Category: Copyright

Copyright law and copyright cases

Categories
Copyright

A quiet take on the AP

Recovered from the Wayback Machine.

Some people are still “waiting” on the AP to deliver a definitive guide to what can or cannot be copied of the AP material without risk of a DMCA notice. We really don’t need to wait, nor do we need anything from the AP. We have copyright laws in this country, and they include the concept of “fair use”, which we can continue to use as guide for our own writing.

People do need to look at how they quote and use other’s work. If you feel that your use is justified and covered under Fair Use provisions, than full speed ahead and damn the consequences. You may be served a DMCA; you may not. Receiving one is not a judgment, and you won’t be pulled into jail. In fact, you don’t even have to respond by pulling the material if you really feel you’re on the side of the law.

I wouldn’t necessarily expect that you would get legal help, though. This environment tends to favor the noisy and the known. If you’re neither, chances are you’ll be on your own if you get a DMCA. That doesn’t mean you shouldn’t feel free to quote others, or to use AP material. It just means that you have to accept the consequences of your actions when you publish online, and use other’s material.

As for the AP’s DMCA notices being supposedly based on title and lede/lead, alone, whereby the lede is the first few sentences of the story, I think we were misdirected into focusing on the content of each individual quote, rather than the context of all the quotes, combined.

AP licenses entire stories, but it also licenses a feed of AP news items reflecting just the title and lede of the story. You can see an example of licensed material at the Huffington Post. Notice that the copyrighted material in this context is not limited to an individual story, but to the grouping of titles and ledes for several different stories.

People have been making an assumption that the AP is upset that people are quoting one title, and one lede. We’ve ignored the hints given in relation to Drudge Retort that it was a pattern of posting, of quoting multiple titles and multiple ledes over time that ultimately resulted in the AP issuing the DMCA.

If we consider that the ledes are only 30 or 50 words, it seems unreasonable for the AP to resort to the DMCA. However, if something like the Drudge Retort duplicates 3, or 5, or more of these syndicated story titles and ledes, what the site is doing is actually “copying” what amounts to 10, 30, 30% or more of the AP copyrighted material— not a few words of an individual story, as first discussed.

If the AP charges a site like the Huffington Post to publish this syndicated set of titles/ledes at the site, and something like the Drudge Retort is duplicating a significant number from this set, using virtually the same titles and lede wording, without adding additional commentary, the Drudge Retort could very well be violating the AP’s copyright, and doing so in such a way as to cause financial harm to the AP.

The issue really is, and the AP stressed this, copy and paste publication. If you copy and past the title and the lede, add no commentary, you’re not adding value to what you’re publishing. You’re just duplicating the content. There’s nothing wrong with pulling out an individual quote from a story you like and publishing it by itself. However, if your publication falls into a pattern that is very similar or even equivalent to an individual or group’s copyrighted publication of the same, don’t expect to get all huffy because you only publish a few words from each story.

We shouldn’t extrapolate from the AP to something like delicious or the Planets (RDF, Drupal, Intertwingly, and others), because they’re not the same. I don’t know of anyone that licenses their syndication feed and would feel financial harm if this syndicated feed was republished with a group of others. The purpose of the Planets is to give exposure to individual publications/people who do not get exposure from being part of a major news source, like the AP. However, taking our syndicated feed and republishing it in its entirety at another site, which then runs ads that benefit the second site is a different story. In fact, if we decry the existence of “splogs” we should find ourselves on the side of the AP, if we’re being intellectually honest.

Now, some would say that the AP really will go after us if we only publish one title and one lede. Please forgive if I doubt any such thing would happen. Commonsense would dictate this, if nothing else. And commonsense is what we should be using when it comes to copyright and fair use.

I’m really not defending the AP so much as I am disappointed at how quickly people are willing to pile-on when the right stereotypes are triggered. We see the AP, big company, the Drudge Retort, small publication, and we become effectively blind—to both reason and fairness. More disturbingly, we become ripe for manipulation from those who care little for the consequences of the event, as long as the attention keeps flowing. The AP can protect itself, but the same cannot be said of every target of the pile-on effect.

Categories
Copyright Social Media

Mobs 2.0 and the AP

I’ve withheld writing before on the AP fooflah, primarily because writing counter to the Mob is about the same as throwing a sandbag on a levee that’s already broken. Now the Mob is descending on the Media Bloggers Association because Rogers contacted that organization for legal advice, and the organization’s lead knows the AP folks.

The noise is that the Media Bloggers Association doesn’t represent the webloggers, which is something that the MBA has never claimed. What’s really at stake, though, is discovering that, as I thought and wrote in comments to some of last week’s posts, there is more to this story than first appeared with Rogers’ initial posting. The concept of waiting to hear all the facts, though, seems to be anathema in this environment now. Report first and maybe fact check some other time seems to be the credo of a disappointing large number of A listers who actually call themselves “journalists”.

What’s particularly sad about this recent variation of the AP fooflah, isn’t so much that the MBA is representing “all” bloggers so much, but that people like Jeff Jarvis, Michael Arrington, Matthew Ingram, and Teresa Nielsen Hayden, at Making Light, seem to be offended that Robert Cox is getting attention, which we assume, should be directed at Jeff Jarvis, Michael Arrington, Matthew Ingram, and Teresa Nielsen Hayden. This following digging up an old AP form, set up for businesses who want to incorporate AP content into their material, and making a breathless and astonishing leap of judgment that this is what the AP’s answer to webloggers is going to be. Talk about manufacturing facts out of whole cloth— this, this is our newest form of journalism?

How much of this is really based on outrage and how much is based on wanting to generate attention is a difficult to separate at this time— a fact that should give us serious pause. The outrage is disproportionate to the event, until such time as the AP comes out with more information about what they feel is, or is not, fair use. Remember, it doesn’t make the organization evil because it wants to provide clarification as to its interpretation of fair use. Also remember that just because you’re a blogger doesn’t mean you get to set all the rules. We’re not six year olds, demanding our lollies.

Scott Rosenberg has a good point in that it is important to hear the AP’s guidelines and interpretation of fair use, because both could have far reaching impact on how we write in these spaces. However, Rosenberg has not joined the “burn ’em first, ask questions later” war path; deciding to join with others, including Denise Howell at Lawgarithms, and the New York Time’s Saul Hansell, in wanting to find out the facts, first, before taking match to the current effigy du jour.

What’s chilling about this event is Michael Arrington’s post deriding Hansell for his coverage of this event. Hansell’s coverage has presented both sides of this issue, in a manner that is both thoughtful and level headed. In particular, he deplored the over the top reactions among some webloggers, including demands for AP boycotts, the benefit of which will only increase the exposure of a few at the expense of the many. To chastise him for what is nothing more than decent reporting is to chastise anyone daring to have a differing opinion from The Mob.

What I’m seeing with Arrington and the others is a demand for group think; an it’s their way or the highway implicit directive that, to me, is a greater threat to truly free and open communication within weblogging than anything the AP can or will do.

Categories
Copyright Web Writing

Something for nothing

Recovered from the Wayback Machine.

I like Andrew Orlowski, though he offered me a writing job once and then yanked it. I don’t always agree with him, and I don’t always agree with how he phrases some of his material, but he typically has a good point.

Take the recent Nine Inch Nails album release. Several songs for free, and the rest of the album costs $5.00. What happens? It’s immediately dumped on Pirate Bay. Bandwidth issues aside, as Radiohead found out, people won’t pay.

The anti-copyright crowd kicked at the music business, because it was complacent, wasteful and reactionary, and no digital download services were available. Then they kicked at DRM-locked music, because DRM was there. Then DRM died, and they’d indiscriminately kick at the music business – indie or major – simply because there was a middleman. But now, with no middleman, they just kick the creator directly. They can’t stop kicking. These zombies are unstoppable. Are they incurable, too?

This goes beyond copyright. Too many people expect immediate access to anything on the Net, or anything that could possibly be put on the Net. They want something for nothing. This isn’t free speech, this isn’t Free the Mouse, this isn’t anything to do with not stifling creativity: people assume a privilege for themselves they, frankly, don’t deserve. Their cry is, “gimme gimme gimme”, existing in a state of selfishness to bring down the band. And by their selfishness, they’ll probably screw things up for the rest of us. After all, DRM doesn’t exist so you can’t copy a song on to your iPod.

Excuse me, while I go put my DRM locked movie into the DVD player.

Categories
Copyright

Den of thieves

Recovered from the Wayback Machine.

Susan Mernit has a quote from professional photographer, Lane Hartwell, about setting her Flickr stream to private because of image theft.

What spurred this on was the popular Web 2.0 Bubble video, which I also linked, and which didn’t credit any of the people whose work it used. Hartwell wrote:

Matt Hempey, the creator of the video, saw fit to give Billy Joel credit for his song, and saw fit to give himself and his group, the Richter Scales credit but failed to contact me and ask my permission to license this photo, which is marked all rights reserved. I was not credited, and there also are no photo credits for any other images that appear in the video.

Today, Wired has an article on Lane Hartwell, where she states:

“I wasn’t upset by the video itself,” Hartwell said, but the brief flash of her photograph — without compensation or credit — still rankled. “I thought, ‘Where does somebody just get the right to take this?’”

Hartwell had her lawyer issue a takedown notice to YouTube. Mathew Ingram believes that Ms. Hartwell, and her lawyer, are in the wrong when it comes to copyright:

In any case, I think Ms. Hartwell needs to remember one thing: copyright law wasn’t designed to give artists or content creators a blunt instrument with which to bash anyone and everyone who uses their work in any form, for any reason. The copyright owner’s views do not trump everything, and never have. A split second view of your photo in a parody video doesn’t — or at least shouldn’t — qualify as infringing use. Period.

A question to the lawyers: does use of a work without giving credit violate copyright law? I would assume it would, though from this page not giving credit is considered plagiarism, but not necessarily a copyright violation.

ValleyWag had an earlier writing on this, and still includes a viable link to the video. In the post, Owen Thomas writes:

I’m not a lawyer, but I’ve heard plenty of lawyers say that fair use is a murky and difficult area of copyright law. The role of photo credits in copyright law is likewise not entirely clear to me. Giving credit where credit’s due simply strikes me as the polite thing to do. And surely not that difficult.

I suspect that the members of Richter Scales were simply lazy. The photo Hartwell took of me is the first search result for me in Google Images. It’s not particularly apt, either; I was working at Business 2.0 when she photographed me.

Thomas also goes on to quote YouTube’s Terms of use, and one thing it restricts is the use of photos in slideshows without getting permission, first.

Regardless, not giving credit should be heavily discouraged, rather than applauded. The Richter Scales group did this video not for the common good, but as a way of generating attention and publicity. How, then, can they assume that the creators of the photos used in the work wouldn’t also feel the same way about their work, contained within the video?

Is it a case, then, that I can go out and grab posts from Mathew Ingram and other writers, and use these to create weblog posts, without giving credit or linking the originals, call the total a ‘parody’, or better yet, ‘art’, and Mathew would not see any harm in such? After all, I meet his interpretation of fair use: I’m using published work, parts of the whole (the whole being the entire weblog), using in a post, which will eventually fall off the main page, and I can’t see how this would hurt Mathew commercially. I mean, does he sell his posts–five for a dime?

Tom Stachowitz writes:

This woman is a professional photographer and if someone wants to use an image of hers – even if it’s for something completely noncommercial – she deserves to be respected. How can anyone reasonably assume that you can just go out and take whatever piece of creative content you like without paying for it or even making a note of where it comes from? Worse, how can people defend the practice?

To me, the payment wasn’t as much of an issue as using the work without giving credit. I imagine that if the Richter Scales group had dropped Hartwell an email, told her about the project, and promised to give credit–and then gave it–Hartwell most likely would have given them permission. But they assumed and took and basked in the glory that they received for their work, without once giving a nod to the creators of the photos. They took, they did not pass on.

TechWag did mention that the heart of this problem could be not that her photos are online, but where they’re located: Flickr. People have taken to using Flickr like fisherman take to lakes stocked with fish. Flickr has tried to limit this by putting up a DIV element covering the photo so it can’t be right click copied. To copy the photos now, you have to deliberately look for the photo in the page and access it directly to bypass this barrier. This goes beyond “Oops, I thought it was OK to copy”.

I get requests, about every week or two, typically from naturalists sites or organizations to use bird or insect photos. I’ve never said no, and have generally given the sites free run to use any of my photos, as long as they give me photo credit. Asking for photo credit does not inhibit their use of the pictures.

I’ve now posted a photo use policy in the menu, which means such sites don’t specifically have to ask permission, first–if the use is not for profit. One thing that hasn’t changed, though, is asking that I be given photo credit.

If we get to the point where we assume all photos online are ours for the taking, without giving credit, rather than advance the state of art, we may inhibit it, as more photographers choose either not to put their works online for viewing–or choose to put them behind privacy barriers. Worse, if we get to the point where it’s “OK” to take pictures, or writing, or code, or anything of this nature without giving credit, we’ve become nothing more than a den of thieves.

update

In comments to Mathew Ingram’s post, Michael Arrington writes:

Shelley, Lane’s attorney is abusing the DMCA for his/her own goals. And copyright has nothing to do with “giving credit.” It has to do with being forced to license work unless it falls under fair use, which this clearly does.

Mathew is right, you are wrong. But since Lane is a woman, it really doesn’t matter what she did as far as you are concerned. She’s a woman, so she’s right.

One could also turn that around back to Mr. Arrington: since it was a ‘woman’ photographer who issued the takedown against a ‘man’ video creator, according to Mr. Arrington, Hempsey is automatically right while Hartman’s automatically wrong.

Taking this one step further: I, a woman, disagree with Mathew, a man, while siding with another woman. And therefore, according to Arrington’s logic, that makes me doubly wrong.

Second update

bub.blicio.us has a more detailed look at the issue, both as an amateur photographer and friend to Hartwell, as well as links to several sites with comments.

Third update

Excellent coverage of commentary at Wired including a comment from Terry Gross, the IP lawyer that Hartwell hired.

Fourth

Lane Hartwell’s post on this issue.

Categories
Copyright Legal, Laws, and Regs

Creative inevitability

It was a sense of inevitability that I read about the lawsuit against Creative Commons and Virgin Mobile, Australia. The suit came about because of the recent Virgin Mobile use of photos licensed for commercial use via a CC license.

Not surprising to read Lawrence Lessig’s optimistic look at the issue, though his segue going from a thoughtful look at where things went wrong to “everything worked as planned” is a rather interesting read:

this case does again highlight the free culture function of the Noncommercial term in the CC license. Many from the free software community would prefer culture be licensed as freely as free software — enabling both commercial and noncommercial use, subject (at least sometimes) to a copyleft requirement. My view is that if authors so choose, then more power to them.

But this case shows something about why that objective is not as simple as it seems. I doubt that any court would find the photographer in this case had violated any right of privacy merely by posting a photograph like this on Flickr. Nor would any court, in my view, find a noncommercial use of a photograph like this violative of any right of privacy. And finally, as the world is just now, while many might resist the idea of Virgin using a photograph of theirs for free (and thus not select a license that explicitly authorizes “commercial use”), most in the net community would be perfectly fine with noncommercial use of a photograph by others within the net community.

The Noncommercial license tries to match these expectations. It tries to authorize sharing and reuse — not within a commercial economy, but within a sharing economy. It tries to do so in a way that wouldn’t trigger at least most non-copyright rights (though again, most is not all — a CC BY-NC licensed photograph by a voyeur still violates rights of privacy, for example). And it tries to do so in a way that protects the copyright owner against presumptions about the waiver of his rights suggested by posting a work freely.

I began to write on my concerns about Creative Commons, as soon as they were released. Years ago, in response to a comment by Sam Ruby, I wrote about the potential problems for confusion associated with the CC licenses:

Sam, in the legal world there is no ‘seed’ planting. There is clarification or confusion.

Not all forward motion is positive. I’d rather see people hesitate on using the CCL, and the CC open a dialog with the community (through a weblog with comments or a discussion group or like), then to continue using the CCL, perhaps incorrectly, all based on wonderful sounding words and a cute movie.

I appreciate the nobility of the Creative Commons intent and effort. But I’d appreciate it more if they combined that with an interactive element that allows us all to understand better what it all means.

I guess we have a better idea of what it all means now. But I wrote that over five years ago.

In response to this issue, Suw Charman wrote:

I like to think that the world is based on goodwill. People are, generally speaking, nice and, by default, they will respect and help others. Certainly humans are fundamentally and inescapably social creatures that need each other on a minute-by-minute and day-to-day basis, and I think that being nice is one of the attributes that which fuels the reciprocation that makes helping someone else ultimately worth it for us ourselves.

I also think that the social web is an expression of the niceness that lubricates society. All the mores that have built up around blogging and wikis and sharing and Creative Commons are based on being nice: if you quote someone’s blog, it’s being nice to credit them; Wikipedia encourages everyone to be nice to newbies; sharing anything with strangers is an act of niceness in itself; and Creative Commons licences are predicated on the idea that people will be nice and respect them.

Whilst niceness isn’t universal – there are people who aren’t nice – it is a desirable attribute, so much so that niceness is taught and enforced from birth. I doubt there’s anyone reading this who wasn’t told as a child to “be nice” or to “play nicely”. Nice is good. We need nice.

This might explain why I get so cross when I come across examples of people, or especially businesses, not playing nice. But thanks to the internet, we now get to call out companies who, whilst sticking to the letter of the law (or Creative Commons licence), are flagrantly abusing its spirit.

The online world–Suw’s ‘social web’–is no different than the offline world: there are people who give all, and people who take all, and the rest of us in the middle just trying to get by. The online world–with its Creative Commons, Wikipedia, Citizen Journalism, Social Network/Web/Graph goodness–is no more ‘nice’ than the towns, cities, or hamlets we live in; it’s just newer is all and we don’t have to worry about landfill. Continuing to set any of this up on a pedestal only serves to generate a false sense of trust and security that inevitably leads to disillusionment.

In the post associated with the comment I quoted earlier, I wrote (with some modifications to grammar):

Pessimists see the world from its dark side—always the glass half empty. They never see that the world can be made better, or that problems can be solved. They’re not constructive, but they aren’t destructive, either.

Idealists, on the other hand, only see the light. In their world, the sun always shines (except for that bit of rain needed for the trees), the birds always sing, and humanity exists in harmony. They are pleasant, but they can also be destructive.

The idealist is destructive where the pessimist isn’t by introducing change without concern for the consequences. They say, “Look at this wonderful thing I have given you!”, but don’t provide the user manual. After you’ve managed to blow up a city block, when you look for the idealist they’ve moved on to another part of the world, to drop yet another idealism bomb on some unsuspecting poor sod.

Idealists. You gotta love em, because if you didn’t you’d want to strangle them.

Where this is all leading is the release this week of the Creative Commons licenses: those digital goodies that one can attach to our creative efforts to let others know if they can use these efforts in defined ways. Collaboration and community, 101. Like our idealist, the Creative Commons have dropped this little bomb in our lap and then left it up to us to determine how to use these things, and what they really mean.

Jonathon Delacour, who has been called, usually with respect and affection, many things but I don’t think ‘nice’ was one of them, shared some of my misgivings about the CC licenses. He wrote:

Picasso and Braque stood on each other’s shoulders as they invented Cubism but they were careful (and sufficiently smart) to maintain the copyright on their works. The Creative Commons Licenses, on the other hand, typify Thomas Sowell’s unconstrained vision of human nature by relying on people (“I’ve never met”) to behave honorably and to respect the integrity of my work. Spend five minutes on “this Internet” and tell me I’m not bound for disappointment.

I wouldn’t be so skeptical if the Creative Commons Licenses relied less on a rose-tinted vision of benign collaboration and instead provided greater safeguards for the real interests of those licensing their original works; or if, to borrow Thomas Sowell’s words, they replaced—to at least some degree—their “moral vision of human intentions” with a more pragmatic acceptance of the “inherent moral and intellectual limitations of human beings.”

In other words—and pardon my bluntness—what’s in it for me? Really? Other than distress and disillusionment?

It is this determination to manufacture an online Utopia, to hold fast to the rose-tinted vision that Jonathon described, of the Creative Commons–promoted by shrewd, sharp people who should have known better–that spurred me to write my criticisms years ago, and to continue to write on topic in the times since.

The Creative Commons web site has never, to my knowledge, responded to challenges, or discussion regarding the issues surrouding the licenses. When I derived a test of CC licenses, or when Creative Commons figured in a Dutch law suit, or Virgin Mobile grabbed several CC licensed photos from Flickr for its campaign, the Creative Commons community seemed to focus more on eliminating anything other than the type of license that caused the initial problems, rather than respond to the issues, or reflect on perhaps providing stronger warnings.

Ultimately, who really does benefit from the Creative Commons? Andrew Orlowski, who has never been referred to as ‘nice’ either, as far as I know of, wrote one of the most eye opening summations of the Creative Commons I’ve read:

Few participants who slap a CC license on their work understand that the mechanism was designed to benefit the network, not the humans, by removing “frictions” such as compensation or consent.

Some would say it is not the CC organization’s responsibility to answer the critics, to meet the challenges–that the organization doesn’t have an obligation to warn as much as it promotes. I say to stubbornly persist in wearing those rose-tinted glasses, to mark only the sunny hours, as the sun dial would say, is the ultimate irresponsibility. The Virgin Mobile lawsuit was inevitable, and it didn’t have to be.

It would seem that the online site Babble has been taking photos from Flickr, assuming they’re CC licensed, even when the photos they take are copyrighted by their owners.

No, I don’t blame CC. However, there is a growing assumption that photos at Flickr are CC licensed, and this is causing additional confusion. In addition, a CC licensed photo, even one designated as non-commercial, can be used in a magazine or newspaper, because that’s not necessarily considered ‘commercial’ use of the photo.

Just one of the many uncertainties and confusions around CC licenses, copyright, and fair use. That’s the main reason we shouldn’t be making it easier for people to license their work with CC.