Category: Copyright

More on AP News & fair use

Simon over at Bloggasm tipped me off to an interview he did with Rogers Cadenhead of the Drudge Retort. There’s a couple of issues of concern that the Times article didn’t focus on:

When the AP requested a takedown of a few sentences from an article, Drudge retorted:

…that we think this is fair use. This was a small amount of quoted text and it linked to an AP story. Commenters commented on it and were evaluating the article. That’s a fundamental aspect of blogging. That’s when they told me that they don’t think that’s fair use either.

This is a surprising claim. While the DMCA forces the site owner to take the material down, it’s not clear in a case like this who would challenge the takedown (since the owner is the poster) or how conversation would continue absent the quote. It’s also the type of thing that one might not want to spend the energy/resources to fight.

This dual role of “service provider” and editor/poster wasn’t to my knowledge addressed in the DMCA takedown procedures. It leaves site owners in a precarious position of having to comply with the order, yet having to file a counter notice with… themselves? Ultimately, it probably comes down to whether the site owner wants to fight the claim.

Blogs and comments are in some ways the salon of today–if the public can’t discuss the news and issues of the day by giving their feelings and interpretations of what are largely facts our internet-based civil society will feel the impact. It just occurs to me that perhaps one of the greatest offenses of stories like this is the attempt to “micromanage copyright.” The problem here is that micromanaging is directly affecting this conversation.

Great scoop, Simon; and cheers for at least trying to get comment from the AP.

AP blogging fair use guidelines

The AP is setting guidelines to “attempt to define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt without infringing on The A.P.’s copyright.”

This is a bit troubling.  Short of taking an entire article without comment, it’s hard to see how commenting on the news from one of the few sources that can afford to have bureaus around the world isn’t fair use free speech. Since the stories are primarily factual, in many cases political, and short (so there’s no “heart”) I would guess the guidelines will come down to a number of words or seconds they will “allow” a blogger to use.  My question is: will they consider this a license?

This was funny, though:

“We are not trying to sue bloggers,” Mr. Kennedy [of the Associated Press] said. “That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.”

Another quick thought… where does this leave aggregators that automatically pull in entire stories (like our friends NewsObama.org)?  How is this different than copy/pasting an entire article into a blog entry.

Do you own the e-mail you send?

A Times columnist looks at the question of if you can be sure that an e-mail you send gets received. Turns out dropped messages are possible, but that a company called ReadNotify is attempting to make this a thing of the past. Along with receipt notification, the company will offer a “self destruct” feature which will prohibit copy/pasting and will delete itself after a specified time.

Some experts have questioned whether such technology is legal under American law, but Mr. Drake says “e-mail tracking is legal because e-mail is ‘owned’ by the author.”

Naturally, laws are open to interpretation, but I think this reading of copyright is in error. Yes, when you write an e-mail it becomes “fixed” and you own the exclusive right to do publish or distribute it (among other things).  But note this is different from owning the e-mail. Once it is sent (distributed) one would naturally expect that you lose control over the message. There may be a license and Digital Rights Management that can give you greater control, but these happen because of an agreement–not because you still own the artifact you somehow disseminated on the Internet.

ACTA – under the radar

The first official meeting of the ACTA has concluded–almost completely unnoticed.  An EU page on the agreement hints at why there has been little news on the meetings:

Q: Why are you not pursuing this agreement through the G8, WTO, WIPO or other formal structure ?
A: We feel that the approach of a free-standing agreement gives us the most flexibility to pursue this project among interested countries. We fully support the important work of the G8, WTO, and WIPO, all of which touch on IPR enforcement. The membership and priorities of those organizations simply are not the most conducive to this kind of path breaking project.

“Flexibility” is a luxury of a non-transparent process.  The more voices at the table, or perhaps even the more people that know what is going on, the more complicated things can get. The “C” for “counterfeiting” also appears to me as somewhat deceptive. While a part of the treaty addresses a need (?) for border checks for counterfeit media (pirated DVDs), a number of ‘provisions to be included’ have leaked out. Here is a sampling:

  • Criminal Enforcement: ex officio authority to take action against infringers (i.e. authority to act without complaint by rights holders)
  • Civil Enforcement: Authority to do ex parte searches and other preliminary measures [ex parte means the searches could be carried out without any notice to the alleged infringer]
  • Internet Distribution and information technology: Procedures enabling rights holders who have given effective notification of a claimed infringement to expeditiously obtain information identifying the alleged infringer; and Remedies against circumvention of technological protection measures used by copyright owners and the trafficking of circumvention devices

These “strong copyright” rules, if agreed to in a treaty or other covert agreement have the potential to covertly find their way into our law. One doesn’t how how much faith to put into a document uploaded to wikileaks, but if it is genuine the public deserves to know about it [explicitly claiming fair use here].