Category: Legal, Laws, and Regs

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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
Legal, Laws, and Regs

Those poor Exxon executives

I don’t hide the fact that I hold today’s sitting Supreme Court justices in disdain. There’s no reason to look further for my reasons than what was reported by Dana Milbank in the Washington Post; about the Exxon Valdez, and the Supreme Court’s concerns about the poor Exxon executives, and what is becoming known as the Supreme Court Corporate Two-Step.

The notion of the justices pulling a number out of thin air seemed a bit too neat for an oil spill that spoiled 1,200 miles of Alaska’s coastline. But then the argument had less to do with the dead marine animals and ruined fishermen than with an obscure maritime law case from 1818 called The Amiable Nancy– or, as Scalia put it, the ” Amiable Whatever It Is.”

As the justices probed the intricacies of the laws of the sea, Ginsburg discussed Rule 50. Kennedy invoked Instruction 30, Instruction 33 and Instruction 36. Spectators showed evidence of drowsiness. Reporters yawned — at least until they were jolted awake by an alarming prospect raised by Ginsburg, who spoke about “a new trial” and the “next time around.”

A new trial? After 19 years of legal fighting? Out on the plaza after the argument, Brian O’Neill, one of the Alaska victims’ lawyers, conceded that, whatever the Supreme Court’s ruling, Exxon had already won. “I guess the lesson you learn,” he said, “is that if you’re big and powerful enough, you can bring the system to a halt.”

Thank you Tortdeform.

Categories
Legal, Laws, and Regs

Arbitration update

Recovered from the Wayback Machine.

I need to write an update on arbitration and what’s happening with the Arbitration Fairness Act of 2007. In a way, I’d almost rather we wait on a vote until after we have a Democratic president, because anything that doesn’t support corporations over the people will be vetoed by President Bush. At least with a Democratic president, we’ll have someone who cares about consumers, employees, and regular people like you and me.

In the meantime, you can compare how various sides debate this issue. Kia from Tortdeform has three recent items. Huffington Post has a story about more women abused by KBR employees in Iraq and forced into arbitration.

Then there’s Ted at Overlawyered. Ted works for one of the conservative think tanks. I wouldn’t want it said that I didn’t point out the opposition. Here’s a couple of recent posts from Ted. Personally, I think Ted does more to sell the Arbitration Fairness act of 2007 than almost anyone I know, and he’s against it. Do be sure to check out the comments.

This is my favorite from a recent exchange:

Me: The only choice I know of with arbitration clauses in employment contracts is not to take the jobs. That doesn’t strike me as a true choice. Does that strike you as a true choice?

TF: KBR employees have that option. They don’t have to work for KBR if they would rather have lower wages with an employer that does not have a mandatory arbitration agreement. It’s just one of the terms and conditions of employment, like free parking, a free gym, and how many weeks of vacation are offered.

Yes, I typically equate the loss of constitutional rights with free parking and a gym pass.