Blogging vs. Journalism Question A Key Point In Compelling The Troll Tracker To Testify

from the we'll-be-seeing-more-of-these dept

Fri, May 9th 2008 6:14pm — Mike Masnick

While it looks like the attempt to get Rick Frenkel, better known as the "Patent Troll Tracker" into court on a separate patent-related dispute has gone nowhere, there's an interesting side dispute as part of this that touches on the age-old debate concerning the border of blogging and journalism. Frenkel told the court that since the Troll Tracker blog was a side project, not an effort of Cisco, and since he was, effectively, a journalist in writing it, he could not be compelled to testify since it "would result in a serious detriment to Frenkel's future ability to gather and disseminate news."

However, Frenkel's nemesis, patent attorney Ray Niro responded by scoffing at these claims, and ticking off the reasons why Frenkel should not be considered a journalist. Unfortunately, in doing so, Niro displays a rather profound ignorance concerning what it means to be a journalist (one would hope that his work with patent hoarders is not so sloppy). In the link above, Joe Mullin does a good job picking apart Niro's points, but let's take a closer look. First, Niro says Frenkel is not a journalist because he's unqualified:

"Frenkel has no degree in journalism; no professional training as a reporter; and has never been employed as a reporter or journalist."

If that's a requirement to be a journalist these days, then an awful lot of folks doing serious journalism work wouldn't be considered journalists either. There are no professional requirements to be a journalist. Second, Niro claims that Frenkel wasn't very nice in his posts, highlighting the Troll Tracker's rather amusing "haiku" contests, that tended to make fun of patent hoarders and (sometimes) Niro. Of course, there's nothing in engaging with your readers with amusing haiku contests that makes you any less of a journalist. Third, Niro says that since Cisco was Frenkel's employer, he's clearly not a journalist but something of a corporate mouthpiece. Of course, there's little evidence to suggest that Frenkel was doing anything on behalf of Cisco, but more importantly, (as Mullin points out) biased reporting doesn't disqualify you from being a journalist. If it did, how many "journalists" would still be around? And fourth, Niro claims that Frenkel was guilty of various journalistic ethics violations, such as writing anonymously (someone better alert the Economist) and not revealing his sources (always knew that Woodward and Bernstein weren't real journalists).

The simple fact is that you don't need a degree or a certificate to be a journalist these days. You just need to report the news -- and no one can deny that Frenkel did that. In fact, he was much more of a journalist than many "official" journalists these days in that he reported on news that wasn't getting covered anywhere else and did some pretty hefty investigative work on some to try to work out the details behind some of the patent hoarding company shell games. In fact, since he took down his site, the type of news he reported has been sadly missing from the discussions on patent law and patent reform. On that note, it's probably also worth pointing out that Frenkel said in his own filing on the case that he's planning to return to blogging at some point in the future.

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Filed Under: blogging, journalism, patents, rick frenkel, troll tracker

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Anonymous Coward, 9 May 2008 @ 8:50pm

COME BACK TO US
I'm very surprised that an employee in the US that is a US citizen can be forced not to talk about ANYTHING. Given what some lobbyists and protestors (and a few bigots) are allowed to say and when you question it BAM first amendment.

I hope Frenkel gets the Troll blog back up. I'd much rather hear detailed info on abuses of our legal system than whether or not some rich young star is sleeping with/marrying so and so or going into an asylum.

JOURNALISTS: Get some news that MATTERS and stop repeating babble.

When they do I expect to see four familiar faces riding along shortly after . . .
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Anonymous Coward, 9 May 2008 @ 9:03pm

This debate is moot. As Joe Mullin reported in part 1 of his recent series, the lawyers at Niro Scavone Haller & Niro have dropped their demand to depose Frenkel. So, for now, any question about whether Frenkel was as bona fide journalist is moot.

It might be reasonable to take the position that Frenkel was a paided corporate shill dishonestly pretending to be a disinterested journalist....

That position still wouldn't justify Niro's bounty.

If you subpoena a witness and then put a price on their head, then that should be go-directly-to-jail witness intimidation.

And when you put a bounty on someone before you subpoena them as a witness, well, the only reason for not seeing that as go-directly-to-jail witness intimidation is that it was a frivolous subpoena and Niro never actually meant to conduct the deposition. He was just abusing the court's process to harass Frenkel.

Anyhow, the Honorable Magistrate Judge Howard Lloyd should have acted to stop Niro's abuse of the court's process. But don't hold your breath on any sanctions with teeth.

Lawyers like Niro are above the law these days.

I hope Niro puts his next bounty on someone who's not afraid to pull the trigger.
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angry dude, 9 May 2008 @ 9:21pm

Come on, idiots
Frenkel should be disbarred for publicly defaming the opposing party's legal counsel while being a senior corporate legal officer in charge of that particular litigation against his corporate employer.

Can't see a little problem here, techdirt lemmings ?

BTW, the bounty was never paid.

The last thing those pissed-off patent attorneys from Texas (who forced Frenkel to publicly reveal his identity) needed was 15 grand from Niro
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Joe Harkins, 10 May 2008 @ 1:27am

wrong question = wrong answer
The First Amendment does not limit its protections to journos. They are neither a privileged nor a discriminated class. My rights, your rights, their rights - under the First Amendment - are the same.

The argument over who or what is a "real' journalist is an simply framing the debate in order to corrupt the outcome.

Once you reject the relevance of defining a special class, the whole issue is reduced to its purest issues.
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Fah, 10 May 2008 @ 9:48am

Re: Come on, idiots
It's not defamation if it's true. All of the things he posted regarding number of cases and the like are true.
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MLS, 10 May 2008 @ 10:46am

Re: Re: Come on, idiots
The defamation aspect of this situation involves certain things that were posted on the PTT blog asserting that attorneys in the Federal District Court for the Eastern District of Texas filed a lawsuit a day early, and then upon realizing their mistake had the court clerk change the filing date to make it appear as if the suit had been filed the next day. It turns out that his assertion was wrong. The suit had been filed on the correct date.

Even if Mr. Frenkel is able to succeed in having his actions declared as that of a journalist, it is doubtful he will succeed in having the attorneys he wrote about declared "public figures", a designation that would make it much harder for them to prevail in court. In all likelihood Mr. Frenkel will be held to the same standard of care as any ordinary citizen, and not be able to avail himself of the "reckless disregard" standard applied to journalist's reporting on the coming and going of public figures.

There is no doubt that PTT was a source of "news" of interest to a significant segment of the public. Unfortunately, all of its good work was drawn into question once his identity and that of his employer was revealed. It certainly did not help that his immediate supervisor, Cisco's General Counsel, was aware of the blog, its contents, and appears to have aproved of what was going on. By his actions he may have inadvetantly drawn Cisco itself into the defamation lawsuit.
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Joe Smith, 10 May 2008 @ 11:12am

inquiring minds want to know.
"It turns out that his assertion was wrong. The suit had been filed on the correct date."

The original filing date was changed. Inquiring minds are entitled to ask how and why that happened and to suggest that the changing of the court house records to make valid a law suit which was on its face invalid warrants closer examination.
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ehrichweiss, 10 May 2008 @ 11:15am

let him use...
...my friends' credentials. Seriously, I have at least 2 friends who have Journalism degrees and are doing absolutely nothing with them.

Regardless, you're correct, no degree or experience is really needed to be a journalist. I've worked at a newspaper and if that were a requirement we would never be able to put out anything but adverts.
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Kaze (profile), 10 May 2008 @ 11:30am

Re: Re: Re: Come on, idiots
While I would agree that Cisco may be drug into this, I must reiterate what was stated previously: Where's the defamation? If this case was heard in Texas, I understand why they were going for the "journalist" aspect.

From Texas state law:

"§ 73.001. ELEMENTS OF LIBEL. A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.

§ 73.002. PRIVILEGED MATTERS. (a) The publication by a newspaper or other periodical of a matter covered by this section is privileged and is not a ground for a libel action. This privilege does not extend to the republication of a matter if it is proved that the matter was republished with actual malice after it had ceased to be of public concern.
(b) This section applies to:
(1) a fair, true, and impartial account of:
(A) a judicial proceeding, unless the court has prohibited publication of a matter because in its judgment the interests of justice demand that the matter not be published;
(B) an official proceeding, other than a judicial proceeding, to administer the law;
(C) an executive or legislative proceeding (including a proceeding of a legislative committee), a proceeding in or before a managing board of an educational or eleemosynary institution supported from the public revenue, of the governing body of a city or town, of a county commissioners court, and of a public school board or a report of or debate and statements made in any of those proceedings; or
(D) the proceedings of a public meeting dealing with a public purpose, including statements and discussion at the meeting or other matters of public concern occurring at the meeting; and
(2) reasonable and fair comment on or criticism of an official act of a public official or other matter of public concern published for general information."

Now, I am not a lawyer, however the way I read that is that if someone wrote something about me, true or otherwise, that causes harm on my reputation, then I have a case of Libel. However, in Texas, journalists are "privileged" in that they can publish the information as long as it is true, accurate, and timely.

That is why (I presume) Mr. Frenkel was going for exemption under the "PRIVILEGED MATTERS" clause of the Texas Libel statute. Note, however, that I have not researched case law to support this.
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MLS, 10 May 2008 @ 11:41am

Re: inquiring minds want to know.
http://www.law.com/jsp/article.jsp?id=1205491400004
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Anonymous Coward, 10 May 2008 @ 12:17pm

Re: Re: inquiring minds want to know.
From the Texas Lawyer article:

“Holmes says the clerk's office did the correcting entry because of ‘a software or systems-type issue.’”

Federal court records were altered by the clerk's office.

The alteration in the records had a substantial and material effect on the posture of a case.

It's not an excuse to say that E.D. Texas clerk's office alters records all the time.

This stinks like the sulpher off an East Texas gas well.
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Joe Smith, 10 May 2008 @ 12:57pm

Re: Re: inquiring minds want to know.
From the article that MLS links to, in discussing the changes to the filing date:

"Anybody that knows the rules in the Eastern District knows that what happened here is exactly how business is conducted in the Eastern District," Patton says.

I guess that says it all...
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1st Amendment Crusader, 10 May 2008 @ 6:48pm

Hardly a new issue...
This is hardly a new issue. Just two years ago, Apple tried to force the publisher of a blog about Apple products (Apple Insider) to reveal the confidential sources of information that appeared on his blog. In support of its subpoena, Apple made precisely the same arguments the Niro Scavone firm made against Frenkel about bloggers not being "legitimate" journalists, and not being entitled to rely on reporter shield laws that protect confidential sources. The argument was soundly rejected by the California Court of Appeal. Here is what they said:

"We decline the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalism.' The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace."

The case is reported here:
http://www.eff.org/cases/apple-v-does

The kinds of arguments made by the Niro Scavone firm reflect disdain and disrespect for First Amendment rights and free expression generally. If the First Amendment means anything, it means that neither the government nor the court is allowed to decide who is "qualified" and "unqualified" to engage in free expression without reprisal.
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Anonymous Coward, 11 May 2008 @ 7:10pm

Oh, give me a break.

Changing the date after the fact does not make it right.
AD & MLS shills STFU.
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MLS, 11 May 2008 @ 9:18pm

Re:
There is a blog for lawyers, Patently-O, that first noted the "date" problem. Upon further investigation it was determined that the attorneys in Texas did not file the lawsuit one day early. It was determined that the lawsuit had been filed at one minute past midnight on the day that the patent in dispute went into effect.

BTW, I have absolutely no relationship to any of the parties, any of the attorneys, or any of the lawfirms. I simply believe it is important to discuss issues on the basis of accurate facts, and not internet hearsay.
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angry dude, 11 May 2008 @ 9:44pm

Re:
Drop dead, little punk

As a small patent holder I have my own personal interest in all patent-related matters and that's all to it
Never shilled for anybody and never will
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Anonymous Coward, 11 May 2008 @ 10:08pm

Re: Re:
> Upon further investigation it was determined that the attorneys in Texas did not file the lawsuit one day early. It was determined that the lawsuit had been filed at one minute past midnight on the day that the patent in dispute went into effect.

But that doesn't change the fact that it was first reported that the lawsuit was filed a day earlier and then changed. Thus, it seems perfectly reasonable (and not libelous) that the PTT asked why and tossed out possible scenarios.
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Anonymous Coward, 12 May 2008 @ 3:42am

Re: Re:
Upon further investigation ...

Upon further investigation by the same people who don't see any problem with a $15,000 bounty on a witness in a federal case?

When you start putting bounties on witnesses, you're going to get real good investigatory results there, mister.
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stv, 12 May 2008 @ 6:18am

from the “ it takes one to know one department”
from the “ it takes one to know one department”

There are no professional requirements to be a journalist...obvious from reading certain articles.

hefty investigative work..of course the difference is Frenkel was on the payroll of the firm he was reporting about. Then again, it appears to be a common practice these days, right Mike?
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Ronald J Riley (profile), 12 May 2008 @ 4:58pm

Re: from the â�� it takes one to know one departmentâ��
http://www.techdirt.com/articles/20080509/0305071072.shtml

Dare I express an opinion that Rick Frenkel is a Cisco stooge/shill and that I believe that they knew exactly what he was doing?

We have already identified who the handlers are of a number of bloggers who carry Coalition for Patent fairness water(better known as the Piracy Coalition). At some point we may start pitching stories to media exposing some of the connections between some very bad corporate players and those they have retained.

Tournalists tend to take a dim view of public relations people, especially when those people are using claims of being journalists to cover the real nature of their activities.

Rick Frenkel made some telling and ill considered remarks about the court. I am certain that the court will view those remarks as being made on behalf of Cisco and I am equally certain that the court will dole out appropriate justice to both Cisco and Rick Frenkel for their collective outragious conduct.

Ronald J. Riley,

Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.patentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (202) 318-1595 - 9 am to 9 pm EST.
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Ronald J Riley (profile), 12 May 2008 @ 5:12pm

Bounty is reasonable
The sum total of Rick Frenkel's remarks as Troll Tracker made it clear that he was closely tied to the Piracy Coalition. If there was any doubt as to the bounty being reasonable it evaporated as soon as we found out that he was in an UPPER management position at Cisco. Cisco is infamous in the inventor community for their large intellectual property appetite and equally for their entitlement mentality.

I think that Cisco is a founding member of the Piracy Coalition because they have incurred huge liabilities over unauthorized use of other's intellectual property.

I believe that people who value jobs and tax based which inventor's work creates should boycott use of all Cisco products.

Ronald J. Riley,

Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.patentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (202) 318-1595 - 9 am to 9 pm EST.
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Anonymous Coward, 12 May 2008 @ 5:25pm

Re: Bounty is reasonable
Holy crap, not this guy again.

Speaking out my ass.
Affiliations:
Hey look at me
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Anonymous Coward, 12 May 2008 @ 6:35pm

Riley,

Go tell your jokes about putting bounties on witnesses to Judge Posner. After all, he's a blogger. He understands the blogosphere. I'm sure he's just a laugh-a-minute about the federal court system's affirmative duty to protect witnesses.
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angry dude, 12 May 2008 @ 9:01pm

Re:
Hey punk

Frenkel could blog just about any fucking subject in the world except ONE thing: as a senior legal cousel for a corporation involved in ongoing litigation he should never ever try to publicly defame the opposing party's legal counsel. BIG RED STOP SIGN here.
I think as a minimum he should be disbarred
Thius is no fucking blogging
He publicly accused those patent attorneys of conspiring with the court clerk - a criminal felony

Got it now ?
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Moron in a hurry, 12 May 2008 @ 9:31pm

Guilty until proven innocent
Hey AD,

Doesn't he get his day in court ?
I don't think he is convicted yet, but keep your spirits up AD and go find your lynching rope.
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Ronald J Riley (profile), 13 May 2008 @ 5:23am

Re: Guilty until proven innocent
Yep, he gets his day in court, opps make that days. We all hope to see justice served. Heaven help both Cisco and Rick Frenkel if they get all the justice which they have earned.

I think that members of the Coalition for Patent fairness will probably be building another factory in China or some other low wage country to produce personal lube. They are going to need very large qualities of the product as they continue to be on the receiving end of JUSTICE.

Mike Masnick, while the Piracy Coalition and their stooges were predicting passage of Patent Deform I was telling you that it was going down in flames. And it did. One side was spending a great deal of time predicting an easy win while the other was quietly building coalitions. They lost, we won.

They think they are going to take another crack at passing the crap next year. We have other aces up our sleeves and they will get their asses kicked again.

Ronald J. Riley,

Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.patentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (202) 318-1595 - 9 am to 9 pm EST.
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Anonymous Coward, 13 May 2008 @ 5:38am

Re: Re:
Listen, Dude--

What makes you think anyone really gives two fucks whether Frenkel ends up getting disbarred? His career at Cisco is already over after his "banana republic of Texas remark". Cisco will drop Frenkel down one of those gas wells as soon as they get a chance to do it quietly.

Whether Frenkel ultimately gets disbarred or not is up to the bar disciplinary committee.

But if the federal courts don't protect witnesses, then there's no law left except the law of the knife and the gun and the noose.

The marshals may be more concerned with threats to judges than threats to witnesses. But the judges themselves --if they're honest-- --if they're not corrupt-- --if they haven't been bribed-- the judges themselves had better take threats to witnesses about as seriously as you can get.

The judiciary cannot tolerate bounties on witnesses.
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SomeGuy, 13 May 2008 @ 6:24am

Re: Bounty is reasonable
Hey Ron.

The more you talk, the less professional you sound and the more you resemble Angry Dude. We tolerate him in that curmudgeonly-old-uncle sort of way, but I expected more from you. Especially with all your credentials. Even though you're speaking on your own behalf.

Which is actually an interesting point, I guess. Maybe it matters that Frenkel didn't say (constantly) that he was speaking on his own behalf, but with your ad hominem attacks on Frenkel (and others), and attempts to pull Cisco down (suggesting boycott and tieing them tightly to Frenkel), and combined with said credentials (I imagine 'President,' 'Executive Director,' and 'Senior Fellow' are fairly 'upper management' titles), how is what you're doing any different than what he did?

I'll also note that the Coalition for Patent Fairness is not "better known" as the Piracy Coalition -- you are the only one I've ever seen call them that.

Anyways, I think it's immaterial as to who the Troll is or was or claimed to be regarding the bounty that was put on his head: that's witness intimidation. You don't do that. I don't care if he was the president of Cisco or if he were accused of an actual criminal offense, you don't do that sort of thing, and I think it's disgusting that Niro got away with it.

I like how you make vague accusations about "other bloggers" and "bad companies." If you have something to say, say it. Otherwise you're just white noise.
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Ronald J Riley (profile), 13 May 2008 @ 4:11pm

Re: Re: Bounty is reasonable
1) The only treat against Troll Tracker was that his ass was going to be sued.

2) I agree that Cisco will sacrifice Rick Frenkel when they can do so quietly.

3) The difference between Rick Frenkel and I is that I am not an attorney with a client speaking to an open case.

4) Those who are too spineless to sign their names and too stupid to avoid libel, starting with Rick Frenkel are the least credible.

5) TechDIRT is only marginally more credible than Slashdot. Both seem to be mostly made up of clueless sheep being manipulated by large transnational corporations.

Ronald J. Riley,

Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.patentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (202) 318-1595 - 9 am to 9 pm EST.
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Mike (profile), 14 May 2008 @ 1:23am

Re: Re: Guilty until proven innocent
Ronald,

Mike Masnick, while the Piracy Coalition and their stooges were predicting passage of Patent Deform I was telling you that it was going down in flames. And it did. One side was spending a great deal of time predicting an easy win while the other was quietly building coalitions. They lost, we won.

I'm not quite sure what that has to do with anything. As I've already pointed out to you (multiple times at this point) I was against this patent reform bill.

I'm not sure why you repeatedly insist I'm for it. I am very clearly on the record against it.

Oh well. I guess since you like to make up fake devils, you'll make up other strawmen as well.
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SomeGuy, 14 May 2008 @ 11:43am

Re: Re: Re: Bounty is reasonable
1) Then you admit (with vulgarity, nice touch in a civil discussion) that he was threatened. I rest my case.

2) Agree with who? I didn't say anything about Frenkle and Cisco.

3) This is the closest thing to a fair point you have; still, he was posting anonymously (as opposed to using his name or position to trump up his position) and using publically available information, so I'm not exactly clear on what his crime was.

4) Ouch, Ron, ouch. You cut me to the quick. Would it matter so much more if I signed as John Smith rather than SomeGuy? I don't 'not sign' out of cowardice, but because my identity is not pertinent to any of my points.

5) Like I said, you sound more and more like Angry Dude, no substance just personal attacks on those who disagree with you. If we're so clueless, educate us: show us where we're wrong and point out the errors in our arguments. But you don't. Just just sit their behind your credentials repeating the same statements over and over, holding that if we can't see for ourselves why you're right and we're wrong then we're too stupid to understand anyways.
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James Barnes, 11 Jul 2008 @ 12:51pm

Ronald J. Riley
After reading the dialogue between Mike, SomeGuy and Ronald J. Riley; I am at a loss to understand why Mike and SomeGuy even bother responding to his posts. SomeGuy has summed-up Riley's comments brilliantly by saying "you're just white noise."

SomeGuy's conclusion about Riley is correct, "no substance just personal attacks on those who disagree with you. If we're so clueless, educate us: show us where we're wrong and point out the errors in our arguments. But you don't. Just just sit their behind your credentials repeating the same statements over and over, holding that if we can't see for ourselves why you're right and we're wrong then we're too stupid to understand anyways."

Mike says, "As I've already pointed out to you (multiple times at this point) I was against this patent reform bill. I'm not sure why you repeatedly insist I'm for it. I am very clearly on the record against it. Oh well. I guess since you like to make up fake devils, you'll make up other strawmen as well."

Why lower yourselves to the level of Ronald J. Riley? You must know by now what you're dealing with.

James
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