Copyright

This is the ninth in a series of posts calling attention to topics we cover in the Citizen Media Legal Guide. In this post, we highlight the section on copyright, which provides an overview of this important area of law and offers practical advice to citizen media creators on how to use the copyrighted works of others and protect their own work from exploitation.

Before we jump into the copyright overview, which is reprinted below, we would like to thank Allan Ryan, who is the Director of Intellectual Property at Harvard Business School Publishing. In addition to writing a large portion of the copyright overview, Allan provided invaluable feedback on the intellectual property sections of the guide and kept us focused on the unique needs of citizen media.

Copyright Overview

A basic understanding of copyright principles is essential for any blogger, researcher, reporter, photographer, or anyone who publishes their creative works. It’s important for two reasons. First, you should understand how you can properly make use of someone else’s work – quoting from it, reprinting it, summarizing it, even satirizing it. And second, you should understand how you can protect your own legal rights in what you create, so that others don’t take unfair (even unlawful) advantage of it.   read more »

Neil Netanel, a highly regarded legal scholar, has an interesting post on Balkinization entitled "The Demise of Newspapers: Economics, Copyright, Free Speech." Netanel, who has written extensively on copyright issues, posits that part of the reason for the decline in newspapers stems from Internet competitors that build on the content and value that newspapers create. He suggests that imposing a statutory license or levy on commercial Internet service providers and news aggregators might be a workable solution for ensuring that newspapers receive compensation for their investment in quality reporting.

While I think he gives too little credit to citizen journalists/media, equating them all with bloggers and asserting that they are largely "parasitic," his central points are mostly valid:

[N]ews and opinion blogs are largely (but certainly not entirely) parasitic on the institutional press. They copy, quote from, discuss, and criticize stories reported in the press far more than engaging in original reporting or linking to other blogs. And just like peer-to-peer traders of music and movie files, online readers copy and distribute stories from newspaper Web sites to their friends via email and social network sites. Especially for the young, trading copies of newspaper stories often substitutes for visiting the paper's Web site.   read more »

Many readers are probably familiar with the meltdown of the Santa Barbara News-Press, a local daily newspaper in Santa Barbara, California. Starting in 2006, reporters and editors of the newspaper clashed with now-infamous Wendy McCaw, controlling shareholder of Ampersand Publishing LLC, which owns the paper. Tensions swirled around McCaw's perceived intervention in editorial and reporting judgments, traditionally left to the paper's professional staff. The controversy resulted in a slew of resignations and firings, chronicled in the documentary film, Citizen McCaw. The brouhaha spurred a bizarre lawsuit over copyright infringement, which pitted the News-Press against another local paper, the Santa Barbara Independent. According to the Independent, the defendant in the lawsuit, the case recently settled. While this might come as a relief to the Independent, it leaves a questionable fair use decision on the books.   read more »

Back in January, we began rolling out the Citizen Media Law Project's Legal Guide. So far, we've published major sections of the guide covering Forming a Business and Getting Online, Dealing with Online Legal Risks, Newsgathering and Privacy, and Access to Government Information. This week we are excited to announce that we've published the section on Intellectual Property, which explains various intellectual property concepts, including copyright, trademark, and trade secrets, and provides practical advice about how to use the intellectual property of others and protect your own work from exploitation.

To give you a feel for what the Intellectual Property section contains, we've pasted the Trademark overview below:   read more »

Wikileaks, which purports to provide an "uncensorable Wikipedia for untraceable mass document leaking and analysis," is back in the news as it faces a new legal threat from the Church of Scientology. On March 26, Wikileaks published what it describes as a full unedited version of the Church of Scientology's Operating Thetan documents. It says that while some portions of the "bibles" of Scientology have been previously leaked, this is the first time the entire 612-page document had been made public.

On March 28, 2008, a lawyer for the Religious Technology Center (RTC), the entity that holds the copyright in the Church's writings and religious materials, sent an email to Wikileaks alleging copyright infringement. The email complained that an unknown Wikileaks user had posted certain "Advanced Technology" works belonging to the Church on the Wikileaks site. It demanded that Wikileaks remove the allegedly infringing material and requested that the website "preserve any and all documents pertaining to this matter and this customer, including . . . logs, data entry sheets, applications . . ., registrations, forms, billing statements or invoices, computer print-outs, disks, hard drives, etc."   read more »

The trial in Rowling v. RDR Books starts today in the United States District Court for the Southern District of New York. The New York Times reports that Rowling herself will take the witness stand. At issue, of course, is whether Steven Vander Ark's print version of the Harry Potter Lexicon website infringes Rowling's copyrights in her enormously popular books. Rowling contends that Mr. Vander Ark's book merely repackages her fictional content, while RDR Books, Mr. Vander Ark's publisher, maintains that his work "provides a significant amount of original analysis and commentary concerning everything from insights into the personality of key characters, relationships among them, the meaning of various historical and literary allusions, as well as internal inconsistencies and mistakes in the novels."   read more »

Michael Geist points the way to an interesting Vancouver Sun article, reporting on the B.C. provincial government's inclusion of copyright notices in packets of documents turned over to journalists under B.C.'s Freedom of Information and Privacy Protection Act, a Canadian analog of our state FOI laws. Stanley Tromp, writing for the Sun, explains:

Soon afterward, I was perplexed to receive "notices" slipped inside packages of documents mailed to me in response to some of my FOI requests. These letters warned me that: "These records are protected by copyright under the federal Copyright Act, pursuant to which unauthorized reproduction of works is forbidden."

If I wanted to redistribute even a portion of these records, I would have to send a special request (which could be denied) to the IPP, and also pay up. The implicit threat that I could be sued for non-compliance was clear.

The notion that the media may not inform readers of harms to the public interest without first pleading for the state's permission and paying a copyright fee is deeply troubling.

After several years of this process, I complained to B.C.'s information and privacy commissioner, David Loukidelis, an inquiry was begun, and a ruling is expected.   read more »

Derek Bambauer at Info/Law has an excellent post on the Harry Potter Lexicon lawsuit, Rowling v. RDR Books. Bambauer analyzes Rowling's copyright claim and RDR Book's fair use defense and concludes that the celebrity author will likely prevail. While reasonable minds differ on this point (see, e.g., Tim Wu's article in Slate), everyone should be able to appreciate Bambauer's use of figurative language:

An apt description -- it captures colorfully the inherent difficulty in predicting the outcome of a court's fair use analysis. The district judge handling the case has decided to combine the previously scheduled preliminary injunction hearing with a trial on the merits, which is set to begin April 14. We're looking forward to a good meal.

Over at Wired's Threat Level blog, Kevin Poulsen reports on a new DMCA overreach: the U.S. Air Force complained (via outside counsel) about his posting of their recruiting video. The post, Poulsen says, was initially made at the Air Force's invitation.

If the government created this work, then the DMCA claim is improper. Works of the U.S. government are not copyrightable. But the statute allows the government to receive copyright assignments, so if an independent contractor created the video, still available at the Air Force's (non .mil) site, the government could meet that technical requisite of the DMCA.

The DMCA also requires that the notifier assert the posting was unauthorized. Poulsen's article, however, says the Air Force sent Wired the ad and "thanked THREAT LEVEL for agreeing to run it." That doesn't quite square with the DMCA-required statement that the notice-sender "ha[s] a good faith belief that none of the materials or activities listed above has been authorized by the U.S. Air Force, its agents, or the law."

Even if the Air Force's DMCA claim is truthful, however, it's still a policy overreach. Wired posted the video in order to report on government recruiting efforts; the video's dissemination is part of that First-Amendment protected discussion, whether it happens on or off government websites. The DMCA makes it too easy to takedown first, think later.

As an avid baseball fan, I should have been paying closer attention to the recent dispute over Major League Baseball's new restrictions on credentialing journalists who cover MLB games. A nice summary of the dispute on the Reporters Committee for Freedom of the Press' Sidebar Blog awoke me from my slumber.

In a repeat of past efforts by MLB to limit the use of photographs and play-by-play coverage of games, the new 2008 press credentials:

• Limit to seven the number of photographs from each game that may be displayed online;


• Prohibit the use of game photographs as part of a photo gallery;


• Require prior written notice of the intention to display non-text accounts of games;


• Restrict the recording of audio and video from 45 minutes prior to a scheduled game until that game has concluded; and


• Restrict the length of time certain content may be made available or archived online.

Thankfully, the Online News Association, National Press Photographers Association, and others are fighting back. David Ledford, President of the Associated Press Managing Editors Association, took MLB Commissioner Bud Selig to task over the new restrictions:   read more »