The Volokh Conspiracy

The site's concern with fair use seems to be explained in a June 9th editorial. I'd link to it but the site doesn't seem to support deep linking. You can get to it by clicking on Editorials and scrolling down.

Why should people trust the accuracy of the articles on the site, if the site's claims about copyright law are inaccurate?

Because they're journalists, not lawyers?

Yeah, I've never really understood the argument that "if you messed up here, all your other positions and statements are probably flawed." Sure, you're within your rights to avoid considering any other arguments or statements from that person, but your logical basis for doing so is pretty weak.

Obviously if there's a pattern of distortion in related matters, the logic behind discrediting future statements makes more sense. But here, where you have a news organization unsure of the extent of its copyright protections, there's no reason to assume they're distorting the news they report.

If my mother makes an inaccurate statement about the law, does that mean I should question her fitness to raise a child?

Did you embed a possible logical conundrum there, something along the lines of, "What I am saying now is a lie."? (Has your mother made an inaccurate statement about the law, so we should scrutinize you more closely?)

Well, Daniel, I'm reading the statement again, and I don't see where they've made a factual statement about the law. They simply say "they forbid". Sure, they don't inform the reader that their prohibition has limited legal force (in accordance with their readers' fair use rights), but unlike before, they're no longer making an incorrect statement about what the law says. Misleading, maybe. I'd say aggressive. They do mention fair use as a limiting principle. And it's not their job to advise readers of their fair use rights or exactly how those rights affect what is forbidden.

I still say their stance on copyright law is logically separate from their pursuit and delivery of the news. Perhaps a learned reader may choose a different paper, but the choice seems emotional rather than logical. Put another way, I'd ask whether the New York Times presumably lawful terms of use give conservatives any comfort when reading their substantive articles. I'd guess not.

"In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette" remains on the front page. Why should people trust the accuracy of the articles on the site, if the site's claims about copyright law are inaccurate?

I don't see what claim they are making about copyright law in the remaining quoted passage, much less what inaccurate claim they are making. And, while I think it is unlikely that an express prohibition would change a defeat into a victory for them in a fair use case, I would not conclude that it's chances of making a difference are completely trivial. So, if an express prohibition might have a nonzero (albeit small) chance of tipping the scale, *and* might have an additional deterrent effect, what is wrong -- from a legal perspective -- with including it? (I'd hate to be the lawyer telling my client it would be silly to include it, only to have a judge or jury conclude that the fair use question in a particular case was really close, and if only the site had warned people that no use whatsoever would be considered a fair use . . . .)

Sorry, the only Michael Crichton book I ever read was terribly written and constructed. It was so full of obvious plot holes and pseudo-science that I scarcely believe he can present a cogent argument in areas outside of fiction. Therefore, I was unable to take seriously his notions as expressed above.

In all seriousness, another possible explanation is our understanding that newspapers employ numerous people who are responsible for different aspects of the paper's reporting. Perhaps the beat writer who got the score wrong in Friday night's game between Spring and Springdale had nothing to do with the Pulitzer-prize winning reporter's expose of city corruption.

The official court site is a bit busy, so I posted a copy of the opinion on my site.

Doh! Wrong thread...

Huh - Crichton writes fiction for movie treatments (for the most part - I have a nonfiction book he wrote many years ago). So what that there's pseudoscience in it. I didn't expect Jurassic Park to be a how-to manual for dinosaur breeding and care.

The website includes a "resrevation of rights" that wilfully attempts to mislead the readers. It's essentially a one-person operation (the voices in her head don't count separately). Why would you not believe that the lack of concern for accuracy and fair dealing carries over into everything else on the site?

Nick

Nick, noting that you give Chrichton a pass, while reading a one-person online "gazette" the riot act regarding it's potentially erroneous copyright policy, I'd say the following:

1) My Crichton stab was a self-contained joke aimed at that particular poster, get it? My second paragraph about multi-person news organizations was meant to be more generally applicable to the thread.

2) To the extent that a single blogger/newsperson is responsible for the content of an entire site, yeah, I'd own that a serious, continuing disregard for factual accuracy would color my opinions of future stories.

3) In this case, I actually think the disclaimer responded to Volokh's annoying, law-giver intrusion in a pretty clever way. It removed the blatant inaccuracy, but still puffed up the prohibition. Almost every terms of service notice I've ever seen exaggerates its powers in this way. By the way, is it really professor Volokh's intention to ride around the internet crusading against single-person "gazettes" and browbeating them into making corrections to their dumb copyright policies? Hilarious.

4) After reading her Editorial regarding fair use (linked above) it's quite clear that this lady cares a great deal for accuracy and fair dealing. I mean, she's working hard to create a product and doesn't want other people profiting from her work without her permission. Her grasp on copyright law may be a bit fuzzy, but her heart appears to be in the right place. So, to the extent that I'd ever read a site that looks this flaky to begin with, no, their copyright policy isn't going to chase me away. I bet much of her work is pretty spot-on, considering the expectations she's setting. I wouldn't expect a NYT, WSJ quality output from this site, just by looking at it. Hell, I found a couple of typos in just a few second's perusal. But I doubt seriously that she's embarked on a single-minded campaign of disinformation and distortion aimed at her unwary readers. If you want to assume that, go ahead. But that assumption needn't be dictated.

Finally, this is what we're upset about? Seriously slow news day.

Roger, you have a point, but that misleading phrasing (which Maxam also utilizes) does not make her additional explicit denial of Fair Use acceptable. Of course, those who know about Fair Use probably know that the Copyright Law "authorizes" their copying.

More important, NCG even applies the blanket denial of Fair Use rights on articles that are in the public domain and are not attributed (like this court press release), or that she has lifted wholesale from other newspapers without attribution, e.g. this article from the Westchester News, which you can find on NCG here.

User1234: Yes, I just learned this morning that my assertion about the Westchester News was incorrect. I immediately placed a Correction at my weblog shlep. It states:


Update &Correction (Oct. 27, 2006): I have learned this morning that, a day after I was accused of defamation by the Editor of North Country Gazette, I made an erroneous statement about NCG in a Comment to a prior post: After comparing the text of the two articles, I mistakenly said that NCG had taken another newspaper’s story without attribution. Here is the Correction notice that I have placed in the Comments to that post:

CORRECTION (Oct. 27, 2006): Yesterday evening, I erroneously stated in this Comment that NCG had copied from this article in the Westchester News, when it wrote this story -- showing that at least five sentences from the NCG article were identical to the sentences in the Westchester.com article. It has been brought to my attention that the source of the NCG article was this release from the Westchester County District Attorney. I apologize for my error. Clearly, NCG did not take the information from Westchester.com. If NCG had attributed its story and facts to the Westchester DA’s press release, my mistake would not have occurred. My main point remains, however, that NCG was claiming exclusive rights to use materials that the public has every right to reproduce, when it placed the statement “This material may not be published, broadcast, rewritten or redistributed by anyone without the express written permission of the publisher. This article is copyright protected and Fair Use is not applicable” at the end of the article.

I have never had an “axe to grind” with NCG. In Oct. 30, 2005 and December 8, 2005, I had pointed to NCG articles as new sources at my other legal weblog and, on September 26, 2006, had discussed one of its editorials in a posting at this weblog. When I approached the Editor of NCG last week, it was with one simple purpose: to ask that she remove the incorrect clause “Fair Use is not applicable” from NCG articles and commentary. My purpose when I wrote about the topic at this weblog was to get the clause changed and to help the public better understand the Fair Use concept. That is why I wrote to Ms. Maxam thanking her, as soon as I learned that the clause was removed in the Oct. 24, 2006 articles at her site (and why I was disappointed when she reverted back to useing it the next day. I apologize to her for the one erroneous claim that I made, which is discussed above. I apologize to shlep’s readers and Team for allowing the story to take up so much of this weblog’s resources this week and for allowing the situation to get muddied by making that one incorrect assertion. Having said that, I hope the sources supplied below on defamation law will be helpful.