The Cartoonist Has No Idea How Fair Use Works

from the wanna-try-that-again? dept

On Friday, we had a post about some political comic strips that were posted to the Tumblr blog A Good Cartoon. Whoever is behind that blog (on the blog the name used is "rorus raz," and the post asks people to credit rorus raz, but on Twitter it's "Alan Smithee" which is a popular pseudonym) first posted a bunch of political cartoons by syndicated political cartoonists that demonstrated a near total lack of understanding about net neutrality, and then posted a followup post that took many of those political cartoons and replaced the bubble text with the simple statement "the cartoonist has no idea how net neutrality works." Well-known TV, book, podcast and internet personality John Hodgman then reblogged it on his site.

I first saw it on Hodgman's site and set it aside to write about it. When I got around to it late on Friday afternoon, I noticed, oddly, that the original on A Good Cartoon was now gone. There was no note or anything. It was just gone. However, Hodgman's version was still up, so I wrote about it and posted some (but not all) of the comics and added some additional commentary.

Over the weekend, however, the version on Hodgman's site also disappeared, and Twitter user Michael at BU alerted me to the news that over at A Good Cartoon a DMCA takedown notice had been posted. It appears that the copyright holder representing the cartoonist Chip Bok sent Tumblr a takedown. What's posted to the blog is what Tumblr sent to A Good Cartoon, and not the original takedown notice -- so it's not clear if it was sent via Bok himself or Creators Syndicate, which syndicates Bok's strips. Bizarrely, the notice that's posted to A Good Cartoon is not text and not a single image, but rather each word is a separate image. I have no idea why, but here's the transcribed note:

Hi,

We've received a notification of alleged copyright infringement on one of your blogs. Here are the details of the content in question:

Copyright holder: Katie Ransom

Post URL(s): http://agoodcartoon.tumblr.com/post/112519623990/the-cartoonist-has-no-idea-how-net-neutrality

Description: The work is a copyrighted cartoon by artist Chip Bok. The caption of the cartoon was altered, but the copyright and signature remain, making it look like this work is by the artist, when it is not. You can find an original copy of the cartoon here: http://www.creators.com/editorialcartoons/chip-bok/31500.html

The content has since been removed, in accordance with U.S. law and Tumblr's own copyright policies.

It's important for all creators that our users respect copyright, and so we ask that you take greater care when posting other people's creations to your Tumblr blog. You can review Tumblr's Terms of Service (https://www.tumblr.com/policy/terms-of-service) and Community Guidelines (https://www.tumblr.com/policy/community) for more information on our copyright policies.

At Tumblr, we implement a strict three-strike policy against copyright infringers. The notice we received counts as one strike against your account. If you receive three uncontested strikes within 18 months, your account will be terminated. You can contest this notification by following the instructions for a DMCA Counter-Notification found here: https://www.tumblr.com/policy/terms-of-service#dmca. A successful counter-notification will remove the strike against your account.

Please note that if your account is terminated for repeat copyright infringement, any new accounts you create will also be terminated.

This is a good opportunity to learn more about U.S. copyright law (never a bad idea) and to make sure that none of your other posts are infringing on someone's copyright. Here are a few free resources you might want to look over:
http://fairuse.stanford.edu/internet-resources/
http://www.teachingcopyright.org/
http://copyright.gov/

Please let us know if you have any questions or concerns.

Best,
Tumblr Trust & Safety

It would appear that the cartoonist has no idea how fair use works (and the same may be true of Tumblr's "Trust & Safety" staff). Yes, fair use is often a judgment call, but it's difficult to see how this is not classic fair use. It was transformed (as the Tumblr letter even admits), and the transformation was done for the purpose of commentary and criticism of the original -- classic parody, which the courts have recognized as quintessential fair use. Finally, it was not done for commercial reasons and the impact on the market for the original is clearly none (other than the fact that it might make Chip Bok look foolish -- but the courts have been clear that it needs to be the copying, not the commentary that harms the market, and that's clearly not the case here -- i.e., the question is whether or not the copied work might substitute for the original in the market). To better understand this, we'll post both versions here (which again is fair use, should Bok or his syndicate suddenly wish to try to play this stupid game on us as well). Here's the original: The line in the bubble doesn't make any sense at all in the context of net neutrality, nor does the message on the TV itself. As we stated in our post on Friday, we already know that the big broadband providers have been the ones who have been deliberately slowing down access to Netflix, resulting in images like the following appearing on people's screens without net neutrality: And, of course, once Netflix agreed to pay up, suddenly the big ISPs magically figured out how to plug in a few more connections and the speeds went back up: Part of the point of the FCC's new rules is to prevent this sort of gaming by the big broadband players so that you won't have to see any delay messages at all when downloading a film. So, given all that, it's rather easy to conclude that Chip Bok has no idea how net neutrality works. And, given that, a fairly good way to parody Bok's ignorance is to post the following cartoon: A Good Cartoon's response to the DMCA takedown is to note, "i'm astonished that chip bok believes people could confuse something he made with something that's actually funny and intelligent." Of course, being embarrassed about a parody does not make it infringing. It's still fair use. So, the most likely conclusion is that Chip Bok (and/or his syndicate) has no idea how fair use works.

Update: Over at his own site Bok is insisting this is not fair use and tossing out all sorts of nonsense about how he's older than everyone and thus understands these things better:

Really, you people should stop hacking my cartoons to make a point. It’s not “fair use”. It’s illegal. Think the FCC will help me out here? You’re destroying my intellectual property and inserting your own stupid message. Are you Chinese? Come up with something on your own.

This is especially funny since Bok's own site is called "Bokbluster" a clear play on the name of "Blockbuster." And, of course, that's a perfectly legitimate way to make use of something someone else created. But, Bok is so hypocritical that apparently he thinks that only he is allowed to build on another's work. Even worse, it appears he's racist, calling someone "Chinese" for criticizing him. That's incredible. And, on the copyright question, Bok is wrong. It is absolutely fair use, as described above. And his "intellectual property" is not being "destroyed" just because someone created a parody. That's not how it works. At all. His further comments show a complete lack of understanding about net neutrality as well. He mis-states the law in question, he mis-states what the FCC has done. Someone really ought to take him aside as suggest he just stop digging.

Filed Under: a good cartoon, chip bok, commentary, copyright, criticism, dmca, fair use, john hodgman, net neutrality, parody, rorus raz, takedown
Companies: creators syndicate, tumblr

New Mockumentary Highlights Why An Open Internet With Real Competition Is Important

from the though-a-bit-over-the-top dept

A new "mockumentary" called The Internet Must Go launched today, in conjunction with the latest court hearing in the Verizon case against the FCC over the FCC's net neutrality rules. I got to see a "preview" showing of the film last week with the filmmaker. You can see the whole thing below, or at the link above, which includes a number of extras. The premise of the mockumentary is that the major ISPs have hired a clueless market researcher to figure out how to convince Americans that we don't need an open internet with basic non-discriminatory end-to-end connectivity. That researcher then goes out and talks to a bunch of net neutrality supporters who school him on the importance of an open internet. There are a bunch of appearances in the film from folks you may know and recognize, like Larry Lessig, John Hodgman and Alexis Ohanian. As the filmmaker explained to us last week, the goal of the film is to try to make more people in the general public aware of the issue of "net neutrality," so it's more generally targeted at folks who don't spend a lot of time on these issues and who aren't generally aware of what's going on. On that front, perhaps the video will be successful, though I have to admit that, on the whole, the presentation is a bit disappointing. As I've said repeatedly, I'm a huge supporter of the concept of end-to-end neutrality and an open internet, but the movie badly caricaturizes the nature of the argument, and what's actually at stake, at times. The issues are a bit more complex than they're laid out, and it feels like that takes away from what could be a more informative film.

Frankly, where the film shines best is the part where it gets a bit away from the loaded term of net neutrality, and gets to the real problem: the lack of competition in broadband. For almost a decade, we've been pointing out that the so-called "fight" over net neutrality is really just a symptom of the lack of true competition in the broadband space. Get real competition at the service level and the issue of net neutrality fades away. What the ISPs claim is an attempt to get rid of "net neutrality" is really just an attempt to leverage a dominant position to get people to pay twice for the same bandwidth. So the part in the middle of the film where they start to look at the lack of competition, and how certain areas are completely underserved by the major ISPs because of this, the film gets more interesting.

Overall, the message that an open internet is worth protecting, and that we need a competitive and innovative broadband infrastructure, is absolutely true. I'm just not sure the film really presents that message in the best way possible. It's way over the top in how it paints the goals of the ISPs, and that takes away from what could have been a stronger message about how to actually tackle the lack of competition.

Filed Under: alexis ohanian, broadband, competition, fcc, internet must go, isps, john hodgman, larry lessig, mockumentary, net neutrality, open internet, susan crawford