WaPo's Kaplan Scolded For Demanding $300 From Student Trying To Sell One Of Its Books On eBay

from the let-me-explain-to-you-first-sale-rights dept

A recent NY Times article about the changes happening at the Washington Post noted that, for years, the company was boosted by its subsidiary, Kaplan, famous for its test preparation offerings. However, thanks to some new federal rules, that business has been shrinking. Apparently Kaplan's lawyers are looking for other ways to pick up some spare cash -- such as ignoring the First Sale doctrine that lets people resell legally purchased books without it being a copyright violation.

After sending a nastygram with a demand for $300 to a student who put up a used copy (which she had purchased used as well), a letter was sent to Kaplan's lawyers from Paul Levy at Public Citizen explaining the law to Kaplan and refusing to give in to the crazy demands in the letter:

In fact, elisha8779 is a medical student who bought a used copy of the notes from another student. Regardless of whether Kaplan might have a contract action against that seller, Kaplan has no copyright claim against anybody, and it certainly has no claim against elisha8779. This issue was conclusively determined by the Supreme Court of the United States in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), a case that is still good law.... Consequently, in response to your "cease and desist," elsiah8779 will not return any books in her possession and she is certainly not going to send you $300 dollars for having exercised her statutory first-sale rights.

Levy then goes on to directly scold Kaplan for this move and suggests that the company not pursue similar claims against others:

Beyond that, you and your client should be ashamed of yourselves for trying to intimidate students into giving up their first-sale rights. elisha8779 is not planning to file a class action for a declaratory judgment of non-infringement--she wants to get on with her life--but we are going to be looking for other clients who may not be so charitable toward Kaplan. I strongly suggest that you stop sending these frivolous demands.

Filed Under: copyright, first sale
Companies: ebay, kaplan, washington post

How The Guy Who Didn't Invent Email Got Memorialized In The Press & The Smithsonian As The Inventor Of Email

from the damn-you-wikipedia dept

Late last week, the Washington Post reported that The Smithsonian had acquired "tapes, documentation, copyrights, and over 50,000 lines of code from V.A. Shiva Ayyadurai, who both the Smithsonian and the Washington Post insisted was the "inventor of e-mail." There's just one problem with this: It's not actually true. Lots of internet old-timers quickly started to speak out against this, especially on Dave Farber's Interesting People email list, where they highlighted how it's just not true. As is nicely summarized on Wikipedia's talk page about Ayyadurai, he was responsible for "merely inventing an email management system that he named EMAIL," which came long after email itself. The Washington Post eventually offered the following "clarification":

Clarification: A number of readers have accurately pointed out that electronic messaging predates V. A. Shiva Ayyadurai’s work in 1978. However, Ayyadurai holds the copyright to the computer program called "email," establishing him as the creator of the “computer program for [an] electronic mail system” with that name, according to the U.S. Copyright Office.

Except... that "clarification" seems to confuse copyright with patents. Copyright is only over the specific copyrightable work created -- which would be the specific code he used. It does not, in any way, establish him as "the creator" of "the" electronic mail system -- merely an electronic mail system -- and hardly the first one. I could write some sort of email management software tomorrow and copyright that... and it would no more make me an "inventor" of email than Ayyadurai.

There's a detailed history of email over at the NetHistory site, and you'll note that Ayyadurai doesn't warrant a mention -- which isn't surprising since his work comes way after most of the important stuff was done. Thomas Haigh sent a detailed email to the SIGCIS list, breaking down what happened. Apparently, Time Magazine ran a profile of Ayyadurai a few months back, calling him "the man who invented email," which resulted in the Smithsonian's interest. But even that article notes at the beginning that Ayyadurai actually just holds a copyright on EMAIL, rather than email itself. It even asks about the fact that Ray Tomlinson is often credited as being the inventor of email -- and his efforts came much earlier.

Either way, it appears that Ayyadurai has played up this idea that he's the inventor of email, despite little to back that up (apparently frustrating many people who actually know the history). Yes, he copyrighted a particular bit of code, but there's little to support the idea that he had very much to do with "the invention of email" in any way. But, that's not what the Washington Post (or, apparently, the Smithsonian) will tell you...

Filed Under: copyright, email, history, inventor, va shiva ayyadurai
Companies: smithsonian, time, washington post

Appeals Court Realizes Hot News Makes No Sense; Dumps Injunction On TheFlyOnTheWall

from the hot-news-loss dept

"Hot news" was pretty much dead a few years ago. The court-created doctrine, which resulted in a weird quasi-intellectual property on factual information about a century ago, hadn't been used for years and many people had assumed that it was pretty much gone. However, old legal doctrines die hard and, a few years back, some Wall Street firms sought to revive it, claiming that the website theFlyOnTheWall.com violated their "hot news" rights by accurately reporting on how those Wall Street firms were rating stocks. That's factual information and not protected by copyright, but the firms claimed it undermined their business models via hot news... and the lower court agreed, issuing an injunction.

Thankfully, an appeals court has dumped all of that, claiming that hot news is preempted by federal copyright law and that there's nothing wrong with reporting on factual information. The court mainly relies on the famous NBA v. Motorola case, which found that basketball scores and stats were facts and not protected by copyright or hot news. Using the same rules, the court finds that copyright wipes out any "hot news" in this case as well.

We conclude that applying NBA and copyright preemption principles to the facts of this case, the Firms' claim for "hot news" misappropriation fails because it is preempted by the Copyright Act. First, the Firms' reports culminating with the Recommendations satisfy the "subject matter" requirement because they are all works "of a type covered by section 102," i.e., "original works of authorship fixed in a... tangible medium of expression." 17 U.S.C. § 102. As discussed above, it is not determinative for the Copyright Act preemption analysis that the facts of the Recommendations themselves are not copyrightable. See NBA, 105 F.3d at 850. Second, the reports together with the Recommendations fulfill the "general scope" requirement because the rights "may be abridged by an act which, in and of itself, would infringe one of the exclusive rights' provided by federal copyright law," Altai, Inc., 982 F.2d at 716 (citing Harper & Row, 723 F.2d at 200), i.e., "acts of reproduction, performance, distribution or display," id. (internal quotation marks omitted).

Third and finally, the Firms' claim is not a so-called INS-type non-preempted claim because Fly is not, under NBA's analysis, "free-riding." It is collecting, collating and disseminating factual information -- the facts that Firms and others in the securities business have made recommendations with respect to the value of and the wisdom of purchasing or selling securities -- and attributing the information to its source. The Firms are making the news; Fly, despite the Firms' understandable desire to protect their business model, is breaking it. As the INS Court explained, long before it would have occurred to the Court to cite the First Amendment for the proposition:

[T]he news element -- the information respecting current events contained in the literary production -- is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day. It is not to be supposed that the framers of the Constitution, when they empowered Congress "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" (Const., Art I, § 8, par. 8), intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it.

The court also distinguishes the classic "hot news" case (INS) by noting that in that case, the competing firm was taking AP news, rewriting it, and pretending it was its own. That's not what's going on here, where ratings are simply being aggregated.

This is an excellent ruling, though I doubt we've seen the end of "hot news" yet. There may still be appeals, and there are a few other such hot news cases out there. But it's nice to see the judges toss this one out.

Filed Under: copyright, facts, first amendment, hot news, reporting
Companies: afp, ap, belo, gannett, mcclatchy, naa, ny times, scripps, theflyonthewall, time, washington post

Washington Post Managing Editor Explains Why Focusing On Direct Revenue From Consumers Is Short-Sighted

from the free-is-expensive,-but-it-can-pay-off dept

From the title of this article in Forbes, by Raju Narisetti, the managing editor of the Washington Post, you might think it was going to be another rant against "free" online and talk up the wonders of paywalls. After all, the article is called "Why Free is Very Expensive." But, the article actually is much more nuanced, and effectively explains why folks at The Washington Post think that a paywall doesn't really make much sense:

Here is why revenue from readers is unlikely to be our salvation.

-- A metered model makes your business susceptible to the will of a few readers--those who consume the most articles/pages. Often, less than 5% of these kinds of visitors account for nearly 50% of your page views. And they have very little barriers to exit.

-- Aggregators, like Huffington Post, will still find ways to deliver your content for free and often with more engaging technologies since they don't have to invest much in content creation.

-- The infrastructure for payment systems, data security, customer service, reader acquisition and retention for digital subscriptions costs a bundle to build and run, yet your consumer price points need to be low, making the return on investment a clear challenge.

-- Our Web sites were to be trusted safe havens protecting, informing and entertaining you amid a deluge of digital content. And when you came to us, we would make money off you. But that was before your friends became your trusted sources. There are 600 million of you on Facebook and we know we need to be there too with our content. We haven't even begun to fathom that monetization challenge. So, we could up end an expensive drawbridge around Web sites that are already losing their value?

-- Scrolling on Web sites has always been a poor experience for consuming news. Now, just as new devices and digital experiences--none invented by major news brands--create richer engagement outside our sites, we are talking about charging readers for sub-optimal Web site consumption.

He does point out, as everyone agrees, that it is costly to run a major modern news operation, and that the digital business models for large publications like the one he works for haven't kept pace. But, thankfully, unlike some of his competitors, he wants to look forward and not backwards. He's looking at the ways large successful internet companies are making more and more money by increasing convenience and building more value for users:

I, for one, think that the golden age of targeted digital advertising is yet to come. Do we really want to trade that larger opportunity for the much smaller and unreliable pursuit of consumer dollars? I also wonder if we aren't better off redeploying our newsroom resources to create new revenue streams and more engaging digital platforms than trying to make the traditional Web experience better and charge for it....

Free is indeed very expensive. But, what the prolonged and knee-jerk debate about free vs. paid inside our news organizations shows is that we still have what led us here in the first place: An imagination deficit. Rather than apply an ‘all or nothing' approach focused, perhaps wrongly, on just our Web sites, we should be willing to make creative bets on our business model. We continue to make what is being consumed--in large quantities. It is time we figured out how to make it easier, more engaging and useful. Despite their soaring valuations, Facebook, LinkedIn and Twitter don't create much, if anything at all, by way of original content. And, for that matter, neither do Google or YouTube. They simply make it easy, useful and engaging to their audiences. These are incredibly disruptive times and one thing is clear to me: There isn't time or room for incrementalism at major news organizations.

It's nice to finally see someone at a major publication recognize this point that many of us have been making for a while. For all the talk of paywalls, there's been very little done to actually increase the value of the online experience for users at these newspaper sites. There's been very little effort to build and support community. It's nice to see that at least one major paper is hopefully moving in that direction.

Filed Under: business models, journalism, paywalls, raju narisetti
Companies: washington post

Big Media To Innovative App Maker: Stop Innovating Without Our Permission!

from the permission-nation dept

There are a bunch of different newsreader type apps out there, and for years there have been all sorts of apps that let you aggregate content into personal collections. A new one, which recently hit the market for iPads, is called Zite and, apparently, it's getting pretty good reviews. Basically, it can look at what you follow on things like Twitter and Google Reader and formats an algorithmically chosen aggregation of that content to look something like a magazine. If you're familiar with Flipboard, it's somewhat similar, but the implementation is a bit different. I remember when Flipboard came out, there were copyright questions concerning how it scraped various websites.

However, for whatever reason, this new service Zite has really set off pretty much everyone in the traditional newspaper business. A list of who's who in the newspaper/magazine world, including the Associated Press, the Washington Post, Dow Jones, Scripps, Gannett, McClatchy, Time and even National Geogrpahic, all teamed up to send a nastygram (embedded below) that effectively says "hey, we're all for innovation, but you can't innovate without first paying us."

Now, to be clear, technically these newspapers may have a point concerning the fact that Zite displays their content. But if you start to go down that path, you suddenly realize that so does a browser. Zite is really just a form of a browser, that tries to make their content more useful. Again, some may point out that Zite strips some ads from publications, but, again, so do many browsers that have ad blocking extensions installed. When viewed that way, how is Zite really anything other than a specialized browser? If they're claiming that's infringing, then is it really that different from claiming that other browsers/aggregating tools are infringing.

And, honestly, if creating an app that makes it easier to read your content is a threat to your business, you're doing business wrong.

I will say I'm a bit surprised to see the NY Times missing from the list of angry publications, since they've gotten upset about similar apps in the past, but really, this just seems like another example of publications thinking that anyone making their content more readable has to first get permission. If someone wants to make Techdirt content more readable, please go right ahead.

Filed Under: copyright, flipboard, innovation, permission, zite
Companies: associated press, down jones, gannett, mcclatchy, scripps, washington post, zite

How Cute: NY Times, WaPo & Gannett Build Their Own Walled Garden Most People Will Ignore

from the tend-away dept

This is just a bit bizarre. As the NY Times and others keep moving towards a paywall, it and the Washington Post and Gannett have apparently funded a bizarrely pointless operation called OnGo, which appears to be an excessively limited, high priced, walled garden aggregator. For a mere $7 per month, you can get access to content from those three companies along with a few other big newspapers. Of course, there are limits. You only get the top 20 stories from the NY Times, for example.

Or, you know, you could just use an RSS reader. Or Twitter. Or Facebook. And not pay the monthly fee.

I'm reading through the various details and stories on this project, and the one question I keep asking which isn't answered anywhere is what is the additional value this brings to the table. When the very best that the operation's boss man can do to explain his value proposition is to say "this is another option," you're in trouble. This isn't providing any more value for the (much higher) price. It seems to be targeted at fools, which is no way to build a business these days.

Filed Under: journalism, news, walled gardens
Companies: gannett, ny times, washington post

Newspapers To Court: We Don't Care About TheFlyOnTheWall, But Please Don't Take Away Our Hot News

from the they-will-regret-this dept

Yesterday we wrote about Google and Twitter's amicus brief in the infamous FlyOnTheWall hot news case, and the folks over at the Associated Press were kind enough to send over a link to the amicus brief from a huge coalition of newspapers. Basically, every big US newspaper or newspaper organization signed on to this one, including the Associated Press, AFP, the NY Times, the Washington Post, Gannett, McClatchy, Belo, Scripps, Time, and the Newspaper Association of America (just to catch everyone else). Considering that the AP has been leading the charge to bring back hot news, you can probably guess where this one is going: The short summary? "We don't care about TheFlyOnTheWall or Barclays or this specific case, but we're scared to death that you might make a ruling that says the hot news doctrine should go away."

I'm still sort of amazed that any serious news organization supports the hot news doctrine, because it's almost guaranteed to come back and bite them if it is regularly used again. All of the newspapers above rely on rewriting news from other publications to some extent, whether they admit it or not. If they really support this, they're going to run into trouble themselves, even if they're apparently unwilling to admit it. It's incredibly short-sighted.

Also weird is the claim that these newspapers "rely" on hot news today. They don't. Sure, the hot news doctrine has technically been around for about a century, but it's barely been used at all in the last few decades. It was, for all intents and purposes, a dead doctrine that many considered not worth keeping around (pdf). To claim that these organizations have relied on the hot news doctrine is ridiculous, because it's barely been showing up in court until recently.

Either way, it looks like lots of parties who are concerned about "hot news" have realized that TheFlyOnTheWall case has become ground zero for whether or not "hot news" is actually allowed.

Filed Under: hot news
Companies: afp, ap, belo, gannett, mcclatchy, naa, ny times, scripps, theflyonthewall, time, washington post

Washington Post Ombud: Anonymous Comments Have Their Place

from the including-on-the-wapo-site dept

With some newspaper folks claiming that anonymous comments are evil and somehow bad for America, it's nice to see someone from the business step up and defend the value of anonymous commenters. The Washington Post's ombudsman, Andrew Alexander recently wrote a good defense of anonymous commenters. The first half details all the bad that comes along with anonymous commenters -- the vile and nasty comments -- but then points out that an outright ban is the wrong response:

For every noxious comment, many more are astute and stimulating. Anonymity provides necessary protection for serious commenters whose jobs or personal circumstances preclude identifying themselves. And even belligerent anonymous comments often reflect genuine passion that should be heard.

He also points out that allowing anonymous commenters has helped to build up a much larger community at the WaPo site, where those users tend to be more loyal and spend more time, even if it's not known who they are specifically. But I think the point highlighted above is key. We all can remember the awful anonymous comments, because those stick out in our memory. But that creates this anecdotal belief that anonymous comments are awful. Yet, as I look through the anonymous comments that we get at Techdirt every day, the vast majority of them are quality comments. Yes, there are some terrible ones, which may be more memorable, but we have anonymous commenters who provide tremendous value -- and it would be a shame to cut them off, just because of a few troublemakers.

Filed Under: anonymous, comments
Companies: washington post

Washington Post Reporters Believes Bogus Police Report Over Own Editorial Aide Eye Witness And Photographic & Video Evidence

from the this-is-why-no-one-trusts-the-press dept

Post updated to clarify that it was an editorial aide, rather than an editor who witnessed things

Via Jay Rosen we learn of the absolutely bizarre story of how a Washington Post editorial aide witnessed an altercation involving an off-duty police officer who pulled his gun on people in a snowball fight -- and the eventual Washington Post writeup on the story which completely ignored the eyewitness account of its editorial aide in favor of the claim by the police that the gun wasn't drawn. Yes, a Washington Post staffer happened to have been on the scene and witnessed the whole thing. He called it in and told a reporter about it -- but the reporter simply ignored the guy's account. As Jay Rosen notes: "Who you gonna believe? The police department or your own staffer's lying eyes?" Even worse, by the time the Washington Post put out its report, there was already photographic evidence of the drawn gun posted online, along with a video where the cop admits to pulling the gun.

Later on, the Washington Post did "update" its report, mentioning the online evidence, but waited for quite some time before finally linking to the video (and never linked to the photos). As the Washington City Paper notes about this, it's in part due to very old school media thinking:

Yet the reason why the Post screwed this up is that they all have linkophobia. If you link to an outlet---such as, God forbid, the Washington City Paper---you've lost. You got scooped and all your colleagues are going to look down on you. Linking is a huge sign of weakness---you just can't do it. Far better to, like, call a top police official, buy his version of events, and just place it in a post, regardless of the contradicting evidence that's already posted elsewhere.

Take a close look at that 10:20 update on the maybe-gun-pulling cop: "The plainclothes D.C. police detective may have unholstered his pistol during the confrontation with participants in the huge snowball fight, based on video and photos posted on the Internet."

Bold and italics are mine. They're mine because this is the most cowardly, selfish, arrogant news conduct out there today. What the fuck is "video and photos posted on the Internet"? How does that help readers? It's as if I can go to www.internet.com, and there, on the first screen, will be the video and photos of the snowball fight and the maybe-gun-wielding cop. "Posted on the Internet" would be acceptable if this were 1997.

The reporters used this hazy phrasing because they were too chicken-shit to do something that we all have learned to do over the past, say, decade or more. And that's to link to competitors and acknowledge their contributions to stories.

Remember, this is the Washington Post, that recently had a column claiming that a blog linking to a Washington Post story (multiple times) had ripped off the Washington Post. So, perhaps that explains why the Washington Post refused to link to others who had more accurate takes on the story. It didn't want to "rip them off," and preferred to get the story wrong, even though it employed an eye witness.

So where are all those reporters who insist that the professional press is needed because they get this stuff right, while it's the upstarts that rush to post false claims?

Filed Under: eye witnesses, journalism, linking, reporting, snowball fight, washington dc
Companies: washington post

Washington Post Learns The Importance Of Fact Checking... And Reading The Comments

from the keep-up dept

On November 26th (Thanksgiving), the Washington Post put up an article about the group Public Enemy and its efforts to help the homeless in DC. Nice enough. However, there was one oddity in the article. It claimed that the band's famous song 911 is a Joke was about the attacks of September 11th. Yes, this is a song that was released in 1990. And if you've ever heard it, you know that it's about the phone number you call for emergencies. I mean the first line of the song is "I dialed 911 a long time ago....".

Now, I guess this is a mistake that anyone could make if they were totally unfamiliar with Public Enemy or its music -- but you would think that someone writing an article about the band would at least learn a little about the music it released. Furthermore, we're constantly told about how the mainstream press is important because they have fact checkers. Apparently, they took Thanksgiving off.

But, a bigger point is brought forth by Mathew Ingram who points out that people in the comments of the article pointed out the mistake really quickly and it took an entire week for the Washington Post to get around to making a correction.

Now, everyone makes mistakes now and again, and there's nothing wrong with that, but it does demonstrate a few things. Just claiming you have fact checkers doesn't make you significantly more accurate at times. Separately, we've pointed out in the past how bad newspapers seem to be with actually engaging with commenters on their site, and this highlights why they're making a big mistake. Yes, it's work. Yes, sometimes there can be a lot of junk in the comments, but you can also learn a lot -- such as when you've made a huge mistake.

Filed Under: 911, comments, fact checking, public enemy
Companies: washington post