You are so right. They will try to get bloggers in the middle of a bind between "infringement" and accusations of "inaccurate". Since bloggers lean away from inaccurate by nature, "infringement" will be the battlefield, as you have warned. On the other hand, the legal harassment that will ensue will be another "tar baby" old media will may be immeshed in beyond their control...and that lack of control will be their weakness. Again.
You have a wonderful site; you do wonderful work. Please keep it up.

Whew! Lucky for me I'm a no-name, low-echelon, unread, non-news-linking blogger.

If the media is going after fair use, look for Wikipedia to become a focal point for legal battles over copyright law. We use a ton of content (mostly pictures) under fair use. We don't have the resources to get copyleft pictures from, say, the Iraq elections, so we use a picture from Reuters or the AP instead. Similarly, album covers, screenshots, and so forth are copyrighted, but we claim educational use.

I started to post a lengthy comment here, but I ended up posting it all on my own site: Blogging principles to cover your ass and make sure that what you're excerpting falls under the fair use provision of copyright law.

Without knowing more about the specific articles the Tulsa World found to be infringing -- and they don't seem to say -- it looks like they're probably overreaching and trying to cow this blogger into submission.

You can excerpt articles without permission, and they have absolutely no authority to demand removing links to their site. (If they're so upset about linking, they can always set up their servers to deny traffic from any site -- but you won't ever see them doing that, because they know that the linking benefits them.)

He's a bit to the Left, but you should read some of Lawrence Lessig's stuff.

Considering how many legal scholars and practicing attorneys are are part of the blogosphere, I'd say those folks are just asking for very ugly public flogging in the courts

You are on the money! No one should go this alone! A few of these cases will decide the fate of blogging and truth for decades to come. The best defense must be obtained for the landmark cases costs be damned. We can't let the MSM bury the truth again!

These suits have almost no chance of getting past a Rule 12(b)6 challenge (or the state court equivalent).

This is the intellectual equivalent of suing somebody for quoting, accurately, something said in public. Or the equivalent of Michael Jackson (or anybody else, the celebrity doesn't matter) suing somebody for publishing his picture on his way into court.

Not only should such threats be welcomed (think of the traffic and tip jar proceeds) by bloggers but also encouraged. I have a feeling the ACLU will, despite itself, defend anybody exercising their rights to blog. And they aren't the only ones.

And any lawyer who files such a claim should face disciplinary action, if the judges have any integrity whatsoever.

But, this does indicate the need to be completely transparent in all bloggers do. Such transparency will make judges' decisions straightforward.

You can excerpt articles without permission, and they have absolutely no authority to demand removing links to their site.

Sorry to double post, but this is factually incorrect. The DMCA (Digital Millenium Copyright Act) gives copyright holders the power to request the removal of any material they suspect to violate copyright without proof. ISPs are not held liable only if they act "expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity."

While the copyright holder is asked to provide a statement that they believe the material to be in violation, they are not required to prove it, the ISP is not required to verify it, and if the ISP takes the time to verify infringement (at their own expense), they run the risk of becoming liable.

In previous cases, ISPs have simply buckled under and removed whatever they are told to remove immediately.

See Title II, Section 502 of US Code here

Oh, I am SO picking a fight with the Tulsa World--just as soon as I get around to cranking out some posts later today.

It's nice having a lawyer as one of your co-bloggers.

So the Tulsa World says you can't link directly to them (they must have hired PR wizard Jordan of Buttcheese and Asscrackers fame to come up with this idea), you can still directly quote/paraphrase them, write about them, excerpt them in limited amounts, and even, were you so inclined, publish their "on line address" or their publicly published contact info (i.e. their home page or yellow pages info) so that anyone who wanted could then go and look for the story you are editorializing about independently.

The fact of the matter is that the Tulsa paper is simply trying to intimidate people who don't know their legal rights into shutting up by going after one of the higher profile blog activities: the direct link. The paper probably hopes that people will be so freaked out by the threat of "legal action" due to linking that a secondary effect will be bloggers overcompensating by ignoring the paper altogether.

As for copyright infringement, I'm not an Intel Prop/Copywrite/Trademark attorney (although I actually am an attorney IRL) but I can guess where the paper is going to go with this. My bet: they are going to claim that "commercial" blogs (like blogs that receive ad money/donations) are similar to "commercial" activities like restaurants/bars. Therefore, blogs "should be" forced to pay a licensing fee to holders of copywrited materials (like bars have to in order to play music) or, absent such payment, should not be allowed to use said materials.

Is the analogy good? No. Since I assume the Tulsa Paper runs ads (I haven't checked) and since I assume the ad revenue online is a function of traffic to a site, the practice of "linking" may actually definately benefit the paper in a manner in which a IP holder of music wouldn't be benefited from having his music played in a bar, absent the royalties licensing fee. But it's an arguable case, and that's what the crux of the matter is. The paper has the resources and the legal wherewithal to engage in a drawn out losing case that a blogger (see the precedent set by Allah) may not be able/willing to contest.

So my advice? Keep blogging, and adhere to common sense. If you use stuff, cite where you got it. Use things in small amounts, and if you get a letter asking you to "cease and desist" linking, then use shit-links.

We can expect to be vilified just like Rush and the new media and take it as testimony of the Left to the effectiveness of the blogoshere. But to paraphrase John Paul Jones, the Left has not yet begun to fight. They are going to try to demonize bloggers with a consistency we haven't seen yet. When they trot out MaCarthy and use words like "unamerican" they are going for the jugular. All the more reason for ACE to be careful not to hand them a reason to critisize, like too many soft core porn ads.

for more info tangential fair use/copyright questions:

a fair use issue with non-commercial blogs http://alessandrab.blogspot.com/2005/01/my-first-blog-fair-use-issue.html

more answers on copyright - http://alessandrab.blogspot.com/2005/01/more-answers-on-copyright-kim.html

this site: http://www.chillingeffects.org/copyright/, which has some good summaries of copyright law - from a very US perspective.

"You can excerpt articles without permission, and they have absolutely no authority to demand removing links to their site."

PlacidPundit: "Sorry to double post, but this is factually incorrect. The DMCA (Digital Millenium Copyright Act) gives copyright holders the power to request the removal of any material they suspect to violate copyright without proof. "

So if I don´t link, but write out the link, that is not copyright infringement?

example: to read go to www.article.com

instead of the actual html link code. Or are they saying I can´t write out www.article.com? Which is ridiculous on its face. And if I can write out the link address, why can´t I link with HTML code (from a legal point of view?)

Is there any situation where a link actually violates copyright or is every link safe always ?

Yep, we have a little banana republic power elite here in Tulsey Town (the original name of Tulsa).

When this little monopoly paper reported (editorialized) on the airport scandal, they never mentioned the family that owns the paper has an interest in Great Plains Airlines. That's what we have to deal with here, an interlocking power elite.

Bastards.

And that thing about linking and quoting, yeeesh. Embarrassing.

Get 'em good.

Placid --

We may be splitting hairs here between the rights you have and the tactics the media can use to bully you into submission.

You *do* have the right to excerpt copyrighted material, as long as you do so in the context of commenting or criticizing (or any other case oulined in the fair use provision). But the point you bring up is still something to consider. A media outlet might use strongarm tactics like you mentioned to get your work removed, but their doing so would clearly be abuse of the system.

Like so many other areas of the law, this is another situation where there are not stiff enough penalties for those who falsely accuse or exploit the system to get their way. This kind of bullying doesn't change anything, though -- you still have every right to excerpt their work, if you do so under the spirit and letter of the fair use provision.

We all know that sooner or later a lawsuit regarding this issue is eventually going to make it to court (when a newspaper sues the wrong blogger or someone forms a legal defense fund for bloggers).

I like to imagine that with all the lawyers who are also bloggers, that the legal defense on our side will be better than top-notch and the issue will be forever put to rest.

The Tulsa World charges a subscription to access their articles, but for some reason if you have a link to the PDF version of the paper it bypasses the logon. They have apparently decided it's easier to send out the lawyers than to set permissions on their content.

Here's a little something from Eugene Volokh of the Volokh Conspiracy who teaches at UCLA Law School.

It's a bit longish law review article. But it seems to cover many of the high points brought to light in Ace's post.

FULL DISCLOSURE: I haven't read it all. I'm only six pages into it. So it might be off topic completely.

Alessandra,

Nobody in their right mind would consider linking to be copyright violation. The point I was trying to make is that this may not even matter. The DMCA contains many "unintended consequences," one of which is that ISPs must respond quickly to a removal request from a copyright holder.

There's nothing preventing your ISP or blog host from checking the true nature of the copyright violation before taking your site down, but they are unlikely to do that because (1) they would have to devote considerable resources to investigating it; and (2) if there really is a violation, feet-dragging on their part could make them liable.

This has been used to hush criticism of the Church of Scientology and of Mattel Inc. The good news is that it's possible to recover from an inappropriate claim of infringement once that fact has been determined. But until it is, your site can be removed.

Also, please note that I am not a lawyer. I'm a Copyright and Patent enthusiast. This makes me the life of a party but does not give me any kind of authority to provide legal advice. If you take action based on what I say, I'll come laugh at you during the trial.

That is all.

Matt,

Absolutely. You stated it beautifully. The DMCA opens the possibilities for strongarm tactics that are not sufficiently compensated.

And let me go ahead and correct a couple of minor errors in my previous post (I'm tired):

When I said "unintended consequences" I referred to the end result rather than the fact that service providers were required to respond quickly (duh).

Feet-dragging and a lot of other things I didn't mention would make the service provider liable. Or rather, they are not liable if they meet the criteria, one of which is that they react in a timely fashion.

Whew. And that's one of the reasons you shouldn't take advice from someone who isn't actually a lawyer, Alessandra. :-)

More on the Volokh Conspiracy link above.

Much of what is relevant starts on or about page 17 of the PDF.

Importantly, according to the Supremes, via the footnotes of the link above on page 18, ideas and facts cannot be copyrighted. (Not ground breaking with that one, I know, but just to avoid any overreaction.)

Keep that in mind.

And I am not offering legal advice. Nothing I say can be believed on any level, quite naturally. Following my lead on anything would be a foolish and altogether foreseeable mistake. Don't do it. Ever.

But Volokh can be believed. And so can the above-cited, peer reviewed article from the Houston Law Review.

Bertrand Pecquerie.
You just don't see descriptive names like that anymore. Unless I'm pronouncing it wrong.

Hmm, I don't think the papers would have a chance in these cases, but all it would take is one sympathetic lawyer. They would try to claim, like in the AP case, that their materials are gained through unique sources and all the blogs are doing is piggybacking off of their hard work and not doing any effort of their own while profiting from it. I know this isn't the case, I'm just trying to see what their argument would be. As for a 12(b)6 dismissal, I'm not sure if the courts would be so easy to dismiss these cases just yet. Then again, I'm only a 1st year law student, so I'm probably completely wrong.

Keep up all the good work Ace.

Unfortunately, though "deep linking" is generally accepted as not being copyright infringement, the cases that have so held, to date, have been trial-court level cases, meaning there is no binding precedent at the national level or even at the circuit court level.

Meaning that the law in the Fifth Circuit might be just uncertain enough for Bates to have to spend time and resources defending himself, and victory is not guaranteed (though it seems likely in the end).

Also, there may be some issues regarding "terms of use" policies at the linked web site for him to deal with.

I am a lawyer who does some IP stuff, but I've only done cursory research on this and I don't know the facts other than what he's posted, so don't take this comment as legal advice. But it looks like the Tulsa paper is probably legally capable of harassing Bates enough to make it expensive for him to defend himself, without them violating Rule 11 (meaning, a lawsuit by the paper might lose, but it wouldn't be completely without legal merit and thus grounds for sanctions against their lawyers, because the law is unsettled and they can claim to be making a good-faith argument).

If I were admitted in Oklahoma I'd volunteer to help him out pro bono. But I'm not, so I'm limited to watching from the sidelines, and if the Tulsa paper escalates, hitting his tip jar to help out with his defense if necessary.

How many establishment forces do you know that like to get peed on? Of course the paper (and, increasingly, other papers) are going to start threatening lawsuits, 'cause peein' only goes one way for them. Even if they sue and lose, they'll continue to threaten (and probably sue) just as a harassment technique.

I haven't even read the article or paper yet, but those of you who point out that the DMCA gives strong support to the newspapers aren't kidding.

Remember, they don't have to harass hte blogger. They just have to scare the ISP. And without an ISP, there ain't no blog.

For the first time in 4 months I don't think "72 VIRGINS" recommended protesting... Mark this day in your calendar folks. :P :)

Back on topic though I had this conversation with a friend who's a professional photographer over New Years. He basically told me to watch out, apparently you can get in deep shit for even photoshopping a licensed image. His whole thing is car photography - and he licenses images based on his approval of a scope of work. He retains a firm with google image spider capability (times 1,000) to crawl the web and look for his images. In the case of major snafu whereby say Ford uses one of his images without permission, he is *entitled* to thousands and thousands of dollars - most times it doesn't come down to that b/c he wants to salvage teh relationship and maintain market share - however he was all stoked b/c he'd just had some company settle for like $80K. For *ONE* image they used in a national run, which was outside the scope he'd quoted them.

That's my sidebar commentary - net net net, it sounds like if somebody wants to screw you, they can find a way.

Err, that first line should read "didn't recommend". Damnit.

So.............isolating from instead of integrating WITH the blogosphere is somehow not an act of institutional implosion/suicide?

fat kid,

Of course fair use would cover most bloggers. Ford using an image for profit is a very different matter altogether.

Parody has been allowed from (nearly) time inmemorian. So that's probably to the good.

Alex,

Are you saying sanctions wouldn't be appropriate for creating a hyperlink? I'm not so sure.

And the law of contracts might come into this--industry standards and all.

Birkel,

The interesting test will come next election cycle when the FCC and FEC start nailing bloggers for politcal endorsements (as political advertisements or contributions).

I think that blogging is going to face some serious challenges is continuing ot act as a check on the MSM at least in the politcal realm. The campaign finance "reformers" (from both parties) already have the long knives out for the blogs after the SBVFT stuff this time.

Yeah, I'm sure parodic photoshops will be protected. You should probably protect yourself by identifying them as parodies. But if Larry Flynt can get away with the things he said about Jerry Falwell, well, I think a clear photoshop will be permitted. If you do one and say "this is real", of course, you're asking for trouble. (I'm talking about defamation here, not IP--but I think the IP claim would be even weaker.)

RDBrewer, I thought you were an Okie what with the Cox Cable e-mail address.

This is ridiculous...people keep harping on the Tulsa World about being a monopoly.

The fact is the Tulsa Tribune wasn't making enough money...what do you do with a business that is unprofitable? Shut it down. Besides there are plenty of other papers out there like the Daily Oklahoman.

If I had copyrighted material and didnt like the way it was being portrayed I would want to sue your ass too.

"Nobody in their right mind would consider linking to be copyright violation. The point I was trying to make is that this may not even matter."

Placid, I had understood your point. I asked the link question because sometimes what appears to be OK from a common sense or lay point of view turns out to have some legal hook.

It´s like paraphrasing, for example. Not all paraphrasing is OK always in these legal copyright wars.

I know the paper is just trying to bully the blogger, but since I´m also not a lawyer, I wondered if there was something we didn´t know about the law.

I would just like to make a comment about the Bigger Picture...

Regardless of who's right and who's wrong and who's overstating what they can and can't do, it's this sort of legal back n' forth that really Super-Discourages bloggers.

How many bloggers are going to learn the complexities of copyright laws just so they can get online and render personal opinion? And you know, even when they DO go through the trouble to educate themselves, just look at these comments and see how many interpretations there can be...and once an incident becomes a legal matter, there is NO WAY to know how the courts are going to react.

This whole thing is intimidating, not only to current bloggers but to those who are considering starting one.

And that's why I have no doubt we're going to see a lot more of this from other journalistic institutions in the future. Big Media wants to shut up bloggers and right now this is the best chance they've got.

Later,
bbeck

Mr. goblin,

Too true. And their anti-First Amendment agenda really gets my goat. (And I normally reserve my goat for that special someone.)

What gets me even more was the SCOTUS decision to allow the McCain-Feingold legislation stand.

And that's the main reason I would never vote for McCain, btw.

Just in case he's reading.

I know the paper is just trying to bully the blogger, but since I´m also not a lawyer, I wondered if there was something we didn´t know about the law.

Heh, probably more than anyone here would want to imagine. :-)

The campaign finance "reformers" (from both parties) already have the long knives out for the blogs after the SBVFT stuff this time.

This burns me up. Here we have real popular government in action: people getting involved in the process and expressing their opinions. And John McCain has to come along and whine about it. Some of us don't get regular face-time on Hardball, John. If we want to put together ad campaigns to express ourselves, it's none of your business. Buzz off.

Tulsa World = dumb hicks or brilliant guerrilla marketers?

Pedro, AHEM, I was born in Tulsa so I take offense at that. We're SMART hicks, thank you very much.

Later,
bbeck