Mormon Church Tries To Censor MormonLeaks Using Copyright, Streisand Effect Takes Over
from the stop-sharing-our-golden-tablets dept
The Mormon Church has been somewhat flip-floppy when it comes to criticism against it. On the one hand, the notoriously tight-knit Church has been admirably tolerant of many attempts to parody it, including public commentary and a certain Broadway show of world renown. On the other hand, it seems the Church tends to draw a line in the sand when it comes to disseminating official church documents, even when this is done by journalists and organizations dedicated to commentary and news. In the past, the Mormon Church has attempted to utilize copyright law to have those documents removed from such sites as Wikimedia and Wikileaks, which of course resulted in the wider viewership of those same documents as news of the threats wove through the media. The Streisand Effect, it seems, offers no quarter of religious institutions.
A decade later, it seems our friends in Utah have not learned this lesson, as the Mormon Church reportedly threatened the MormonLeaks website with legal action over copyright infringement after the site hosted a PowerPoint presentation.
The site, which has generated past headlines by displaying restricted church papers on topics ranging from the salaries of Mormon apostles to rules governing calls home by missionaries, had taken down the presentation after The Church of Jesus Christ of Latter-day Saints threatened legal action March 1. Based on a copyright-violation allegation, it marked the first time that the Utah-based faith had turned to its attorneys to challenge MormonLeaks' revelations in the four months the site has been up. On Tuesday, the site reposted the material, along with a letter sent Monday to Barry Taggart, a representative of the LDS Church's Intellectual Property Office.
In the letter, MormonLeaks' Las Vegas-based attorney Marc Randazza contends the site "obtained this document lawfully and had a right to distribute it in its capacity as a journalistic resource devoted to discussing facts about the LDS Church."
Readers of this site will be familiar with Randazza and his reputation for repudiating bogus takedowns and lame uses of intellectual property in this matter. His involvement does not bode well for the Mormon Church's prospects for the continued bullying of MormonLeaks through the inappropriate application of copyright law. The site is clearly well within the boundaries of Fair Use. And, while Utah's version of an anti-SLAPP law is horribly neutered, limited only to suits involving "the process of government", Randazza's otherwise congenial notice to the Church hints that there will be consequences of it doesn't walk away from all of this.
"At this point, my client is willing to let bygones be bygones," Randazza writes. "If your client is willing to step back from the brink, and to cease efforts to censor this material, my client is willing to refrain from bringing a claim [of abusing copyright law]."
While it should be clear to the Church that the best move now is to walk away, it would have been far better had it never tried this bullying tactic to begin with. After all, the Streisand Effect has now taken over, with news of the dispute resulting in wider publicity for the site and documents that were targeted for removal.
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Filed Under: copyright, first amendment, free speech, journalism, mormon church, mormon leaks, streisand effect
Companies: churh of latter-day saints, mormon church, mormonleaks
Reader Comments
The First Word
“Re: Re: Re: How is it fair use?
They're the legal definition of fair use. What, specifically, about the four-prong test are you finding fault with?
No, not "we can ignore the copyright"; "the copyright does not prevent us from distributing this material in this way for these reasons." Fair use does not mean ignoring copyright. Copyright does not apply to fair use; there's nothing to ignore.
Purpose and character, nature of work, and market effect are all no-brainers. The only prong that works against them is the amount and substantiality. And there's a strong argument to be made that the journalistic purpose of the disclosure would not have been served as effectively if they'd only released excerpts.
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Mormons II: MormonLeaks
This would make for a good sequel. But can Randazza sing?
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Re: Mormons II: MormonLeaks
Don't know, but I hear he is a pretty good tap dancer.
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Re: Mormons II: MormonLeaks
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Do Mormons practice "Fair Game"?
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Re: Do Mormons practice "Fair Game"?
Religious Technology Center v. Netcom On-Line Communication Services, Inc. in 1995.
and don't forget the related attack of Anon.penet.fi
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Re: Do Mormons practice "Fair Game"?
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Re: Re: Do Mormons practice "Fair Game"?
What year did they get the copyright? You know, just so we know when the copyright expires.
I'm curious about whether church secrets are being defended by the Mickey Mouse Protection Act.
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Re: Re: Re: Do Mormons practice "Fair Game"?
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Re: Re: Re: Re: Do Mormons practice "Fair Game"?
If the documents are from the 1800s, they're no longer protected. If they're a few decades old but not renewed, they're not protected. Like any other work covered by copyright.
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Re: Re: Re: Re: Re: Do Mormons practice "Fair Game"?
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Re: Re: Re: Re: Re: Re: Do Mormons practice "Fair Game"?
1. I downloaded it and read it, as a Streisand Reader should. Hard to believe they'd bother with this, a very short and pretty innocuous document. Nothing tawdry or embarrassing. I guess it's just the "principle of the thing".
2. I did not see any copyright notices or marks on the document. Doesn't the leave the LDS Church SOL?
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Re: Re: Re: Re: Re: Re: Re: Do Mormons practice "Fair Game"?
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Re: Re: Re: Re: Re: Re: Re: Do Mormons practice "Fair Game"?
This may be why they chose this particular document. Since copyright claims (valid or not) invariably lead to wider dissemination of the work, bringing a claim against this particular document acts as a test of their legal copyright status, where the fallout from the Streisand Effect is relatively benign.
If they can show that their copyright claim is valid on this document, then they can enforce it on other documents that might be more damning without (or with less) Streisanding. If MormonLeaks prevails on Fair Use, then the LDS Church knows they have no legal recourse on this or other documents.
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Re: Re: Re: Do Mormons practice "Fair Game"?
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Murum aries attigit.
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Tolerant?
-C
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Re: Tolerant?
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Re: Re: Tolerant?
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Re: Re: Re: Tolerant?
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Re: Re: Tolerant?
None of them have been very tolerant, except piecemeal, in rare periods. Humans in general, really.
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Re: Tolerant?
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Re: Re: Tolerant?
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How is it fair use?
I wouldn't expect a "fair use" defense to fly if I created a site called "MovieLeaks", and then proceeded to post full Hollywood movies -- even if I had a discussion board, commentary, mini-review, whatever next to it. So, how does MormonLeaks' actions qualify as "fair use"?
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Re: How is it fair use?
This isn't about someone making money off of someone else's marketable product, or even just a bad attempt to control a market. It is merely a silencing tactic. An attempt to remove corroboration for what many know (and have lived) already.
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Re: How is it fair use?
1. Purpose and character of use;
2. Nature of the copyrighted work;
3. Amount and substantiality of the portion taken;
4. Effect of the use on the potential market.
1. The purpose and character of the use is that information about a religious organization is being disclosed in the public interest.
2. The nature of the copyrighted work is that it is official documents from a religious organization.
4. There is no potential market; these church does not sell these documents and has no intention of ever selling them.
That just leaves 3, the amount and substantiality of the portion taken. It's true that they have posted entire documents. So that's a flag for #3.
Is #3, in and of itself, enough to disqualify this disclosure as fair use? I don't know. I'm not a lawyer and I can't tell you what a judge would decide if it went to court.
But it seems to me that given the other 3 elements of the test, Mormonleaks has a pretty strong case. It's disclosing information that's in the public interest about a religious organization, and it's not engaging in any sort of illegal competition with that organization. Where's the infringement?
If the answer is "they're leaking documents that the church hasn't given them permission to leak and doesn't want people to see," then that's an argument *for* this disclosure being a work of journalism in the public interest, not against.
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Re: Re: How is it fair use?
But I'm not a lawyer either. It could be interesting to see this go to court just to see if the argument stands up to legal trial.
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Re: Re: Re: How is it fair use?
They're the legal definition of fair use. What, specifically, about the four-prong test are you finding fault with?
No, not "we can ignore the copyright"; "the copyright does not prevent us from distributing this material in this way for these reasons." Fair use does not mean ignoring copyright. Copyright does not apply to fair use; there's nothing to ignore.
Purpose and character, nature of work, and market effect are all no-brainers. The only prong that works against them is the amount and substantiality. And there's a strong argument to be made that the journalistic purpose of the disclosure would not have been served as effectively if they'd only released excerpts.
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Re: Re: Re: Re: How is it fair use?
The question I have here is: how do you define "public interest"? Obviously, MormonLeaks thinks this is something that "people should know". From my armchair, this doesn't seem sufficient to allow copying and distributing an internal document. What is it that makes this document (according to the Random House dictionary) "relevant to the general populace", when it applies to maybe 2% of the US population?
> Nature of the copyrighted work: The nature of the copyrighted work is that it is official documents from a religious organization.
This is factually correct, but I don't understand how this answer means it passes the test in that it points to defensible under fair use. Are documents used by religious organizations automatically subject to weaker copyright protections?
I apologize for mischaracterizing the result as "ignoring copyright". It would have been more appropriate if I had said "we get an exception to copyright".
> If the answer is "they're leaking documents that the church hasn't given them permission to leak and doesn't want people to see," then that's an argument *for* this disclosure being a work of journalism in the public interest, not against.
This sounds dangerously close to the "if you're not doing anything wrong, you have nothing to hide" argument. If the LDS Church doesn't want their copyright works published, then it's an admission that there's something noteworthy in there, therefore it should be published? The fact that they're (attempting to) exercising their legal right under copyright shouldn't count towards an exemption to their copyright.
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Re: Re: Re: Re: Re: How is it fair use?
It's not that they are religious documents per se, it's that they aren't creative works. Copyright is meant to protect creative expression. It's not meant to lock away facts. Generally, fictional works receive greater protection than nonfiction. This derives partially from the Constitutional provision that authorizes Congress to make laws about copyright:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
Withholding these documents from the public does nothing to promote the arts (or science). They were not created with any thought to the exclusive right to sell them, and with very little (if any) thought to creativity in general. They were created for administrative purposes. The First Amendment rights to free speech and free press will more easily overcome the copyright if the copyright justification is weak, and this is about as weak as it gets while still being eligible for a copyright.
"What is it that makes this document (according to the Random House dictionary) "relevant to the general populace", when it applies to maybe 2% of the US population?"
There can obviously be interest beyond the members of the religion itself. It's over 50% of the population of Utah, so certainly anyone living in that region has an interest. At least one US Senator is a member of the religion, as was a recent major Presidential candidate, and I think that makes it relevant to the general US population.
Yeah, but the fact they they plan to NEVER publish these is still relevant, as it has an obvious impact on the fourth factor (impact on the market.) There is not, nor could there ever be, an impact on the market for documents that they refuse to release, because the market does not and will not exist. Which means that the fourth factor is totally on the side of fair use.
And by the way, an unpublished work does have greater protection. However, federal law explicitly states:
"The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors"
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Re: Re: Re: Re: How is it fair use?
The question I have here is: how do you define "public interest"? Obviously, MormonLeaks thinks this is something that "people should know". From my armchair, this doesn't seem sufficient to allow copying and distributing an internal document. What is it that makes this document (according to the Random House dictionary) "relevant to the general populace", when it applies to maybe 2% of the US population?
> Nature of the copyrighted work: The nature of the copyrighted work is that it is official documents from a religious organization.
This is factually correct, but I don't understand how this answer means it passes the test in that it points to defensible under fair use. Are documents used by religious organizations automatically subject to weaker copyright protections?
I apologize for mischaracterizing the result as "ignoring copyright". It would have been more appropriate if I had said "we get an exception to copyright".
> If the answer is "they're leaking documents that the church hasn't given them permission to leak and doesn't want people to see," then that's an argument *for* this disclosure being a work of journalism in the public interest, not against.
This sounds dangerously close to the "if you're not doing anything wrong, you have nothing to hide" argument. If the LDS Church doesn't want their copyright works published, then it's an admission that there's something noteworthy in there, therefore it should be published? The fact that they're (attempting to) exercising their legal right under copyright shouldn't count towards an exemption to their copyright.
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Keep Up the Good Work
http://downtownministries.blogspot.com/2013/12/lift-up-your-heads-o-you-gates-be_7.html?m=1
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I'm totally agree with this story's position... but LOL.
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Re:
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