New York Times Says Fair Use Of 300 Words Will Run You About $1800

from the yeah-we-love-fair-use-and-all-but-[ATTORNEY-BOILERPLATE] dept

Fair use is apparently the last refuge of a scofflaw. Following on the heels of a Sony rep's assertion that people could avail themselves of fair use for the right price, here comes the New York Times implying fair use not only does not exist, but that it runs more than $6/word.

Obtaining formal permission to use three quotations from New York Times articles in a book ultimately cost two professors $1,884. They’re outraged, and have taken to Kickstarter — in part to recoup the charges, but primarily, they say, to “protest the Times’ and publishers’ lack of respect for Fair Use.”

These professors used quotes from other sources in their book about press coverage of health issues, but only the Gray Lady stood there with her hand out, expecting nearly $2,000 in exchange for three quotes totalling less than 300 words.

The professors paid, but the New York Times "policy" just ensures it will be avoided by others looking to source quotes for their publications. The high rate it charges (which it claims is a "20% discount") for fair use of its work will be viewed by others as proxy censorship. And when censorship of this sort rears its head, most people just route around it. Other sources will be sought and the New York Times won't be padding its bottom line with ridiculous fees for de minimis use of its articles.

The authors' Kickstarter isn't so much to pay off the Times, but more to raise awareness of the publication's unwillingness to respect fair use.

The Times' claim has no legal basis, and represents an arrogant rejection of the principle of fair use that is ironic for an organization that presents itself as a defender of freedom of expression.

[...]

We could have paid this amount out of research funds from our University, but it seemed to us unethical to use taxpayer funds to subsidize a big media corporation and undermine a right that belongs to all scholars and the public in general. So we paid out of pocket (our advance on royalties for the book will be $800).

The Times statement in response momentarily reflects on its status as a beneficiary of fair use protections, but swiftly moves past that brief digression to let its lawyers talk.

The Times strongly supports fair use, which is a complicated and highly confusing concept of Copyright Law. We are regularly on both sides of the fair use issue, as both content creators and users.

It would be impossible for us to make ‘fair use’ judgments for the vast number of people and organizations that wish to use New York Times content — we leave that to them and their attorneys to work out for themselves, just as our lawyers make judgments about fair use for The New York Times. If those third parties don’t feel comfortable that their proposed use of our content is a fair use, then we are happy to make the content available through our licensing program.

Our journalism costs money to produce and we share royalties with the reporters, photographers and others who helped create it.

Somehow, I doubt the lower level, non-attorney staff members support the Times decision to charge $1,844 for three quotes ranging from 69 to 102 words. Those closer to the street (as it were) likely have more sympathy for authors who've been handed a bill for quotations that is more than double the amount of their advance.

Filed Under: copyright, fair use, quoting
Companies: ny times

Can You Defame Someone By Directly Creatively 'Quoting' Them? New York Court Says You Can.

from the the-64-character-question dept

The Daily, a short-lived, iPad-only "newspaper," may be in the process of setting a defamation land speed record: 64 characters.

The defamation lawsuit, which just survived The Daily's motion to dismiss, revolves around the following statement -- half of a comment tweeted by the plaintiff, New York DJ Rashad Hayes.

I was gonna start shooting in the air, but I decided against it.

There's a lot of context surrounding this quote, but it was removed (and recontextualized) by The Daily Holding.

DJ Rashad Hayes was an employee at a club where two recording artists -- Drake and Chris Brown -- participated in a bar brawl over Rihanna, Brown's periodic girlfriend and assault victim. Bottles were thrown. Fists were thrown. And, after it had all died down, Hayes -- who was not at the club that night -- engaged in Twitter discussions about the event, delivering the following tweet as a joke:

I was gonna start shooting in the air, but I decided against it. Too much violence in the hip-hop community.

The Daily covered the bar brawl for its iPad subscribers. It decided to use Hayes' tweet to liven up the story. First, it stripped away half the tweet. Then it stripped it of its context, divorcing it completely from some jokey Twitter trash talking between friends and hip hop fans.

Finally -- and most damningly -- it completely recontextualized Hayes' tweet by turning it into a statement made by someone actually present at the club on the night of the brawl.

On June 15, 2012 the Daily posted a news article about the altercation, titled "Ri-Ri's Rumble," which included the following statements:

" So we're sitting in there. Me, a couple of others, Chris,' eyewitness DJ Rashad Hayes said. Drake comes in and keeps eyeballing the table.'

"Perhaps to show he didn't care that Drake had hooked up with his ex — or to flaunt the fact that he's rekindled his romance with her — Brown sent a bottle to Drake's table. Drake sent it back with a note, a witness told the New York Post. It read, I'm f***ing the love of your life [Rihanna], deal with it.'

"And then things erupted. As rappers Maino and Meek Mill looked on, Brown and Drake's entourages threw bottles and fists throughout the club. I was gonna start shooting in the air but I decided against it,' Hayes said."

Not only did the iPaper recast a tweet as an eyewitness statement, but it also allegedly made up every other quote from Hayes it included in its article.

Specifically, plaintiff alleges that defendants falsely identified him as a witness who made the statement: "So we're sitting in there. Me, a couple of others, Chris . . . Drake comes in and keeps eyeballing the table," when he never made any such statement to anyone. Plaintiff further alleges that the article implied that he had stated, "I was gonna start shooting in the air but I decided against it" to a reporter in seriousness, when that statement was only a tweet he made in jest. Further, plaintiff alleges that he was not at WIP on the night of the fight and that by failing to publish his full tweet, the Daily changed it from one eschewing violence, to one that made it look as if plaintiff were a "gun-toting psychopath with an itchy trigger finger."

Hayes claims the article resulted in him being banned by the club and ended negotiations for a permanent position as a DJ.

The Daily claimed it could not be held liable for publishing Hayes' "own words," even considering the removal of context. It also claimed the quotes it allegedly made up were not libelous.

The court agreed with part of its argument.

With respect to the first alleged defamatory statement (" So we're sitting in there. Me, a couple of others, Chris,' eyewitness DJ Rashad Hayes said. Drake comes in and keeps eyeballing the table.'" [boldface omitted]) and the allegedly fabricated portion of the second statement ("And then things erupted. As rappers Maino and Meek Mill looked on, Brown and Drake's entourages threw bottles and fists throughout the club." [boldface omitted]), neither the language, nor the implication that plaintiff was a witness to the incident, are libelous on their face, meaning that the complained of words are not commonly understood to subject a person to public contempt or ridicule. Stated another way, the import of this statement is innocent on its face since it merely conveys that plaintiff was sitting at a table observing his surroundings; even if false, this statement is not defamatory.

As for the "own words" defense, the court says context matters, even when directly quoting someone.

Courts typically compare the complained of language with the alleged truth to determine whether the truth would have a different effect on the mind of the average reader. Although it is conceded that defendant accurately quoted plaintiff's own words from Twitter, that does not necessarily mean that the statement could not have produced a worse effect on the mind of a reader than the truth as alleged by plaintiff. A reader could read the alleged defamatory statement in the context of the rest of the article and think that plaintiff was actually present in the club, prepared to shoot a firearm; whereas, a reader of plaintiff's isolated statement on Twitter may not have the same impression. In this unique case, the context of the two versions of the same statement is crucial.

[...]

Even if we were to adopt the "own words" defense, we find that it would not apply here where a comparison of the two statements reveals the potential for them to have different effects on the mind of the reader.

To that end, the court denies The Daily's motion to dismiss. Hayes is instructed to enter a "show your math" pleading for special damages -- something more specific than the $3,000,000 he argued he was owed (without support/documentation) in his original complaint.

So, the truth/"own words" isn't an infallible defense to defamation accusations. However, the truth in this case wasn't the whole truth. And the "own words" were stripped of their original context and injected into an entirely (and allegedly entirely fabricated) narrative. So, the normal defamation accusation defenses remain solid. The Daily just went out of its way to severely damage its own safety valves.

Filed Under: chris brown, context, defamation, drake, new york, quoting, rashad hayes

Germany Wants To Define A Snippet As Seven Words Or Less; Doing So Is Likely To Breach Berne Convention

from the how-copyright-maximalism-defeats-itself dept

Techdirt has been following with a certain amusement the humiliating failure of German publishers to bring in a "snippet tax" that would force Google and other search engines to pay for displaying even short quotations from their publications. The most recent defeat for the copyright industry was the German competition authority announcing that it would not "punish" Google for refusing to take out a license for snippets because, well, Google had a perfect right not to do so. The Disruptive Competition (DisCo) Project Web site has an update on the continuing saga, and it's as crazy as the rest of the story:

The Copyright Arbitration Board of the German Patent and Trade Mark Office (DPMA) recently recommended that snippets, i.e. small text excerpts used by search engines and online aggregators below hyperlinks, can comprise exactly seven words. This suggestion is part of the DPMA's recommendation to privately settle a dispute between online services and press publishers over Germany's ancillary copyright, also termed the 'snippet levy'. Should a court confirm this recommendation, snippets which go beyond this limit of seven words would in theory have to be licensed from news publishers.

As the DisCo post goes on to explain, that weirdly precise limit is a result of a last-minute change to the German snippet law, which carved out "individual words and smallest text excerpts" from its scope. Of course, that begs invites the question: how big could that "smallest text excerpt" be? For reasons that are not clear, the Copyright Arbitration Board suggested that the answer was "seven words long". The DisCo post points out there would be an interesting and unexpected consequence of adopting that seven-word limit on snippets officially: it would put Germany in conflict with its obligations under the Berne Convention on copyright. In the 1967 revision to the Convention, a mandatory right to "short quotations" was changed to one allowing "quotations". Here's why that matters:

imagine a situation in which snippets, a modern form of quotations, are reduced to seven words. From a practical point of view, it is safe to say that they are useless for Internet users who would find it difficult to find the information they are actually looking for. From a legal point of view, most would probably agree that a seven word quotation is rather 'short' -- and exactly this conflicts with international copyright law which guarantees meaningful (and useful) quotations going beyond 'short' quotations.

In a delicious irony, then, the German publishers' insane pursuit of the completely unworkable "ancillary" copyright protection for snippets could result in the country breaching fundamental obligations under the world's main copyright convention.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: berne convention, copyright, germany, internet, quoting, snippets

Spain Likely To Pass 'Google Tax'; Makes Paying For News Snippets An 'Inalienable Right' And A New Bureaucracy To Collect It

from the yikes dept

We've covered a few attempts in Europe to create what appears to basically be a tax on Google News for newspapers. These newspapers, who have been struggling to adapt in the modern internet world would like to blame Google News for their own failures, despite the fact that Google sends them traffic. When a court case in Belgium was won by the newspapers, Google simply removed those newspapers from the local Google News... and those very same newspapers freaked out and demanded to be let back in. This, of course, demonstrates the vast hypocrisy by the newspapers here. They know they need to be in Google News because of all the traffic it drives, but they also demand to be paid for it. Google has made it quite easy for newspapers to opt-out of Google News if they really feel like their work is somehow harmed by having Google link to it -- but none of the newspapers use it, because they know how valuable the traffic is. In fact, many of the same newspapers who are complaining are, at the same time, using Google's own tools to improve how they appear in results.

Efforts like the ones in Belgium have happened in France and in Germany, where a new law was passed last year. That law had some loopholes, so now German newspapers are demanding a huge chunk of money from Google.

But the situation over in Spain just got even more ridiculous. Julio Alonso has the details, in which it appears that the lower house of the Spanish legislature has approved a very, very dangerous bill that creates a brand new inalienable right for news publishers to be paid for, via compulsory licenses, any "electronic news aggregation system," which is broadly defined as anyone who shares more than just anchor text with a link. A short summary? You'll have to pay up:

The Spanish law proposal declares that editors cannot refuse the use of “non-significant fragments of their articles” by third parties. However, it creates a levy on such use to compensate editors and declares it an inalienable right (derecho irrenunciable).

The introduction of the inalienable right was done to avoid what happened in Germany. If you are a digital editor that publishes with a copyleft license, like myself, and you minimally understand how the internet actually works, you cannot decide to not charge Google News. It is compulsory. More than a right it is an obligation. Therefore, Google cannot exclude sites requiring payment from Google News. It would still need to pay for those it includes, even if they do not want to be compensated.

Furthermore, such tax, is to be administered by a third party (entidad de gestión) in a similar way to what SGAE (the Spanish RIAA) does with music rights. In this case most likely CEDRO (the entity that collects fees for the use of written text, photocopies and so on). How much it is to be paid and how the proceedings would be split among editors has not being disclosed. Though there is reason to suspect of a distribution just to AEDE members.

To make things even worse, the tax is not even aimed only at Google. It is aimed generally at “electronic news aggregation systems”, and, therefore it includes basically anyone who links with anything more than an anchor text.

It seems worth noting here that collection societies around the globe have been plagued with corruption and other problems, often diverting money from smaller creators to the biggest. And, some of the worst stories come from Spain, where SGAE was accused of mass corruption, involving stealing $550 million from artists. That doesn't bode well for this new "organization."

As Alonso notes, this isn't just directed at Google News, but Menéame, a popular Digg/Reddit-like aggregator in Spain (randomly: we get a fair amount of traffic from that site). But it could also impact Twitter and Facebook where people share links with text. And also a variety of other aggregators like Flipboard, Zite and Pocket.

The fact that it's considered "inalienable" is especially troubling. It basically overrides any concept of fair use, Creative Commons or even public domain material. Furthermore, Alonso notes that a bunch of organizations, including a bunch of other newspapers, are fighting against this, but it didn't seem to matter. A report has warned that implementing this law could cost the Spanish internet industry over a billion euros, and sites like Menéame are already talking about leaving the country. There are rumors that Google might just shut down Google News in Spain over this. But, still, the legislation was pushed through under questionable circumstances:

The law was passed on Congress in a special session in the mid of summer, on the Culture Committee and not on the plenary session, with almost no debate in a very awkward session, with many Congressmen declaring to the press, sometimes unintentionally, that they knew very little about what they were voting.

Despite widespread public and industry (outside the largest Spanish newspapers) opposition to this, Alonso suggests that the bill is still likely to become law. And we'll have yet another disastrous policy for the internet, designed to protect the industry of a few legacy players who failed to adapt.

Filed Under: aggregation, collection society, google news, inalienable right, quoting, snippets, spain, tax
Companies: google, meneame

Faulkner Estate Can't Sue Sony Because Owen Wilson Misquotes Nine Word Faulkner Quote In Movie

from the fair-use-lives dept

Last year, we wrote about one of the more ridiculous copyright claims we'd seen to date (which is saying quite a lot), in which the estate of author William Faulkner sued Sony Pictures over the Woody Allen movie Midnight in Paris. The issue? Owen Wilson's character, at one point, misquotes (with credit) a Faulkner quote. Here's how the estate itself described it in the lawsuit:

In describing his experiences, Pender speaks the following lines (the "Infringing Quote"): "The past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

The Infringing Quote is taken from a passage in the William Faulkner book "Requiem for a Nun" ("the Book"), where it reads: "The past is never dead. It's not even past." ("the Original Quote").

Yes, they sued, and claimed that having that quote in the movie infringed on Faulkner's copyright. Thankfully, the court wasted little time disabusing the estate of its rather laughable view of copyright law, doing a fair use analysis, and making it clear that this use qualifies as fair use. At points, the judge is clearly flabbergasted that the Faulkner estate even brought such a ridiculous lawsuit:

The court is highly doubtful that any relevant markets have been harmed by the use in Midnight. How Hollywood's flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court's comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen's film, is more likely to suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all.

Similarly, the court found it to be obviously transformative:

These factors coupled with the miniscule amount borrowed tip the scales in such heavy favor of transformative use that it diminishes the significance of considerations such as commercial use that would tip to the detriment of fair use. It is difficult to fathom that Sony somehow sought some substantial commercial benefit by infringing on copyrighted material for no more than eight seconds in a ninety minute film. Likewise, it is evident that this eight second clip serves as a thematic catharsis or apex in plot to neither Requiem nor Midnight.

Unfortunately, there is one problematic aspect to the ruling. Sony asked for the case to be dismissed both because of fair use and because of de minimis use -- which is a separate legal doctrine, which suggests tiny snippets can be used without permission, having nothing to do with fair use. This has some importance, because of the (incorrect, in my opinion) argument made by some courts, that fair use is merely "a defense" to infringement, rather than a right. This makes little sense if you read the actual statute but it is how some courts have interpreted fair use.

Unfortunately, the court refuses to do an analysis on de minimis use separate from fair use -- suggesting that de minimis use only counts as a part of fair use. This is not how it's supposed to be. De minimis and fair use are two separate issues, but the court treats de minimis as a part of the fair use analysis:

Both parties have posited non-circuit authority for the doctrine of de minimis non curat lex and its applicability to copyright infringement. The Supreme Court states that “the venerable maxim de minimis non curat lex (“the law cares not for trifles”) is part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept.” ....

The parties agree that the doctrine is part of the initial inquiry of whether or not the use is infringement in the first instance, as opposed to the fair use inquiry, which is an affirmative defense. The Fifth Circuit recognizes the de minimis doctrine in the context of infringement cases, but it has not specifically enunciated its proper place in the infringement analysis....

To conclude this preliminary discussion, the court considers both the substantial similarity and de minimis analyses in this case to be fundamentally related, and wholly encompassed within the fair use affirmative defense. Therefore, the court will utilize the fair use factors in making a determination on the de minimis and substantial similarity issues. Moreover, this circuit's precedent addressing the use of a de minimis analysis in copyright cases is largely undeveloped, and the court is reluctant to address it, except within the context of Sony's affirmative defense, fair use.

I can understand why the court chose to do this. Since it has no reason to make it clear that a de minimis analysis can or should be separate from a fair use analysis, it doesn't bother. It's just unfortunate, since it would be nice to have another ruling that makes it clear that de minimis use is more than just a defense, and goes well beyond the limitations of fair use.

Filed Under: copyright, de minimis, fair use, movies, owen wilson, quoting, willaim faulkner, woody allen
Companies: faulkner literary rights, sony pictures

Investigative Journalist Claims Her Public Tweets Aren't 'Publishable;' Threatens To Sue Blogger Who Does Exactly That

from the hubristupidity! dept

Update: In case this isn't enough, there's a follow up to this story, as Teri Buhl is apparently not a fan of our writeup.

Choose your battles carefully. This warning/advice is more relevant than ever in an era of instant feedback, social media and thousands of pages of "relevant results" microseconds away. Here's a small story of how not to deal with a problem caused by your own actions.

Mark Bennett, a Houston criminal defense lawyer, was recently pointed in the direction of a rather inexplicable statement attached to a Twitter profile. Teri Buhl, an investigative journalist specializing in Wall Street, has this wording on her profile page:

A friend of Bennett's (@gideonstrumpet) asked, "What does that mean?" Buhl replied:


Gideon sensibly replied "ok thanks. I don't know how you prevent that, though. I could write a post quoting you."

At this point, Buhl went "legal," responding that she would sue him because she "stated" her tweets are not "on record comments." And she certainly could, although one wonders who would take her case. Gideon asked for a few second opinions on the legality of Buhl's claim, and got answers from these two gentlemen whose names are likely familiar to Techdirt regulars, Marc Randazza and Popehat.


So, we have someone thinking their public tweets are private property, and therefore lawsuit-bait if anyone attempts to "quote" them. While Twitter's TOS assures users that their Tweets are their property, it's quite another thing to state something publicly and then claim you don't want it quoted. Would a retweet be a violation of Buhl's statement? After all, it's a "direct quote" originating from another account. What about embedding the tweet? Still a problem? Even if Buhl's claim wasn't baseless, she'd still have a hell of a time enforcing it. If you don't want something you said going public, why on earth would you use a very public platform like Twitter to say it?

It gets uglier from there, though. Buhl decided to continue her legal threats via email shortly after Mark Bennett posted screencaps of her tweets.


This prompted Bennett to do a little digging. For someone who's so concerned with retaining strict control of her information, Buhl certainly doesn't seem to mind throwing around other people's information -- even the contents of a teenage girl's personal journal.

A New Canaan woman police say posted personal and sexually explicit information on Facebook about her boyfriend's 17-year-old daughter was arraigned Tuesday in state Superior Court on charges of second-degree harassment, second-degree breach of peace and interfering with an officer.

Teri Buhl, 38, of 81 Locust Ave., appeared briefly before Judge Maureen D. Dennis with her lawyer, Christopher W. Caldwell of Norwalk...

Buhl surrendered on Oct. 27 at New Canaan police headquarters after learning that a warrant had been obtained for her arrest. She was released after posting a $5,000 bond.

Here's how Buhl allegedly set about "publishing" someone else's much more private "statements:"

A look at the documents that led to the warrant and arrest tells a disturbing story of Web-based strong-arming and privacy invasion from a woman who knew her victim and attempted to disguise her own identity.

New Canaan police Youth Bureau Commander Sgt. Carol Ogrinc said in an affidavit that the girl and her father, Paul Brody, came to police June 24 to report that someone using the name 'Tasha Moore' had posted personal notes from the girl's journal on Facebook.

The girl said she kept the journal in her dresser drawer in her bedroom, and that she wrote the notes shown on Facebook last April. The girl said she had replied to the e-mail address provided by Moore on her Facebook page, and had told Moore to stop posting personal information about her or she would contact police.

Moore reportedly answered that she welcomed the legal action and knew the girl's father was a corporate lawyer. Moore said she didn't think the girl would contact police because then her father would find out about the embarrassing information from the journal, according to Ogrinc's statement.

As Bennett points out, it's apparently OK to publicly post information from a minor's personal journal, but not OK to post a public Teri Buhl tweet anywhere else on the internet.

Buhl has finally done what she should have done a long time ago and taken her account private. This will likely be the end of this story as Buhl has probably realized she's on very shaky ground. (This belated tweet captured via her page at Muck Rack seems to confirm this.)


With a trial date set for March 22nd, she may not have time to fight another legal battle. Not only that, but if she's going to go after "republishers" like Bennett and Gideon, she's also going to need to free up time to go after less human foes like favstar, Topsy and yfrog.

Here's a suggestion: don't antagonize people by attaching implicit legal threats to your public profile. All it does is attract the kind of attention you don't want -- for instance, another public airing of your alleged illegal actions. It doesn't win you any new friends or followers and it certainly does very little to raise anyone's estimation of you. Instead, it makes you look like exactly what you are -- someone who's going to slip into "sue" mode at the drop of a tweet.

Filed Under: agreements, contracts, public information, quoting, teri buhl, tweets

WSJ Opinion Highlights The Problems Of 'Permission Culture'

from the that's-not-how-the-world-works dept

A bunch of folks have been sending in this Wall Street Journal opinion piece by author Tony Woodlief, where he aptly demonstrates the problems with the "permission culture" we've built up around copyright today. Often we'll discuss some of these things in posts, and defenders of the existing copyright regime will say "well, it's no problem, because you can just ask for permission" (here's an example of that kind of thinking). Of course, the reality is that it's not so easy at all. Woodlief points out that publishers are taking a very short-sighted view and demanding ridiculous amounts of money for tiny snippets of use, such that it makes no sense to use those works at all, and often the original content creators and society is worse off for it:

The copyright thicket is a growing frustration among writers and editors. One editor of a popular literary anthology (who asked to remain anonymous for fear of reprisals from publishers) confirmed that many publishers pursue illusory short-term profit at the expense of both profit and art. By demanding fees that most people won't pay, they forsake free advertising for the artists they claim to protect....

Further, this editor noted that one reason literary anthologies and college-course syllabi have replaced classics with less edifying sources like newspaper articles and diaries is simply that major artists in the American literary canon are too expensive to procure en masse, if not totally off limits. The estates of William Faulkner and Ernest Hemingway have historically restricted which stories can be used in anthologies, which means that students often have a narrow exposure to two of our country's finest writers.

Woodlief talks about his own experiences trying to quote a single eight-word line by songwriter Joe Henry in his recent book, and the fees were simply ridiculous:

But in dollar terms, some decisions by copyright holders, rather than optimize the artist's revenue and distribution, insure the opposite. When I asked to use a single line by songwriter Joe Henry, for example, his record label's parent company demanded $150 for every 7,500 copies of my book. Assuming I sell enough books to earn back my modest advance, this amounts to roughly 1.5% of my earnings, all for quoting eight words from one of Mr. Henry's songs.

I love Joe Henry, but the price was too high. I replaced him with Shakespeare, whose work (depending on which edition you use) is in the public domain. Mr. Henry's record label may differ, but it's not clear that his interests --or theirs--are being served here. Were they concerned that readers might have their thirst for Mr. Henry's music sated by that single lyric? Isn't it more likely that his lyric would have enticed customers who otherwise wouldn't have heard of him?

Now, there are some problems with the article, some of which are aptly pointed out by Christopher Harbin. For example Woodlief suggests that copyright is about guaranteeing income to creators, when it's actually about creating incentives for creators to add to the public domain. He also takes issue with the lack of recognition of the overall benefit of the public -- and no mention at all of fair use. Specifically, Harbin points out that with Joe Henry this is a clear fair use situation:

One line from one song that doesn't hurt the market of Joe Henry's song is fair use, bud. You don't need to seek permission because you own it already. Joe Henry doesn't get to control every use of his work, only unfair ones.

While I agree with Harbin that this should be fair use, the unfortunate reality these days is that publishers won't touch such quotes without permission being granted. It's almost impossible to find a publisher these days that would sign off on even that snippet of eight words, claiming that they don't want the liability of a lawsuit. I've had this discussion a few times with authors and publishers, and they all say the same thing: due to the potential liability of a lawsuit, even if it clearly does appear to be fair use, it's just not worth using the quote. In fact, we discussed this point here last year, where we wrote about an author who had to drop an entire section of a book, because of a few short quotes. Clear fair use... but his publisher wouldn't touch it. So I'd say Harbin goes a little too far in suggesting this is a purposeful omission by someone who wants to deny fair use. It seems more likely that Woodlief is accurately describing the state of the industry today, where threats of lawsuits have made permission culture the norm, even in cases of obvious fair use.

And that's where this "permission culture" has brought us. It's eating away at fair use. It's eating away at creativity. It's eating away at education. It's eating away at culture. And very, very few people seem to recognize how far it's already gone.

Filed Under: copyright, fair use, permission culture, quoting, tony woodlief

AP's New Policy: If They Speak To You, They Can Reprint Anything For Free?

from the am-I-reading-that-right? dept

So, you may have noticed the amusing little story we had on Woot's response to the AP for quoting Woot's blog post. The Woot blog post did a tongue-in-cheek mocking of the AP for copying its text, when the AP made a huge deal of bloggers doing that to the AP a few years ago. It was a fun post to kick off the week, and we figured everyone would take it in good fun. However, as you can see on the "update" to that post, we got a slightly peeved email from the AP's "Director of Media Relations" (who's been sending us a lot of peeved emails lately), Paul Colford, which started off with the classic trollbait comment that haters love to post as blog comments: "Slow news day?" Then he mentions that the AP INTERVIEWED (yes, he used all caps) Woot's CEO Matt Rutledge, as if that makes things okay. Of course, the "interview" (sorry, INTERVIEW) is at the end of article and consists of: "I'm really excited."

Apparently, in the world of the AP, if they get you to say three words to them, then it's now okay to copy content from the source. Even more odd, the email then said "Meanwhile, AP staffers across the Gulf region and in Washington continue to provide comprehensive coverage of the oil spill." I have no idea what this non sequitur is supposed to mean, but it appears that I'm not the only one who got a version of this email. MG Siegler at TechCrunch got something similar as did Rutledge himself. Tragically, it looks like I was the only one to get the "slow news day" snark.

MG took the email to its logical conclusion. Reading between the lines of Colford's email, he appears to be saying that if you get someone to say three words to you, then it's suddenly okay to quote their site without payment. As Siegler then notes, since he exchanged a couple of emails with Colford on this topic, he's now "interviewed" him, and thus, according to Colford and the AP's own internal logic, it's okay to copy text of of the AP's site, which Siegler does -- picking a recent story about the oil spill in the gulf, since Colford was so quick to point that out. I think Siegler's on to something. What I thought was a total non sequitur apparently is really a sign that we should now repost AP stories, since we've "spoken with" Colford and the AP. I mean, that's the most logical explanation, right?

Why do I get the feeling that I'll soon be receiving another email from Colford "clarifying" the AP's position?

Filed Under: fair use, hot news, policies, quoting
Companies: associated press

Woot Asks AP To Pay Up For Quoting Woot Blog Post Without Paying [Updated]

from the a-bottle-of-awesomesauce-please dept

There are so many reasons to love Woot, including their recent awesome letter and video about their acquisition. But, even better may be that in today's Woot offering, they mock the Associated Press for its coverage of the Woot acquisition, because the AP just happens to have also copied text from the awesome Woot letter. Now, that's all well and good for most publications, but this is the AP that we're talking about. The same AP that threatens bloggers for copying headlines and snippets. The same AP that insists it needs "hot news" to protect others from "free riding" on its work. And, most importantly, the same AP that has a famously ridiculous pricelist for quoting five words or more from an AP article.

It appears the folks over at Woot noticed this price list, and noticed that the AP report on its acquisition copied more than five words. And thus, the smart folks at Woot calculated that the AP owes Woot $17.50 for quoting Woot without permission (though, they'll take buying today's deal as payment instead). Of course, I would have probably added a "hot news" freerider surcharge as well. After all, people reading the AP story now no longer had any reason to go to Woot directly to find out the news. Hell, at least folks like us linked directly to Woot's letter. But that's far too neighborly a thing for the AP to do. Instead, it just quotes with no link at all.

Update: An apparently upset AP media relations person has contacted us to ask us if it's a "slow news day" (answer: no, not at all -- why do you ask?). Also, according to the AP, the article also shows that the AP spoke to Woot's CEO on the phone, and that, apparently, makes what the AP did okay. If only I had known that the AP's fair use quoting rates had an exception for "we spoke to you on the phone." Unfortunately, I don't see those exceptions anywhere. Perhaps I'm missing them. The AP would also like to remind us that it's reporting on the oil spill in the gulf. No, I don't understand this non sequitur either, but that's how the email concludes. In the meantime, I'm still wondering if the AP paid Woot for the news of reporting on them. If not, isn't the AP "freeloading" on the newsmaker? Or do the rules the AP sets out for everyone else not apply to the AP?

Filed Under: fair use, quoting, woot
Companies: amazon, associated press, woot

Yes, Authors Have Copyright Issues With Quoting Others As Well

from the the-sampling-problem-is-back dept

We were recently writing about how there seems to be a massive double standard when it comes to "sampling" in books vs. music. But that was really only focused on fiction books. When it comes to non-fiction, it appears the story is a bit more complicated. Author Marc Aronson recently took to the pages of the NY Times to complain about how copyright is massively stifling non-fiction works, due to the difficulty of getting permission:

The hope of nonfiction is to connect readers to something outside the book: the past, a discovery, a social issue. To do this, authors need to draw on pre-existing words and images.

Unless we nonfiction writers are lucky and hit a public-domain mother lode, we have to pay for the right to use just about anything -- from a single line of a song to any part of a poem; from the vast archives of the world's art (now managed by gimlet-eyed venture capitalists) to the historical images that serve as profit centers for museums and academic libraries.

The amount we pay depends on where and how the material is used. In fact, the very first question a rights holder asks is "What are you going to do with my baby" Which countries do you plan to sell in? What languages? Over what period of time? How large will the image be in your book?

Much of his concern is how these costs will multiply in an age of ebooks, but it seems like a serious enough issue from the start. Just the fact that authors who are discussing and building on the works of others are being blocked due to copyright is hugely problematic. In this context, it hardly sounds like the new works would act as substitutes for the old works at all -- but could actually drive more interest in those original works. It's difficult to see why or how copyright policy makes sense in these cases.

Filed Under: authors, copyright, quoting, sampling