impart? That's already out-of-date at the end of a student's first year of employment. (Ha. A full year of employment? Straight out of college or grad school? In a cultural industry job? As the "gig" economy changes old ideas about work and compensation at an astounding rate?)
Another (final, I promise) example? It isn't just global warming that's causing the oceans to rise. The tides of new tech and data are washing away entire professions. I know. As someone who holds a law degree, I suspect there will still be people calling themselves a lawyer in 2030. But will many (most?) of them still be doing what a 2018 lawyer does? I doubt it.
Perhaps, I'm wrong. And the Old School teachers will ultimately prevail. As William Blake (1757-1827) wrote in The Marriage of Heaven and Hell (1793):
“If the fool would persist in his folly he would become wise.”
But me? I think educators at the very least need to have a vigorous dialogue about this. After all, William Blake also wrote:
"Without Contraries is no progression. Attraction and Repulsion, Reason and Energy, Love and Hate are necessary to Human existence."

Does Copyright Law Protect Pornography?

Let's start at the conclusion.

Yes. In the US, copyright law protects even pornography.

It's settled law.

Smut is no different under copyright law than the finest literature or the best music. 

So? Even the smuttiest smut can't be copied without the author's permission.

But - in his anger that a pornographer was trying to use his court to collect names of alleged downloaders to extort them -  a 73 year old judge may have recently gone too far - suggesting that porn's protection under copyright law wasn't settled law.

In (justly) swatting down the copyright trolls, it sure looks as if the Judge may have (unintentionally) undermined copyright law. 

Why does it matter? If the porn-producer-copyright-trolls lost?

It's the unintended consequences that have me worried. 

I'm worried that one overzealous (and kinda creepy) Judge set a precedent that others with censorious intentions might soon try to use? 

(Why do I say the Judge comes across as kinda creepy? First he seems to claim extensive knowledge of pornography - calling Strike 3's content not "run-of-the-mill porn". But then? He shifts to a weird moral high ground - calling their stuff "aberrantly salacious". Creepy.) 

Back to my main point? 

I thinks it's a mistake to build weapons to attack the trolls, if those same weapons can easily be turned around and used to attack artists who print or film or paint provocative or salacious stuff.

Here are the key facts: 

In his November 2018 ruling, Judge Royce C. Lamberth, of the DC Circuit, took it upon himself to quash a federal copyright infringement lawsuit - even before the plaintiff had identified who they wanted to sue.

The case had started because a pornography producer, Strike 3 LLC, wanted to subpoena an internet company (an "ISP") to get the names and addresses of customers who they alleged had downloaded one or more of Strike 3's films illegally.

But Judge Lamberth wasn't inclined to humor the pornographers. And he made his reasons for dismissing their motion to require discovery - to identify the alleged illegal downloaders - very clear:

"Armed with hundreds of cut-and-pasted complaints and boilerplate discovery motions, Strike 3 floods this courthouse (and others around the country) with lawsuits smacking of
extortion It treats this Court not as a citadel of justice, but as an ATM. Its feigned desire for legal process masks what it really seeks: for the Court to oversee a high-tech shakedown This Court declines."

My guess?

Judge Lamberth had heard about other porn producers (like the sleazy former lawyers behind the Prenda Group) whose business model was to seek discovery from ISPs for the names of thousands of individuals, only to threaten these thousands of internet users with exposure as porn fans and expensive copyright lawsuits unless they quickly settled.


I'm fervently against copyright trolls. They abuse the legal system to extort money from folks who might (or might not?) have downloaded porn. 

But in his effort to get Strike 3 out of his batter's box, the Judge may have thrown a bit too hard and fast inside. 

It's one thing to remind the copyright trolls that they need to respect his position and the courts. So? The Judge would be well within his rights to find that the plaintiffs could not use discovery simply to get names of people to shake them down - with no intention of actually following through in the courts.

But, the Judge hurled dangerous "chin music" (in baseball, "chin music" means a pitch that is thrown dangerously close to the batter's face) when he wrote in a footnote (on p. 7) that “it is unsettled in many Circuits - including this one - whether pornography is in fact entitled to protection against copyright infringement.”  

In fact? 

The Judge is wrong.

The copyright protection afforded to pornography is settled law. 

Everywhere in the US.

For a recent example, here's the relevant language in a decision from a 2012 7th Circuit Court of Appeals ruling:

“[Plainitff] specializes in the production and distribution of videos of black men engaged in homosexual acts. Although some people would disapprove of such a service there is no suggestion that it is illegal; and anyway the prevailing view is that even illegality is not a bar to copyrightability.” 

Randy Finch's Film Blog:

Thoughts from a film producer about making and distributing films.