When Even Comm Law Books Need Updating

The last Comm Law class I took just about five years ago was severely devoid of any content or case studies on how online journalism and media were impacting long held judicial tests. Like so many other heavily regulated industries, the libel, decency, fair use and journalistic protections have all needed a severe review – not exactly an easy cruise ship to turn into the iceberg.

Recently, it was drawn to my attention that the culture of online media is getting some attention, in the form of an interactive four-week course taught by George Freeman, vice president and assistant general counsel at The New York TimesNow. I’m not sure if the class is going to cover how Downfall parodies impact fair use, but at least it’s a pretty good profile start.

Journalism Law for Bloggers” will run from April 26 to May 23, 2011, and registration is available through NY Times Know Now. From the release:

“This Program of Study course is part of the New York Times Knowledge Network, which is open to consumers nationwide. Programs of Study courses, developed and taught by New York Times journalists or professional staff, cover a variety of topics and are delivered online. Students can select any number of these courses: to stand alone, or be taken as a sequence.”

Sounds like fun – especially if you’re not interested in lugging around one of those giant blue comm law books.

ASJA’s stance on the “Googlization of Copyright”


With the September 4th opt-out deadline for the settlement in Authors Guild v. Google (2005) just around the corner, the American Society of Journalism came out swinging in a release yesterday afternoon against the search-heavyweights book search practices. Two things, first some background, documents and other statements, but then it’s getting the highlighter treatment.

Here’s the bottom line, via the Electronic Frontier Foundation (this way you don’t have to read all 141 pages of legalese):

This agreement will allow Google to get close to its original goal of including all of those books into Google’s search results (publishers got some concessions, however, for in-print books). In addition to search, scanned public domain books will be available for free PDF download (as they are today). But the agreement goes beyond Google’s Book Search by permitting access, as well. Unless authors specifically opt out, books that are out-of-print but still copyrighted will be available for “preview” (a few pages) for free, and for full access for a fee. In-print books will be available for access only if rightsholders affirmatively opt in. The upshot: Google users will have an unprecedented ability to search (for free) and access (for a fee) books that formerly lived only in university libraries.

So, that brings us back to ASJA’s statement yesterday, wonderfully indirect in its language and stall tactics. It’s short, so you can read the whole thing, but here’s the part that matters (emphasis added):

Before they are writers, ASJA members are book-lovers and citizens. The ASJA board believes there simply must be language in the settlement document preventing censorship and limiting how Google can use the data it will collect on who is browsing, reading and buying books. Without it, the possibilities for privacy invasion and for the censorship of a book, an author, or even a whole category of books are chilling — especially when the corporation will have little or no competition. We all know the strength of Google’s algorithms for interpreting online activity. The ads that pop up when we search show it to us daily.

ASJA SAYS, STOP THE GOOGLIZATION OF COPYRIGHT LAW. Do we really want Google and a committee making law? Essentially, that is what “opt out” requirements in the proposed settlement do. The ASJA believes that if copyright law needs to be nimbler in this digital age, it still should be Congress calling the plays. We will ask the court to direct the removal of deadlines for opting out of the Book Search. Copyright holders should control their works.

The problem voiced by the ASJA, guised by the ridiculous claim above, is the narrow definition of protection and claims that it only protects Google’s and large publishing houses’ interests in copyright law. According to them, the settlement doesn’t do enough to build in future protections that surround small publishers and authors not under those labels. The claim then develops a foundation on court-made copyright law, privacy concerns/censorship, and the greatest phrase of all time, “The Googlization of Copyright.”

The idea that Congress can be nimble about anything related to media in the digital age – especially when many legislators are probably still relying on that deputy press secretary to explain half of it anyway – is equally ludicrous to anything the ASJA claims about the settlement’s shortcomings. Does ASJA truly believe that? I’d like to imagine not. They are just trying to get this out there to express the real desire: extending/removing the opt-out deadline.

This is why I love this: the Authors Guild itself has provided counsel to its members on the relative value in opting-out.

There’s not much time left for authors to opt out. What should I do?

Short answer: nothing.

Longer answer: Opting out of the settlement is for authors who want to preserve their right to sue Google themselves. We don’t think there are any such authors.

Google wants your books. The legal claims of that service are numerous: whether the effort is a public work or not, anti-competitive or not, commercial or public good. Is the fact that Google can technically figure out what you are reading be consider a severe invasion of privacy?

Then there’s the giant advertising question (Google does pave its empire on ads, don’t forget): Is the only purpose of the service to serve ads against books? Who knows, but if you can’t beat ’em, join ’em:

authors guild ad

The Guild has come to terms with how Google Book Search and its relative projects will work. ASJA feels that it was left out away from the inner circle of the larger association. There’s your bottom line. If it’s looking for a miracle, it will have to come in the way of a nimble Congress.

Twitter: Illegal Procedure? It may be in the SEC.


I caught this first from Caps blogger On Frozen Blog over the weekend, and I honestly thought it was a joke. But now the story is on Mashable, so clearly it’s for real.

The Southeastern Conference (much more commonly known to college football fans everywhere, as the SEC) is going to announce a  new media policy today that will render any game accounts on social networks – including those of fans – illegal.

The reason for the smackdown, as noted by the headline from Sunday’s St. Peteresburg Times article, is control of their multi-billion dollar broadcasting rights. “For SEC, tech-savvy fans might be biggest threats to media exclusivity.”

When media conglomerates are paying billions to air your product, you want to ensure that their investment is well spent. The business is easy on this one: CBS/ESPN pay the SEC to bring their millions of viewing fans so that they have a very specific audience to sell to advertisers.

If the lawyers think that the social media audience is using their networks as a replacement to national broadcast coverage, then the move makes sense. But, anyone who has ever turned on a TV to catch an exciting sports moment they heard about through Twitter or Facebook knows that this is a supplement to the audience that is already watching, not a threat.

Adam Ostrow at Mashable argues that the motivation is more than misunderstanding:

For the moment, these policies seem a lot more grounded in fear than reality. Sure, these days someone could theoretically live stream a game from their camera phone. But a shaky, low resolution video from the upper deck of Yankee Stadium isn’t exactly the same as watching FOX’s telecast on your big screen TV. Social media should be viewed a fantastic compliment to sports that is good for both fans and the TV networks, but at the moment, it seems that’s anything but how it’s being perceived.

The best part about this (coming from a homer of an ACC guy) is that there are other conferences around the NCAA using social media to increase their audiences and are succeeding. The ACC was smart to engage quickly with people Tweeting about its member schools during the March corridor of collegiate sporting events – and they constantly pushed out updates on everything from March Madness to Lacrosse. The two responses between the SEC and ACC could not be any more different.

Twitter (or Facebook, Flickr, anything else) has a definite benefit for broadcast media. Social media is a broadcast traffic driver because it actually is above the “link economy.” You can’t excerpt a live broadcast and post it to your blog – you still have to either be there or in front of your TV to see the events unfold. It’s an opportunity to increase the gross audience and these are not competing forces of media. Whoever’s lawyers are behind that hopefully see that not as a contract violation, but just one of the many positive externalities to increase the value of the investment.

Kindergarten, Cut and Paste and the AP

Now, the below diagram isn’t a sarcastic Boomtown/Kara Swisher creation. It’s not from TechCrunch. It’s not even from Ezra Klein, the Post‘s king of whimsical and informative charts.

It’s from the AP itself, explaining it’s new rights management system (the AP News Registry) for its content (via BoingBoing):

As Cory Doctorow goes into in his post at the BB, “A lot of copyfighters were mystified by the Associated Press’s recent announcement (complete with a bonkers diagram straight off a bottle of Dr. Bronner’s) that they had spent millions of dollars on a DRM system for news that would limit how you could paste the text you copied from your browser window…This is a seeming impossibility…it just seemed too weird to think that no one at the AP had said, ‘Wait, what? This is dumb.'”

Jumping back to that wonderful diagram, here’s my sticking point: it is undeniable, from a usability standpoint, that the more steps that you add to spreading information, it will get to less people. Sure, there’s a chance this model actually may protect some of the AP’s specific original content. But there may be one additional step to getting to the consumer: full buy-in from the editorial universe.

The way I see it, this actually hurts publishers more than the AP (of course, that chart is so confusing, there may be nine extra steps to protect them, however, I’m getting off track). There are still a ridiculous number of derivative placements that stem from each posting. Is the AP planning on holding them hostage to this system? More steps, more checks and, of course, more dollar signs are the last thing the newspaper industry needs – especially those publications that rely on AP to fill out their content on a daily basis.

Information is to be shared, not hoarded and certainly not passed through a series of tubes until it’s potentially rendered useless to that very fact. We’ve been cutting and pasting since we’ve been toddlers. We figured out to make photocopies of news stories, the power of e-mailing and tweeting links; it’s taken millions of dollars to create this system and it will take less than a week for someone to beat it and go back to our blasphemous, pirating, copy-and-pasting ways.

Accept it and change, or keep trying to live in your old paranoid, business model. Your choice.

The Irony of Social Media and Intellectual Property

Every now and then in this space, I love to play lawyer. It started with the AP/Shepard Fairey spat, and then I had some fun boiling down the Facebook ToS. There’s something about intellectual property that really turns my geek buttons, for some reason. Partially, I think it’s because I think the entire concept is hard to apply universally to online media. When it comes to the things I’ve studied/read about regarding traditional IP, it all just seems a little anachronistic.

Which brings me to an interesting post that I just stumbled across on ReadWriteWeb (and also posted on the Creative Commons blog).

I really like the idea of Creative Commons. When I see a blog with a CC license, what it says to me is, “What I’m writing isn’t necessarily for me to make money; but, hey, I put some time into it, let people know where you got the idea from.”

Why do I write here? I guess I write to throw some ideas out into the blogosphere and see what anyone else has to say. Generally, that’s the motive of most people (although not exclusively by any means) who write in a forum like this and would ever be concerned about where their content ends up.

Hell, if people can’t take what they want out of my content and then continue the conversation, how is it social media?

CC gives people the head’s up on a creator wants their content used, and I think that’s a great idea. I keep thinking about this in terms of Facebook’s gaffe a few weeks ago. The rally cries against Facebook started with the “content producers” who were worried that they couldn’t control it any longer. It wasn’t the run-of-the-mill user who was concerned – until they started hearing about it. When things are clear and communicated up front, it’s better.

I love the concept of CC’s new offering: CC Zero makes the process of waiving all pre-existing copyright guidelines easy. I’d go as far to even call it “Open Source Publishing.” Let’s see a newspaper do *that.*

All “beating a dead-tree-media when it’s down” aside, I think CC helps set the rules for social media. The irony is that I feel that “playing nice” should be the lay of the land. The reason that something in this vein is even required is because copyright law doesn’t have the right applications to online, crowd-generated content. For example, who has the right to the comment on my blog – the user or the facilitator? Someone else entirely?

The big assumption in all of this is that people write things online to be public (just like when you post something to Facebook, you assume that it is actually going out to your social connections). That’s a contradiction to most copywritten content since, in a traditional model, the person you pay for the service is involved in the process. You aren’t paying Google to read this. You’re paying (or someone is) a provider to access the series of tubes to access this site.

Communication law can’t adapt fast enough to changing technology, so, I don’t know when I’ll get my answer. The point is, though, it’s worth thinking about one point: when you create content online, you aren’t expecting it to be simply read. You’re expecting it to be passed along in any of what seems countless ways.

Creative Commons lets that be covered, for the time being. Maybe there will be a precedent that will require more or less of CC’s service. For now? I just want to let you know that I would be delighted for you to use my writing and my ideas. At some point, that’s what this is simply about.

Copyright and Fair Use

Now, I’m proud of this post because not only are my friends the kind who would name this blog, they also are the ones who told me [paraphrased], “If you ever went to jail, it’d probably be for a weak crime like copyright infringement.”

Let’s fire up that Comm Law class real quick and remember the following:

To claim copyright, you must have printed material. So, a photo of Barack Obama taken by one of your staff’s photographers is certainly considered your property.

And what can you do with that?

1) Distribute;
2) Prepare any derived works;
3) Reproduce; or
4) Publically (a) perform or (b) display.

Also, you can sell the rights to do so.

Of course, if you can prove that an individual saw the work, then used it without permission and benefited financially, you can recover and get an injunction in place. That’s the course of action for correcting an infringement.

Some things fall outside of infringement, though. For example. the idea of Fair Use. You know, the one that kind of allows generations of American artists the freedom to take something and artistically reinterpret it. It’s covered by this statement in US Copyright Law [emphasis added by me in this case]:

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

This comes up because the AP is actually trying to take it to Shepard Fairey over that whole poster that includes a similar pose of the original photo:

You want to talk about Social Media? Has there been anything more social in terms of political comment than this image over the last six months (that didn’t include Alaska, Russia or Tina Fey)? So, don’t go changing your Obamaicon yet. I’m looking forward to AP getting raked over the coals on this. (It’s already started at TechCrunch and FamousDC).


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