There has been an interesting discussion on the bIPlog regarding Mary Hodder's posting of news regarding the status of the Online Policy Group v. Diebold, Inc. case. The original post is here: Diebold Case Gets Accelerated by Judge. The comments are here: Comments: Diebold Case Gets Accelerated by Judge.
The interesting discussion starts with a "John Simpson" pointing out that while the case was accelerated, the request for a temporary restraining order was denied:
You, like everyone else in the "blogosphere" that I've seen, fails to note that the judge DENIED THE TRO!!!! That's the story, certainly more than the fact that the case was "accelerated."
A valid and worthwhile point. Probably all would have been fine if John had stopped there. Unfortunately, John begins to go off the track when he continues:
So much for Berkeley's journalism school.
First, let me note that Hodder's post was factually correct. However, it was rather short and didn't note what some would consider the more important aspect of the ruling (though you likely would have to be a lawyer to know this). Still, a blog doesn't get a news posting the way John prefers and suddenly an entire institution is called into question? Get a grip, John.
The problem seems to be that John, in a common error, expects too much from blog postings:
With all your [Hodder's] talk about "creating discussion" and "evolving the discussion" and "foster[ing] the iteration of what we know about something," you seem to have forgotten the basic rules of journalism, i.e., don't publish before you know the relevant facts.
If blogs always waited to post until they had all the relevant facts, there would be many fewer blogs. There would be much less journalism in general. This is not to denigrate the gathering of all relevant facts, but simply to note that publishing on a timely basis sometimes prevents one from gathering every relevant fact.
In any case, unlike much traditional journalism, blogs provide something better than waiting for all the relevant facts ... they provide links that let readers do their own research and investigation to verify what the blog is saying. Let's remember that Hodder's post was factual and provided a link to EFF's document archive, where (as soon as it was posted) one could read the order itself (Order to Show Cause Re Preliminary Injunction and Denying Temporary Restraining Order [PDF]). Hodder may not have seen all the relevance of the accelerated schedule re the TRO, but she pointed interested parties to the sources where one could get more information.
So, in fact, John's argument is not particularly on point. Hodder had the facts right. What she didn't have was the subjective interpretation of the facts. If you are going to condemn journalists for getting subjective interpretation of facts wrong, then instead of saying "So much for Berkeley's journalism school" you should say "So much for journalism itself."
Of course, blogs have advantages when it comes to interpretation error. You get the meaning of the facts wrong (or even the facts themselves), you can update a blog and respond much quicker, just as this discussion has developed over the past 24 hours. A letter to the editor for a newspaper story would still be in the post office while this conversation has already developed quite substantially. As Hodder notes, blogs are iterative; they're not the "first draft of history," they are the "rough scribbled notes of history." Blogs are quick to err and quick to correct. Anyone who reads my blog postings knows that I often provide caveats based on a "quick reading" or "as the facts are currently known." If you are reading blogs for the definitive story, you've got the wrong medium.
The fact that you blame your ignorance on the EFF's web site is really telling (and so is the fact that your headline nearly mirrors theirs); they are a zealous, biased interest group whose statements should be subject to a high degree of skepticism, as should the statements of all such partisan groups. Or do such rules of fairness and accuracy not apply in the "blogosphere"?
John makes a big point about EFF being a "zealous, biased interest group." Interestingly, we know nothing about John's biases. We know he claims to be a lawyer, but that is all. For all we know, John represents Diebold. Who is John Simpson and what are his biases?
Moreover, Hodder wasn't hiding where she got her information from. It is sad that Diebold is not hosting a similar resource to EFF's or releasing alternative press releases, but I'm sure if they did Hodder would have linked to them as well.
In any case, bIPlog doesn't claim to be "objective." The mission of bIPlog is "to advance the debate over intellectual property by aggregating noteworthy, factual information with thought-provoking commentary." I know that bIPlog tries to be fair and accurate, but that doesn't mean unbiased. Of course, being opinionated means that sometimes you are wrong. It isn't the end of the world when that happens.
You are at a journalism school! Practice some journalism! Call the lawyers -- on BOTH sides. Call the court -- try to get a copy of the order. Ever heard of "shoe leather"? "Pounding the pavement"? Or is that considered old-fashioned in the blessed "blogosphere"? If this is what they teach at journalism schools these days, Lord help us all.
John's complaint is that a blog at a journalism school doesn't practice traditional journalism. It is a blog, John, not a newspaper. The rules haven't yet been set in concrete, but they probably don't include treating posts the same way one would treat an article in the newspaper. Blogs are quick and dirty, with lots of links. This doesn't mean that you won't sometimes practice traditional journalism (I've been known to make a few phone calls myself and go to courthouses), but most people I know expect blogs to rely more on secondary sources then primary ones.
This doesn't justify "inaccuracy, unfairness, or, frankly, laziness," but one has different expectations for a blog than one has for a newspaper, just as one has different expectations for a law journal article as opposed to a legal newspaper.
Anyway, John's problem with Hodder's post wasn't that she had the facts wrong, but that she didn't interpret them in a way that John thought proper. Memo to John: Non-lawyer journalists frequently misinterpret legal holdings (that is why they are journalists, not lawyers). It isn't a good thing, but it is hardly cause to cry "Lord help us all." The polite way of responding to journalists who lawyers believe have misinterpreted a legal holding is to simply point out a better interpretation - without essentially calling the blogger an embarrassment to journalism or denigrate the "blogosphere."
As far as the substantive aspects of John's arguments, I agree that EFF is stretching their legal arguments (EFF, Stanford Support Diebold Countersuit). However, I also have to disagree with John's prediction:
I am fairly confident that the judge will NOT issue the order requested by the EFF, i.e., one forbidding Diebold from issuing C&D letters. I predict that the judge will find that such an order would be clearly barred by the First Amendment.
I predict that the judge will NOT have to reach constitutional issues to deny EFF their requested relief. I predict that the judge will be able to deny the order on grounds other than the First Amendment.