Copyright As Censorship: Author Removes Blog Post After Being Threatened For Quoting 4 Sentences
from the fair-use dept
It's amazing how frequently we see stories of copyright being used as censorship -- even in cases where the copyright claims are obviously bogus. Being on the receiving end of a threat is no fun, and it's not surprising that many people choose to cave in, rather than fight. Back in early 2011, author Patti O'Shea wrote a blog post on her personal blog about a "Human Factors Training" exercise she did for work. She talks about one of the exercises, in which the attendees were given a scenario and then had to prioritize:You’re on a plane that crashed in the Sonora desert. The pilot and copilot are dead, but you and your classmates are unharmed. Your plane was 70 miles off the course that was filed prior to take off and you crashed 50 miles southwest of a mining camp. You have 15 items with which to survive. Rank them from most important to least important.She then lists out the items:
The items were: a flashlight with four batteries, big jack knife, aeronautical chart of the area, big plastic raincoat, magnetic compass, compresses and bandages, 45 caliber gun with bullets, red and white parachute, bottle of salt tablets, 1 liter of water per person, book titled “Edible Desert Animals”, pair of sunglasses per person, 1 liter bottle of alcohol (96%), light summer coat per person, makeup mirror.I've actually done this very exercise a few times in the past (I think even in junior high or high school). It's incredibly common and I've seen slight variations on it for years. You can see a very similar version on the Google Lunar X Prize site, for example. But there are others as well. The idea is hardly a unique one.
O'Shea quoted those few lines, and then detailed what her group chose (with some explanations for why or where they agreed/disagreed) and then briefly discussed how they compared to "experts" and how well her group did against everyone else (they had the best score, compared to the experts). All in all, the blog post was 12 paragraphs, only one of which quoted the scenario in question. Of course, if you go to that blog page now, you get a very different story:
This blog was removed because Human Synergistics International (the company who holds the rights to the training material that was used in the class I talked about here) sent a take-down notice claiming my quoting of four sentences violated their copyright.You see, Human Synergistics International sent her a legal takedown, nearly two years after the blog post went up:I believe their take-down notice to be without merit. As an author, I respect copyright and I believe the quote was covered by the Fair Use Doctrine.
However, despite this, I’ve removed the post. It’s not worth the time or energy arguing about a blog article that was nearly two years old when the notice was received.
It has come to our attention that you are displaying some text from the Desert Survival Situation™ on your website at: http://www.pattioshea.com/blog/2011/01/26/were-doomed/ without prior permission. The Desert Survival Situation is copyrighted by Human Synergistics International, which has the exclusive right to reproduce, copy, edit, translate and otherwise exercise ownership over the material. Please be advised that we have no agreement that gives you or your organization permission to reproduce this exercise in any format. Therefore, this action constitutes a direct violation of our copyright.Yeah, let's not even get into the fact that they felt the need to put the ™ after "Desert Survival Situation." Either way, it's difficult to see how O'Shea's use is not fair use. Human Synergistics might not like it, but its claims of what its "exclusive rights" are, without recognizing exceptions like fair use is a classic case of overstating their rights, also known as copyfraud.
Yes, the company wants to try to require people to hire them if it wants to use this exercise, but they're still the ones with the "experts' responses" and who (supposedly) understand how to run the experiment in a useful team-building manner. Revealing the basic scenario doesn't do any harm to them at all. In fact, one could argue that having people who have gone through the exercise talk about it, as O'Shea did, helps make other people more interested in hiring the company to run that training exercise. But, really, who wants to hire a company that runs around issuing copyright legal threats to people who went through their program and were excited enough about it to talk about it publicly?
Either way, below is the image of what O'Shea's blog post used to look like. Even though she's confident that her use qualified as fair use, it's just not worth fighting about. And that, of course, is the real shame in all of this, and how copyright is used to censor perfectly reasonable expression -- merely by the threat of legal action.
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Filed Under: copyright, desert survival scenario, fair use, patti o'shea
Companies: human synergistics international
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Terse
How shall we correct it?
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Re: Terse
CTRL + ALT + DELETE
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Dammit, Techdirt will now receive a take down request.
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Proper Response: *Eyeroll*
The copyright probably should have been enforced. It would have been interesting to see the judge roll their eyes too; but their four sentences could have been entered into public record.
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Cool book to read
It sounds like a good book, is called "Winning with Transglobal Leadership" and is likely about transglobal effects of blogging as well as copyright citations.
I suggest you read it. You can save some money if you buy a copyright-compliant "used copy" available on Amazon; or check a copy out from your local library. Chances are that you'll want to do this before they run out of used copies still available on Amazon. Printing new physical copies is somewhat expensive.
http://www.amazon.com/Winning-Transglobal-Leadership-World-Class-Organizations/dp/0071 790519
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Re: Cool book to read
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Re: Cool book to read
And hmmm, according to that Amazon link, the book was published in April 2012. Yet Patti's blog post was over two years ago? Does this mean HSI has perfected time travel? Perhaps they should be going after H.G. Wells next?
The really sad part is, Patti's right - it's probably NOT worth the time, effort, and ridiculous expense it would take to defend herself... which I'm sure is what most copyright ninjas count on when making their claims: hit those who are least able to defend themselves, and they should knuckle under easily.
Reminds me of the old WKRP, where the religious group wants to control what music the station plays: Venus asks why they aren't going after television; Johnny responds that they probably want to practice on a couple guppies first before going after the whale. (Disclaimer: paraphrased shamelessly from an IMDB synopsis of the episode).
So the question now is, who plays the part of Les Nessman here, in the following exchange (copied and pasted shamelessly from IMDB)?
Andy Travis: I'm going to fight them tooth and nail.
Arthur 'Big Guy' Carlson: I know you are.
Andy Travis: If all else fails, I might set Les Nessman on them.
Arthur 'Big Guy' Carlson: Boy, that could signal the end of organized religion as we know it.
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Re:
That's because that particular troll's argument is bollocks. Censorship is still censorship where it is a public or private entity enacting it.
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Unfortunately, claiming fair use makes you "guilty until proven innocent" which is the whole problem with fair use and copyright law.
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She was confronted with a copyright claim. Even if she has a viable fair use defense, that doesn't negative the fact that the copyright owner has a prima facie case for infringement. It's not "censorship" for a copyright owner to assert a prima facie claim against an alleged infringer, even if that infringer *might* have a valid fair use defense.
It's with articles like this that the anti-copyright zealots try to get the troops all riled up with chants of "Censorship!" To the extent this woman's use is not fair use, her First Amendment rights are not being infringed. She is still free to say the ideas contained in the expression she has copied.
She could spend a few seconds rewording the sentences, even keeping all of the same ideas, and she wouldn't be infringing. The ideas are not locked up. It's just anti-copyright FUD to pretend like this actual censorship, i.e., the blocking of ideas. To call this "censorship" is ridiculous.
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..and it *is* censorship. It might be legal, but it's still censorship.
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He states that argument, but he never defends it against any kind of criticism. As soon as anyone calls him on it, he runs away. Don't expect any response from him.
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If you ignore what the copyright owner is saying and just keep on doing what you want, what happens to you? The state jumps on you and punishes you. If the state doesn't get involved, then how would the copyright owner compel you to do anything at all?
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Ooo, h8tr-aid, anyone?
Seriously, copyright and the 1st amendment are NOT in conflict here. The only issue of debate here is if the writer has a good fair use claim on the quotes being used in the article.
I think it's doubtful.
Human Factors Training is a privately taught course, with materials not published, but only given to students for use during the course. It's not generally published material. It is proprietary information, which they share with students only during the time of their training.
The value of the training given by the company may drop if people are able to "prepare" by getting the course material ahead of time. This blog post might force them to change their cost material at cost, just to avoid anyone getting a jump on the course.
Remember, at least part of the value of these courses for training is that people do not know what is going to happen, and don't know specific scenarios or questions they will have to deal with.
Discussing the class may in fact be a violation of the contract signed to enter into it as well.
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http://www.desertsurvival.com/explanation.htm
Oops. You're wrong.
The value of the training given by the company may drop if people are able to "prepare" by getting the course material ahead of time. This blog post might force them to change their cost material at cost, just to avoid anyone getting a jump on the course.
Not only do they publish it themselves on their page, as noted in our post, there are a ton of similar exercises found on the web.
Discussing the class may in fact be a violation of the contract signed to enter into it as well.
Then they would have said that in their letter. They did not.
I love how you just make up stuff that's totally wrong. Must be exhausting.
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Re:
You're making the same mistake Mike made when he went super-ballistic-asshole-mode on Professor Adam Mossoff. Of course the two have inherent conflict. That's so obvious and fundamental that I don't think anyone denies it.
The point is that, descriptively speaking and applying actual legal doctrine, copyright laws don't violate the First Amendment. What Prof. Mossoff said was 100% true, and he was merely describing the actual controlling law, i.e., the Supreme Court's interpretation of the constitutional question. The Court's interpretation of constitutional issues is the supreme law of the land, and to refer to it accurately is only to state the actual law.
Mike on the other hand points to sources like "No Law" (a book that in its own preface admits the book is "legal fiction") and Prof. Netanal's work. Those types of arguments, the ones that Mike pretends are controlling, are only normative arguments. They're made by people who are saying, "Hey, maybe we should look at it like this." Those are not descriptions of the actual law, they are aspirational ideas of how the law could be if the law changed.
When I (and others, like Prof. Mossoff) say that the two are not in conflict, what we mean is that, legally speaking, the current controlling view is that the two are definitionally balanced (as opposed to ad hoc balanced) internally by the fair use doctrine and the idea-expression dichotomy. It's complicated, but the reason copyright laws get what's essentially a free pass (rational basis scrutiny) is because copyright doesn't lock up ideas and there's fair use.
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If that is truly your position, then you would have to agree that weakening either or both the fair use doctrine and the idea-expression dichotomy would unbalance copyright.
I'm also pretty sure that TechDirt has been covering the regular weakening of both of those for about 15 years now.
Basic logic:
1) If A happens, then B.
2) A happens.
Therefore, B.
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Desert Survival
What do I win?
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50 miles? I can do that.
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It's not amazing to me. Copyright is used only for censorship. That's the entire mechanism of copyright: legal suppression of media. It's better called censor-right.
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I look at it more from a First Amendment perspective. The reason copyright laws don't violate the First Amendment is because they don't lock up subject matters or points of view. Copyright doesn't block ideas. As you well know, Nina, you're free to talk about whatever subject matter you want, and you're free to take any point of view on a given subject matter that you want. Copyright doesn't prevent you from doing that. So I think it's disingenuous to call copyright "censorship." To the extent that copyright doesn't allow you to copy what others have already done verbatim, it nonetheless doesn't prevent you from speaking freely about anything you want. To call it "censorship" when it doesn't stop you from making point about any subject you want seems silly.
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I think the Wizard of Oz ought to be watched with Dark Side of the Moon playing. Pardon me while I release a version that has my ideas in it.
I think Phantom Menace should have a lot of stuff removed and rearranged to make the pacing better. I could describe it to you, but you'd never really know what my ideas are like unless I actually do it and then show it to you. So pardon me while I do just that.
Are you suggesting that I can't do these things? Wouldn't that be state censorship? Isn't that an infringement on my first amendment rights?
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Chosen Reject does this perfectly. He (or she) has a near infinite number of ways that he can use free speech and speak freely, but he instead wishes to bang his head against the grey lines of fair use and copyright.
They also generally confuse physical ability, the "I can do it" with the "I should do it" or "I have the right to do it". They forget simple things like "I can break into someone's house" or "I can shoot my neighbor" or "I can sell crack to schoolkids". All things that are physically possible, but that you have no right to do.
It is incredibly amusing to watch them go, trying so damn hard to justify their illegal acts. They sheeple even marked his post as "insightful", which really gives me a huge insight into how little they are actually thinking.
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What do those have to do with copyright infringement?
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People who otherwise respect property rights forget the rules when it comes to infringement. Just because you can infringe (that super-fast internet connection and huge hard drive just seem so empty for some), that doesn't mean it's OK to do it.
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Please get the terms right.
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I am using the term correctly. "Property" just means the bundle of rights in a thing (as opposed to the thing itself). Copyright is a bundle of rights in a thing--the underlying work. Even Mike admits that copyright is property as the word "property" is used in the Constitution. Ask him.
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And remember, copyright infringement funds international terrorism.
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You know, IP
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How much you want to bet it wouldn't pass content ID let alone not have a DMCA take down????
even if it's in My words
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The First Amendment protects the exchange of ideas:Roth v. United States, 354 U.S. 476, 484 (1957).
Copyright doesn't block ideas because copyright is not censorship. Censorship is exactly what the First Amendment was created to protect--censorship is the enemy of ideas. Copyright doesn't lock up ideas, it only locks up specific expressions. And these specific expressions--these works--are quite valuable socially.
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Should say "to protect against." My bad.
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Did you know that?
Any discussion of real-world economics with her are comical by definition.
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I received a take down notice from Blogger.com about a post written last year. By the time I read the email, the post had already been removed. I was told that this removal was based on an allegation made by persons unknown. The exact details of the allegation were never specified- although a disabled link was supposed to allow me further information. I was warned that if I chose to re-post the material without removing the mystery problem, my entire blog could be removed and legal consequences could follow (if I used Adsense which I don't). I was also informed that if I had any questions of legal basis I would have to retain a lawyer. Like most people I cannot afford to have a permanent legal team on hand to protect my free speech. In my case, I assume I would have a strong case of fair use, based on the fact that the material on the post is sound research in the public interest with quotes linked to the original material. Having a strong case, however, is not important when you have no ability to a fair hearing.
So the whole question of fair use never comes up. The accuser is free to remove any information from the net that he or she is offended by whether or not there is any merit to the claim. This is how copyright is indeed a first amendment issue.
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Re: Nina Paley
Copyright provides that great creative force we call INCENTIVE. If there is no incentive, as is the case with socialist systems, there is only a small minority (which includes myself) of the community that is nonetheless creative. Every person requires full respect for their work at all times. Every person deserves credit for their work at all times as a default form of respect.
Human systems without incentive consistently rot into crime and self-destruction. I know of no exceptions.
Censorship is an entirely different subject. It is a practice I never condone. It is a driving force in the self-destruction of our current worldwide human culture. I am entirely in sympathy with stopping censorship of everything except that which harms other people. This is part of my personal identity as what I call a 'Positive Anarchist'. I strive for maximum choice. However, in order for choice to be successful, it requires maximum responsibility for the choices one makes. There is nothing beneficial in Negative Anarchy whereby poor choices are made and the consequences be damned. Negative Anarchy is one of the forces driving our worldwide culture in to the loom granite wall of dire consequence. I hope you are not one of the blind and lost who never use the steering wheel. That's not good for you or anyone else.
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Re: Re: Nina Paley
http://mimiandeunice.com/2011/03/03/t ax-incentives/
http://mimiandeunice.com/2011/03/10/my-works-are-like-my-children/
http://mimia ndeunice.com/2010/12/15/balance-again/
http://mimiandeunice.com/2010/12/14/incentive-to-create/
http://mimiandeunice.com/2010/07/31/a-world-without-poop/
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Re: Re: Re: Nina Paley
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Re: Re: Nina Paley
It provides *an* incentive, but hardly the only one. In fact, multiple studies have shown that it's rarely the driving force behind creation, which is often driven by the need to create. Furthermore, if you're claiming that it is the monetary incentive, once again, you ignore the fact that there a myriad ways of making money from creation that do not involve copyright.
In the meantime, as we've seen, as copyright law has been less respected over the past decade, we've seen a MASSIVE explosion in content creation. In the past decade somewhere around 5X the number of songs have been recorded then in all of human history before that. Last year over 3 million books were released. A decade ago, the number was about 235,000. We're in an explosion of creativity today, and very very little of it is because of copyright law.
To argue that there is no incentive other than copyright is ridiculous and ignorant.
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Re: Re: Re: Nina Paley
Think about it - the only way to sign up is to agree not to disclose.
Where do you think that would leave the blogger?
Anyway... for your point:
"To argue that there is no incentive other than copyright is ridiculous and ignorant."
There goes that bizarre absolute thing again. Why do you feel the need to represent any other argument in an absolute, you can't have one without the other way?
The point is that copyright does provide SOME incentives, and in some cases may be the best system to encourage content creation. Notice I didn't say ONLY, I said "may be the best". That doesn't preclude other ways of doing things.
Now, with copyright firmly in place, and if I believe your assertions here that copyright is getting so strong as to be putting everyone under it's thumb, there has been "a MASSIVE explosion in content creation". Why is that, you think? Perhaps copyright isn't such a drag after all.
So the reality seems to be that for the most part copyright isn't impeding a massive explosion in content creation (your words), and at the same time provides incentive for some (I would suggest many) to make some of the most popular content out there today.
Seems like a win win.
Now for fun, let's try your technique:
To argue that copyright blocks all content creation is ridiculous and ignorant.
See? it's how you do it.
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Re: Re: Re: Re: Nina Paley
Think about it - the only way to sign up is to agree not to disclose.
Where do you think that would leave the blogger?
Then they would have accused her of violating the NDA, not copyright law, as they did.
There goes that bizarre absolute thing again. Why do you feel the need to represent any other argument in an absolute, you can't have one without the other way?
Not me. The original comment I responded to claimed that copyright needed to be kept as is because it provided incentive. Not "an" incentive. But incentive. As if nothing else would. The absolute was on the original commenter and I was responding to that.
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Yes, but understand - you are doing the same thing in claiming people are saying something they are NOT saying. You are trying to paint them into a corner and make them defend a point they aren't making. That sucks.
"Then they would have accused her of violating the NDA, not copyright law, as they did."
Actually, it would be both - and copyright is expedient for the job. Claiming copyright doesn't also preclude them from enforcing an NDA as well.
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Re: Re: Nina Paley
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Please let's stop all this crap bollocks to copyright and patents and all the other shit
These few sentences are free from copyright and any other Bull shit please feel free to use them on your blogs
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References, Footnotes, Attribution
I once found an article I had written about computer security quoted in full on a website by a computer science graduate student. I freaked him out when I wrote to him and asked him for attribution. He had pulled the article out of an email I had posted to an enterprise computing interest list that was discussing the subject. If he had attributed what was posted to me, I would not have bothered him. I never had the impression that he was attempting to pass my work off as his. But I do require, as is the right of any copyright holder, to have my name clearly listed as the source of the material I wrote. We sorted it out, I received attribution and all was fine. He was just a kid who was ignorant of the Fair Use Doctrine and was sorry for his error.
If Patti O'Shea had clearly designated the source of the quoted material, I doubt this problem would have occurred as no author wants to be marked as a venomous villain. Free marketing is of benefit to an author (a lesson the RIAA and MPAA can't get into their Neanderthal craniums). But when one is directly quoted at length, an author can't help but feel ripped off and damaged. That's not going to change. Without attribution I see nothing wrong in HS's response. It was their right. Instead I know that next time Patti O'Shea will consider what is required to fulfill one's end of the Fair Use Doctrine.
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Re: References, Footnotes, Attribution
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Re: Re: References, Footnotes, Attribution
I decided, as author, what was adequate in the case of quoting my entire article. The full quotation didn't hurt me. It didn't deprive me of any profit. The graduate student made no profit from my article. Under those circumstances, I consider it to be 'Fair Use' to quote my article for the benefit of others. Just provide full attribution.
Your reference to 'academia' makes no sense at all. The same rules, the same rights of the source author, remain in all circumstances.
You actually missed my point entirely. Please do try harder. Repeating myself: "If Patti O'Shea had clearly designated the source of the quoted material, I doubt this problem would have occurred." But it is entirely up to the author regarding how to respond. IOW: There was no 'Fair Use' in Patti O'Shea's post because there was no attribution. Quoting ANYTHING written by ANYONE ELSE who owns the copyright requires attribution. There is no such thing as a free quotation of another person's work. That is no one's right at any time, in or out of academia. If you are attempting to disagree, I would have to quote you: "Just stupid."
Stamping your feet and insulting the messenger, or writing articles attempting to berate a copyright holder for asserting their rights, changes nothing at all.
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Re: Re: Re: References, Footnotes, Attribution
Naturally. See Berne Convention Article 6bis(1)
Just take that Berne Convention 6bis(1) article straight into a U.S. court. The district judge will fix you up right away.
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Re: Re: Re: Re: References, Footnotes, Attribution
I can't tell if you are being sarcastic here or what, but what is in the Berne Convention doesn't mean jack squat to a US District court unless it's something that is codified in US law. The Berne Convention is an international agreement, not US law.
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/s
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Re: Re: Re: References, Footnotes, Attribution
i'm sorry your wrongheaded explanation doesn't comport with reality, but your repeated insistence that it is correct, does not bode well for a thing we call 'learning' on your part...
point the last: under the DerekCurrie skizzie of copywrongness, evidently we are totally dependent upon THE AUTHOR'S (rightsholders) interpretation of what *THEY* think constitutes 'fair use' ? ? ?
...and *that* makes sense -not to mention equity- to you ? ? ?
whale fail
art guerrilla
aka ann archy
eof
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Re: References, Footnotes, Attribution
Both of your statements are false. Fair use does not require either attribution or that no profit be made. You don't seem to understand fair use. Those two things may weigh on whether or not something is considered fair use, but to claim that both are required are simply false.
For example, we've shown many cases in which things were judged to be fair use when used in a commercial context.
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Re: References, Footnotes, Attribution
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Re: Re: References, Footnotes, Attribution
11 U.S.C §1125(a) Civil action
Your lawyer can take that section directly into court.
It's called a "Dastar claim".
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Re: Re: Re: References, Footnotes, Attribution
Even Title 11 (which is what you type on the link) wouldn't apply since that is bankruptcy law.
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Re: Re: Re: Re: References, Footnotes, Attribution
Meant to type 15 U.S.C. ch.22.
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Re: Re: Re: Re: References, Footnotes, Attribution
Right you are: Typoed 11 for 15. Luckily the link does point to section 43(a) of the Lanham Act.
As for it's relevance to copyright, see The House Report on the Berne Convention Implementation Act of 1988 p.18
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Re: Re: Re: Re: Re: References, Footnotes, Attribution
Interesting argument. Not sure you will get very far with it though.
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Re: Re: Re: Re: Re: Re: References, Footnotes, Attribution
So you're arguing that the United States of America is failing to meet its solemn, international undertakings under Article 6bis of the Berne Convention?
Well, perhaps Senator Leahy agrees with you.
But the argument sure had the Ninth Circuit convinced. And the Second Circuit seemed to be tagging along.
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Re: Re: Re: Re: Re: Re: Re: References, Footnotes, Attribution
Actually, many people have argued that very thing for years. But most people think that it got around that issue with VARA, or part of 17 U.S.C. 106A. That granted such moral rights... but limited it to visual artists... to which most people said "close enough."
Either way, the idea that fair use requires attribution is simply not supported anywhere. It can be *a* factor that a court uses to determine fair use, but it is never considered a requirement.
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Re: Re: Re: Re: Re: Re: Re: Re: References, Footnotes, Attribution
OK. It's Saturday morning now. Friday night is over.
Comprennez-vous «SA» ? “Situational Awareness” ? More bluntly: Do you understand the leading cause of CFIT —controlled flight into terrain— accidents?
Classic attack pattern: Bogon.... Bogon.... Now you need to very quickly identify the real threat axis.
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Re: Re: Re: References, Footnotes, Attribution
That's trademark law, from the Lanham Act, not copyright law. While there is fair use issues for trademark law, that has nothing, whatsoever, to do with fair use under copyright law, which is found in 17 USC 107.
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Re: References, Footnotes, Attribution
Mirrors, apparently, are not.
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Just like how blind people are not entitled to e-books.
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A True Solution
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Re:
http://en.wikipedia.org/wiki/History_of_copyright_law
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My version
Rate the items in how you'd use them to make the world a better place.
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The top scoring answer is of course to aim to plane at the ground and padlock the exit doors.....
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Re: My version
See how that works?
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Re: My version
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a_j FTL
Thanks, Mike - made my afternoon.
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