Like nine people e-mailed me this thing:
Your publication’s wholesale, and unjustified,
use of the news content published by our clients, which is produced at
significant expense by them and from which your firm is deriving
advertising revenue everyday without our clients’ permission and
without any compensation to our clients by your firm, constitutes
multiple violations of our clients’ rights under the federal Copyright
Act and the common law doctrine of hot news misappropriation.Without getting too far into the legal mumbo-jumbo, our
understanding of the law expressed in this letter (which comes from
actual lawyers, not us reading Wikipedia) suggests they are incorrect.
There are a number of reasons why they are incorrect, but here are some
of the main points:First off, you can’t steal something that is already given away for free. This would be likeWestword
accusing you of stealing their newspaper by taking it out of one the
FREE bins located all over town. We’re not going behind any paid system
or other kind of firewall and offering up content that you would
otherwise have to pay for online. We would understand complaints if we
had been repeatedly cutting and pasting entire articles, but we’ve
always avoided doing that and have made that point to other posters on
multiple occasions.Not only are we posting only a few paragraphs from stories THAT
ARE ALREADY FREE FOR EVERYONE ONLINE, we have gone out of our way to
name the publication, highlight the author in particular, and provide a
clear link to the story. Legally speaking, we don’t actually need to do
any of this, but we’ve always tried to be symbiotic Internet purveyors
and give credit where credit is due (incidentally, thePost
almost never links to us or even mentions Colorado Pols when we have a
story before they do, which happens all the time, but we don’t go all
“attack of the killer attorneys” on them). What’s more, the case law
this letter cites pertains to some obscure spam site that was
republishing AP news stories in their entirety without attribution.
After the efforts we have always made to properly credit the cited
publication as well as the story’s author in boldface, such a
comparison is insultingin the extreme.
You know, I have less of a cat in the “information should be free!” versus “give me money, motherfucker” fight than I probably should. I just hate lawsuits like this because they’re fucking stupid. Shut down the whole Internet tomorrow, and you’re not gonna have reporters being paid well and advertisers flocking back to the printed word and the clock turning back to 1972. I mean it, I’d like to see somebody try it. Just flip the switch, Al Gore, and give it a week or so, and maybe the Golden Age of Hard-Working American Copyboy will come back.
It’s not going to happen, because of a million things readers of this blog already know about all the gazillions of dollars that got flushed down the toilet of CEO vanity and shareholder entitlement and outright thievery and debauched bullshit. That’s already gone. The debt’s racked up, the stupid people are permanently in place in many levels of management, the principle that 17 percent profits mean you’re failing has been enshrined in Major Media Thought as an actual thing despite my best efforts.
It’s over, and running around issuing cease and desists to people who are actually discussing your content in a meaningful way instead of bitching in your comments about “nigers” just makes you look like an asshole.
So here’s what we are going to do: Not only are we going to stop referencing passages fromThe Denver Post
and other news outlets listed in this letter, but we’re going to go one
step further. We’re going to go out of our way to not evenmention these news outletsat all. We’ll just link to our partners atThe Washington Post,
or other local news sites, or any other of the thousands of other
potential sources out there. We reserve the right to discuss something
that might appear in one of these papers, but we’ll just do what
traditional media outlets like the AP have done for decades – we’ll
just say, “Humpty Dumpty fell off the wall today, according toThe Denver Post,”
and then continue on with our own writing. But for the most part,
unless it is a truly important exclusive story that no other news
outlet is reporting, you won’t again see us talking aboutThe Denver Post or the other news outlets listed below.
Back in the day, and I’ve been out for five years now so I know that’s uphill both ways in the snow for some folks, we used to LIKE hearing and seeing our stories picked up other places. It meant we were having an impact. It meant people were interested in what we were saying and doing. It was a good thing.
Now, apparently, it’s a sign that an evil thing is loosed upon the earth, and only pissy letters from attorneys can stop its devouring of everything in its path.
A.
butbutbut the ad monee!
By the by, they’re not entirely correct about the “you can’t steal free stuff” argument. In most free publications, especially student publications, there is a disclaimer that the first one is free and that additional copies must be paid for. While they never charge for them, there is a reason: theft. Ad money is lost if the paper is consistently stolen. In addition, theft as a form of censorship is something I’ve seen first hand. It’s also remarkably stupid because when you steal the papers, the stuff is still online AND people make a huge deal out of the theft, so the story hangs around for a while longer.
In any case, the law hasn’t fully caught up with the “free theft” thing via the internet, but the same premise regarding intellectual property and ad money still apply. In either case, I think this is going to be interesting to see how it all shakes out.
Doc is quite right. Even if you are giving away copies of your copyrighted materials, you still have the exclusive right to do that under the law, and can prevent others from giving it away or selling it or otherwise distributing it. Otherwise review copies would never exist. The world is full of dumb people opening their traps about topics as to which they are clueless, and there’s a fine example.
Athenae,
You, my dear, will get a kick out of thelatest Nooo You Can’t Link To Me! brouhaha. It involves AP, woot and TechCrunch. ‘Nuf said.
From a copyright perspective, there have been cases about excessively deep linking. After all, the online newspapers get revenue from ads on their web pages so they can argue that deep linking deprives them of revenue. But if they make that argument, they are setting themselves up for others to make the argument that by linking to the newspapers web page, they are actually making money for the newspaper as well as providing a service to the newspaper (advertising the newspaper name). (?? hence the note from WaPo on the page saying link to us however you want??)
I guess an online newspaper could make the argument that use of their content is licensed. But I’d hate to try to argue that a passive license buried in the bowels of a web page is enforceable.
“But I’d hate to try to argue that a passive license buried in the bowels of a web page is enforceable.”
If they want to play the “passive license game”, one can get tricky and add some extra data from the browser, to the effect of :
X-NoLicenseAgree: I disagree to any and all license terms. If this is unacceptable, return a 404 Error response. An OK 200 response indicates acceptance of these terms.
(maybe in the url, maybe in a redirected http request…the idea is to make sure that the ‘disagree’ makes it into their logs, where it can be subpoenaed and give them a nasty shock, since no-one looks at server logs that closely)