whaddayaknow about Fair Use and Copyright?
Recently, I noticed a glaringly incorrect interpretation of the Fair Use exception to the protections offered holders of copyrights. It came in a website warning that attempts to deny the benefits of Fair Use to the public whenever an article is copyrighted. Section 107 of the Copyright Act says that “fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Sec. 106 specifically states that copyrights are granted subject to the limitations in Section 107. Although the exact contours of the Fair Use exception cannot be described, certain uses that are appropriate in scope and intent are clearly permitted. [update (Oct. 24, 2006): Prof. Eugene Volokh, an expert in free speech and copyright law, weighed in on this issue yesterday, and you can find an interesting string of comments at his Volokh Conspiracy weblog. From London, PhDiva also offered an interesting perspective. And, this issue is covered this morning by BoingBoing. Thanks to Eugene, Dorothy and Cory for helping the public better understand Fair Use rights and responsibilies.]The e-publication that caught my eye proclaims at the foot of each article (even when it copies someone else‘s press release verbatim without attribution) that no reproduction of any sort is allowed because the “This article is copyright protected and Fair Use is not applicable.” The site’s SideBar has a similar warning against any reproduction “in accordance with Fair Use of copyright.” This overreaching is especially perturbing to me, because the e-newspaper prides itself on fighting for “legal reform” and against government abuses using investigatory reports, and good information and clear analysis.It worries me that free speech and the public’s interests in the exchange of ideas and information might be harmed by such misinformation. The Wikipedia treatment of Fair Use on the Internet has a list of Common Misunderstandings and the first entry is: “It’s copyrighted, so it can’t be fair use. Fair use describes conditions under which copyrighted material may be used without permission.”So, whether you are a weblogger who wants to write about a copyrighted work (or who just received a cease and desist demand), a copyright holder seeking protection, or a citizen who wants to stay abreast of an interesting issue that comes up more and more in our digital world, you should know that there are a lot of useful, free sources of information on the web. In fact, there are so many that we can only try to highlight some that seem particularly helpful.Three of the most comprehensive resources dealing with the topic of Fair Use are the Stanford University Copyright & Fair Use Center, the Fair Use Network (sponsored by the Brennan Center for Justice at the NYU Law School), and Electronic Frontier Foundation with its EFF Legal Guide for Bloggers. You can find less comprehensive information at the U.S. Copyright Office site. The Stanford website offers information on all aspects of fair use — from basics to specialized issues, to legislative activity, to caselaw, to lists of relevant website and articles.Here are some specific articles and webpages that may fit your needs:— The Copyright Management Center, sponsored by Indiana U. and Purdue U. is aimed at educational uses, but offers a Checklist for Fair Use that has general application.
— The Chilling Effects Clearinghouse has an excellent set of Frequently Asked Questions about Copyright and Fair Use, with a nice summary of the four statutory factors. The FAQ answers the question Do I need permission from the copyright holder to make fair use? like this: “No. If your use is fair, it is not an infringement of copyright — even if it is without the authorization of the copyright holder. Indeed, fair use is especially important to protect uses a copyright holder would not approve, such as criticism or parodies. See Campbell v. Acuff-Rose Music, 510 US 569 (1994).” When at Chilling Effects, you might also want to check out Betsy Rosenblatt’s Copyright Basics.
— Kimberlee Weatherall (an academic Australian IP expert) and famed weblogging law professor Eugene Volokh offer14 Copyright Tips for Bloggers, which looks at the issues from the perspective of both the copyright holder and the prospective Fair User.
— Mary E. Carter’s eFuse article When Copying Is Okay is also a very useful document. As for the kind of copyright notice to use on your website, she advises: “Placing your copyright notice on your Web site is a start to protecting your copyrights on-line. Read some of the copyright notices on the Web sites of newspapers and other mainstream content providers for inspiration on how to word your notice. I generally recommend the simpler-is-better approach. Just place the “circle c” ©, or even just (C), and your name and the year of execution on the first page of your site and leave it at that.”
— — Nolo.com has a basic discussion on the Fair Use rule (annoyingly spread over 4 pages). [Note: In a lengthy monograph, I disagree with its notion that a haiku poem is too small to every be quoted under Fair Use].
Admittedly, it is not always easy to know with certainty whether some assertions of the Fair Use exemption are appropriate. Nonetheless, the Fair Use Network correctly says that “Despite this unpredictability, it is important to assert fair use, and reject assumptions that all uses must be licensed and paid for.” And, Marjorie Heins put it well in the Online Journal Review (Feb. 23, 2006, via Ambrogi’s Media Law): “To the extent that fair use is not used, it will shrink, and to the extent that it is used and asserted, it will remain healthy and even grow.” Perhaps, the courts or legislature should explicitly decide, as suggested by Judge Posner at Lessig Blog in Fair Use and Misuse, that excessive claims to copyright protection through the denial of Fair Use rights amount to copyright abuse that forfeits the law’s protections until remedied.
p.s. My own attempt, by email, to suggest to the offending editor the error of her ways (by quoting the statute and referring her to two resources), resulted in an angry rebuff, in which I was accused of practicing law without a license [actually, I’m a retired member of the NY and DC Bars], told that my email would therefore be forwarded to the Attorney General and the paper’s lawyer (who it was implied had okayed their statement denying Fair Use rights), and threatened with hearing from said lawyer, should I take any of their materials. [She also sent two additional emails with the following messages: “you’re an ass and not worth bothering with” and “Watch NCG—you’re going to have some publicity too.”] I agree with this assessment of the damage the incorrect statement of the Fair Use doctrine does to the newspaper’s credibility when it analyzes other issues. I’m not explicitly naming the publication in this posting, because I’d rather not give it direct publicity. [updates: (October, 25, 2006): One post today describes the [short-lived] improvements in NCG’s copyright warning and one even more threats aimed at shlep‘s Editor by June Maxam, the Editor of the publication in question. Also, Prof. Volokh continues to explore the credibility issue, along with many commentors. (October 26, 2006): Maxam has re-inserted “Fair Use is Not Applicable” in her warning; see our post. But, see our Nov. 22, 2006 post, “Maxam’s Gazette Removes Fair Use Disclaimer“]
The Volokh Conspiracy
October 23, 2006 @ 6:00 pm
This Blog Post Is Copyright Protected and Fair Use Is Not Applicable:…
Who says so? I do! I can just make up the law as I going along, because … because … well I just can. OK, I can’t, but the North Country Gazette thinks it can; all it……
Justin Levine
October 23, 2006 @ 6:51 pm
The FBI and the MPAA are just as guilty of this nonsense. Every FBI warning on a home video INCORRECTLY states that ANY unauthorized reproduction of the work is illegal and subject to criminal penalties. In their view – if copying is unauthorized, it can’t be fair use.
Incredible and pathetic…
abb3w
October 23, 2006 @ 7:43 pm
Given the content of this editorial (the first result on the Goog at the moment for “This article is copyright protected and Fair Use is not applicable”), a threat over practicing law without a license sounds ironic. The editorial is also unforgivably sloppy with their placement of quotation marks.
To steal from John Varley, I suspect if you use the publication as digital birdcage liner for your electronic bird, it will get put off its feed.
david giacalone
October 23, 2006 @ 8:34 pm
Justin, I think we can blame MPAA for the inaccurate statement on all the videos. It is the copyright holder that is taking the FBI’s name in vain (thus, the mustache painted on J. Edgar’s face in many videos).
abb3W: The bird might be happy to be illiterate.
Andrew W
October 24, 2006 @ 10:46 am
The website’s warning reads not as an coniving overextension of copyright but as ignorance of “Fair Use” (and you say as much). It’s sad that the overaggressive (and misleading) defense of copyright in the Internet era has created a generation of people who have no idea fair use or the public domain even exist.
Tech Headlines
October 24, 2006 @ 10:49 am
Investigative journal: “Fair use is not applicable”…
Cory Doctorow : An investigative newsletter called the North Country Gazette publishes the surreal notice…
thespeth
October 24, 2006 @ 10:53 am
This is silly. Don’t they lose the right to hold that kind of exclusive copyright once it’s published? It might be more pertinent to just forget about making the newspaper in the first place if it can’t even be used for other stories or citation in other forms.
The Comedian
October 24, 2006 @ 11:07 am
My favorite sentence from the NCG’s rant on Stealing Other’s Writings.
“It’s a unlawful.”
Strunk wept.
david giacalone
October 24, 2006 @ 11:14 am
Thanks for commenting,Andrew W. Of course, I can’t know for sure the state of Ms. Maxam’s knowledge of Fair Use and copyright law. However, beyond her claimed investigatory and analytical skills, it is worth pointing out that (1) her June 9, 2006 editorial discusses Copyright and Fair Use at length and gives links to several legal sources on copyright. See http://www.northcountrygazette.org/articles/060906NotFairUse.html
(2) In an Oct. 12, 2006 editorial, Editor Maxam quotes from IP Prof. Thomas Field’s article “Copyright on the Internet.” The section quoted from Field is captioned Limits on Copyright and, two sentences before the words quoted by Maxam, Prof. Field states “Fair use is one of the most important, and least clear cut, limits to copyright. It permits some use of others’ works even without approval.”
Find the NCG editorial here: “http://www.northcountrygazette.org/articles/101206StealingWriting.html
and Prof. Field’s article here: http://www.piercelaw.edu/tfield/cOpyNet.htm#lim
Douglas Barnes
October 24, 2006 @ 11:20 am
If you dig a bit deeper into the site, you’ll learn what the publisher seems to be upset about is wholesale piracy of original content by rival sites. A better description of what they mean by “fair use is not applicable” would be: “It is not fair use to copy this article in its entirety and put it in your web page as if you wrote it yourself. So cut it out.”
Mike
October 24, 2006 @ 11:28 am
I wrote the following note to ‘news@northcountrygazette.org’:
Just a note to let you know that I will be using excerpts from some of your articles on some of the sites I own and operate. Regardless of the disclaimer at the bottom of your article pages, this is in fact “fair use”.
It’ll be interesting to see hiw (or if) they respond.
-Mike
Markus
October 24, 2006 @ 11:32 am
I think someone (or a lot of people) should report the violation of their terms by BoingBoing and this site like this:
—————
Hello!
In reference to your http://www.northcountrygazette.org/articles/101206StealingWriting.html
post, I would like to point out the following violation:
BoingBoing on http://www.boingboing.net/2006/10/24/investigative_journa.html
and law.harvard.edu on
http://blogs.law.harvard.edu/shlep/2006/10/23/whaddayaknow-about-fair-use-and-copyright/
uses quotes part of your website with your innovative and unique wording:
“This article is copyright protected and Fair Use is not applicable.”
This text is clearly from your website and the product of your unbound creativity and since you exclude fair use even quoting your website to a small extent with intent discuss it can’t be fair use and must be an violation of your terms.
Regards
Agnes Varnum
October 24, 2006 @ 11:42 am
Good for you David for sending the note, and I’m also glad that the editor responded in that way, only for the fact that it gives us a chance to call attention to the lack of understanding about fair use and the false idea that one must be a lawyer to understand law. I’d also like to call attention to another fair use resource, which is the Center for Social Media (centerforsocialmedia.org) at American University.
Documentary filmmakers have been suffering from the very mentality of this editor and fair use in that discipline has all but disappeared. There are several projects of the Center, but the most important is the Documentary Filmmakers’ Statement of Best Practices in Fair Use, in which filmmakers articulate what is fair in using copyright protected materials in documentaries. It is a project that could easily be modeled in other disciplines, and might help educate some online e-zine editors, etc.
Mike Zara
October 24, 2006 @ 12:30 pm
The Gazette seems confused. While the individual articles apparently declare “Fair Use is not applicable” — a flatly incorrect statement — the site’s front page says Fair Use is applicable!
“ In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette.”
This reads to me as an acknowledgement that the site is as covered by the fair use doctrine as any other site. The restrictive sentence is merely the necessary language to ensure that no use other than fair use is permitted; i.e., that while fair use is the law of the land, the NCG forbids all use it has a right to forbid.
(The above comment is copyright Mike 2006 and all usage other than agreement is forbidden. )
Mark R. Brown
October 24, 2006 @ 12:36 pm
Everyone with a blog needs to pick an article from the North County Gazette and quote it on their blog. Then they need to send that twit an email saying what they’ve done. Keep her so busy sending out ‘take-down orders’ that she doesn’t have time to run her own blog.
Adam D. Veloper
October 24, 2006 @ 1:11 pm
I like the part “you’re an ass and not worth bothering with” because despite her claim she does bother with him. That is the intellectual equivalency of someone telling you a story about how they just don’t care about their ex. Yet they never shut up.
She wanted him to know how much she didn’t care that she had to send him a message. He wins that battle outright.
david giacalone
October 24, 2006 @ 1:24 pm
Thanks to all who have written.
To Mike Zara: I might have interpreted the SideBar warning the way that you do, if Ms. Maxam had said something like: “With the exception of copying within the Fair Use exception, . . “, but “In accordance with” makes it sound like Fair Use means no reproduction of any sort. In additiona. Ms. Maxam wrote to me: ” I didn’t write that thing on the side.” I wonder how it got there.
To Douglas Barnes: I agree that Ms. Maxam is mostly concerned with the wholesale taking of her work (especially without attribution). That does not, however, excuse posting a warning that is so much more restrictive. If nothing else, Ms. Maxam knows how to use the English language to make a precise point. Also, there is no excuse for putting that warning after material that has itself been taken from another source (even if not copyright-protected), and then given no attribution — making it look like the material is in fact copyrighted by NCG. Finally, I do not believe that people who steal an entire copyrighted article (with or without attribution) really do believe they are protected by the Fair Use exception.
To Agnes Varnum: Yes, as distasteful as some of the corresponding has been, I am glad that it gave me the chance to discuss the meaning of Fair Use. Thank you for telling us about the work at American U.
Sam
October 24, 2006 @ 1:42 pm
I would like to see the letter you wrote to elicit such a response. Any chance of sharing with the class?
Hilarious
October 24, 2006 @ 3:20 pm
That’s hilarious given that the site seems to get most of its content by rewriting and even outright copying of other site’s articles.
Check this example from the Westchester News/Westchester.com:
“The Mount Vernon Overall Development Corporation disburses federal and state grant funds to assist in economic development in the City of Mount Vernon.
Ewell was arrested and taken into custody when he returned to Mount Vernon on April 1, 2006. He has been in custody at the Westchester County Jail since then.”
North Country Gazette‘s version (title “Official Sentenced for Using Grant Money“)
“The Mount Vernon Overall Development Corporation disburses federal and state grant funds to assist in economic development in the City of Mount Vernon.
Ewell was arrested and taken into custody when he returned to Mount Vernon on April 1. He has been in custody at the Westchester County Jail since then.”
Hilarious.
[Editor’s note: As discussed here, it appears that NCG took the text in question from a Westchester County District Attorney press release, and not from the Westchester.com site.]
Tech Headlines
October 24, 2006 @ 4:23 pm
Newspaper Pretends It Can Block Fair Use And Threaten Those Who Say It Can’t…
We recognize that some of the finer points of copyright can be confusing (or are disputed), but some…
Mr Fiddlehead
October 24, 2006 @ 4:43 pm
These people at the NCG are lunatics. Check out their commentary on the schiavo case here,
Investigative journalist June Maxam, publisher of The North Country Gazette and co-publisher of The Empire Journal, has written more than 275 articles relating to the judicial homicide of Terri Schindler-Schiavo.
http://www.northcountrygazette.org/Culture.html
Luckily that particular page isn’t covered by their fair use commandment.
Dorothy King
October 24, 2006 @ 4:44 pm
Darn it, I forgot to add to the post a clear disclaimer that I am not a lawyer, have never been a lawyer, am related to a less than a gross of lawyers, and the only bar I have been associated with recently was the Blue Bar at the Berkeley.
I assume that “the Attorney General and the paper’s lawyer” will be after me too, so it’s a good thing this Blog exists to guide me on pro se litigation.
Nick Michels
October 24, 2006 @ 5:13 pm
You know I think NCG’s lawyer better step in, or take some refresher courses. As the editor:
1) accuses you with ‘practicing law without a license’, where you are clearly not actually practicing law by simply informing her of a possible invalid disclaimer on the site.
2) appears to be threating you.
3) depending on what publicity on NCG’s site she might be alluding to, it sounds like she might be prepping them for a libel suit.
A.R.Yngve
October 25, 2006 @ 5:31 am
Future corporations will slap on even more bizarre threats:
“Your brain’s visual cortex and/or chip implant is NOT allowed to store a copy/reproduction of the copyrighted material, on PAIN! OF! DEATH!”
;)
david giacalone
October 25, 2006 @ 9:29 am
A commentor named “FrankA” left a Comment here earlier today that began: “Just in case someone wanted to read what so much of the fuss is about,” and then copied verbatim the Oct. 12, 2006 editorial at North Country Gazette called “Stealing Other’s Writings Is Not Fair Use.”
I tried to send FrankA the following email reply to the address frank.abalone@hotmail.com, but it came back as undeliverable:
Hello, FrankA,
Thanks for joining in the discussion. However, I’m not going to allow
your Comment in its current condition. To my mind, there is no Fair Use
basis for including the entire editorial on my website. If you would
like to put in the link and add some insight, perhaps quoting a few
excerpts, that would be a different story.
Of course, for me all of “the fuss” is about an overly broad warning
that is placed on every article and denies the application of fair use.
Had Ms. Maxam taken a more reasonable approach to her copyright rights,
the whole thing would have never happened.=20
best wishes,
David
Sansavarous
October 25, 2006 @ 10:22 am
Looks like it might have worked.
On the main page http://www.northcountrygazette.org/ the footer now says.
COPYRIGHT 2006 – NORTH COUNTRY GAZETTE
ALL RIGHTS RESERVED – NO UNAUTHORIZED REPRODUCTION
From a random sampling of the articles they all appear to have,
COPYRIGHT 2006 – NORTH COUNTRY GAZETTE
All rights reserved. This material may not be published, broadcast, rewritten or redistributed
without the express written permission of the publisher.
in the footer.
Congrats on a successful action for change!
david giacalone
October 25, 2006 @ 11:53 am
Thank you Sansavarous, for your sharp eyes. You are correct that the items dated Oct. 24, 2006 at NCG no longer have the erroneous statement “Fair use is not applicable.” The Home Page footer is the same as ever, but — unfortunately — so is the obnoxious SideBar warning “In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette.”
In addition to the Commentary, which remarkably only has “© 2006 North Country Gazette” after the article, plus the general footer, you can find examples of the cleaned-up copyright notice here:
http://www.northcountrygazette.org/articles/102406MBCFraud.html
http://www.northcountrygazette.org/articles/102406CopDies.html
http://www.northcountrygazette.org/articles/102406DebateOust.html
The new version still claims to prohibit all copying “without the express written permission of the publisher,” but that’s a fight for another day (and another weblogger).
shlep: the Self-Help Law ExPress » Blog Archive » NCG has improved its copyright warning
October 25, 2006 @ 8:05 pm
[…] It looks like our “pro bono” efforts (shlep’s and those of webloggers around the world) to correct the erroneous copyright notice at North Country Gazette, has apparently been successful. As our Commentor Sansavarous noticed this morning, items dated October 24, 2006 at NCG no longer have the erroneous statement “Fair use is not applicable.” Unfortunately, the SideBar continues to have the obnoxious warning “In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette.” […]
david giacalone
October 25, 2006 @ 8:05 pm
This tale has taken another sordid twist, as reported in the posting woops: More Threats from NCG’s June Maxam. Ms. Maxam claims she has been defamed and harassed and says she’s reported Your Editor to the authorities and has her lawyer on the case.
aTypical Joe: A gay New Yorker living in the rural south.
October 25, 2006 @ 11:09 pm
Fair Use Resources…
An “investigative newsletter” with an outrageous clause (since ammended) appended to its copyright notice on each and every page – “This article is copyright protected and Fair Use is not applicable.” [emphasis mine] – occasioned an interesting exc…
lilrabbitfoofoo
October 27, 2006 @ 8:38 pm
june maxim . . . . . . on a terri schiavo AOL messageboard, we’ve tried discussing her ….. ‘journalism” and recieved threatening emails for just discussing her writing. she claims we cant even discuss her work, that its “slander” or “libel” and “her attorneys are monitoring the aol boards and our isp’s have been recorded”.
shlep: the Self-Help Law ExPress » Blog Archive » copy permission and copyfraud
October 28, 2006 @ 2:20 pm
shlep posting by david giacalone – October 28, 2006 @ 2:20 pm ·
Overlawyered
October 29, 2006 @ 10:58 am
“This article is copyright protected. Fair Use is not applicable.”…
Eugene Volokh has a good laugh at the expense of an upstate New York publication called the North Country Gazette (Oct. 23 and 25). More: I should have made clear that it was David Giacalone……
IPTAblog
October 30, 2006 @ 6:32 pm
Quick Links…
WSJ Law Blog: Jimi Hendrix Steals the Show At Intellectual Property Auction: “Whoever bought this bought themselves the right to be a litigant.” Google offers a handy guide on how to non-generically verbify the Google mark. Yes, that last sentence…..
aTypical Joe: A gay New Yorker living in the rural south.
November 14, 2006 @ 12:00 am
Sherman’s freedom is just another word for so much less to choose…
I saw RIAA President Cary Sherman’s perspective on fair use and the Consumer Electronics Association’s “Digital Freedom” campaign in CNet this morning. And watched for a good rebuttal: We’ve noted for some time that one problem in the ongoing batt…
shlep: the Self-Help Law ExPress » Blog Archive » Maxam’s Gazette Removes Fair Use Disclaimer
November 22, 2006 @ 2:18 pm
[…] A Google News Alert for “pro se” brought me to June Maxam’s North Country Gazette this morning — my first stop there since questioning, in a series of postings last month, NCG’s claim that “Fair Use is not applicable” to the copyrighted material appearing at that site. The Nov. 21st NCG’s article is about Florida Judge Cliff Barnes, who is representing himself before the State’s Judicial Qualifications Commission. The Barnes story is interesting, and concerns public complaints he made about the conduct of other judges, local enforcement officers, and the public defender. (Read more here and here.) The judge seems more than capable of presenting his own case, so the story does not particularly deserve a lot of shlep attention. […]
Blogging and Copyright « LDS Law
November 23, 2006 @ 12:35 am
[…] Several prominent law bloggers have noticed a few over-zealous legal disclaimers on popular blogs and Web pages around the Internet. Most notably, the North Country Gazette made this disclaimer with regards to its content: In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette. […]
shlep: the Self-Help Law ExPress » Blog Archive » not adverse to poetic legal guides
November 27, 2006 @ 1:53 pm
[…] While that is a reasonable summary, go here for a few extra resources on the complex topic of Fair Use and Copyright. […]
ebyblog » Blog Archive » Some Quickies for Dec 29 - Part 2
December 29, 2006 @ 4:19 pm
[…] Some resources on fair-use and copyright are always handy […]
shlep: the Self-Help Law ExPress » Blog Archive » two cents and more for a Monday morning
February 26, 2007 @ 3:03 pm
[…] If the House Republican Study Committee spent a few minutes studying shlep (e.g., see ”copy permission and copyfraud” and “fair use and copyright“), it wouldn’t have falsely accused House Speaker Nancy Pelosi of “pirating” 16 clips of House floor debate that had appeared on C-Span, when she included them on her weblog The Gavel. See today’s New York Times, “Which Videos Are Protected? Lawmakers Get a Lesson,” Feb. 26, 2007. Although NYT says that members of Congress are “learning the complexities of copyright law, much the way the casual YouTube user has learned,” the relevant point here is really not all that complex: “works” made by the federal government (such as shots taken by House cameras on the floor) are in the public domain. On the other hand, C-Span asserts its copyright over materials shot by its own cameras at other congressional functions. If the Study Committee needs a bit of fast cribbing, it might try either the podcast or transcript of Nolo.com’s piece “Blogs, Websites and Podcasts: When Do You Need Permission?” […]