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Ironic Claims of Irony Alert:
Glenn Reynolds, Michelle Malkin, and Patterico have noted the apparent irony that the Associated Press quoted 154 words from one of Patterico's blog posts soon after threatening bloggers for quoting fewer words than that from Associated Press stories.

  I am no copyright lawyer — don't try this at home, kids — but I'm not sure I get the inconsistency. The 154 words that the AP quoted weren't words written by Patterico: They were words from Mrs. Kozinski that she then submitted for publication to Patterico. I am no copyright lawyer — note repeated caveat — but I would think that Patterico had an implicit license to publish Mrs. Kozinski's message but did not himself get the copyright in it. If that's right, copying from Patterico's blog didn't violate Patterico's copyright. But then as I said, I am no copyright lawyer. Any actual copyright lawyers care to weigh in?

  UPDATE: Over at Instapundit, Glenn responds:
In response to Orin Kerr, those words certainly belonged to someone, that someone wasn't the AP, and the AP nonetheless used them without permission. If that use is okay, then . . . .
  Two responses back to Glenn. First, I'm not sure we know the AP used them without permission. We know that the AP reporter called Mrs. Kozinski and confirmed the authenticity of the statement posted on the web; are we sure that this call did not include an explicit or implicit permission to the AP that they could reprint it? Second, fair use is always contextual and case-by-case. I am not a copyright lawyer (that makes four), but my understanding is that copying the statements of a person who is "trying to get the word out" is really different from a fair use perspective from copying the statements of a pundit or reporter. So while I realize that this sort of thing is like blogospheric catnip, I'm not sure there's much substance to it.
one of many:
Not a copyright lawyer however in the instant case AP is threatening suit for copyright violations which also contain 3rd party quotes. It wouldn't be Patterico's copyright unless there is some offbeat doctrine I'm forgeting, but it would be M. Tiffany's (not Kozinski) so the irony alert still remains. AP is excerpting presumptively copyrighted material published on a blog without permission (presumably) of the copyright holder while suing bloggers for excerpting copyrighted material from AP without the permission of the copyright holder. If M. Tiffany did give AP permission it is not ironic, although there would be no reason to seek her permission since this type of excerpting is well precedented fair use (except when bloggers do it to AP).
6.17.2008 11:45pm
Sagar:
I am not a copyright lawyer either, but isn't the AP doing what it doesn't want the bloggers to do? You don't mean to say that all of AP articles/writings are original works of art, as opposed to quotes from 3rd party sources, etc.
6.18.2008 12:05am
htom (mail):
And the AP isn't providing a link!
6.18.2008 12:16am
Patterico (mail) (www):
My main point is that the AP is coming down on bloggers like a ton of bricks for quotations that are fair use. What the AP used from my post — yes, quoting Marcy Tiffany and not me — was fair use. So are most blog posts that quote the AP.

I believe that the First Amendment grants a broad right of commentary, and unless someone demonstrates a pattern of simply lifting huge swaths of content without adding value in the form of commentary, most quotations of such minimal length are going to be fair use.

I think a lot of bloggers agree. For example, one blogger recently published a blog post that quoted the AP. The blog post had one line of introduction, 10 lines of quotation lifted directly from an Associated Press story, three lines of commentary, and a hat-tip.

That's a pretty standard blog post. And while I didn't count the number of words quoted, it appears to be more extensive than 79 words — the longest quotation by the Drudge Retort.

Who was that blogger? One Orin Kerr.

I have no doubt that your post constitutes fair use. Do you?
6.18.2008 12:16am
Fub:
So, Patterico should send AP a DMCA takedown notice alleging copyright infringement anyway. Neither AP or any of the big boys sending out DMCA takedown notices ever get sanctioned for making stuff up and complaining about copyright violations that don't exist. So, why should anybody else be diligent either. Takedown notices are a game that anybody can play.
6.18.2008 12:21am
OrinKerr:
I have no doubt that your post constitutes fair use. Do you?

Yes, I have doubts. Fair use is very tricky; there is no set word number, and exactly where the line is in the eyes of the beholder. If the copyright owner of that piece believes that I have violated their copyright, they should contact me and I will take down the quote or truncate it to a very short excerpt.
6.18.2008 12:28am
Patterico (mail) (www):
Orin might want to note that I wrote an update to my post -- which, by the way, I wrote before seeing any of his commentary on the issue -- noting that the copyright is indeed held by Ms. Tiffany and not myself.

That's not the point.

The point is whether a big organization should be entitled to use its size, and its army of lawyers, to terrorize bloggers engaged in fair use.

I say the answer is a clear no.

The AP quotation of my blog post (quoting Ms. Tiffany's e-mail) was fair use. Most blog post quotations are fair use. Orin's extensive quotation of the AP in the blog post I mentioned earlier was fair use.

The AP should not act like bullies.
6.18.2008 12:29am
Patterico (mail) (www):
If the copyright owner of that piece believes that I have violated their copyright, they should contact me and I will take down the quote or truncate it to a very short excerpt.


Really? In every case? Even if you thought your quote was fair use?

But if the copyright owner doesn't contact you, you'll continue to use long quotations that you think might not be fair use?
6.18.2008 12:32am
TruePath (mail) (www):
Yah, I think the irony is explained by the fact that in at least one of the blog posts the AP demanded the blogger take down almost all of the content the blogger copied was a quote from Ms. Clinton. Presumably the same argument would apply in both cases.

While I think the AP is being stupid about this whole thing (these posts are good for their buisness) but most people seem to be missing the consideration of how transformative the work is. What differentiates the long AP story with 150 words from this blogger's site and the stories that recieved take down notices is that those stories contained virtually nothing but AP content. Remember the context a quote is used in does matter a lot.

While I'm not a fan of this AP action I'm not sure if they should lose. After all it would be a shame if copyright law slid towards a word count metric for fair use. We want an academic treatise to be able to quote long news passages to discuss the way news is presented but the same content when presented as a substitute for the original news story itself shouldn't be fair use.

Anyway I'm not expert enough to know how this should turn out but there are important differences.
6.18.2008 12:36am
OrinKerr:
Patterico writes:
Really? In every case? Even if you thought your quote was fair use?

But if the copyright owner doesn't contact you, you'll continue to use long quotations that you think might not be fair use?
Patterico, I realize that you can get very excited in your blogging and can be a bit over-the-top (such as describing the sending of a notice and takedown letter as using an "army" to "terrorize" people -- kind of waters down the terms, I would think).

But please note that my comment is pretty clearly just about that one piece. I wrote, "If the copyright owner of that piece believes that I have violated their copyright, they should contact me and I will take down the quote or truncate it to a very short excerpt." (emphasis added) Fair use is necessarily case-by-case and uncertain; I cannot say that I would always do that anymore than I could say I never would. But I do think that it's a sensible and fair strategy to try to draw the line as best I can, but to also be willing to redraw it if there is legitimate disagreement as to where the line is.
6.18.2008 12:46am
Patterico (mail) (www):
Putting aside your general ad hominem attack on me and my blogging, I do believe that these notices are using an army of lawyers to terrorize people. That is precisely what I believe is occurring.

Most bloggers are not law professors -- heck, there may even be some who aren't even lawyers. Many are solo commentators who feel that they have no choice but to cave in when confronted with legal action such as the AP is engaging in. Even if they are right, they can't afford lawyers, they don't have the time or skills necessary to respond on their own, and so they're just -- stuck.

They're terrorized. Sure, it's not "terrorism" in the sense of guys with bombs strapped to their chests. It's all very legal and proper. But in my view, it's not really legal because it flies in the face of the First Amendment, which protects one of our most cherished freedoms. And when an organization bullies you with an army of lawyers into giving up your rights because you can't afford to fight them, then I think it's fair to say they are in some sense terrorizing them.

And an organization like the AP has an army of lawyers, just as the blogosphere has an Army of Davids. Yes, it's a metaphor; no, I don't mean that the AP literally has a military branch with heavy artillery and soldiers in uniforms. But compared to the average blogger, it's an army of lawyers.
6.18.2008 1:04am
Cyrus Sanai (mail):
I do copyright. The copyright lies with the author, unless assigned in writing or pursuant to a work for hire agreement.

Here, Patterico's obtaining permission to publish is a revocable license or perhaps a non-exclusive grant of publication rights.

Of course, there were two potentially defamatory statements in there. The first was Mrs. Kozinski's characterization of the LA Times article as false, when it is literally true in every respect that I am aware of; second, her discussion of me. So that issue is carried forward.

Cyrus Sanai

Cyrus Sanai
6.18.2008 1:08am
Patterico (mail) (www):
From your update:

my understanding is that copying the statements of a person who is "trying to get the word out" is really different from a fair use perspective from copying the statements of a pundit or reporter.


Aren't pundits and reporters trying to get the word out?
6.18.2008 1:08am
Patterico (mail) (www):
I'm still confused by your position that you'll publish blog posts with extensive quotes, even if you think they might not be fair use -- and if the copyright holder contacts you, you'll truncate the quotes, but if they don't, you won't.

Even as applied to a single post, that strikes me as an odd position. Why not just make the judgment when you post, and don't post something you don't think is fair use -- and stick with your judgment even if the copyright holder complains?

Unless the idea is just to cave whenever you're challenged, so that you won't get sued. In which case, I'd say *you're* being terrorized by an army of lawyers. (To use my excitable and over-the-top style that you love so much.)
6.18.2008 1:17am
OrinKerr:
Patterico,

My sense is that reporters are trying to make money; they only want to get the word out to the extent it maximizes their revenue stream.

I gather that explains why the AP doesn't want bloggers to quote so much of their reporting. I'm no expert in such matters, but I assume they want people to click on the links of the sites that paid the AP to reprint the AP's stories. If people read AP stories on sites that do not pay to reprint the AP's stories rather than the ones that do, then it seriously damages the AP's revenue stream.

I think it's hard to generalize the goals of bloggers. In the one case where the MSM reprinted one of my blog posts without my permission -- see here -- I was actually really annoyed. But I don't know if that reaction is typical, given the diversity of the blogosphere.
6.18.2008 1:18am
hoystory (mail):
I'm going to side with Patterico on this one Orin. IANAL (though I did take a Media Law course to get my journalism degree) and if I got one of these notices from the AP my stress level is going to go through the roof -- even if I firmly believe my quoting is fair use.

So you don't like "terrorize" -- is "Scare" ok? "Strike fear into?"

As to your promise to truncate your quote of the Associated Press' material -- how much will you truncate it to? The AP has a Web form that demands $12.50 for excerpts consisting of as few as 5 words. If the AP demands you only quote four words, will you comply?
6.18.2008 1:23am
OrinKerr:
Patterico writes:
I'm still confused by your position that you'll publish blog posts with extensive quotes, even if you think they might not be fair use -- and if the copyright holder contacts you, you'll truncate the quotes, but if they don't, you won't.

Even as applied to a single post, that strikes me as an odd position. Why not just make the judgment when you post, and don't post something you don't think is fair use -- and stick with your judgment even if the copyright holder complains?

Unless the idea is just to cave whenever you're challenged, so that you won't get sued. In which case, I'd say *you're* being terrorized by an army of lawyers. (To use my excitable and over-the-top style that you love so much.)
I think we both agree on step one: Use your best judgment to draw the line. I suspect our disagreement over step 2 (what to do if challeneged) reflects a broader difference in how we prefer to settle disputes. In my view, compromise is a pretty good strategy when the other side is making a plausible claim and I have no particular stakes in my position. Sure, I could dig in my heels for the entertainment value of it. But life is short: If I don't have any particular stakes in the issue and the other side is taking a position that is reasonable, I don't see the real value in doing so. Of course, if I think the other side is making a frivolous claim, that's different; but as I said, I don't think the claim here would be frivolous, even if it's not necessarily correct.
6.18.2008 1:29am
LM (mail):
I can't believe The Journal reprinted Orin's RBG post without permission. For the cost of some graphics, they filled an op-ed slot they'd otherwise have to pay a columnist to write a piece for. I'm not a copyright lawyer either, but if that's fair use, no blog is off limits and no columnist's job is safe.

Orin, what did they say when (if) you asked for an explanation?
6.18.2008 1:39am
Patterico (mail) (www):
You made quite a point of my citing only one post with an extensive quote. But you're no different from any other blogger in your use of long quotations from news sources, other blogs, judicial opinions, and such.

Here is a post of yours with a quotation of a couple hundred words or so. So if Saul Levmore asked you to truncate it, you'd do that?

Here is a post that quotes literally hundreds of words. But it's from a Supreme Court decision. I have no idea what the copyright issues are there. But I can't imagine that if your old boss Justice Kennedy asked you to truncate the quotes for copyright reasons, that you would think: "OK. Maybe it wasn't really fair use."

This post has a quote from the Washington Post of about 78 words or so -- about as much as the longest Drudge Retort quote. You'd shorten that if the Washington Post asked? How about the much longer quote after it, from the New York AG's web site?

I'm sure I could go on -- those are all from the last couple of weeks.

This is what we bloggers do. I do it. You do it. Almost every blogger in the universe does it. The AP is trying to fundamentally change the way we blog.

Are we going to do so -- but only for the AP?
6.18.2008 1:41am
J. Aldridge:
I don't think AP has any attention of attacking non-commercial use in the form of commentary (e.g., CSPAN), which case they clearly would lose in court.

On the other hand, sites that use AP material for purposes of creating traffic for advertising revenue or donations, could come under attack under clever commercial exploitation theory.

My guess the AP is taking the ACLU path of threat of costs for litigation rather than arguing merits of law.
6.18.2008 1:43am
J. Aldridge:
The above "has any attention" should have read "has any intention."
6.18.2008 1:44am
Patterico (mail) (www):
My sense is that reporters are trying to make money; they only want to get the word out to the extent it maximizes their revenue stream.


I also asked about pundits. That includes unpaid pundits, like bloggers.

First, I'm not sure we know the AP used them without permission. We know that the AP reporter called Mrs. Kozinski and confirmed the authenticity of the statement posted on the web; are we sure that this call did not include an explicit or implicit permission to the AP that they could reprint it?


And if she told the reporter that she did *not* grant him permission to quote her e-mail -- even though she had allowed me to quote it in full, and it related to a matter of intense public interest -- are you trying to tell me that the AP couldn't have written the story it wrote?!?!?

Yes, fair use is contextual. Copying blog posts wholesale, like someone did to you, is wrong. But minimal quotations with commentary are here to stay.
6.18.2008 1:54am
OrinKerr:
LM,

I didn't ask for an explanation. Yes, I was annoyed, but whatever. (By way of context, the VC has an arrangement with the WSJ that they can sometimes reprint our blog posts, if they first get our permission. They didn't ask for or get my permission.)

Patterico,

The AP is trying to enforce its rights in a zone of legal uncertainty. You may see that as a violation of your right to blog "the way we blog," but given that the AP hasn't even announced what it's policy will be (as far as I understand it), I don't know how you can be so sure. Oh, and there is no copyright in federal government documents, including federal court opinions. 17 USC 105.
6.18.2008 2:05am
George Weiss (mail) (www):
the statue has the words "fair use." if fair use means "as long as it doesn't cost the author anything i can use it-if it doesn't i can't"

then it isn't just about the blogoshere. if copyright extends to quotations that are cited to the original source-then academic studies, government studies, legal memoranda, medical research-very difficult to do.

next someone will summarize an article they saw in the paper-and the paper will argue that its not fair use-since it is their ideas. after all-they only get revenue if someone reads their article. if someone can read a summary for free they don't get revenue.

if the ap wins-and you have to buy rights from the author to quote (or logically-summarize) an article you cite or link to-the author will simply refuse to sell rights to those who disagree with them. wow-thats pretty scary.
6.18.2008 2:20am
George Weiss (mail) (www):

(By way of context, the VC has an arrangement with the WSJ that they can sometimes reprint our blog posts, if they first get our permission.)



what the heck does this mean? everyone can reprint an article with permission. what does it mean-"ill agree to that if i agree to that" i think we call that an illusory contract in the law.
6.18.2008 2:22am
Patterico (mail) (www):
given that the AP hasn't even announced what it's policy will be (as far as I understand it), I don't know how you can be so sure


By reference to the specific examples where the AP has sent out the DMCA takedown requests and (as far as I am aware) has refused to retract them.
6.18.2008 2:23am
Patterico (mail) (www):
Oh, and there is no copyright in federal government documents, including federal court opinions. 17 USC 105.


Like I said, I didn't know. As someone once said, I'm not a copyright lawyer.
6.18.2008 2:24am
Bill Poser (mail) (www):

Oh, and there is no copyright in federal government documents, including federal court opinions. 17 USC 105.


Incidentally, this is not true in Canada. Canada has a category of "Crown copyright". It generates no useful revenue but is used to prevent the circulation of documents the government would prefer people not to see.
6.18.2008 2:37am
Splunge:
Most bloggers are not law professors -- heck, there may even be some who aren't even lawyers. Many are solo commentators who feel that they have no choice but to cave in when confronted with legal action such as the AP is engaging in. Even if they are right, they can't afford lawyers, they don't have the time or skills necessary to respond on their own, and so they're just -- stuck.

This seems a little whiny to me. In the first place, you don't have to have a lawyer if you're clearly on the side of the angels. I think that's just lawyer egotism talking. I've found that if you're careful and attentive, only go to Court when your case is simple and strong -- and these are just about the only cases with which you should be wasting the Court's time -- and you do the occasional sanity check with a lawyer in the right area of practise, you can do just fine on your own.

Sure, you might still lose due to some really brilliant lawyering on the other side that bamboozles the Court, especially in some fiendishly subtle weird case that you're an idiot for not avoiding with a ten-foot pole in the first place. But that's life. Full of risk. You might die in a car crash on the way to the Courthouse, too. No risk, no gain.

If you want to play in the big leagues, maybe you should just suck it up and learn how, buy the necessary insurance against the risks of your profession just like any other entrepreneur. Bone up on FA case law at the library, find a friendly lawyer to give you occasional a la carte advice, join the EFF, set up a blog-tree to spread maximum negative publicity as a guerrilla weapon against the big boys, and so forth. Organize at the grass-roots level, ferfuxsake. The AP can't fight two hundred thousand bloggers, let alone 5 million sympathetic citizen-readers. I tell you, this constant early 21st century tendency to cry like a little girl and call out for rescue when confronted with every quotidian elbow thrust and rude justle in a robust free society nauseates me.

Also maybe try being reasonable, polite, and compromising in the way Kerr suggests. Don't dig in your heels and make a Federal case out of every trivial theoretical infringement of your preciouse FA rights, I mean, unless you're trying to be a martyr, for the publicity or something.
6.18.2008 6:45am
George Weiss (mail) (www):
Splunge:

i think his point is that people who don't understand law or legal matters will assume that since big company X has sent me a legal notice of some kind i should immediately agree to their demands no matter how outrageous they seem to me. after all they have lots of good lawyers and i know nothing about the law-so i better listen.
6.18.2008 6:54am
Brett Bellmore:
In the first place, you don't have to have a lawyer if you're clearly on the side of the angels.


I think you're missing the point: Going to court is expensive. It's expensive even if you win. It costs time, lost wages, travel expenses, hiring a lawyer if you're not nervy enough to go pro se. Most people can't AFFORD to go to court, even in a case they're absolutely certain they're going to win! It's not like getting awarded your expenses is the usual thing. It's darned rare unless a law mandates it.

We live in a society where lawyers have been given the power to ruin people of average means even when the lawyer is in the wrong. Most people are terrified by lawyers, and rationally so.

When a firm that has lawyers on retainer sends you some kind of legal notice, it's a threat you have to take very seriously, even if you're quite confident you're in the right, and would prevail. Because unless you're a lawyer yourself, or well off, you can't afford to prevail.
6.18.2008 7:39am
RainerK:
"Even if they are right, they can't afford lawyers, they don't have the time or skills necessary to respond on their own, and so they're just -- stuck."

While I wholeheartedly agree with Patterico on the fair use issue, allow me to point out the irony. In the past he has not had any problems with the government sending an army of investigators and prosecutors after citizens. Most of us are stuck the minute the cop decides to bring charges.
Shoe fits differently when its on the other foot, doesn't it?
6.18.2008 7:55am
Brett Bellmore:
I'd say it's the great, glaring injustice of our 'justice' system, that it makes not the slightest attempt to make whole the people it swallows up, and then spits back out 'acquitted'. The whole legal system treats the costs it imposes on those who get dragged into it as some triviality, even as it ruins the people it interacts with.

It's different only in degree, not principle, from some luckless soul stuck in Gitmo by mistake, with no way to get their life back.
6.18.2008 8:18am
Prof. S. (mail):
These comments - particularly those of Patterico - do nothing but to reinforce my belief that "bloggers" (read: people with strong opinions, sufficient spare time, and internet access) take themselves WAY too serious.
6.18.2008 9:09am
Curt Fischer:
Fact 1: A guy from the AP said: "It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context."

Fact 2: This AP article contains no links at all to Patterico.com, the source for the quotes used in the AP article, as well as a place to see Mrs. K's whole statement, in context.

Perhaps my view of what is ironic here is narrower than Patterico's, Glenn Reynolds's, and Michelle Malkin's, but I find at least those two facts ironic. To me, irony as a concept does not overlap in any way with legal concepts of fair use or copyright. Maybe if I were a copyright lawyer (one) conflating irony and copyright would seem more fun or something.
6.18.2008 9:32am
TerrencePhilip:
Didn't the AP a while back, say it was revoking "permission" for the BCS to factor its college football poll in the BCS rankings?

I was not sure how they thought they had a legal basis to do that either.
6.18.2008 9:46am
D.A.:
Patterico wrote (way up top):
"I believe that the First Amendment grants a broad right of commentary...I think a lot of bloggers agree."

Imagine that. A lot of bloggers believe in a doctrine that would absolve them from any fears of copyright infringement. People often have a vested interest in "agreeing" to things that will keep them out of trouble.
6.18.2008 9:56am
Patterico (mail) (www):
Patterico wrote (way up top):
"I believe that the First Amendment grants a broad right of commentary...I think a lot of bloggers agree."

Imagine that. A lot of bloggers believe in a doctrine that would absolve them from any fears of copyright infringement.


Hm. Had you not used an ellipsis to eliminate part of what I said, your argument would not seem quite as compelling. Here's the full quote, including what you chose to excise:

I believe that the First Amendment grants a broad right of commentary, and unless someone demonstrates a pattern of simply lifting huge swaths of content without adding value in the form of commentary, most quotations of such minimal length are going to be fair use.


The clear implication, of course, is that someone who does engage in wholesale lifting of passages of non-minimal length without commentary -- should be liable for copyright infringement. And it becomes even clearer as a pattern develops.

So I guess I'm not really talking about a doctrine that would "would absolve them from any fears of copyright infringement" after all. I'm just talking about a doctrine that would would absolve us from any fears of spurious claims of copyright infringement.

But it's a very clever use of an ellipsis, I'll give you that. Maureen Dowd would be so proud of you.
6.18.2008 10:09am
Blue (mail):
Orin, you cannot seriously suggest that Fair Use should be interpreted as meaning someone should take down any item if a copyright claim is made. What your proposed regime would ensure is that media distortions can never be addressed. To take a couple of examples, the AP has recently begun issing these threats against bloggers tracking the photographs their stringers send in. So a list of photographs showing "riot boy" in Pakistan at a series of protests over many months had to be taken down. Bam, the AP has just used a bogus copyright claim to shut down criticism of their work.

Or consider the photoshopped Reuters photograph of smoke billowing over Gaza. Do you really want to support a regime in which any attempt to point out that deception immediately generates a DMCA notice?

You also err in thinking this is just about bloggers. Consider a scholar doing a content analysis of the phrases used to describe various presidential candidates. Do you seriously think it is a violation of Fair Use for that scholar to use exerpts from the analyzed material to make a point in an academic article? Because, under your regime, any of the quoted sources could object and get the article pulled.

As to the specific AP bullying going on, I personally think the proper response is a blogswarm sending out DMCA takedown notices against every AP article that quotes or refers to a third party source.
6.18.2008 10:09am
OrinKerr:
Orin, you cannot seriously suggest that Fair Use should be interpreted as meaning someone should take down any item if a copyright claim is made.

I don't make any such suggestion, of course. If you read my comments, it's pretty clear my position is based on prudence, not law.

You also err in thinking this is just about bloggers.

I don't think this. Nor do I suggest it.
6.18.2008 10:38am
krs:
"blogospheric catnip" is a great phrase.
6.18.2008 10:46am
TruePath (mail) (www):

But I can't imagine that if your old boss Justice Kennedy asked you to truncate the quotes for copyright reasons, that you would think: "OK. Maybe it wasn't really fair use."


So if a supreme court justice asked you to cut short a quote for copyright reasons you wouldn't think he might have a better idea what he and his fellow justices would uphold as fair use?
6.18.2008 11:30am
TruePath (mail) (www):
Patterico:

I'm a bit confused. It sounds like your points seem to all focus exclusively on the length of the passage quoted but that's not the only thing fair use looks at. Whether the use is transformative is another factor, as is the effect the use has on the market for the original, and (I think) the percentage of the work quoted.

The AP likely will argue that what makes the examples they issued DMCA takedown notices against were minimally transformative (it was entirely AP content tagged with a new title in one case and nearly so in another). They may further argue that these uses were effectively substitutes for the AP work since they served primarily to inform people about the events in that news story not to comment or argue about it. Thus posting nothing but some short excerpt of an AP story under your own title might well fail to qualify as fair use even though quoting 5 times as much from the same article in a transformative fashion might.

----

Also I don't see what's so weird about Orin's position. I certainly believe in fair use rights but it seems both prudent and perhaps polite to cut down the length of quotes when someone demands you do so and isn't obviously making a fallacious claim. Certainly if I thought it was being done to suppress a certain point of view or punish me for expressing my opinion I would dig in my heels but it's certainly not absurd to take a different view even there.
6.18.2008 11:46am
TruePath (mail) (www):
Ohh and I agree the AP should not act like bullies but playing nice and having the law on your side aren't always the same things
6.18.2008 11:48am
fat tony (mail):
Orin Kerr:

"My sense is that reporters are trying to make money; they only want to get the word out to the extent it maximizes their revenue stream."

Then, should they only be given limited "commercial speech" rights rather than full 1st Amendment protections?
6.18.2008 12:00pm
Kazinski:
If you read my comments, it's pretty clear my position is based on prudence, not law.

In other words you've been terrorized by the AP's army of lawyers.

The fact is there are a lot of governments, corporations, politicians, religions (Scientology comes immediately to mind), around the world ready to use copyright and the DMCA in order to stifle criticism. What the AP is doing is making that strategy more tenable and institutionalizing it. Everybody's freedom of speech will suffer if the AP gets away with it.

Is a quote from a politician in a private fundraiser protected by copyright? Is a leaked corporate document, even if only 12 words are quoted? Is a Chinese government document covered by copyright? How do you comment on it without quoting it at least selectivly? If you paraphrase a document how do your readers know that your paraphrase is accurate? All of these issues are part and parcel of the AP's new policy.
6.18.2008 12:32pm
von (mail) (www):
So while I realize that this sort of thing is like blogospheric catnip, I'm not sure there's much substance to it.


Well said.

And an organization like the AP has an army of lawyers, just as the blogosphere has an Army of Davids. Yes, it's a metaphor; no, I don't mean that the AP literally has a military branch with heavy artillery and soldiers in uniforms. But compared to the average blogger, it's an army of lawyers.

"Army of Davids" was a nice book title, Patterico, but it has never been an appropriate metaphor. The key point of the story of King David was that, though a shepard, David was exceptional -- not ordinary. An Army of Davids is, metaphorically, an Army of One And Only One Person.

(The points made in the book itself are worth considering, but the title has always annoyed me.)

More importantly, the concept of blogo-uber-alles is not relevant here. The issue here is narrow. Some bloggers opine that the AP violated Mrs. Kozinski's copyright. Professor Kerr points out that there are no facts to support this opinion (at least yet). The AP may have violated her copyright -- or maybe not. We just don't know.

Your allegations that the AP has violated the copyright of others may be relevant to a broader claim that the AP behaves irresponsibly. But it is irrelevant to Professor Kerr's point as I understand it.

These comments - particularly those of Patterico - do nothing but to reinforce my belief that "bloggers" (read: people with strong opinions, sufficient spare time, and internet access) take themselves WAY too serious.

Unfortunately, Army of People With Strong Opinions, Sufficient Spare Time, And Internet Access ("Army of PWSOSSTAIA") doesn't fit neatly on a book cover.
6.18.2008 12:36pm
DW (mail) (www):

I'm a bit confused. It sounds like your points seem to all focus exclusively on the length of the passage quoted but that's not the only thing fair use looks at.


It's the only thing the AP's pricing structure for using quotes from their material looks at, however. It's worth mentioning, I think, that their pricing structure does not at all acknowledge the length of the work being quoted. Which further reveals its insanity - 10 words out of a feature are the same as 10 words out of society piece?
6.18.2008 12:46pm
Bruce Hayden (mail) (www):
Fun and games.

What may make this more interesting is that the Copyright Act provides for attorneys' fees to the prevailing party in certain situations, as compared to much of the rest of the law in this country, where each party pays its own costs. So, theoretically, this should level the playing field with overreaching content providers (or possibly content appropriators in the case of the AP).

Also, while much of what the AP does is appropriation of the content of others (such as excerpting portions of a speech), some of that appropriation may have independent copyright through its selection, coordination, and/or arrangement (but then, might it not be a derivative work, requiring a license?)
6.18.2008 1:26pm
darelf:
I do believe I'm shocked at how much I disagree with Orin. That... rarely happens.

I think the point is not whether or not Kozinski's "copyright" ( such as it may be ) was violated. The point is, in the issue of disseminating and commenting on news ( which journalists both professional and amateur engage in ), this is seen ( by the populace, at least ) to be the very thing that is being protected by the 1st Amendment.

I don't see Patterico as complaining that the AP "stole" his story in a vacuum, but rather that their actions are both hypocritical and fundamentally wrong. That is, repeating 3rd hand quotes should be protected both ways. The AP wants it protected only in one direction....
6.18.2008 2:23pm
George Weiss (mail) (www):

What may make this more interesting is that the Copyright Act provides for attorneys' fees to the prevailing party in certain situations, as compared to much of the rest of the law in this country, where each party pays its own costs. So, theoretically, this should level the playing field with overreaching content providers (or possibly content appropriators in the case of the AP).


"certain situations"-basically th whim of the trial judge's discretion. there is no obligation to award attorneys fees-its just allowed. its not real reassuring to a guy faced with the prospect of hireing his 1 150 dollar and hour attorney when hes faced with a $1000 dollar lawsuit (by the time you spent 12 hours on the case-you owe more to the attorney than you would just paying up)

also-the DMCA take down notice doesn't exactly tell the non legal community that they might get attorneys fees if they win.

suppose your law school friend tells you to fight it-becuase its obviously fair use and you 'might' get attorneys fees. is it even rational for a guy not familiar with the law (hec k even a lawyer with no copyright specialty) not to give in to the DMCA notice or (if he doesn't comply) thousand dollar lawsuit? three thousand doallr lawsuit.

its just like the RIA's settlement machines for 3000 a lawsuit or so. Its economically irrational for most people to hire a lawyer to go to court. they just pay. becuase the other side has big lawyers and they are at a disadvantage.

furthermore if fair use is 'always a case by case basis'-as orin says that pretty much means that you always have some chance of loosing. always-no matter how 'fair' the use. you could get a poltically right leaning judge that believes almost nothing is fair use. you could get a judge that doesnt award you attornes fees. you could get a fancy lawyer trick that undermines your case. In such a case-you owe your attonrey and the judgement.

for what? a short quote with attribution cited to the author. Something that has been a staple of research and academic life for millennia. Something that if stopped would create unreal potential for censorship-(i dont like you so im not selling my rights to be quoted and ill sue you for it) Something that the logic of could be used to sue your co worker for hitting "reply all" to your email with the 'novel' idea of asking you to lunch.

i don't understand why people are defending this. I suppose it is one thing to point out how complex the issue of fair use is. And I suppose its also good to remind people that just becuse they may not like the law-that the law doenst alwys reflect heir policyy prefrences.

But isnt it a sad day when nothing can be answered with certainty anymore. Isn't it an outrageous world to live in where you could get sued for summarizing and then criticisms a newspaper articel? (after all the idea in the paper was new-and you reproduced it for free-not using exact words doesn't get you out of the fair use jurisprudence either)

20 years ago nobody would even dream of such a state of affairs. but here we are-someone threatened with a lawsuit over a quote attributed to the source.

Is there just some need to go against the flow? is there some unspoken need of intellectuals to argue the counter intuitive notion when other individuals become sure they are right and the issue is intuitive?

this is my best guess. Its the vogue now-find some provocative and counter intuitive argument and butruess it behind some form of expertise. People will think-wow that guy must be c omplex. he must get it.

ideas are right becuse they have a)empirical evidence or are b) logical. They have no more value if they are counterintuitive and piss people off. The fact that people get mad at you for your opinion doesn't mean you must be right and they are trying to censor you-it doesn't make you a maverick and doesn't make you an intellectual. It just makes you more of the same.

i liked it better when intellectuals valued logic over the counterintuitive and the novel.
6.18.2008 2:36pm
Jiminy (mail):
George, for what it is worth - if you encounter the RIAA and other abusers of the DMCA notices and such - the EFF has offered its services to assist. I don't know the total dollar value or the precise circumstances, but they are working very hard to fight the copyright abusers and get some cogent standards set in place regarding the recent changes in copyright law. They've helped out single mothers and college students, etc, and they have several cases working now to help set some precedent in these issues.
6.18.2008 2:45pm
George Weiss (mail) (www):
thanks jiminy-im aware of such services. thankfully. and thankfully ive never been sued or given a DMCA. however most people who get riaa notices are not aware of such things...(when you get charged with a crime and are poor-your told you have a right to an attorney and that if you can't afford one you can get one free of charge-i dont see a portion of the DMCA that calls for giving miranda rights) and the eff cant possibly take on the RIAA's machine lawsuit facotry-there aren;t enough pro bono hoursx to go around-that one actually is simple supply and demand economics.

IMO-its not the ocurts that should be dealing with this issue-its congress. What kind of democratic government passes laws that provide for censurship and book banning (which, admittdly is necessary in some cases-you really do need to protect IP when its going to hurt the economy too much if you don;t) and defines the situation by using words as completly abiguoius as 'fair use' leaving it to the whim of courts to decide on the 'totality of the circumstances' on a 'case by case' basis which quotes are worth a 3000 dollar settlement and which are not?

answer:
a democratic government that instead of infusing logic into its statues lets lobbyists write the statute and then hope the courts will deal with the problems its causes while being oblivious to what that means.

congress to the courts-censor material you know when its 'fair' when it isn't don't

thanks congress-thanks for strewing up the world and refusing to do you job. thanks for refusing to haave the backbone to investigate what your legislation might do-your staff will take care of that right? your job is just to vote however helps you get campaign funds right?
6.18.2008 3:05pm
LM (mail):
Patterico,

But it's a very clever use of an ellipsis, I'll give you that.

Actually, it was doubly misleading. First, as you pointed out, the deletion changed the meaning. But also, not bracketing the ellipsis inside your quoted comment made it appear the ellipsis was yours, not D.A.'s.
6.18.2008 3:26pm
Patterico (mail) (www):
"Your allegations that the AP has violated the copyright of others may be relevant to a broader claim that the AP behaves irresponsibly."

That's not my point. In fact, my point is that the AP has behaved responsibly in most situations I'm aware of, just as bloggers have in most situations I'm aware of.

But then, I have an admittedly libertarian view of fair use, which Orin doesn't seem to share.

I wonder what other Conspirators on this generally libertarian blog think about the AP's tactics?
6.18.2008 4:03pm
Kazinski:
Equating the RIAA's use of DMCA with the AP is misleading and wrong. The RIAA is not, to my knowledge trying to limit anything close to fair use. There are 100,000 of web pages out there with song lyrics, I don't see the RIAA going after those. But having an entire mp3 of a track is not fair use, OK, maybe one from an album. But 5000 mp3 files, out on the internet free to all comers is not fair use.

The biggest worry I have over the AP's policy is using it to suppress dissent and restrict the flow of information. All ready the presidential campaigns or their surrogotes are using copyright to suppress parodies or fair comment of their campaigns and ideas. For instance this was banned by Cafepress on the grounds of trademark and copyright infringement.
6.18.2008 4:12pm
Chris Newman (mail):

[M]y understanding is that copying the statements of a person who is "trying to get the word out" is really different from a fair use perspective from copying the statements of a pundit or reporter.


If I follow Oren here, I think he is reasoning that the latter cases are distinct from the former because the pundit or reporter is writing for a living and therefore her interest in being read widely is tempered by an interest in only being read through authorized remunerative sources. Thus the "nature of the copyrighted work" for purposes of fair use is different.

A few thoughts:

1) I don't think Oren is claiming this, but just to be clear: I don't see much ground for distinguishing between a blogger and a reporter when it comes to copyright and whether unauthorized use of their work is likely to be a fair use. Some bloggers earn money through blogads, and even those who don't receive psychic compensation from the public voice they are able to cultivate when people come to their websites. A blogger whose words are reprinted in the press may have fully as valid a claim as in the reverse case.

2) No one obtains copyright in the words of another simply by writing them down or reproducing them verbatim. Ms. Tiffany owns the copyright in the email she composed to Patterico. Clearly she gave him license to publish it. We have no knowledge as to whether she gave any such license to AP.

3) One might argue that the "nature" of Ms. Tiffany's work is different, because she just wants to be heard, not to get paid or cultivate a readership. Arguably her only interest is for as many people as possible to know what she had to say. But notice something: she took time and care to craft a thorough explanation of the nature of the storage cache and its contents, as well as the broader context of the controversy, with the intent that it be read and judged in its entirety. AP cherrypicked a few quotes from this, and presented them in a way that makes it sound as though all she did was issue denials of obscenity and attacks on the paper, without providing all the additional relevant information that she did. If asked, Ms. Tiffany might well have said that she would prefer not to be quoted in the newspaper at all unless they were willing to reprint her entire message. So if the question turned simply on whether her interest in writing was appreciably harmed by the AP's use of her work, I'd say that arguably it was.

4) Interestingly enough, the AP seems to look at it from the opposite end:

Still, Mr. Kennedy said that the organization has not withdrawn its request that Drudge Retort remove the seven items. And he said that he still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.
"Cutting and pasting a lot of content into a blog is not what we want to see," he said. "It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context."


What we have here is a disjunct between the norms of journalism and the norms of blogging. Journalists see it as their job to process information for us and present it to us framed in the way they think appropriate. And this is a perfectly valid and important function to the extent that the information they are processing is not readily viewable by a reader in its original form. But when you are talking about a text (so long as it is not of inordinate length), there is nothing to be gained by having someone paraphrase it for you rather than just show it to you. Indeed, doing so is more likely to result in misrepresentations of the original. Particularly if you are the kind of blogger (like Patterico) who does a lot of media criticism, it makes far more sense to cut and paste (within the limits described below) so that you can comment on the exact words of the reporter. You should link as well, but that's a pretty universal norm among bloggers anyway.

5) So what if I were to identify the "irony" in question as follows: When an AP reporter interviews a source, he reserves the right to use selective quotes that fit the story he's decided to tell, while benefitting from the impression of greater accuracy that comes from quoting. The readers can't follow a link to the speaker to find out if she was accurately represented in context. But when people want to discuss what AP does, AP says that they should refrain from using this technique, and limit themselves instead to either "summarizing" or linking to the original. Does that strike you as a somewhat more valid critique, Oren?

6) Oren is right that because fair use is judged case-by-case it is difficult to be certain in advance that one's position will hold up. That's why efforts like AP's to try to promulgate some objective norms are a good thing--even if one doesn't agree with them on where the line should be drawn. Ultimately it is not AP's prerogative to define what is or is not fair use, but it is good for them to tell us where they draw the line, so that at least we know what uses they will be estopped from suing over and what areas we may need to challenge them in. While I think Oren's approach to these matters is laudable, it's also clear that he doesn't feel he has much at stake in where exactly the line is drawn. For people like Patterico who do, I think it's good for them to stand on principle and engage in uses that they believe in good faith to constitute fair use. And without denying the case-by-case nature of the inquiry, I do think that we can be reasonably confident about the following propositions:

a) An excerpt from a textual work probably has a strong fair use claim if it is more likely to cause readers to go look at the original than to serve as a substitute for it. Printing the all the juicy bits from Ford's autobiography flunked this test. An intriguing excerpt accompanied by a link and RTWT cite (which is, I think, the preferred norm among bloggers when one is merely calling attention to something worthwhile) would most likely pass. I'm not sure AP's use of Ms. Tiffany's work would, though it is clearly fair use on other grounds.

b) A quote that is used as the basis for substantive commentary, and that doesn't gratuitously copy more than is needed for the purposes of such commentary, probably has a strong claim to being transformative and therefore fair use. (There may be an upper limit to this principle if the material quoted comprises most of the work.) This is why what the AP did is pretty inarguably fair use, in addition to the fact and content of her comments pertaining to a clear matter of public interest. But by the same token, a blogger who reprints part of an AP story in order to comment on it has an equally valid fair use claim. And to the extent that what is being reprinted consists of quotes from third parties, the AP's claim weakens because it too has no copyright in those words.

7) This is somewhat tangential, but since Mr. Sanai above claimed some knowledge in the area of copyright, I'd like to point out a falsehood he's been disseminating about Judge Kozinski's copyright jurisprudence. On Patterico's blog, he made the following assertion:
But let's say that's not true. Let's say that somehow, someway, the information was "hacked" by the offshore site. Well, Judge Kozinski has opined in Perfect 10 that knowledge or lack of same is no defense; contributory infringement still occurs. He demands a higher standard of others than he himself meets.


I for one would like to see a cite to the alleged opining. As anyone who has actually read Judge Kozinski's dissent in Perfect 10 v. Visa knows, Visa was alleged to have knowledge of the infringement. To quote Judge Kozinski's dissent, "Plaintiff has repeatedly notified defendants that they are abetting the sale of stolen merchandise by 'knowingly providing crucial transactional support services for the sale of millions of stolen photos and film clips worth billions of dollars,' but to no avail." 494 F.3d 788, 810. What Judge Kozinski argued in that dissent was not that "lack of knowledge is no defense," but that given knowledge, the kind of contribution made by Visa to the infringement (i.e., processing the payments without which the infringement would not be profitable) qualified as a "material contribution" sufficient to give rise to contributory liability. Mr. Sanai is stating falsehoods in order to create an impression of inconsistency where none exists.
6.18.2008 5:17pm
George Weiss (mail) (www):
kazinski-im not equating (at least not in precise terms) the substance of their claims (although there are somewhat similar issues)

what i am equating is process by which entities prosecute such claims. I.E serving legal notices written by huge legal teams on non legal people who have no choice but to a) pay the amount shown or give up quoting the ap or b) hire a lawyer that will cost more than the settlement itself.

in reality i would argue that downloading songs is way less fair use than quoting and citing an article of the AP. People used to pay for music-now technology allows them to have it for free by making unauthorized copies of entire songs. The Ap is trying to overturn the cornerstone of intellectual debate has occurred for literally millennia by invalidating the process of quoting, citing, and arguing against.

as for the argument that the RIAA doesn't prosecute lyrics sites
a) the fact that a claim isn't pursued doesn't mean it isnt valid.
b) lyrics are intrinsically different than music. try reading the lyrics of a song and then listing to the song. you will find the second quite more enjoyable. (again obvious-but obvious points just don't seem to be credible on this site anymore)
6.18.2008 5:21pm
Bruce:
I *am* a copyright lawyer, and the situations are not analogous. Quotes provided to reporters are probably subject to an implied license. There's an old, pre-1976-Act case on this, Random House v. Hemingway. (You can look it up!) Arguably, the implied license would apply to republishers as well. (It's implied, so it's all subject to the reasonable expectations of the parties.) The idea is, when you speak to a reporter, you know that it's going to get published in the reporter's story, and you know that you aren't going to get compensated for it, unless you work out another arrangement. As for republishers, I doubt that someone who speaks to the press particularly cares which publication prints their words; in either case, the reward is the same: zero.

That's different than the AP situation.
6.18.2008 6:44pm
Chris Newman (mail):
The RIAA represents the recording industry, not the music publishing industry. That's why the RIAA doesn't focus on lyrics sites.

The NMPA represents music publishers, and they do go after lyrics sites. See here.
6.18.2008 6:52pm