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ethical models -- Potter Box ()

A Resource-Rich Solution to Journalism's Woes (John H. McManus, reviewer)

journalism' tangled web -- business, ethics and professional practice. (ian richards, in meyers)

notes on potter box ()

Serving the Public and Serving the Market: A Conflict of Interest? (John McManus)

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           #2993   Created 11/07/2011   Updated 12/18/2015

"Reporters, however, are the real journalists  the meat of the news operation. They get the story. They write the articles. They broadcast their reports. Without them, the rest are just sailors without a ship." --Cheri Jacobus, THEHILL.com


This paper examines the general practice of content aggregation by the "the Press", placing the practice within the the contexts of copyright, professional practice, economic structures, and the needs of citizens. These practices have different implications for journalists, and the organizations employing them. These practices also have implications for the roll of the Press in society. This paper examines how journalists may parse their roles as they copy, instead of seek, the news.


Journalism is in transition. Its boundaries are expanding as the 'journalist' space swells to include many outside the traditional journalism profession. The market for journalism is changing as technological transitions affect the way citizens consume news. And the fortunes of traditional journalists are changing, as decreased revenue is placing cost-of-production pressure on traditional journalism practices.

In addition, the very product of many traditional journalism businesses--the news--has become the 'Fair Use' content of thousands of Web sites and services. The aggregation of previously published news into new web publications now competes for attention with traditional journalism businesses. This practice spreads far beyond the confines of journalism, as well. Content aggregation forms a substantial part of what is known as the "Fair Use Economy", composed of companies that reuse content for a variety of purposes beyond re-purposing news for Web sites, including "manufactureres of consumer devices that allow individual copying of copyrighted programming, educational institutions, software developers, and internet search and hosting providers (Rogers, 2011, p. 6). The Fair Use economy includes companies that generated an average of $4.6 trillion in the U.S. economy in 2008-2009, and employed more than 17 million people (P. 6-7).

Almost all regular publications engage in some form of content aggregation; many publications are composed entirely of aggregated content. It is the primary operating characteristic of Web technology, reflected in the capabilities of the HyperText Markeup Language (HTML) and the Hyper-Text Transport Protocol (HTTP), the markup and communication standards of the World Wide Web (cite). And, not insignificantly, it is a central component of human behavior, as we all mentally gather bits and pieces of information to weave our daily movie.(cite)

Is this "real" journalism? A term commonly used when discussing what "journalism" isn't, "real journalism" is using ethical standards (truth, fairness, accuracy, discretion (LOOK UP HERE AND CITE) and practices (objectivity, verification, style, timeliness (LOOK UP HERE AND CITE) to gather the news, with the intent to disseminate it (cite LOOK UP HERE AND CITE), using certain techniques of structure and storytelling (LOOK UP HERE AND cite). While aggregated content can be the result of this process, it may not be the best, most important use of journalists' skills.

We can crudely apply Aristotle's "Golden Mean" to this question, as we see whether the mean defines the extremes, or the extremes sets the mean. In this case, the extremes would be a the "Aggregation Extreme", a publication (pamphlet, broadcast, website, etc.) composed entirely of aggregated content assembled by an administrative assistant, or a the "Reporter's Edition", a publication composed entirely of original content that was reported, written, edited, and verified by professional journalists. Under ideal conditions, both can be profitable, and both can be created without causing harm to others.

If we evaluate these publications economically, from the perspective of a stockholder or business manager, we may find that the "Aggregation Extreme" is very efficient to produce, with little cost beyond the editorial assistant's $12 per hour wages (footnote: arbitrary number that I made up), while the "Reporter's Edition" may cost hundreds of dollars per item journalists' time (Doctor, 2010).

If we evaluate these publications constitutionally, from the perspective of the role of the Press in a democratic society, we may find that the "Aggregation Extreme" has little value, while the "Reporter's Edition" may be found wanting.

Somewhere between these extremes lies the Golden Mean. The ratio between the quantity of aggregated (copied, borrowed, leased, rented, stolen) content and "real" journalism is a measure of the power relationship between the economic interests of a publication (ownership, through the publisher), and the obligations of journalists, as "Aristotle was no relativist on this score: The extremes are measured by the right thing to do, not the other way around" (Cunningham, 2009, P. 8).

Cunningham, S. (University of W. (1999). Copyright © 1999. All rights reserved. Journal of Mass Media Ethics, 14(1), 5-15.


Content aggregation practices are sometimes standardized in newsrooms, with approved sources and procedures. Those sources often include services (such as the Associated Press), in-market competitor's publications, publications from nearby communities and states, national publications, trade and business publications, and private publications (Church bulletins, organization newsletters). If done properly, content aggregation is legal. It might even be a good idea, in terms of keeping the citizens of a Democracy generally informed about the world around them. And it is certainly an economically advantageous strategy to take when considering with publishing budgets, as copying is cheaper than creating.

But is it the best thing to do? Does it satisfy journalism's self-defined mission? Does it comport with the highest ideals of Journalism? And, most importantly, who does this practice serve, and where does it cause harm?

This paper lifts each foot our three-legged ethics problem (the legal context of aggregation, the role of the press, and the various roles of the journalist). It also examines the difficulties in applying standard journalism ethics constructs to problems that span the disttance between journalistic practice and business considerations.

ethical model:

kidder's checklist or the potter box.

The Legal Context of Content Aggretation

Content aggregation is collecting material produced by others for re-use as part of the content of a publication, broadcast, website, or web "stream" or "feed." In its simplest form, a Web search engine that finds lists interesting stuff is a content aggregation process. Similarly, an entry-level employee at a weekly newspaper, reading the weeklies from neighboring towns for items to harvest, is an aggregator. On a larger scale, Google News is an aggregator as it reads every online news source, categorizes their contents, and presents their items, juxtaposed with thousands of similar or identical items from hundreds or thousands of publications.

Content aggregation is governed by copyright law, which defines the ability the use copyrighted material through "Fair Use". Although copyright violations are considered a form of theft, the legal basis of copyright does not come from real property rights, which gain their legal status through the "Due Process" clause of the U.S. Constitution(CITE). Rather, copyright has descended from the early days of the printing press, when the protection only covered the artifact produced by the printing process: an exact physical copy of a printed work.

The original copyright act, The Statute of Anne (Copyright Act 1709 8 Anne c.19) protected the "the exclusive right to print and sell verbatim or near-verbatim reproductions of a particular text" (Bracha, 2006, p. 3). "Copy", in this sense, meant a substantial physical reproduction of the original; the same words, the same arrangement of characters on the same-sized pages as the original, with the same number of pages and illustrations as the original, the same cover, etc.

Queen Anne's act institutionalized a specific instance of the production of consumer goods, granting to a specific trade the rights to profit from the creative works of others. While the role of the author has been historically romanticized, the early history of copyright law focused more on controlling the rights to profit from reproduction of copies(cite). Case law through the 18th and the beginning of the 19th Centuries had favored the view that alternative versions of copyrighted works--abridgments, translations, rewrites--constituted new works, thus evading copyright restrictions (cite).

The pressure of market forces, including the popularity of books translated into other languages, abridged versions, and other "derivative works" created pressure to acknowledge the rights of authorship, which introduced the legal concept of intellectual property (Bracha, 2006, p. 86), "an intellectual essence that could take a manifold of concrete forms." Copyright was postulated as the mechanism to regulate the management of rights in "this elusive intellectual essence, irrespective of form" (ibid, p. 86).

This concept was cemented into copyright law in 1841 in Folsom v. Marsh, wherein Judge Joseph Story grounded the "Fair Use" of copyrighted material in the degree to which the "market value" of the original work was affected:

"It is certainly not necessary, to constitute an invasion of copyright, that the whole of a work should be copied, or even a large portion of it, in form or in substance. If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto" (Folsom, 1841, p. 348). (Folsom v. Marsh, 9 F. Cas. 342 344 (C.C.D.Mass. 1841)).

The subtle legal shift behind this concept moves the legal attention from the actual, physical artifact -- the book or other printed matter -- to the potential market value of the intellectual property. This was highlighted by George Ticknor Curtis, who wrote that "while the public enjoys of reading the intellectual contents of the book to the author belongs the exclusive right to take all the profits of publication" (Curtis, 1847,pp. 237-238). (George Ticknor Curtis, A Treatise on the Law of Copyright (Boston: C.C. Little and J. Brown, 1847).

This was institutionalized in dramatic fashion by the U.S. Congress in 1870, with adoption of an amended copyright act to specifically prohibit unauthorized translations of copyrighted works" (Bracha, 2006, p. 84), effectively deprecating the "exact copy" concept. Thus, the idea of controlling the production of copies as the basis of copyright law "was destabilized the moment the focus shifted toward protection of market value" (Bracha, 91), which transferred the emphasis to that of a "general control over an object of ownership" (Bracha, p. 93).

This places the legal context of content aggregation within economic considerations, with the gauge being the relative potential economic harm to the copyright holder. A clear effect of this shift is the use of copyright to "control any aspect of the intellectual work, irrespective of medium, format or form" (Bracha, 2006, 94). And a clear effect of "Fair Use" was to open the door to the reuse -- and abuse -- of the most significant part of the Journalist's product: the lede.

The significant concept is the relative value of the extracted--and republished--work. Relative to what? In advance of infringement, there is no absolute measure of the value of a fragment of text, or a snatch of or audio or video, other than the estimation of its proprietor. Upon infringement, however, the copyright holder can proceed in civil courts, or file a complaint in criminal court to seek remedies, including fines and seizure. Penalties can be statutory (up to $150,000 per infringement, at the court's discretion) or based on the infringer's actual profits, less deductible expenses and the elements of profit attributable to factors other than the copyrighted work (U.S.Copyright Law, Title 17 Chapter 5 Section 504 Remedies for Infringement: Damages and profits).

But the cost of prosecution is high, and the potential benefits are zero unless there is a violation of the boundaries of Fair Use.

=================================================== Roles and Ethics

Freedom of the press is constitutionally defined, but the role of journalists changes, depending on the nature of the task. The same person can be a reporter in the morning, an editor at noon, and a file clerk by tea time, and a citizen in the voting booth before dinner. As the specific person moves from role to role, the nature of their obligations and duties changes, as both are role-dependent.

Roles are relevant to ethics. The obligations and duties of the journalist differ from those of the publisher, the advertising salesperson, the receptionist, or the delivery driver. Although they are all parts of The Press, being employees of the institution, they do not all perform constitutionally-protected activities. While driving a truck and answering the phone may be part of publishing a newspaper, the driver of a truck loaded with newspapers has no more rights than the driver of a truck loaded with drugs, hard goods, or livestock. But any individual engaged in the act of collecting information with the intent to use the materialsought, gathered, receivedto disseminate information to the public (Second Circuit in Von Bulow v. Vonbulot (1987) (ugland and Henderson 247) are different. They are journalists, under the Constitution, because of their behavior and intent.

Erling Skorpen draws a line from the ideal of individual liberty to the need for a democratic society. Just as individual liberty needs a democratic society in order to thrive, he reasons, a democratic society needs informed citizens in order to thrive as a democracy, as it is the active participation of citizens that constitutes democratic action.

The journalist, he writes, may well owe his or her professional regard for truthful reporting to everyones need for news  a critical element in a democratic society. He notes that humans have always needed news of events, both local and remote, not only because they are curious, but also because of genuine need for information about conditions, dangers, and opportunities.

Skorpen concludes that the constitutional provision for a Free Press acknowledges that any society deprived of news essential to responsible citizenship is more vulnerable, not only to natural disasters&but to political upheavals imperiling peace and freedom (p. 159). News along cannot guarantee liberty, but it is necessary along with citizen resolve, social justice, domestic tranquility, and Jeffersonian vigilance (p. 159-160).

If news need accounts for journalistic practice, it also occasions what Pellegrino and Thomasma saw as the act of profession, a promise made to another person in need and therefore existentially vulnerable (Pellegrino, 1981, p 210). By professing to be journalists, as Skorpen maintains, journalists expressly or tacitly profess that they are uniquely concerned and qualified to report and edit essential news and background for the news needy and thereby create the expectation among news recipients that their efforts will be conscientious and thorough and will take on an inequality relative to them because of their special training, knowledge, and skill in news gathering (Skorpen, 1989, p. 160).

Journalists roles, then, can be sharply defined by their own claims to truth, accuracy, fairness and autonomy, but are based on the information needs of a democratic society. Similarly, the ethics of journalists, it can be argued, are derived from the validity of their claims, and measured by journalists adherence to them.

Society's 'information needs' are sometimes conflated with the public's "right to know". Candace Gauthier cites general acceptance of the notion that the public's right to know "provides the moral basis for the journalist's freedom to gather and disseminate information" (Gauthier, 2009, P. 1). The phrase "right to know" was credited to then-AP General Manager Kent Cooper by New York Times in an editorial on January 23, 1945 (Cross, 1953, p. xi).

Cross, H. L. (1953), The Peoples Right to Know, Columbia University Press, New York, 405 pp. p. xi.

The "right to know" is not specified in the Constitution or Bill of Rights, but is implied in certain ways. The functioning of a participatory democratic is predicated on an "informed citizenry" and "information that is truthful, complete, and trustworthy" (Richardson, 2009, P. 53). The right to free speech, and the right to a free press, presuppose the free flow of information, without which those rights are hampered by misinformation and ignorance. Fink (1988) [Fink, C. (1988). Media Ethics: In the newsroom and beyond. New York: McGraw-Hill.]

While the perception is that the "people" have the right to know, Gauthier notes that it commonly represented in case law and legislation as "a right belonging to media" (Gauthier, 2009, p. 198). "The primary purpose of press rights to gather and publish information is to promote informed political and person decision making through a mechanism of public discourse" (P. 198). She reasons that the people may have a "moral right to know", but that "right" is "often interpreted in terms of the media's right o access and publication" (P. 199).

Montague (1997) cited the "right to know" as one of the moral rights that belong to society's members, but that it did not constitute a universal right to all information, but to information "regarding their physical well-being" or "to determine how and by whom they are governed" (Montague, 1997, p, 75).

Montague, P. (1997). Government, the press, and the people's right to know. Journal of Social Philosophy 28(2), 68-78.

Journalists' roles, then, can also be sharply defined by their obligations to the members of a democratic society, who need certain information to guard their own welfare. In this sense, journalists are "free" to act in certain ways with "regard for--and with reference to--the general welfare of the community" (Glasser, 1986, p. 93). This is an expression of the 'social responsibility theory' of the press, which "recognizes that rights granted to the press by the First Amendment are necessarily accompanied by responsibilities, particularly to the public interest and the well-being of a democratic community" (Gauthier, 2009, p. 200).

more on roles here ==================abrupt transition=============

Consequently, current interpretations of the First Amendment do not distinguish between individuals and the Press. Media institutions have argued that the press has special duties and special obligations under the constitution (cite), and therefore should have special rights to fulfill those obligations. Justice Potter Stewart (1975) argued that the press status of a litigant is constitutionally relevant and that media litigants should be afforded special rights, a reporters privilege & not available to the public generally, which he described as essential to facilitating the organized, expert scrutiny of government (ugland and henderson about page 245).

(ug & hend wrote) One of the courts principle concerns was that recognition of such a privilege would define a group of citizen reporters apart from all citizens. This was a questionable procedure, the Court wrote, in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photo-composition methods. (p. 704) The Court had earlier ruled that freedom of the press comprehends every sort of publication which affords a vehicle of information and opinion (Lovell v. Griffin, 1938, p. 452). 246

Journalism ethics come to focus at the tip of the spear, where the greatest dangers exist. Here, the reporter is active in the field of relations with sources, editors, individuals, institutions, events, issues and ideals. Here, the journalist can create good, and can cause harm. This is the field of most ethical consideration, at the point where the enormous power of the press can become a force in the lives of individuals.

Little is said, however, about the ethics further down the shaft, where the hands of clerks and assistants and cub reporters shape and process the bits and pieces of the news. While the reporter is clearly in a position that requires a sharp sense of ethics, the editorial assistant, the classified clerk, the copy editor, the business manager, the advertising staff -- even the reception desk -- all handle material destined for publication. They shape and process this information as it moves through the system, adding or subtracting details, providing or obscuring context, enlarging or contracting scope, and, always, trimming to fit the scare resources of page space, staff bandwidth, broadcast time, or available sponsorship. The press of production schedules, the events of the day, the momentum of the institution all conspire to render minor ethical concerns in drab and gray clothing. Clifford Christians wrote that a predilection toward utility ensconces the status quo. News values and conventions are confused with ethical principles, and the agenda is left to minor questions around the edges of professional practice rather than struggles over the foundational and structural issues (Clifford, 2007, p. 113).

Even as ethical questions are left largely to journalists, alone or in conversation, the ethical roles of the institutions are submerged in the economic imperatives. Journalists resolve ethical questions in the first person, evaluating their own actions against the potential benefits and harms to various sources, clients, audiences, and to their own employers. But journalism is part of a business, the business of publishing, and there are aspects of the business that are not necessarily operated by individual journalists, but are clerical and administrative aspects of the publishing system.

The business, meanwhile, concerns itself with the effects of different journalistic, production, distribution and employee-management practices on profits and losses, operating margins, labor and production costs. Clark Gilbert, named as President and CEO of Salt Lake Citys Deseret News, estimated the cost of journalism as $250-$300 per staff-written story; $100 per stringer story; $25 per Associated Press story; $5-12 for remote stories, largely written by the emerging class of bloggers (Doctor, 2010, p. 1).

Ken Doctor, N. J. L. (2010). The Newsonomics of story cost accounting, 1. Cambridge, Ma.: Nieman JFoundation at Harvard. Retrieved from http://www.niemanlab.org/2011/04/the-newsonomics-of-story-cost-accounting/ Accessed November 28, 2011.

By comparison, the cost of adding one item of aggregated content is insignificant. Select, copy, paste. Betsy Morgan, formerly CEO of the Huffington Post, says that news aggregators like the Huffington Post generally field content that follows a cost-saving strategy of one-third original professional content, largely reported journalism; one-third voice and opinion; and one-third aggregation (Doctor, 2020, p. 1). The high-end costs of reported journalism are contained to a third of the product, and the rest filled (opinion, bloggers, aggregated content) by staff and by persons willing and eager to contribute their content for littleif anypay.

Within most newsrooms, material from different sources is edited in different ways. Originally produced stories, written by reporters, are submitted through the editorial copy-editing chain (the copy desk), submitted to a fact-checking process (usually by the original reporter, but often by editors as well). Other kinds of material -- announcement and press releases, market data, weather forecasts and reports, and material sourced from other publications (the prime source of aggregated material) is often processed for reuse without similar critical review.

In situations such as these, the institution themselves assume a role in determining the nature and tone of the overall news product, and has a direct influence in shaping the characteristics of the individual components of the published product. The Devil, being in the details, is consequently present at the institutional level, as well as sitting on the reporters' and editors' shoulders. As Painter and Hodges discussed, these dual levels of accountability raise the issue of whether organizations or institutions themselves are morally blameworthy for acts that can truly be collective in nature (Painter, 2010 p. 260). While scholars have traditionally maintained that autonomous moral agency is in the realm of human, it is often the case that institutions, states, and even marketplaces make such decisions. Lawrence Souder notes McChesneys linkage of informed citizens, democracy, free press and [flow of] information implies a free-market model of ethics that is apt for global media because the free market has the power to make moral choices and that the health of the free market depends on such choices (Souder, 2010, p. 10)

It at this vague level that the practice of aggregation operates, not so much as the actions of individual journalists (although individuals are involved), but often the cumulative actions of multiple persons, sometimes operating in multiple roles, sometimes acting as management in defining and determining products and procedures, sometimes clearly acting as journalists who are aware of the roles and obligations, and sometimes acting as employees of a business who perform clerical tasks under the supervision of others, who may or may not be journalists.

In effect, this complex situation within a publishing business, where aggregation of content is not so much an act of journalism as it is an act of production--the production of a commodity to put before consumers, for the purpose of consumption--mirrors the dichotomy between "top-level" journalism, (cite) as practiced by established media, and "citizen journalism", which is emergent in many forms on the World Wide Web, and in which content aggregation plays a major role. Souder notes that the media themselves present special ethical challenges because of the apparent tension created by corporate ownership between the search for profit in the marketplace and the search for truth in the media (Souder, 2010, p. 54).

And it is the search for truth that forms the ethical context with which to evaluate content aggregation. The truth of The Press is that it is an economic entity, a business, created within the context of a capitalist, commercial state. The constitutional foundation of The Press is an afterthought to the Constitution, tacked on as an amendment following the Constitutions elaborate description of borrowing, credit, banking, bankruptcies, regulation of interstate commerce and commerce with the Indian Tribes, coinage, weights and measures, counterfeiting, securities, piracies, taxation, tariffs, duties, imports, and exports (Constitution For The United States of America, September 17, 1787. Accessed from http://www.archives.gov/exhibits/charters/constitution.html on November 8, 2011).

It is appropriate, therefore, to consider the role of Journalism from within the context of a capitalist economy, and from within the context of an economic institution inside that economy, a publishing business. The foundational concept is liberty, expressed equally well by both the free market and by free speech. Further, the press is constituted in the First Amendment as essentially immune from government regulation, but unprotected from other forces, including the forces of business. The Press, in the United States, is both a member of, and the representative of, the business community, and is placed in a deliberately adversarial position vis a vis the U.S. Government.

Against this harsh reality, we stack the lofty logic of journalism ethics, which is based in those same Constitutional provisions.

Constitutionally, the definition of "the Press" is sparse, and has been parsed through case law as meaning "individuals who collect information with the intent to disseminate" (cite). Consequently, "the Press" includes traditional journalists, other employees of publishing companies, individual public communicators, second-level community journalists operating in any medium (cite), web publishers, bloggers, search engines, wiki-based content projects such as Wikipedia, and more. It has to be expansive enough to accommodate the "guy in his basement with a mimeograph". (find the damn cite)

Ethics of Aggregation

review ethical models

DISCUSSION who is a journalist?

constitutional aspects of journalist

kinds (levels) of journalist

journalists bound by ethics

ethics developed by journalists within economic context

ethics consequence of journalism standards (objectivity, accuracy, etc.)

standards consequence of ideological, technological forces

both in service to institution, capital




Journalists need to get over it, and figure out how to propagate their ethics throughout the rest of the journalism universe. They need us.




Copyright Dennis R. DuBe'. All rights reserved. PageTwister and PubSource are registered trademarks.