New York Times Says Fair Use Of 300 Words Will Run You About $1800
from the yeah-we-love-fair-use-and-all-but-[ATTORNEY-BOILERPLATE] dept
Fair use is apparently the last refuge of a scofflaw. Following on the heels of a Sony rep's assertion that people could avail themselves of fair use for the right price, here comes the New York Times implying fair use not only does not exist, but that it runs more than $6/word.
Obtaining formal permission to use three quotations from New York Times articles in a book ultimately cost two professors $1,884. They’re outraged, and have taken to Kickstarter — in part to recoup the charges, but primarily, they say, to “protest the Times’ and publishers’ lack of respect for Fair Use.”
These professors used quotes from other sources in their book about press coverage of health issues, but only the Gray Lady stood there with her hand out, expecting nearly $2,000 in exchange for three quotes totalling less than 300 words.
The professors paid, but the New York Times "policy" just ensures it will be avoided by others looking to source quotes for their publications. The high rate it charges (which it claims is a "20% discount") for fair use of its work will be viewed by others as proxy censorship. And when censorship of this sort rears its head, most people just route around it. Other sources will be sought and the New York Times won't be padding its bottom line with ridiculous fees for de minimis use of its articles.
The authors' Kickstarter isn't so much to pay off the Times, but more to raise awareness of the publication's unwillingness to respect fair use.
The Times' claim has no legal basis, and represents an arrogant rejection of the principle of fair use that is ironic for an organization that presents itself as a defender of freedom of expression.
[...]
We could have paid this amount out of research funds from our University, but it seemed to us unethical to use taxpayer funds to subsidize a big media corporation and undermine a right that belongs to all scholars and the public in general. So we paid out of pocket (our advance on royalties for the book will be $800).
The Times statement in response momentarily reflects on its status as a beneficiary of fair use protections, but swiftly moves past that brief digression to let its lawyers talk.
The Times strongly supports fair use, which is a complicated and highly confusing concept of Copyright Law. We are regularly on both sides of the fair use issue, as both content creators and users.
It would be impossible for us to make ‘fair use’ judgments for the vast number of people and organizations that wish to use New York Times content — we leave that to them and their attorneys to work out for themselves, just as our lawyers make judgments about fair use for The New York Times. If those third parties don’t feel comfortable that their proposed use of our content is a fair use, then we are happy to make the content available through our licensing program.
Our journalism costs money to produce and we share royalties with the reporters, photographers and others who helped create it.
Somehow, I doubt the lower level, non-attorney staff members support the Times decision to charge $1,844 for three quotes ranging from 69 to 102 words. Those closer to the street (as it were) likely have more sympathy for authors who've been handed a bill for quotations that is more than double the amount of their advance.
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Filed Under: copyright, fair use, quoting
Companies: ny times
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So then..
(leaving the NYT with 10% profit...)
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Re: So then..
P.S. QIAA (Quoting Industry Artists Association) should not be confused with Q.I.A.A. (Queen Intergroup of Alcoholics Anonymous), nor should it be muddled with QIAA (Queen's International Affairs Association). Discombobulating our QIAA with QIAA (QIAA Executive) on YouTube is right out.
If you are in any way muzzy, flummoxed, at sixes and sevens, mixed up, jumbled, higgledy-piggledy, bewilderd, puzzled, baffled, perplexed, disoriented or nonplussed about our association with any other QIAA, don't be.
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Re: So then..
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Re: So then..
Just about what I was going to say. Print a quote in a book review or some other publication, $6.00 per word. Same for oral statements. Politicians may be able to fund an election campaign from the money obtained from the NYT.
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It's a bad analogy, but if it helps, think of it this way: it's illegal to kill someone, but there are exceptions where the killing is legal, such as if the killing occurs in self defense. Fair use is like self defense here, and infringement is like killing someone. If the alleged victim isn't dead (that is, gave permission, meaning there's no infringement), you don't have to claim self defense. In that scenario, the concept is meaningless, in fact.
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No, fair use only exists (or perhaps is only relevant) where permission has not been granted. If the use is fair, then it is by definition not infringing. That's my understanding anyway.
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A showing of prima facie infringement means only that the plaintiff has shown all of the elements necessary for infringement. It doesn't preclude defenses from being raised. And while the strict language of the statute doesn't make fair use a defense, that is the most reasonable way for a court to handle it as a matter of procedure. Copyright holders have no interest in making a pro-fair use argument, and if they were to be relied upon for that, they'd inevitably do a bad job since that's what's in their interests. It's the defendant who is in the best position to know the facts surrounding the use, and who is most incentivized to argue well.
I know it might seem like a hassle, and I also am aware of the consideration that must now be given to fair use, but you really don't want to rely on plaintiffs for fair use.
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This is all quite wrong. Fair use means no infringement is taking place. In a genuine fair use case whether you have permission or not is legally irrelevant.
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Translation
We are on both sides of the issue in that we agree that we shouldn't have to pay for fair use when it benefits us but people should have to pay for it when they use something from us. Since this is a double standard with two sets of laws we try to explain it away by obfuscating the matter claiming it's too complicated for people to understand but, trust us, it makes sense and can be reconciled in a manner that doesn't result in a conclusion that we are simply in favor of free fair use only when it benefits us because the logic is just too complicated for you non-lawyers to understand. But don't worry, that's why we here at the NYT hire lawyers.
"Our journalism costs money to produce and we share royalties with the reporters, photographers and others who helped create it."
Only the money we spend matters when others quote us. But when we quote others the money they spent doesn't matter.
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I'm not surprised and I don't think it's daft, because the other options are drop the quotes or expect a far more expensive lawsuit with no guarantee of success. It's wrong, but that's the absurd reality of the modern copyright world.
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They made a cold financial calculation. It's cheaper to pay the extortion money to the NYT than to hire lawyers to defend themselves in court.
It's as simple as that.
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NYT has always proudly proclaimed its censorship
And they've proudly proclaimed this censorship every day, on their front page, for over 100 years.
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Re: NYT has always proudly proclaimed its censorship
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Still Paying?
Vote with your money, stop paying institutions like that. This will force 'free-to-view' sites to become mainstream which require advertising to be viable. Then, pick your news source that is structured like this by the advertising they host.
Then, we have just come full-circle to watching Mr. Ed or Ozzie-and-Harriet in the early '60's again. See, the more things change, the more they actually do stay-the-same.
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free publicity
>>more NYT content for themselves leading to higher returns
>>in the long run.
Sort-of free publicity about this issue might motivate the NYT to rethink their legal strategies. This certainly motivated me to through some change into the bucket. Although...I'd really like to see the kickstarter take off so well that it draws attention to the NYT's policy of copyright abuse.
Basically, they seem to have reapplied Prenda Law's approach; threaten with a fee that is a bit less than the cost of hiring legal defense.
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Paying them then crying about it on kick starter accomplishes less than nothing.
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Their publisher is the other half of the problem:
"Routledge, their publisher, required that they obtain formal permission or cut [the quotes] down." The publisher was not willing to rely on fair use, so they went to the Times for permission, and that's when they were told to pay up. If Routledge had been willing to stand up for them they could have just used the quotes and I hope the Times would not have done anything about it. But you never know, and of course there's the rub.
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And right there they identify the problem.
It is a legal right that is part of copyright, but there are hordes of lawyers looking to earn their retainer chipping away at it.
Trying to quantify exactly how many words you can use before you cross the line, and setting a price of every syllable after that point.
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However, quote 100 sentences and you don't have 100 fair uses, you have an infringement.
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However, quote 100 sentences and you don't have 100 fair uses, you have an infringement."
This is not true. At all.
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That seems to be the stance the NYT has taken: if you're asking us for permission, then we're assuming you've decided your use is not fair and here's our licensing rate. You can argue that rate is too high, but that has nothing to do with fair use.
To suggest otherwise seems to suggest that the NYT should have some role in determining what is and is not fair use, which is bonkers.
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It's their own fault for not having the balls to just publish without asking permission.
That is how fair use is supposed to work.
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Some people still believe that corporations can be reasonable, and it makes total sense that an academic would ask permission... it is the polite thing to do.
There are far to many lawyers who love to pursue litigation to carve out their niche for getting more money.
We live in a country where a video of a baby dancing and part of a song was barely heard in the background lead to a stupid long running court case...
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If you don't want any risk in life, stay in bed, in a locked room, surrounded by armed troops.
You know, like a prison.
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Asking for "formal permission" is not legally required for fair use, but think of it instead as asking whether or not the content owner intends to sue you if you use it. Whatever you do it's pretty smart to have that info so you can make an informed decision yes?
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I wonder how long they think that will last if they are going to charge rates like that and play the heavy hand. This ought to go well.
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Would Not That Which We Call "Illegal Extortion" by Any Name...
Fixed!
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They can't prevent it, but the key is this phrase: "we leave that to them and their attorneys to work out for themselves". Mentioning attorneys makes this an implied threat that if they get the judgment wrong, they could be sued.
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The real problem here is that fair use is so badly defined that it can't be relied upon.
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Was It...?
Of course, if the authors presumably paraphrased the NYT's words rather than quote them verbatim, then copyright does not apply, provided the paraphrase is sufficiently different. You can't copyright ideas. All this does is lead to a literature lacking direct quotes, with the footnotes full of "look it up here".
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Re: Was It...?
They quoted them.
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The publishers are the ones who are not allowing them to exercise their rights, not the NYT.
Seems like the publisher probably wants to keep charging outrageous licensing fees for its own content, so they are discouraging fair use of other published material.
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A Quick Edit Solves This
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This is being blown out of proportion:
A flat fee per word seems to be a pretty equitable and efficient process. (Vs. having to sit down and negotiate each request individually; who knows how long that would take?)
They were asked for permission, the NYT chose to put a price on formally granting it. That doesn't mean that the NYT was going to sue if they didn't get paid, it doesn't mean that the NYT believes the proposed use isn't Fair Use. All it means is that if you pay the proposed fee, YOU, proposed user, now don't have to have that question answered any more.
I am an IEEE member, and at the bottom of every title page for every article is copyright info along with a reprint price. (Typically in the low-$20's.) Does that mean the IEEE plans to sue anybody who dares to make a Xerox of the page? No. Does it mean that you cannot quote the article in another place? No. All it means is that if you pay the fee, you can make a copy, and the IEEE now formally doesn't care why any more.
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Re: This is being blown out of proportion:
The Times has a fee schedule for licensed use of their material, fair use is, by definition, unlicensed.
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Re: Re: This is being blown out of proportion:
Because... wait for it... the publishers don't want to get their own butts sued.
But yea, your right it's all the publishers fault. It couldn't possibly have anything to do with the Times using an opinion based law of 'Fair Use' (which shall herefore be known as 'Fare Use') determined by some judge based upon "I'll know it when I see it" standards, four factors notwithstanding.
Even if you win in court, you lose, because of all the money you had to pay your lawyers to defend yourself in a 'Fare Use' civil trial.
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Re: Re: Re: This is being blown out of proportion:
It is all on the publisher of the textbook, unless you think that the NYTs is somehow wholly responsible for the current state of copyright.
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Re: Re: Re: Re: This is being blown out of proportion:
Good. Since the NYT isn't "using" any law, then the authors have nothing to worry about... oh wait... Copyright comes under the purview of Fair Use, which is:
https://en.wikipedia.org/wiki/Copyright
Copyright is a legal right created by the law of a country that grants the creator of an original work exclusive rights for its use and distribution. This is usually only for a limited time. The exclusive rights are not absolute but limited by limitations and exceptions to copyright law, including fair use. A major limitation on copyright is that copyright protects only the original expression of ideas, and not the underlying ideas themselves.
But since you say the NYT isn't using any law, then the book authors don't have to worry about Fair Use as there is no Copyright law that the NYT is using to hold over them like the sword of Damocles. Whew, I'm sure glad that got straighten out.
Are you asking for the Times to issue a proclamation that they will no longer charge licensing fees?
They can charge away, but when it comes to the Streisand Effect, they shouldn't be surprised when this kind of thing turns around to bite them in the hindquarters.
It is all on the publisher of the textbook, unless you think that the NYTs is somehow wholly responsible for the current state of copyright.
I'm sure the publisher of the textbook has read "The Scorpion and the Frog" from Aesop's Fables, and know better than to trust anything not in writing, witnessed and notarized.
It also appears the authors didn't have a problem with getting permission from the other media they were quoting. Only the NYT was being a pain in the derriere, and stipulated terms (pay us money) under which they would allow their precious words to be reproduced, irregardless of Fair Use.
The NYT may not be responsible for the current state of copyright, but they are responsible for perpetuating it.
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Re: Re: Re: Re: Re: Re: This is being blown out of proportion:
“When publishers say ‘We’re going to take the safe route,’ they incur another kind of risk, which is that rather than the risk of having a rights holder challenge them, the risk will now be that they do not accomplish their scholarly and academic mission: most of the time scholars don’t have that $1,884,” Aufderheide said. “My colleagues and I have demonstrated again and again in our own research that one of the real consequences is not only that the work that is published is not as good — it’s the censorship of people who know they won’t be able to use their [fair use] rights, so they don’t even try.”
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Re: Re: Re: Re: Re: Re: This is being blown out of proportion:
Not currently, as I don't work in the legal department for the NYT. If I was, and did release any such info, I could consider myself fired. I would only be privy to such information the way anyone else would find out. By reading that the NYT was suing someone over a clearly Fair Use case.
Or evidence that they have been waging some kind of legal campaign against fair use?
Read:
NY Times Files Ridiculous Copyright Lawsuit Over Book That Mocks NYT For Glamorizing War
and read some more:
New York Times Sues PowerHouse Books for Copyright Infringement
and
New York Times Tells Startup It Can't Even Mention The NY Times
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Re: Re: Re: Re: Re: Re: Re: This is being blown out of proportion:
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Re: Re: Re: Re: Re: Re: Re: Re: This is being blown out of proportion:
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You asked for examples of the NYT "evidence that they have been waging some kind of legal campaign against fair use?", and were given said examples.
End Of Line.
If this does not satisfy you I suggest you take a Rosen-Einstein bridge to the nearest parallel dimension in which the NTY didn't try to sue individuals for exercising their Fair Use rights (good luck finding one).
That, or paraphrasing the immortal words of Dr Ray Stantz: "Anonymous Coward... good evening. As a duly designated representative of the City, County and State of New York, I order you to cease any and all irrational activity and return forthwith to your place of origin or to the nearest convenient parallel dimension."
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Re: Re: Re: Re: Re: Re: Re: Re: This is being blown out of proportion:
That might be the most blatant goalpost moving I've ever seen.
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Re: This is being blown out of proportion:
Sounds like they already did do that:
$1,884 to quote 300 words from The New York Times in a book: Two authors try to stand up for fair use
The issue “came to a head” with the Times, which they said requested payment for quoting anything more than 50 words of its material.
"Request" is more like, "You gotta nice book here. Sure would be a shame if youse got sued because you wouldn't pay us our special 'Fair Use protection fee'."
Of course the Times didn't say that, what they said was:
A Times spokesperson wrote in an emailed statement:
The Times strongly supports fair use, which is a complicated and highly confusing concept of Copyright Law. We are regularly on both sides of the fair use issue, as both content creators and users.
It would be impossible for us to make ‘fair use’ judgments for the vast number of people and organizations that wish to use New York Times content — we leave that to them and their attorneys to work out for themselves, just as our lawyers make judgments about fair use for The New York Times. If those third parties don’t feel comfortable that their proposed use of our content is a fair use, then we are happy to make the content available through our licensing program.
Our journalism costs money to produce and we share royalties with the reporters, photographers and others who helped create it.
Bull**** wrapped in nice flowery words of legalese gift paper still comes from the hind end of an animal, and still stinks all the same.
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Re: Re: This is being blown out of proportion:
Evaluating requests takes time and work, and the NYT is perfectly within their rights to refuse to do this for free. The "Fair Use is free (and doesn't require our permission), but don't expect us to make that call for you" seems like a really reasonable policy to me. Offering up a "We don't care WHAT you do with it for this flat fee" seems like a usable alternative.
If the author (working with their publisher) wants to foist legal work on sources for free, they shouldn't get worked up when those sources refuse to play along.
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Re: Re: Re: This is being blown out of proportion:
Any of those could potentially be fair use, though the last seems less likely.
If the author (working with their publisher) wants to foist legal work on sources for free, they shouldn't get worked up when those sources refuse to play along.
They would have been foisting zero work on the NYT. The Times would not be required to do anything at all.
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Re: Re: Re: Re: This is being blown out of proportion:
(Well, I suppose the NYT could just toss all their work in the public domain, but since they'd like to stay in business, that's not exactly realistic.)
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Re: Re: Re: Re: Re: This is being blown out of proportion:
Relying on fair use to use a quote doesn't create any work for the original authors. That's what I was referring to, not asking them for permission.
Fair use has certain limitations, and SOMEBODY has to decide (on a formal request) if the proposed usage is within those limits or not.
I don't think the fee is for the legal service of deciding whether it's fair use. It's for a license to use the material, which is not relying on fair use at all. That is, the Times by granting permission is not saying that yes, this is fair use - because permission is by definition not required for fair use. They're saying that whether this use is fair or not, you have permission to do it.
(Well, I suppose the NYT could just toss all their work in the public domain, but since they'd like to stay in business, that's not exactly realistic.)
Those two things are not mutually exclusive.
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Yes, I realize that the fee is not a legal determination; it's a blanket waiver instead. But what a bunch of people seem to be advocating is that the NYT should be dedicating time and effort to deciding what is and isn't fair use. (Even though they'll receive no compensation for said use.)
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This is not one of those times.
Evaluating requests takes time and work, and the NYT is perfectly within their rights to refuse to do this for free. The "Fair Use is free (and doesn't require our permission), but don't expect us to make that call for you" seems like a really reasonable policy to me. Offering up a "We don't care WHAT you do with it for this flat fee" seems like a usable alternative.
Seems reasonable until you're the one having to shell out the money to use a 'Fair Use' quote (turned into a 'Fare Use' quote) based upon the possible threat of civil action. Even if you win you lose (cost of lawyers), and the Times goes on its merry way, deducting its own legal cost as a business expense when doing its taxes.
The difference between the mob and the Times: "When the Times does it, it's not illegal, Just ask Nixon."
"So shaddup and pay the protection fee, and we'll let youse keep your kneecaps. Ya see?"
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Re: Re: Re: Re: This is being blown out of proportion:
And what exactly is to stop the authors setting up their own LLC (very cheap online at least where I am) and doing the same?
Otherwise are'nt you saying the NYT has to eat the cost of lawyer work when they had to respond to an unsolicited request? If they don't cover their costs they won't stay around. The NYT would have been irresponsible as a husiness not to run their response past legal to check for current or future possible implications (so far as could be ascertained at the time), it would not be good enough to have some intern tweet 'okay, so ya, hey go ahead, sounds lovely to me'.
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Re: Re: Re: Re: Re: This is being blown out of proportion:
The point is they shouldn't even need to spend a single dollar to do such a thing, as they describe a clear case of 'Fair Use':
Making Health Public/Defending Fair Use
Our book is a work of media criticism, and much of it relies on close readings of media texts. We frequently quote those texts in the book so readers can see the actual language used in health news. Our publisher, however, pressed us to obtain permission from these sources or cut out quotes. The issue came to a head with The New York Times, which insists that authors pay for the rights to quote anything over 50 words.
The Times' claim has no legal basis, and represents an arrogant rejection of the principle of fair use that is ironic for an organization that presents itself as a defender of freedom of expression. We reduced the size of a number of quotations, but in the end there were three from the Times we couldn't cut to 50 words without damaging the integrity of our scholarship. We ended up paying the Times' $1884 to reproduce three brief quotations totaling less than 300 words (the publisher said this represented a 20% discount on what the Times was originally asking). We could have paid this amount out of research funds from our University, but it seemed to us unethical to use taxpayer funds to subsidize a big media corporation and undermine a right that belongs to all scholars and the public in general. So we paid out of pocket (our advance on royalties for the book will be $800).
I would bet that the NYT has in-house lawyers or lawyers on retainer, who get paid no matter what sort of work they do, so it's already factored into the cost of doing business and adds no extra special fee.
It's not Rocket Surgery. I mean how hard is it to respond "Quote more than 50 words, and it will cost you X per word." Hell, an auto responder or a website search can do that. Offering a 20% discount doesn't require a lawyer, sounds more like a salesmans job to me.
The NYT is the one doing the choosing. The only options the the authors have is pay up, or possibly face us in court, where even if you win, you lose.
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They don't have to, but their publisher is forcing them to. The NYT has not threatened any lawsuits, that haven't done anything except quote a price when someone asked them for one.
The professors are more than free to put their book up on the internet for everyone to see, and the NYT wouldn't do anything, since, as you point out, this is clearly fair use. Everyone is pointing fingers at the NYT as though they are litigious monsters, when they haven't taken any action to support that notion.
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Re: Re: Re: Re: This is being blown out of proportion:
There is no "implied threat" here, other than stating the completely bloody obvious that if you don't get a license, they aren't giving you a blanket waiver.
What would you have them do instead? It's ALSO not reasonable to expect the NYT tie up their legal staff out of the goodness of their hearts.
What WOULD be reasonable is the publisher's IP staff evaluating this (and indemnifying the authors), since they are going to be the one's making most of the money from the textbook.
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If not, then I think it's time the NYT should hand their 'Fare Use' issues over to Naruto. I'm sure he could do a better job. It wouldn't cost them much, not even peanuts (I hear he works for bananas).
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Re: Re: Re: Re: Re: Re: This is being blown out of proportion:
Errr... Fair use is a notoriously vague and tricky part of copyright law, since congress has never gotten around to writing clear guidelines on it. To say that they it's a trivial exercise to make that determination is clearly incorrect.
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Re: Re: Re: Re: Re: This is being blown out of proportion:
Well that's the implied threat, isn't it? If you don't pay us, we're not promising that we won't sue you for using it. If you don't give me your lunch money, I can't promise I won't beat you up after school.
What would you have them do instead?
I'm not sure the NYT really did anything wrong, given the current state of copyright law.
What WOULD be reasonable is the publisher's IP staff evaluating this (and indemnifying the authors), since they are going to be the one's making most of the money from the textbook.
That would have been the best outcome.
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Re: Re: Re: Re: Re: Re: This is being blown out of proportion:
Do you end all of your conversations with "I, nasch, am not going to sue you"
I notice that you don't end your comments with that phrase, are you threatening me with a lawsuit?
(Also, if it makes you feel better I AM NOT GOING TO SUE YOU)
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Re: Re: Re: Re: Re: Re: Re: This is being blown out of proportion:
They didn't "not say anything", they said you and your lawyers can decide whether it's fair use. Why mention lawyers except to point out that it could become a legal issue?
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Re: Re: Re: Re: Re: Re: This is being blown out of proportion:
What would you have had the NYT say? (And proposing that they evaluate all requests for permission for fair-use-ness is a non-starter, it'd be a huge sink of time and effort with zero return.)
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Re: Re: Re: Re: Re: Re: Re: This is being blown out of proportion:
I'm not sure they should have done anything differently, but if anything leave out the part about needing lawyers to quote the NYT.
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Re: This is being blown out of proportion:
I have been an IEEE member for decades, and I have always interpreted that notice to mean exactly that: an overt warning that they have lawsuits on a hair trigger.
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Maybe the NYT needs the money
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"green screen getbent"
I am quite sure you will waste at least one
thousand dollars researching what that means.
And I am absolutely certain that there are readers
here that know exactly what it means. In fact,
there are probably readers here that used to work
at NYT that know exactly what it means, but of
course they were probably fired years ago.
So don't help the NYT here. It will be much
more educational if they expend more money
researching what "green screen getbent" means
than the amount of money they extorted from
the professors.
Remember NYT, it is "green screen getbent",
free to use, no charge, fair use and all.
Oh, and have a nice day.
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"Much"
"Is"
"300"
"One"
"Word"
"Quotes?"
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NYTimes money sink
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Soon its $450 MILLION in debts will catch up to it and it'll evaporate like a multi-multi-multi-millionaires claim to be bankrupt to avoid paying fines.
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