Tag Archives: copyright

Sen. Kerry on Internet piracy

Last month I praised Sen. Scott Brown for his quick response to those of us who signed an online petition opposing draconian anti-piracy bills being considered by Congress. On Monday, I heard from Sen. John Kerry as well. Here’s what he wrote:

Dear Dan:

Thank you for your letter regarding the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act). I appreciate hearing from you on this important issue.

I have long championed the cause of innovation and an open Internet. Firms operating on and off the Internet strongly rely on intellectual property laws to help protect their investments and ensure a just return for their goods and services. Online piracy and copyright infringement hurts our economy and costs American businesses more than 200 billion dollars a year. Many infringers operate from foreign countries in order to avoid US law enforcement. As a result, under current law, American authorities are limited in what they can do to bring these rogue sites to justice.

As you know, the PROTECT IP Act was intended to protect American businesses from intellectual property theft on foreign websites. Among other things, the bill would provide the Attorney General with the authority to seek a court injunction against a foreign website that engages in copyright infringement. The court could also require U.S. websites to block access to websites found to be dedicated to infringing activities. For example, search engines could be required to disable links to the website that is found to be violating copyright of a US company.

However, there are a number of serious and legitimate concerns regarding the scope of the legislation, as well as the potential for abuse, censorship, or other unintended consequences. The authors recognize the legislation still needs work and I will oppose any proposal that would fundamentally undermine or impede the ability of people to communicate, compete, and innovate using the Internet.

I am pleased that Majority Leader Reid has indefinitely postponed Senate consideration of the PROTECT IP Act, and I will continue to review and work to improve legislation to both protect the intellectual property of American businesses and to ensure the web remains free and open. As I consider proposals to address these issues, I will keep your views in mind.

Thank you again for contacting me on this topic. Please don’t hesitate to reach me again on this or any other issue in the future.

Copyright hypocrisy at the New York Times

Last Saturday the New York Times posted a PDF of a 1976 article by the legendary Boston sports journalist Clark Booth that appeared in the Real Paper, an alternative weekly that was published for several years in the 1970s. The article accompanied a column by Joe Nocera on football injuries, about which Booth wrote perceptively some 36 years ago.

I have to confess I didn’t think twice about copyright, figuring Booth, whom Nocera interviewed, had given him permission to reproduce his words. But now Boston Phoenix editor Carly Carioli has pointed out — rightly, in my view — that, in fact, the Times has violated the Real Paper’s copyright and that of the photographer(s) whose work was reproduced. And since the Phoenix acquired the Real Paper’s assets when the paper went out of business, the Times must answer to the Phoenix.

The Times’ reproduction clearly fails the fair-use test, most obviously on the grounds that it reposted the Real Paper article not for the purpose of commentary and criticism, but so that its readers could enjoy reading it. I imagine the Times could also get whacked for taking too much of the article (i.e., the whole thing). Even though it would be tough to argue that anyone lost any money as a result of the Times’ actions, another important fair-use test, I’d guess a judge would favor the Phoenix if it ever came to that.

But Carioli is not concerned with the negligible harm the Times has done to the Phoenix so much as he is with the behemoth’s rank hypocrisy. Former executive editor Bill Keller, now a Times columnist, has been obsessed with the nefarious forces whom he believes have been improperly profiting from Times content. And, Carioli notes, the Times reached out and killed a pretty cool iPad app called Pulse merely because it reproduced headlines without permission.

Writing that “copyright in this country is a goddamn mess,” Carioli continues: “We want an internet and an intellectual-property regime that rewards discovery and innovation. We won’t get it with copyright construed the way it is now.”

And we won’t get it with the Times saying one thing and doing another.

Addenda: (1) I had the privilege of copy-editing Clark Booth’s weekly sports column for a short time in 1990, when I was working at the Pilot, for whom he still writes; (2) you can also read Booth in the Dorchester Reporter.

Disclosure: I’m a contributor to the Phoenix, and was a staff member from 1991 to 2005. I have a standing disclosure here, but sometimes it doesn’t hurt to remind people.

Fighting for our online freedom of speech

As I’m sure you already know, Wikipedia’s English-language site is the most prominent to go dark today in protest of two bills being considered by Congress to crack down on copyright infringement.

The bills, the Stop Online Piracy Act (SOPA), in the House, and the Protect IP Act (PIPA), in the Senate, are being pushed by major media corporations. Copyright infringement is a real problem, of course, but these bills would place the interests of copyright-holders above all other considerations. Save the Internet puts it this way:

If they are passed, corporations (with the help of the courts) will become the arbiters of what is and isn’t lawful online activity, with millions of Internet users swept in their nets as collateral damage.

Earlier item here. Note that the Big Brother poster I used to illustrate the item is missing. I wonder if that has anything to do with the protest.

And be sure to have a look at Google.

A new threat to online freedom of speech

Congress is coming after your Internet. Two proposals wafting their way through the House and the Senate would destroy the Internet as we know it, forcing some websites to shut down and others never to launch in order to avoid onerous penalties for copyright infringement.

As Dan Gillmor explains in the Guardian, the bills — known in the Senate as the Protect IP Act and in the House as the Stop Online Piracy Act — would end what is known as the “safe harbor” law. That law holds an Internet service harmless for hosting infringing material posted by a third party as long as it removes that material as soon as it receives notice from the copyright-holder.

Gillmor observes that YouTube never could have gotten off the ground if such a regime had been in effect at the time of its launching. “Congress is making common cause with a corporate cartel that wants to turn the Internet into little more than an enhanced form of cable television,” he writes.

According to Rebecca MacKinnon, writing in the New York Times, the proposals would set up blacklists to be administered by the U.S. attorney general, so that if a site were found to have infringed on copyright, it would essentially become invisible to anyone trying to find it. She compares the effect of the proposed law to the online censorship system that China uses, except that this one would be designed to protect the corporate interests of media companies rather than a government. MacKinnon argues that skittish businesses are already too eager to comply with takedown notices, and writes that the bills, if passed, could be used to suppress political debate:

Abuses under existing American law serve as troubling predictors for the kinds of abuse by private actors that the House bill would make possible. Take, for example, the cease-and-desist letters that Diebold, a maker of voting machines, sent in 2003, demanding that Internet service providers shut down Web sites that had published internal company e-mails about problems with the company’s voting machines. The letter cited copyright violations, and most of the service providers took down the content without question, despite the strong case to be made that the material was speech protected under the First Amendment.

Yesterday was American Censorship Day (sorry! I missed it!), and a number of sites blocked themselves to dramatize the effect of the proposals, according to the media-reform group Free Press.

Fortunately, David Kravets reports for Wired.com that a chief sponsor of the House bill, Rep. Lamar Smith, R-Texas, seemed to be having second thoughts during a three-and-a-half-hour hearing on Wednesday. But even a compromise could endanger the right to free speech if it empowers the government to act against individuals on behalf of corporations.

And let’s hear a shoutout for U.S. Rep. Ron Paul, R-Texas, a Republican presidential candidate who, as Gillmor notes, has come out against the House bill. I don’t believe the Obama administration has said a word. Sad to say, it doesn’t sound like the sort of thing this president would veto.

As a journalist, I rarely sign petitions. But I’m signing this as soon as I’m done writing, and I urge you to do so as well. The First Amendment is not a partisan cause.

Big Brother poster via Wikimedia Commons.

Copyright, fair use and the limits of political speech

Over at Blue Mass. Group, there’s an interesting debate taking place over copyright and fair use in reaction to a new ad put together by the Massachusetts Republican Party. The ad is nothing special — it shows President Obama and Gov. Deval Patrick amid various bad-news headlines about the weak economy. What’s notable is the soundtrack: a 57-second excerpt from “You’ve Got a Friend,” written by Carole King (potential plaintiff #1) and performed by James Taylor (potential plaintiff #2).

BMG co-editor David Kravitz has done yeoman work in showing that use of the song probably adds up to copyright infringement. Under the fair-use doctrine, you can use someone’s copyrighted material without permission for certain purposes, including parody. But according to a case Kravitz found, the parody must be directed at the copyright-holder in order for it to pass muster, not at some third party or parties.

Kravitz is probably right, but I still think there’s an argument to be made (I make it here) that the ad should be considered fair use: it’s political speech, which traditionally receives the highest level of First Amendment protection; it’s not taking a penny out of either King’s or Taylor’s pockets, the most important element in the four-part fair-use balancing test; and if media corporations like Disney hadn’t lobbied Congress to extend the copyright period from the traditional 28 years (originally 14) to the absurdly long terms that prevail today, then the ad wouldn’t even be an issue.

What I find interesting in the comment thread is the degree to which even progressives have internalized talking points put forth by the media conglomerates in arguing that the Republicans are in the wrong. Frankly, there’s someone wrong with a copyright regime if it’s illegal to grab barely a fifth of a 39-year-old song in order to make a political point.

But as we know, even as technology has made it ever easier to engage in copyright, the copyright protections that media corporations demand have grown ever more draconian.

Haitian copyright case turns on Twitter’s TOS

In a lawsuit filed in U.S. District Court in New York, Agence France Presse (AFP) claims that it did not violate photojournalist Daniel Morel’s copyright by distributing his images from the scene of the Haitian earthquake because Morel had posted his photos to Twitter, via TwitPic. AFP argues that by posting to Twitter, Morel was bound by Twitter’s terms of service (TOS), and that he therefore granted “a nonexclusive license to use his photographs.” The relevant section in the TOS would appear to be this:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

As I reported on Saturday, AFP has sued Morel, charging him with “antagonistic assertion of rights.” I have since received copies of AFP’s complaint (pdf) and Morel’s answer (pdf). It’s a fascinating case, involving the question of how a journalist can transmit his work under difficult conditions without giving up his rights. (Last month I took down one of Morel’s photos from Media Nation after hearing from his lawyer, Barbara Hoffman of New York.)

The AFP suit, filed by attorneys Joshua Kaufman of Washington and Brendan LeMoult of New York, also charges Morel with “commercial defamation.” According to their complaint, Morel, through Hoffman, undermined AFP’s reputation even though the agency took steps to cease distribution of Morel’s work once Hoffman informed it that Morel’s copyright had been infringed. According to AFP’s suit:

Even though it believes it acted under an appropriate license, when AFP was contacted by Mr. Morel’s attorney indicating that he believed the publication of the photographs was a copyright infringement, AFP again acted in good faith to cease publication and distribution of the photographs and notified its subscribers that the photographs should not be published or distributed.

In response to AFP’s eight-page complaint, Hoffman submitted a 66-page rebuttal. I have not had an opportunity to read it in detail. But clearly the heart of AFP’s complaint revolves around Twitter’s TOS. Hoffman writes that Morel found himself working under difficult conditions after the earthquake and trying to find a way to transmit his photos. The manager of the hotel where he was staying helped him set up a Twitter account. She continues: “Mr. Morel had no prior experience
with Twitter, the social networking site and did not read the Terms of Service.”

Nor has any of us, I suspect. So I’m sympathetic to Morel on those grounds. On the other hand, if AFP really did act “in good faith” to halt distribution of Morel’s photos once it had been notified, it is difficult to understand why Morel kept pushing his claim.

Thus Hoffman also includes a long section aimed at proving AFP did not, in fact, act in good faith, taking 13 images from the TwitPic page of a Dominican named Lisandro Suero. Suero, she writes, had “pirated” the pictures, and AFP acted “willfully or with reckless disregard of Mr. Morel’s rights, in its rush to receive credit for the news-breaking photographs to the world” by failing to verify Suero’s bona fides.

Ironically, Morel’s photos are included in Hoffman’s filing, which is a public court document. So if you want to have a look at them, all you have to do is follow the link to her rebuttal, above.

All in all, a pretty interesting case.

A copyright case in which man bites dog

Well, this is certainly interesting. On March 17 I posted an item explaining that, back in January, I had mistakenly used a copyrighted photo of a Haitian earthquake victim taken by photojournalist Daniel Morel. The photo had been presented as an example of citizen journalism, so I grabbed it for a round-up I was writing on that subject.

Now I have learned that Agence France Presse, one of a number of news organizations and websites that used Morel’s work, has sued Morel in U.S. District Court in Manhattan under a tort I have never heard of before — the “antagonistic assertion of rights.”

All I’ve got at the moment is a press release from Morel’s lawyers, Barbara Hoffman and Hilary Gish, and I’ll be running around for the next few days. I’d love to learn more.

Acknowledging a first-rate photojournalist

On Jan. 13 I posted an item on citizen journalists who were on the ground in Haiti following the devastating earthquake there. I put up some links. And I included a harrowing photo of a woman being rescued. I don’t remember where I found the picture, but it was surely from one of several sites I looked at that were uploading work from citizen journalists. I do know that I was ultimately led to the public TwitPic account of the photographer, Daniel Morel.

Yesterday I heard from Morel’s lawyer, Barbara Hoffman, who’s based in New York. It turns out that Morel is a professional photojournalist. She asked that I remove Morel’s photograph and explain what happened. “Mr. Morel’s iconic images were used world wide without his authorization knowingly by news media,” she wrote to me in an e-mail. “He was  never a citizen journalist, and used twitter, given the tragic circumstances to  offer the work for license.”

I’m happy to set the record straight. According to an interview in the New York Times’ online Lens section, Morel is a veteran photojournalist who was born in Haiti in 1951. A longtime photographer for the Associated Press, he is currently a contributor to Corbis Images. Morel told the Times:

I don’t take pictures like other photographers. I don’t take pictures as art. Maybe I put like 15 percent of art in my picture and the rest is history, is documentary. Because if you put too much art, you play with history. You cannot deform history. You have to show it the way it is. You have to show it the way it is.

Morel is a fine photographer and journalist. I recommend the interview and the accompanying slideshow. And here is a story — with a photo of Morel — about an exhibition called “Haiti Eyes” that he presented in New York in 2005.