The Prior Art

News exec to Google: We've got "Hot News," and we know how to use it.

Last week, a U.S. Senate committee engaged in the sort of navel-gazing about the future of journalism that is usually confined to, well, journalists. And this week, the usual suspects are pontificating about what the hearing meant.

There's a lot that could be said, but my attention was caught first and foremost by a sharp exchange between James Moroney, publisher and CEO of the Dallas Morning News, and Google Vice President Marissa Mayer. Moroney showed himself to be particularly well-informed about a certain legal doctrine, created for The Associated Press and recently reinvigorated in a lawsuit brought by that journalism organization: the "Hot News" doctrine. 

Committee chairman Sen. John Kerry (D-Massachusetts) teed up the exchange between Moroney and Mayer by asking the latter if she thought news organizations were paid enough for readers finding stories through a news aggregator like Google News. Kerry said:

"If you're you're out there doing the footwork and you've got a top level reporter in a bureau somewhere in the world, or you're doing a major investigative story and you put the pieces together... that takes money, it takes time, it takes skill... They're not going to get remunerated, for the level they put into that ... Is there a fairer way to try to spread the cost here?"

TPA Reading for the Week

A TPA extra edition--our mix of IP-related notes from this week:

• PatentFreedom, the patent defense consultancy run by Dan McCurdy, first talked to us about its database of NPEs (patent trolls) when the firm launched almost a year ago. Now, PatentFreedom is offering some of the basics from its database to the public--interesting stuff. Take a look, via Against Monopoly.

• French reject "three-strikes" law that would ban copyright infringers from the Internet. Lots of artists and content-side lawyers thought this one was going to pass. Not this time. Via Wired.com.

• Big Verdict: Mintz Levin won a $388 million patent infringement verdict against Microsoft for a case brought on behalf of a small California outfit, Uniloc. But will it stick?

• Big Verdict II: W.L. Gore & Associates (of Gore-Tex fame) must pay out $410 million to medical device company C.L. Bard. Via The Am Law Litigation Daily. Gore will appeal.

• Big Verdict III: A U.S. Court of Federal Claims judge has ordered NASA to pay a 1.25 percent royalty to Boeing because an aluminum alloy it used to build the space shuttle infringes Boeing patents. Damages still being briefed but looks like 9 digits. Seattle Times via IPO News, and The Am Law Daily.
  

• EFF senior attorney Fred Von Lohmann asks if President Obama violated copyright law when he gave an iPod to Queen Elizabeth.

• U.K. newspaper The Guardian showcases 15 years of anti-piracy videos.

Photo: L. Hine / Wikimedia

 

EFF's "Dancing Baby" lawsuit will proceed; can fair use be "self-evident?"

This afternoon, a San Jose federal judge cleared the way for the Electronic Frontier Foundation's YouTube "dancing baby" lawsuit, Lenz v. Universal, to move forward. The case has been underway for about a year, and defendant Universal Music has twice tried to have the case dismissed; today the company failed definitively. Lenz, represented by lawyers from EFF, will be allowed to prosecute the case.

It started like this: the plaintiff, Stephanie Lenz, posted a 29-second video of her son Holden (at right) dancing to the Prince song "Let's Go Crazy." Universal Music sent her a takedown notice; Lenz shot back an email complaining about the takedown; she contacted EFF; her video went back up; she sued anyway. EFF and Lenz are seeking a declaration that she does not infringe copyright, and most importantly, damages under section 512(f) of the Digital Millennium Copyright Act.

Reading the EFF lawsuit and press release it's easy to forget that EFF actually initiated the litigation. What damages exactly did Lenz suffer?

Bloggers mock AP's "Quotation Licenses"

Cory Doctorow at BoingBoing has led an chorus of blogs in denouncing the AP's content licensing scheme, run by a company called iCopyright, which asks for payment for text snippets as short as five words, includes toughly worded copyright warnings, and has Terms of Use that seem to ban any criticism.

"Welcome to a world in which you won’t be able to effectively criticize the press, because you’ll be required to pay to quote as few as five words from what they publish," writes Doctorow.

I sympathize with these critics. Such restrictions, if enforced, would be intolerable. 

The price structure and terms of use was chosen by AP, while the "Honor Copyright" page (source of image at right) was authored by iCopyright, a copyright licensing company. It's not unusual for media companies to outsource the reprint side of their business; they're just not equipped to deal with it.

The AP's problem is that sometimes the headline is the whole story; the AP pays a lot of money to have a network of reporters so that someone is there when the bombs go off. It's looking for ways to get paid for that network in a declining market.

Sending takedown notices to bloggers who post 50-word quotes is not the right way to do that; the right to quote is a fundamental freedom, as I quoted Lawrence Lessig saying yesterday. But I can relate to the ambivalence of NYT Bits blogger Saul Hansell on this issue; like him, I'm both a reporter and a blogger. Like him, I'm concerned about the level of vitriol in the blogosphere about this issue, and I hope cooler heads prevail and seek a negotiated solution.

UPDATED: Post was updated to reflect some clarifications brought by an iCopyright employee (comment below). I speculated that iCopyright could have authored the Terms of Use, but those were chosen by AP. The publishers who work with iCopyright choose pricing, word intervals, terms of use, and other licensing options. Of the material I referenced, only the "Honor Copyright" page is authored by iCopyright.

 

The Associated Press v. The Quote

Last week, my former employer, The Associated Press, tried to erase seven quotations from the Internet, using copyright law. The noise since then has been remarkable.

The AP has acknowledged that its demand to remove seven short (33 to 79 words) quotes from The Drudge Retort blog was an overreach. But the news agency is standing by its basic argument, that copying of those lead sentences (or ledes as journalists sometimes write) is illegal and not fair use.

“Cutting and pasting a lot of content into a blog is not what we want to see,” Jim Kennedy, vice president of the AP and the blogosphere's new #1 enemy, told the New York Times. “It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.”

Coincidentally, I spent all day on a plane today, and am now about halfway through Lawrence Lessig’s new book, "Remix." (I'm writing a review, to be published in a few months.) The book doesn't come out until October, but Lessig has a few passages on the freedom to quote that I think are apt here.

He writes:

Writing, in the traditional sense of words placed on paper, is the ultimate form of democratic activity, where, again, “democratic” doesn’t mean people vote, but instead means that everyone within a society has access to the means to write. We teach everyone to write—in theory, if not in practice. We understand quoting is an essential part of that writing. It would be impossible to construct and support that practice if permission were required every time a quote was made. The freedom to quote, and to build upon, the words of others is taken for granted by everyone who writes.

So what is the role of a quote in a world of hyperlinks? Quotes still matter because writing still matters; they are still fundamental to art, to journalism, and to freedom. To link is to point; to quote is to build an almost tangible connection between another’s ideas and your own. As the world’s largest news organization, the AP is essential to our democratic conversation. I am proud to have been an AP reporter, albeit for a short time, and I have many friends who work there, good reporters all. The organization’s recent skirmish with digital-age quotation is misguided; here's hoping it ends shortly and is not repeated.

 

J.K. Rowling's lawsuit against Harry Potter web site condemned by fellow author

Earlier this month, billionaire author J.K. Rowling was on the witness stand, alleging copyright infringement against a fan web site she once praised. The Harry Potter Lexicon, a fan site with essays, commentary and explanations, is maintained by Steven Vander Ark. Vander Ark is being represented in the litigation by Anthony Falzone, an attorney who heads up Stanford University's Fair Use Project.

This morning I read sci-fi author Orson Scott Card's well-written and truly damning critique of J.K. Rowling's behavior in this litigation. Card points out that all creative works borrow from what came before them, a point that seems like it should not be difficult to absorb. Mike Masnick at Techdirt excerpts the best parts, and I have reproduced his selection below, but as he says, it's really worth reading the whole thing. 

"This frivolous lawsuit puts at serious risk the entire tradition of commentary on fiction. Any student writing a paper about the Harry Potter books, any scholarly treatise about it, will certainly do everything she's complaining about. Once you publish fiction, Ms. Rowling, anybody is free to write about it, to comment on it, and to quote liberally from it, as long as the source is cited.... She let herself be talked into being outraged over a perfectly normal publishing activity, one that she had actually made use of herself during its web incarnation. Now she is suing somebody who has devoted years to promoting her work and making no money from his efforts -- which actually helped her make some of her bazillions of dollars. Talent does not excuse Rowling's ingratitude, her vanity, her greed, her bullying of the little guy, and her pathetic claims of emotional distress."

Joe Nocera of the New York Times wrote a great column a few months ago about the Harry Potter lawsuit and fair use which suggests that Ms. Rowling may be surrounded by people who misunderstand the role of the press in a free society. He wrote:

During my conversation with her representative, Mr. Blair, he pointed me to Ms. Rowling’s Web site, suggesting that would be the best place to find her response to the RDR Books case and the Harry Potter Lexicon. “You have our permission to quote from her Web site,” he said.

I already have that right, Mr. Blair. But thanks anyway.