If You're A Journalist Who Thinks That Pointing Out Lies Shows Bias, You're Not A Journalist

from the you're-a-pr-person dept

For years, we've pointed out the ridiculousness of "the view from nowhere" reporting (a phrase coined by journalism professor Jay Rosen). This is the ridiculous belief that being an "objective" journalist means never challenging what someone says to you, but rather just showing "both sides of the story" and not "taking" any side. But, that's ridiculous. If someone claims that the earth is flat, and you do a story showing the person claiming that, alongside someone else saying it's not, but never point out that the person saying the earth is flat is crazy, then you're not doing your job as a journalist. A journalist should be focusing on getting to the truth, and that means calling bullshit when warranted.

This issue has come up again this week, thanks to NBC talking head Matt Lauer's inability to challenge Donald Trump's blatantly false statement that he was against the war in Iraq. Trump has been saying this throughout the campaign, and it's simply not true. What's more, plenty of journalists have pointed out that it's not true, and any journalist interviewing the candidate, as Matt Lauer did, should have known that and should have pushed back. But Lauer did not, leading to widespread criticism.

What's perhaps even more astounding, however, is that some TV journalists jumped in to defend Lauer, insisting that doing actual fact checking on lies is showing bias:

Political talk-show host Chris Matthews, for example, said after the event that if Lauer had called Trump out for lying, that would be equivalent to expressing an opinion, and moderators are supposed to be neutral.

Fox News anchor Chris Wallace, who is going to be moderating one of the debates between Trump and Clinton, said something similar in an interview. Wallace said it’s not his job to question the factual accuracy of a candidate’s statement during such an event.

“I do not believe it’s my job to be a truth squad,” Wallace said. “It’s up to the other person to catch them on that.”

If that's what they think, then they should all find new jobs. Because they're not journalists. The finding of truth is important, and calling out a candidate (or others in power) for false statements when they make them is part of that important role. It's not "biased" to seek the truth. It's not "biased" to call a false statement a false statement. It's the job of a journalist.

Filed Under: bias, chris matthews, chris wallace, donald trump, fact checking, facts, he said, journalism, matt lauer, objectivity, reporting, she said, truth

You're Entitled To Your Own Opinions, But Not Your Own Facts About Copyright, NY Times Edition

from the fact-checking-is-dead dept

The NY Times has an op-ed piece by Jonathan Taplin, claiming that Silicon Valley hates music, that is so chock full of out and out factual errors that it's an embarrassment for the NY Times to have allowed it to be published. Is fact checking dead at the Gray Lady? It's perhaps not as embarrassing for Taplin, who's been spewing ridiculous falsehoods for years about how technology is out to destroy all creative culture. In the past we've had to correct his blatantly false statements, but it seems odd to us that the NY Times would let him publish a piece so devoid of facts. Let's dig in and do some editing and fact checking that the NY Times apparently failed to do.

That’s a fight artists are losing. It’s been 17 years since Napster, the online file-sharing software, began flooding the Internet with free, illegally uploaded music, devastating musicians and the industry. While Napster is long gone, the looting continues, only now it is technology giants like Google and SiriusXM, along with streaming services like Pandora, that are responsible.

This is an interesting, and bizarre, claim, given that unlike Napster, the three companies named all pay a ton of money in license fees for the works in question. In fact, both SiriusXM and Pandora have struggled to reach profitability in large part because of the massive percentage of revenue that goes directly to record labels (note: not directly to the musicians themselves, which may give you a hint as to the real problem). Last fall, Pandora noted that it had paid $1.5 billion in licensing, with over $500 million of that coming in 2015 alone (and this was before the year ended). The company has shown that approximately 60% of revenue goes to licenses, and this is a capital intensive business, given that it has to stream a ton of content and bandwidth for that level of streaming is not cheap. Spotify, similarly, has claimed to pay out approximately 70% of revenue. A year ago, Spotify claimed to have paid out $3 billion, noting a run rate of over $1 billion paid to artists per year. YouTube has similarly paid out over $3 billion.

It takes quite a lot of gall to argue that these services, which didn't exist at all just a few years ago, but which have consistently moved people away from piracy by creating services that people like -- and which often pay more than 50% of their revenue in royalties, are somehow "looting" the industry. Does he not realize that without these services, it's likely that there would actually be more piracy, from which the artists would receive no direct remuneration? Would he prefer that? Or would he prefer that these companies be forced to pay even more so that they couldn't even exist any more at all, which would, once again, drive people right back to piracy? It makes no sense at all. To call this "looting" is nonsensical and not fact-based.

YouTube, which is owned by Google, is now the world’s dominant audio streaming platform, dwarfing Spotify and virtually every other service. Yet it pays artists and record companies less than a dollar a year for every user of recorded music, thanks to rampant piracy on its site (by contrast, Spotify licenses its music and pays $20 per user each year).

This is comparing apples to oranges. Spotify is just a music service. YouTube is mostly other stuff, with some music. Notice that he doesn't compare Spotify to YouTube Red or to Google Music, which are more on par.

The problem has gotten so bad that, in 2015, vinyl record sales generated more income for music creators than the billions of music streams on YouTube and its competitors.

This point was a talking point that the RIAA trotted out earlier this year and has already been debunked. Vinyl HAS NOT generated more income for music creators than music streams. That's just blatantly false. What the RIAA showed was that gross retail value of vinyl sales (i.e., ignoring actual sales price, as well as the cut that goes to retailers and other middlemen) was higher than the net amount that was paid in royalties on just ad-based music streaming (i.e., ignoring all of the subscription and paid revenue). This is worse than an apples to oranges comparison. And, even then, with those caveats, Taplin's claims go way beyond what the RIAA actually showed. The royalties from vinyl that actually went back to artists were a lot less than what went to artists from ad-supported music streaming, not to mention all music streaming.

Either Taplin is lying or he's totally misinformed.

Google has also leveraged its dominance in Internet search into a cash cow built on advertising. But Google doesn’t care if your search for the movie “Mean Streets” or the music from “The Last Waltz” (both of which I produced) brings up licensed versions or pirated copies: The company sells ads and cashes in either way. Creators, however, get nothing from those stolen copies — except the anguish of watching others grab the value of their life’s work.

Okay, let's try it. I searched for "Mean Streets" on YouTube and on Google's video search. I don't see a pirated copy anywhere. YouTube does show me a licensed version and a variety of obviously fair use clips (all less than 5 minutes). Google Video search seems to just show me the theatrical trailer and some fair use clips. In neither search do I see an unlicensed version. A regular (not Google Video search) Google search again points to clips, but also has multiple options on where you can pay to see a licensed version. I don't see a pirated version anywhere.

Google has basic “digital fingerprinting” technology that could scrub both YouTube and its search results of illegal versions. But instead of safeguarding the work of artists, Google wields this tool as a bludgeon. Creators can either enter into a licensing agreement with YouTube at very low royalty rates, or get left at the mercy of pirates. What looks like protection for copyright holders is more of a protection racket benefiting Google.

This is blatantly false. Not only is it blatantly false, but just last week at the Copyright Office hearings in San Francisco that Jonathan Taplin attended, when someone claimed this, Fred von Lohmann from Google pointed out that it is absolutely false -- something he has now reiterated on Twitter: What Taplin is (apparently willfully?) confusing, is that in order to use ContentID, you do need to grant Google a license, but that license is to make it legal for them to then hold the copy of the work on file for the purpose of fingerprinting. And, then, you can use ContentID to do "notice and staydown" of any matching copies. To blatantly misrepresent how Google works just days after being told this is wrong just seems... like someone with an axe to grind with no concern for the facts at all.

And all of that raises the question of why the NY Times allowed it to be published without doing even the slightest fact checking?

Unfortunately, there is a sad history of undervaluing musicians in the United States. Terrestrial radio, a $17 billion industry, pays publishing rights (payments to songwriters) but has never paid artists or record companies for music.

Yes, some could make an argument that this setup is unfair, but the market suggests otherwise. The reason that the law said that performers didn't need to be paid was because it recognized that radio was promotional. And it is. That's why every few years the recording industry gets caught up in a new scandal about payola. That is, the copyright holders of the sound recordings have long recognized that radio play is so valuable that they will pay extra money under the table to make it happen, even if that's illegal. Obviously, if the radio play wasn't so valuable, this wouldn't be happening. And yet now they want to get paid extra for that value? That seems to be the exact opposite of what the market suggests is the power dynamic here.

In addition, the satellite radio company, SiriusXM, pays below-market royalties, thanks to a giveaway it first wrested from Congress 20 years ago.

"Below market"? Based on... what? Again, SiriusXM has struggled to barely reach profitability. After years of losses, it has been profitable recently, but just barely.

Conglomerates like iHeartMedia (formerly Clear Channel Communications) and other online services like Pandora, which are required to pay artists for digital streams, have exploited federal copyright law to deny payments for work recorded before 1972 (songwriters are paid; performers are not). This means artists like Aretha Franklin, Ella Fitzgerald, Chuck Berry and John Coltrane never received a dime from AM/FM radio and or from many digital services for some of their greatest music.

The pre-1972 stuff is a long and complicated story that we've covered in detail, and has a lot more to do with the fact that pre-1972 sound recordings are not covered by federal copyright law than any willful plan to "exploit" anyone. And there's a simple solution to this: put those works under federal copyright law. But you know who's fought hard against that? Taplin's friends in the RIAA. Maybe he should take it up with them. He also ignores, of course, that Pandora recently agreed to pay $90 million for those recordings, despite it not being clear if it needs to, legally. Is Taplin asking how much of that money will actually go to artists? Hmm...

The last meaningful legislation in this area was the Digital Millennium Copyright Act in 1998, which was based on the idea that creators should monitor the Internet for illegal copies of their works and give “notice” to websites and services to take pirated material down. Under the act’s “safe harbor” provisions, any service or site that makes a minimal effort to address these notices is immune from liability for piracy or theft.

"Minimal effort"? He seems to be ignoring the vast number of lawsuits, including the one against Veoh, in which Veoh won, but had to shut down over legal fees. It also ignores the fact that basically every other platform spends a ton of money handling takedown notices.

And it ignores the fact that most services have implemented filters and tools that go way above and beyond what the law requires. Why would Taplin ignore all of this? Why would the NY Times let him do so?

That system may have made sense when it took minutes to download an illegal song. But today no individual can effectively police the millions of pirated files that mushroom online and reappear the instant after they are taken down. Google alone received almost 560 million takedown notices in 2015.

And, again, Google spent $60 million building ContentID and related tools that go way beyond what the law requires and gives copyright holders the ability to either monetize their works in new ways or to issue a "notice and staydown".

There are two concrete steps Congress can take that would allow musicians to be treated fairly. First, Congress should update the safe harbor rules of the copyright act to achieve the balance that was intended: protecting creators with effective tools in exchange for not burdening Internet companies with liability. That means strong, well-defined consequences for repeat offenders, easing the process for filing notices and ensuring that services are using the best technology to take pirated material off their sites and keep it off.

So, basically, after flat out lying throughout the piece, and pretending that Google doesn't already have these tools, he wants a law to require such tools. Note: Google already has everything Taplin is asking for. But it spent $60 million putting that together. If Taplin got what he wanted, he'd lock in Google/YouTube as basically the only players able to handle this market. Does he want new providers and services or is he trying to kill the market entirely?

Second, Congress can address the original sin of AM and FM radio and close the loophole that allows radio companies to use music without paying artists. The Fair Play Fair Pay bill, which has Representative Jerrold Nadler of New York as a sponsor, would ensure that all music creators received fair-market-value pay for their work no matter what technology or service was used to play it. It has the support of hundreds of artists like Rosanne Cash, Duke Fakir of the Four Tops, Elvis Costello, Martha Reeves, Elton John and Common.

Again, given payola, it's hilarious for him to argue that this is necessary, but he's entitled to his opinion -- just not his own facts.

In 2015, after years of battling pirates, Prince said in an interview that the Internet “was over for anyone who wants to get paid.” With Congress’s help, it needn’t be.

Prince was wrong then and he's wrong now. There are more musicians making money from the internet today than ever made money prior to the internet. There are content creators using YouTube, Spotify, Songkick, Soundcloud, Amazon, Apple, Kickstarter, IndieGogo, Patreon and many, many more services to not just make money but to build strong and lasting relationships with their fans.

Again, it's no surprise that Taplin would lie. It's kind of his thing when it comes to his misguided and misinformed anger at the very innovation that's saving the entertainment business. The question is why the NY Times, a paper that prides itself on accuracy, would allow a piece so blatantly false to be published.

But, really, the most disturbing thing about this is that it perpetuates the myth that it's "content creators" v. "the tech industry." This is nonsense. Technology has been a major force in enabling more content creators -- including myself -- to create content, to promote it, to distribute it, and to monetize it. More people than ever before are making and distributing music, videos, books, software and more... because of these tech platforms. This isn't a zero sum game. There are opportunities for everyone to benefit, and setting up this false dichotomy that when one wins the other loses, Taplin and the NY Times are actually setting everyone up to lose by not just misrepresenting reality, but totally misunderstanding the very nature of both creativity and innovation.

Filed Under: contentid, facts, jonathan taplin, music, takedowns, youtube
Companies: google, ny times, youtube

UK Gov't Pushing For 10-Year Jail Sentences For Copyright Infringement Based On ¯\_(ツ)_/¯

from the faith-based-policy dept

For many years, we've pointed out that so much policymaking around copyright law is what we'd argue to be purely "faith-based." The fact that there is little to no actual evidence that stronger copyright protections lead to better outcomes for the public, the economy or for society is ignored by people who just know it must be true. And the constant assertions about extending and expanding copyright always seem to come from this same faith-based positioning. An exploration into the empirical basis for copyright law finds that there basically is none and the reason we have copyright is because a couple of centuries ago some people thought it was a good idea, and no one's really bothered to check since then.

One of the most ridiculous examples of this "faith-based" reasoning is the belief, among many, that the way to stop widespread copyright infringement is just to increase the punishment for those who are caught. Sure, you can understand the armchair economists' reasoning here: if you increase the punishment, you're increasing the "cost," which should decrease the activity. But, that's just wrong on many, many levels. First, let's take a step out of the copyright realm and into the criminal justice realm. After vastly expanding punishment (via things like "three strikes" laws), many, many people (even those who supported such programs) are now admitting that long sentences don't actually do much to deter crime. While there were some studies in the 80s and 90s suggesting long sentences reduce crime, more recent (and much more thorough) studies have basically rejected that view. A recent survey of many studies in the area found little support for the idea that longer sentences deter criminal activity.

A bunch of other, even more recent, studies agree. A massive report from the University of Toronto goes through the history of the support for harsher sentencing, and a ton of historical and modern research, and concludes:

At this point, we think it is fair to say that we know of no reputable criminologist who has looked carefully at the overall body of research literature on “deterrence through sentencing” who believes that crime rates will be reduced, through deterrence, by raising the severity of sentences handed down in criminal courts.

The evidence supporting this conclusion has been accumulating for decades. In the 1970s, thoughtful reviewers were cautious in their conclusions, suggesting only that the deterrent impact of harsh sentences had not been adequately demonstrated. More recently, we, and others, have been more definitive in our conclusions: crime is not deterred, generally, by harsher sentences.

Another major study, from two years ago, by the National Research Council more or less says the same thing: "the evidence base demonstrates that lengthy prison sentences are ineffective as a crime control measure." Another recent research report, which also delves deeply into the arguments from the 70s and 80s now concludes: "The empirical work of the past thirty-five years has presented evidence that some of the deterrence we thought that we were likely to get was not, in fact, forthcoming.... " Hell, even the National Institute of Justice, the "evaluation" agency that's a part of the US Justice Department (which regularly pushes for harsher punishment) says directly on its website:

Increasing the severity of punishment does little to deter crime.

Laws and policies designed to deter crime are ineffective partly because criminals know little about the sanctions for specific crimes. Seeing a police officer with handcuffs and a radio is more likely to influence a criminal’s behavior than passing a new law increasing penalties.

That same page further notes that "sending an offender to prison isn't a very effective way to deter crime."

At this point, you have to be willfully ignoring the evidence to argue that throwing people in jail for a long time is a way to deter crime. The reasons why the simple theory at the top of this post is wrong are that (1) most people committing crimes don't expect to get caught and (2) many people who are committing crimes don't even know what punishment might be, or vastly misunderstand the likely punishment.

Okay, so let's jump back into the copyright world. For reasons that are beyond comprehension, the UK government has announced plans to try to put copyright infringers in jail for 10 years. The UK's Intellectual Property Office recently released a report, following a consultation on this issue, in which it clearly supports a 10-year sentence for infringement, arguing:

The UK is frequently cited as the world leader in IP enforcement, and as Minister for IP I want to do everything I can to preserve this standing. The provision of a maximum ten year sentence is designed to send a clear message to criminals that exploiting the intellectual property of others online without their permission not acceptable.

The report also states, unequivocally:

The Government believes that online offences should be treated no less seriously than their physical counterparts. Harmonising these will provide a deterrent effect to criminals and, where criminality continues, provide for tangible punitive action.

Notice, of course, that there is no citation for this view. And, also, the fact that it clearly contradicts a ton of empirical research, as discussed above. Perhaps noticing the same thing, Kieren McCarthy at the Register sent a FOIA request to the Intellectual Property Office asking them where the 10 year maximum sentence idea came from. The answer? The IPO just made it up based on... nothing.

Such information was derived from our analysis of the evidence and opinion provided to us by a wide spectrum of interested parties, over the consultation period.

No empirical understanding of the issues of punishment and deterrence. No actual understanding of the issues. Just a bunch of people gave us their opinions, and we just plucked 10 years out of thin air. And, of course, as McCarthy notes, even that line above is clearly untruthful, since the vast, vast majority of the submissions provided to the IPO opposed the 10-year sentence proposal, which the IPO then stuck with anyway. In the IPO's response to McCarthy, it also cited a couple of studies concerning copyright, but both of those studies advise against such an increase in sentencing.

So it appears that the Intellectual Property Office is focused on increasing criminal penalties for copyright infringement to 10 years in jail based on proactively and willfully ignoring the empirical evidence both in the criminal justice world and in the copyright world.

And then they wonder why the public doesn't respect copyright law?

Filed Under: copyright, deterrence, evidence based, facts, faith based, ipo, jail terms, punishment, sentencing, uk

Court Dismisses Trademark Suit Brought By Racetracks Against Gaming Company Referencing Historical Races

from the and-they're-off dept

We don't see nearly enough good trademark rulings, especially concerning Fair Use, that it's worthwhile in highlighting those that do occur. A nice recent example of this is a court tossing a trademark action started by several horse racing tracks against a gambling gaming company over the latter's use of track names. To get just a bit of background on this, Encore Racing Based Games makes electronic gambling games, including video slots and video poker. You see these types of machines in bars and restaurants wherever this type of gaming has become legal. But they also make a more innovative type of game in which players are presented with historical races and given the option to bet on them in a parimutuel fashion. The results, as best as I can tell, are based on the real-world outcomes of what I assume are obscure enough races that people aren't able to simply look up the results on their smartphones in whatever the allotted time is that they're given. Those results and races, naturally, include the names of the venues in which they were run.

Some well-known racetracks, such as Oak Lawn, sued over this, claiming trademark infringement. The court didn't buy it, apparently.

The Court dismissed the suit in its entirety, stating that Encore is “fully within their rights to describe where an event took place in their wagering system without implying the owners of the racetrack are sponsoring the game…[Encore is] protected by the fair use defense when describing where an event took place, even when the location described is most commonly conveyed using a registered trademark…Plaintiffs have failed to allege plausible facts which would justify this matter proceeding beyond this motion to dismiss…Therefore, the Court grants Defendants' motion and dismisses Plaintiffs' claims in their entirety.”

And it's quite easy to see the court's side of things in this case. The use of a trademark primarily to portray historical fact is certainly Fair Use. A race run at Oak Lawn can be described as having been as such. Still, I'm somewhat surprised at the ruling. These electronic games are a form of gambling, after all, and it isn't hard to understand why horse tracks, which are largely struggling nationally, wouldn't want potential bettors to find themselves betting on historical races in this way. Still, the fact that these games are dealing with matters of factual history means Fair Use does indeed come into play.

And, honestly, it's not like what Encore does is necessarily harmful to the tracks in the way they might think.

“We are grateful that the Court once again dismissed a lawsuit that would have severely limited growth in the historic horse racing market,” commented Encore President Jeremy Stein. “Encore is committed to the long term health of the racing and breeding industries, and we are proud that the Encore system and games continue to generate record handle numbers and significant revenue for the horse industry in Kentucky and Wyoming. Monday's ruling will allow us to continue growing while looking to bring historic horse racing revenue to new racing jurisdictions.”

For those of us that love horse racing, anything that brings more people into the fold is a good thing. If people playing these electronic games like them enough to then go out to the actual track, it's a building block for the industry. There's no substitute for going to a nice track, after all, least of all by sitting in front of a glowing machine.

Regardless, it's nice to see a court get a Fair Use question right.

Filed Under: facts, gambling, gaming, racetracks, trademark
Companies: encore racing based games, oak lawn

Oil Industry Group Claims Copyright On Oil Pricing Data, Gets Twitter To Delete Tweets

from the not-how-it's-supposed-to-work dept

The American Petroleum Institute (API), a group that represents the oil industry, apparently releases a fee-based report on oil prices, which is released to paying subscribers a week before the US government releases "official" data. For obvious reasons, this information is fairly valuable to traders, who are more than willing to pay the monthly fee to get early access to some crucial information on the price of oil. Apparently, last week, some people then took that data, and tweeted about it... leading API to issue DMCA takedown notices, which Twitter promptly complied with.

On Tuesday, several accounts posted the API data shortly after it was released to subscribers at 4.30 p.m. EDT. The posts were widely shared across the social network. Prices extended their losses shortly after the report, which showed a larger-than-expected increase in weekly inventories.

An account named @Cornice_Trading posted the data along with a message saying, "I don't have a sub, whatchugonnado API?!?" Through Wednesday afternoon, it had been retweeted five times and had received six likes.

[....]

The accounts named by API in its complaint to Twitter include oil traders and the popular financial commentary account @zerohedge, which has more than 300,000 followers. Two tweets by @zerohedge have been removed by Twitter in recent weeks. Zerohedge, which also runs a popular website, received notices from both the social network and from API, according to a spokesman for the website.

The article notes that, in the DMCA takedown letter sent by API, the group's lawyers claimed: "The posted excerpts contain the most important content of the WSB and is the heart of the work that API has created." This is, quite clearly, an attempt to pre-empt any fair use claim. Claiming that "the heart of the work" was included is based on the infamous Harper & Row v. Nation Enterprises case about publishing excerpts of former President Gerald Ford's memoir.

But that's meaningless if it's true that the information published was just factual data about oil prices. The Supreme Court decision in Feist v. Rural Telephone makes it clear that purely factual data gets no copyright protection at all. So if the data that is "at the heart" of what API released is nothing more than aggregated factual data, then it could not be deemed to have the minimum amount of "original creativity" included, and thus is not covered by copyright.

Even beyond that, if the information was covered by copyright, there still seems to be a strong fair use argument as well. But either way, Twitter simply decided to take those tweets down. The company claimed that it "has" to do that when it receives a valid DMCA notice, but that's not true. This is a constant misrepresentation of the DMCA. It just says that to retain the safe harbors, that say you're not liable, you need to take the content down. And, yes, while many risk averse lawyers will insist those two things are the same, because no company wants to give up its safe harbors, many companies can and do reject such bogus DMCA notices, recognizing that if the notices are bogus and the content is not infringing, then they'll be safe whether or not they have the safe harbors.

Filed Under: data, dmca, facts, oil data, takedowns
Companies: american petroleum institute, twitter

The Supreme Court Succumbs To Truthiness, Leading Librarians And Stephen Colbert To Bicker

from the a-made-up-icus-curiae dept

A couple months ago, someone sent over an interesting Virginia Law Review article from Alli Orr Larsen about how the Supreme Court is increasingly listening to amicus curiae briefs (friend of the court briefs) from parties not actually engaged in lawsuits -- and at times that's problematic because the briefs are not always, you know, factual. We frequently write about amicus curiae briefs, detailing where we agree or disagree with them, leading to some interesting discussions. When done well, these briefs really can add valuable insight. But, sometimes they allow some ridiculous claims to make it into the discussion. As the abstract of Larsen's paper notes:

The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check.

That's definitely interesting, and certainly opens up the Supreme Court to responding to "truthiness"-type arguments. Given that, it's perhaps not that surprising that Stephen Colbert, the man who coined "truthiness" in the very first episode of his (soon to be ending) TV show, did a segment on Larsen's law review article a few weeks ago.

In that segment -- which we'd embed if Colbert/Comedy Central offered SSL embeds (they don't appear to) -- he calls out a few of the examples from the paper, including an amicus brief filed by the Library Copyright Alliance in the Kirtsaeng case, concerning the potential impact on foreign-printed books now found in US libraries (the fear was that if the Supreme Court ruled in favor of Wiley, it would mean that merely lending out foreign-printed books would potentially be infringing). Thankfully, the Court went the other way, but Larsen's paper calls out that the amicus brief from the libraries cited 200 million foreign-printed books from a blog and the blog in question is "no longer available."

Jonathan Band, the author of that amicus brief, took offense to his "hero," Stephen Colbert challenging his brief and hit back with an amusing letter that points out that the blog post actually is still available -- it just moved. Also, it was written by a known expert in the field who actually had access to the data necessary to make such an estimate. Still, Band jokingly mocks the whole experience of being mocked by Colbert and hits back with a few more amusing, less persuasive, counterpoints:

But then I realized that you, my hero, were actually criticizing the brief because it cited to a blog post as the source for the fact that U.S. libraries possess 200 million foreign-printed books, and the post was no longer available. Now that I have recovered from the shock and humiliation of this criticism, I offer the following response:

1. What difference does it make if the source can’t be found? This is the perfect example of truthiness. The number we cited sounds right, and we’re a bunch of librarians and librarians never lie.
2. The law professor who wrote the article that pointed out the missing blog post, Allison Orr Larsen, teaches at William & Mary Law School. That’s a silly name for a law school; it’s like Dick & Jane Law School.
3. It’s not our fault that the blog post was moved.
4. The blog post is actually still available in the website’s archive.
5. The person who wrote the blog post, Ed O’Neil, is an expert on the subject, and has access to the catalogues of the collections of every library in the country.
6. Wiley’s lawyers had ample opportunity to challenge the number, but didn’t. In fact, no one has challenged the accuracy of the number.

So, while the issue of the Supreme Court relying on amicus briefs is definitely an interesting one to follow, it appears that Larsen -- and Stephen Colbert -- may have misfired on this particular one.

Filed Under: alli orr larsen, amicus briefs, amicus curiae, facts, jonathan band, kirtsaeng, stephen colbert, supreme court, truthiness

Reagan Biographer Claims 'Copyright Infringement' Because Another Biographer Used The Same Facts

from the facts-in-evidence dept

It's kind of crazy how often it seems biographies, theoretically personal tales made of facts, breed copyright disputes. In most cases, the aggressors in these cases somehow think that a factual representation of what the subject of a book said in the past can somehow be owned and/or controlled. Facts, of course, cannot be copyrighted, nor can history itself, which is essentially all a quotation is. That very simple distinction seems to be lost on a great many people, unfortunately.

Joining their unfortunate ranks is Craig Shirely, an author who has produced books in the past on Ronald Reagan and is presently threatening to sue Rick Perlstein for copyright infringement in his new Reagan book, The Invisible Bridge. Shirley's demands are, um, heavy.

Shirley's attorney is demanding that the publisher pulp Perlstein's book, pay $25 million in damages, and take out ads apologizing to Shirley in The New York Times, The Washington Post, Newsweek, The Nation, The New Republic, Slate, and Salon.

A book burning, twenty-five mil-do, and paid apologetic ads in seven different publications? Well, okay then. You're probably thinking that Shirley has some kind of open and shut case with those kinds of demands. He doesn't. What he does have is the ability to point out where Perlstein relayed the same facts Shirley had previously recounted and a few minor sections which use Shirley's previous work as source material and paraphrase it. There are a couple of rather specific words retained in the paraphrasing, but that's about it, and most of those sections are recounting a setting or happening in history.

In the first item on the latter list, the two books do sound alike: Describing the red-light district in Kansas City, Perlstein echoes not just the info in Shirley's text but Shirley's words "festooned" and "smut peddlers." After that, though, we essentially get a list of places where the two writers cited the same facts. Facts are not copyrightable, and one pair of similar sentences does not an infringement make. I don't see a dollar's worth of damages here, let alone 25 million.

And it's not as though Perlstein is attempting to hide his use of Shirley's books as source material. The book-in-print directs those interested in the source material to Perlstein's website where he lists them out, including several of Shirley's books. He further credits Shirley's work in his source notes, talking about how useful it was. He further had reached out to Shirley to discuss some of his sources earlier.

Shirley and his lawyers try to twist nearly all of this. They also show a fairly weak understanding of copyright law, often confusing plagiarism and copyright infringement. The two may be related, but are not the same thing. Again, copyright covers the specific expression, but not the idea or the facts. And yet, Shirley's lawyers argue that Perlstein's use of the same facts where he expresses them differently is merely evidence of Perlstein trying to "hide" his actions. Yes, that's right. The act of rewriting the same factual information is being used as evidence of infringement because it's different. But that's not how copyright law works.

Perlstein's publisher, Simon and Schuster hit back strongly, explaining the basics of copyright to Shirley's lawyers:

Your claim ignores the most basic principal of copyright law: copyright only protects an author's original expression. It is therefore important in any copyright analysis to distinguish between original expression and the unprotected elements of a work. Certain well-settled principles govern that analysis and nothing you have drawn to our attention supports a I conclusion that Mr. Perlstein has appropriated Mr. Shirley's protected expression.

First, copyright does not protect facts, ideas or theories.... This is true even if the author is the first to have discovered the facts or formulated the ideas. Contrary to your assertion in your letter, copyright does not protect "facts and ideas Mr. Shirley first discovered an developed."....

[....]

All of the examples you cite consist of historical facts from the life of Ronald Reagan, which are unprotected by copyright. Thus, for example, you cite to page 770 of Invisible Bridge, but the historical fact that the manager threatened to cancel the delegation's reservation derives from Time magazine, where Mr. Shirley obtained this information. Mr. Perlstein read the same Time article, but nonetheless chose to credit your client's secondary use of the work. Similarly, Mr. Shirley cannot possibly own a copyright in the fact that the major presidential candidates released their medical records and the information those records contained or that CBS News reported on the number of delegates Ford had accrued. These historical facts were widely reported in contemporaneous news reports. To the extent there can be said to be any similarity of phrasing in the way the two books convey these facts, the similarities consist of commonly-used expressions that cannot be the basis for a claim.

There's a lot more in those letters which you can read below. This includes an attempt by Shirley to twist an email from Perlstein into saying something it did not. Apparently in angrily discussing the citations (which Perlstein put online, rather than directly in the book), Perlstein trotted out the (overly abused) line "information wants to be free." Shirley's lawyers attempt to portray that as evidence of copyright infringement by Perlstein. However, as Perlstein's lawyers point out, this is not even remotely accurate. The point Perlstein was making was about "open sourcing" his sources by putting them online, making them much easier to use for research purposes, rather than having them locked up in a book. These are the very same sources in which Perlstein regularly cites Shirley.

Mr. Perlstein's use of electronic source notes, with links to the actual source materials, is an innovative and dramatic means of full disclosure. As the "Note on Sources" explains, Mr. Perlstein made the sources available electronically, rather than in hard copy form, to make it easier for readers to access the sources directly and engage with them. In the Internet age, readers are far more likely to actually view the source material when it is presented this way then they ever would be to seek it out in paper form at a library. Indeed, Mr. Perlstein's comments about "open sourcing" in his correspondence with your client cannot be twisted as your letter suggests; but instead serve to underscore his ultimate purpose to provide ready access to and openness concerning his sources. To that end, when your client contacted him with a question about how his book was sourced, Mr. Perlstein provided him with a link to his source notes and his Note on Sources, all before publication.

It should also be noted that Mr. Perlstein's electronic notes serve another purpose that ultimately may well help your client's presumed goal to sell books. As can be seen on Mr. Perlstein's site, a reader who clicks on one of the citations to Reagan's Revolution is automatically linked to a Google Books page where he or she can not only read the cited page from Mr, Shirley's book but is also given the opportunity to purchase the book, This is hardly the design of an author's intent to "steal" another's work.

Completely destroying the entire book, handing over $25 million and issuing a public apology for no actual infringement? That's not going to happen. And, perhaps Shirley's lawyers are recognizing this. While the letters promise a pre-publication lawsuit would be filed on July 30th, the book was published on August 5th and as far as we can tell, no actual lawsuit has yet been filed.

Filed Under: citations, copyright, craig shirley, facts, ideas, plagiarism, rick perlstein, ronald reagan
Companies: simon & schuster

The Bizarro, Fact-free World Of Copyright Policymaking

from the would-be-nice-to-have-some-fact-based-policy dept

If you're a regular visitor to this website, you're likely used to the never-ending parade of horribles detailing how copyright has been used to censor documents, stifle innovation and generally wreak all kinds of unintended havoc.

Even with this constant attention, it's sometimes easy to lose sight of exactly how world-champion strange copyright policy is. Only when it's placed alongside other government policies does it become clear exactly how it has evolved into a bizarro-world version of rational policymaking.

That something does what it's supposed to is usually the baseline for evaluating public policy. It's certainly what I expected to find as I researched my (shameless self-promotion alert) just-published book, Copyfight: The global politics of digital copyright reform. I'm an economist and political scientist by training, and also spent six years as an economist with the Parliamentary Information and Research Service, the Canadian equivalent of the Congressional Research Service. Coming cold to the wonderful, wooly world of copyright, I expected that such a long-lived institution would be grounded at least partly in empirical evidence that it, you know, actually promotes the creation and dissemination of music, books and so on.

Silly me. Here's how Ruth Towse and Rudi Holzhauer conclude their introduction to their 2002 edited volume, The Economics of Intellectual Property:

"For all the sophisticated analysis by economics, economic historians, law-and-economists and lawyers, we still cannot say with any conviction that in general IP law stimulates creativity or promotes innovation, though it may contribute to the process of communication between producers and consumers."

That's not exactly a ringing endorsement. (Towse and two co-authors reach a similar conclusion in a 2008 article reviewing the economics literature on copyright.)

In a 2009 study, "Does Copyright Law Promote Creativity? An Empirical Analysis of Copyright's Bounty," Raymond Shih Ray Ku, Jiayang Sun and Yiyang Fan remark that "even though copyright has existed and continuously expanded for hundreds of years, there has been little research done to test the theoretical basis for copyright's expansion. In fact, so little has been done that one author [in 2006] specifically pled for more empirical research."

Being good researchers, they did just that, looking at whether the number of works created in the United States from 1870 to 2006 increased as the government strengthened copyright law. They found that stronger copyright indeed led to more works being created.

Kidding! They actually found "that when lawmakers consider whether to expand copyright law, there is little empirical or theoretical support for the position that increasing copyright protection will increase the number of new works created."

Despite a lack of evidence that would spur calls for a fundamental rethink in almost any other area of public policy, copyright continues to spread and strengthen, from books to computer programs to online works, from a renewable 14 year term to life of the author plus 100 years in Mexico.

And of course there's Ian Hargreaves' 2011 report, which called for UK copyright policy to be "evidence based." Imagine that.

While none of this will surprise readers of this website, to any non-copyright policy wonk this state of affairs is insane.

It's not that all (or even most) public policy is purely evidence based (see: Drugs, War on). Power, self-interest and morality shape all policy debates. But copyright is unique in that it is driven almost purely by these factors. Even morality-based arguments for the War on Drugs have to contend with the actual, measurable effects of government anti-drug policy.

Copyright reforms should be evaluated based on how they would affect the production and dissemination of creative works. How much is being produced? How many people are able to access these works?

That doesn't happen. Instead, policy is driven by morality-based arguments about how copying is theft, and by its effects on specific industries and business models (often citing industry-supplied data). Not good.

We'll never eliminate power and self-interest from copyright politics. However, it could be made a bit more sane by adopting an evidence-based focus on how well it fulfills its dual objectives in the interests of society as a whole. In doing so, analysts could help ground a debate that, in the absence of evidence, is polarized by self-interested arguments and irreconcilable questions of morality and "rights." This should've happened 300 years ago, but better late than never.

Blayne Haggart (@bhaggart) is an assistant professor of political science at Brock University in St. Catharines, Ontario. His first book, Copyfight: The global politics of digital copyright reform was just published by University of Toronto Press.

Filed Under: copyright, facts, faith-based, policy making

NSA Chief Begs His Public To Help Agency 'Get The Facts Out'

from the ohhhh...-that-'public' dept

Apparently sitting in the captain's chair on the bridge of the USS Surveillance has lost its thrill. With more than 20 pieces of legislation in the works aimed at curtailing or eliminating the NSA's surveillance programs and Patrick Leahy calling for an end of the phone data program, Gen. Alexander's future spying plans are facing the threat of cancellation.

Sadly, the proud "cowboy" who once ordered underlings to damn the legality and "collect it all" seems to have lost a whole lot of swagger over the past few weeks. He's been reduced to pleading with "the public" for its help and understanding.

Keith Alexander, the director of the National Security Agency, called Wednesday on the public to help defend his agency's powers as Congress mulls restrictions aimed at protecting privacy.

"We need your help. We need to get these facts out," Alexander said during a cybersecurity summit at the National Press Club. "We need our nation to understand why we need these tools."

It seems like a rather odd proposition: asking victims to defend their violator. Not sure that's going to play well in the sticks anywhere. This new plea seems to suggest the NSA's recent "Friends and Family" reputation resuscitation plan isn't expected to result in a groundswell of support. But Alexander isn't referring to the American public, he's referring to his kind of public -- a small, sympathetic group of insiders who stand to benefit from the continuation of large-scale surveillance programs.

Important to remember who Alexander's audience ACTUALLY was at this cyber event. Wasnt really the "public" per se.

— Tony Romm (@TonyRomm) September 25, 2013

It was contractors, cyber firms, businesses already working with Pentagon, NSA, more. Businesses with fed dollars. He wants THEIR help

— Tony Romm (@TonyRomm) September 25, 2013

[If you can't read the above, it says: "Important to remember who Alexander's audience ACTUALLY was at this cyber event. Wasnt really the "public" per se. It was contractors, cyber firms, businesses already working with Pentagon, NSA, more. Businesses with fed dollars. He wants THEIR help"]

If you need to "get the facts out," we've got just the guy for it. However, you'll have to dial long-distance and there's a very good chance he won't take your call. The facts are coming out, General. But what you're asking for here, from this small subset of "the public," is help pushing a narrative.

One of the best drivers of this narrative is the always-looming (but largely intangible) threat of terrorism. That's why he's once again pimping fear out on the rhetorical corner.

He warned that if Congress hampers the NSA's ability to gather information, it could allow for terrorist attacks in the United States similar to last week's massacre in a mall in Nairobi, Kenya.

"If you take those [surveillance powers] away, think about the last week and what will happen in the future," he said. "If you think it's bad now, wait until you get some of those things that happened in Nairobi."

In the course of peddling this fear, he might want to point a few fingers at the intelligence community itself, which completely failed to warn anyone, anywhere about the attack. I assume we're still listening in on worldwide terrorist "chatter," so you'd think we'd have had some sort of heads up about the Nairobi attack, considering the many dragnets we have deployed. Or do we only step in when it's targeted against the US?

Either way, Alexander is digging himself into a rhetorical hole. And he just can't stop digging.

He said the program [phone data collection] is key for "connecting the dots" and foiling terrorist attacks.

"I can tell you, although I can't go into detail, it provides the speed and agility in crises like the Boston marathon and the threats this summer," Alexander said.

What? I thought this data was being gathered to stop terrorist attacks, not speedily connect the dots post-tragedy. As was covered here earlier, these intelligence agencies seem to want to be rewarded for their remarkable hindsight. I don't think anyone views the NSA as a "crisis-response team." I'm fairly sure everyone sees it as tasked with preventing terrorist attacks, quite possibly because EVERY NSA DEFENDER PORTRAYS IT AS EXACTLY THAT. See also: Gen. Alexander, previous paragraph, "...program is key for 'connecting the dots and foiling terrorist attacks."

The intelligence agency has worked its way from denial through anger and now seems to have hit the "bargaining" stage, albeit the sort of low-pressure bargaining that hinges on the implicit threat that "as goes the NSA, so do these sweet government contracts." By sometime in early November the agency should be settling into "depression," an emotional stage an intelligence agency has never experienced before. Should be very interesting.

Filed Under: facts, keith alexander, nsa, nsa surveillance

Best Response To A Copyright Threat Ever? Lawyers Explain Why ABA Is Full Of S**t In Claiming Copyright On Routing Numbers

from the enjoy dept

In our time we've seen some pretty epic responses to bogus legal threats, but it appears we have a new contender for the throne. As a whole bunch of lawyers suddenly emailed me this morning, it appears there's been a followup to our earlier story on the American Bankers Association claiming that bank routing numbers are covered by copyright, and threatening a website that had created a useful way to look up those routing numbers. The website, run by Greg Thatcher, was doing a public service, getting such info from the Federal Reserve's website, and making it much easier for people to find the numbers.

Thatcher is now being represented, pro bono, by Andrew Delaney of Martin & Associates, and his response letter to Nigel Howard, the lawyer from Covington & Burling LLP (the ABA's lawyer who sent the threat letter) is one of the most beautiful responses to a bogus threat letter you'll ever see. It gets bonus points for its usage of footnotes (which is to say, do not skip the footnotes). You really need to read the whole thing. I'd quote parts of the legal analysis, but you have to see the whole thing in context with the footnotes (linked above or embedded below). I will, however, quote the closing paragraph, to give you a sense of the tone of the letter:

If you do feel it's necessary to sue our client, we are open Monday through Friday from 8:00 A.M. to 6:00 P.M. and we have lollipops for people who serve process. So if you do file a complaint and send someone over with a summons, please have them wear something with a bit of purple... we all like purple.

Oh, and then there's this:

© Andrew B. Delaney and Jorge V. Pivar-Federici. All rights reserved. But wait . . . fair use allowed and encouraged. Actually, go 'head and publish the whole thing as is. We don't care.

Nicely done. Nicely done. I may have to send them a bag of lollipops.

Filed Under: andrew delaney, copyright, facts, fair use, federal reserve, greg thatcher, nigel howard, numbers, public domain, routing numbers
Companies: aba, american bankers association