Month: December 2007

A number of people, including Nick Ciarelli’s lawyer and my friend Rob Hyndman, are looking at the closure of ThinkSecret a little differently than I did yesterday (in a post that got me a smackdown from no less than Fake Steve Jobs himself — thanks for crashing my blog, FS). In effect, they seem to be saying: Why all the fuss? So maybe Nick gets some cash, maybe Apple pays his legal costs, then he moves on to his Harvard studies and everyone goes home happy. Where’s the harm?

Don’t get me wrong — I’m not saying free speech died along with Think Secret, and I’m glad that Nick didn’t have to reveal any of his sources. That’s a win. And I think it’s great if he got some money and could move on with his life. But that doesn’t mean Apple should get a free pass for hounding him and his website for the last three years, and for being instrumental in getting him to shut Think Secret down. Maybe he was going to close it anyway, as he has suggested in interviews, but that still isn’t the point.

The point (or at least one of them) is that if Microsoft or any other large company did what Apple has done, and badgered some 18-year-old kid to the point where he decided to just take the money and run, there would be howls of protest up and down the blogosphere. But because it’s Apple, I think there’s a tendency to take the company’s side. And would Nick have decided to close his site and move on if the company hadn’t pursued him so tenaciously? Maybe. Maybe not. It’s possible that he decided fighting a $180-billion company just wasn’t worth it.

Would it be okay if Apple paid Walt Mossberg to stop writing about it? What if some other journalist was the subject of a bunch of lawsuits, and he agreed to stop writing about the company in return for cash, or in return for his legal costs being paid? Would we be celebrating that, and congratulating him for cutting a good deal? I doubt it. Maybe the only thing that differentiates bloggers and journalists is a better legal department and a corporate entity backing them up that is willing and able to fight a lawsuit.

Update:

A commenter here points to a blog post from a writer in Washington who argues that it’s a good thing that Apple hounded Think Secret into shutting down because journalists need to be kept on a short leash, and bloggers in particular “need to be chilled” — because journalism’s “moral compass needs to be un-stuck” by the occasional lawsuit. Boy, it sure is a good thing that Apple sued then, isn’t it? I guess I should be thanking Steve Jobs for keeping us “moral” then. What a load of crap.

Not content with helping to destabilize the traditional record business, Radiohead has whipped up a widget featuring some of their videos, music and news (using Clearspring’s widget-making service). I’ve embedded it below, and you can click on the menu and get your own. According to Clearspring, almost 1,500 people have downloaded it. In other Radiohead and music-industry news, if you haven’t seen it already be sure to check out the recent interview between David Byrne and Thom Yorke in Wired magazine. Definitely worth the read.

http://widgets.clearspring.com/o/476195e50dfcd954/476ae5ee4da5743e

Erick Schonfeld is right about the debate that has been sparked by photographer Lane Hartwell and her decision to file a DMCA takedown notice against YouTube, in order to have a video removed that had a photo of hers in it (for less than a second), a debate that I think I helped in some small way to spark — for better or worse — with this post, which got almost 100 comments, and a more recent follow-up.

In his post at TechCrunch, Erick makes the point that this is not just about what Lane did, or whether the guys in the band Richter Scales should have been a little nicer when she asked them to remove her photo. Lane seems like a nice person — she should, after all, since she’s Canadian 🙂 But the principle of fair use continues to be tested in cases just like this, and they are just going to keep on coming.

So what if Richter Scales had to remove the photo, you might say. Big deal. And so what if they had to remove a bunch of the other photos, which the photographers involved are also pissed about, according to a recent post at PDNPulse. And so what if Lane and some of those other artists ask Richter Scales to pay them for the use of their work. So a stupid video mashup from some unknown band ceases to exist.

The problem is that the ability to blend media of all kinds — text, photos, video — is one of the most powerful things that the Internet and new media have brought us. Yes, the Richter Scales is just a goofy sendup of the Valley. But what about other videos for other purposes? The principle of fair use for artistic purposes and the purposes of commentary is being chipped away gradually, and each time a DMCA takedown is issued another chip falls.

In the comments on my post and those elsewhere, you can see supporters of Ms. Hartwell — and of the artists’ apparently inalienable right to control every speck of their creation no matter where it appears or for what purpose — slicing and dicing fair use until it barely exists at all. Richter Scales’ work wasn’t a direct parody of her photo, so it doesn’t qualify; it’s the whole photo, so it doesn’t qualify (how do you use an excerpt of a photo?); it was made for a band, who might one day sell a CD, so it doesn’t qualify.

And now, Ms. Hartwell tells CNET that she doesn’t want to say how much she has invoiced the band for, but she used a popular photo-management tool called FotoQuote, and priced it based on “usage, the market where the photograph is to be used and various other factors.” So how much does less than a single second worth of looking at a photo cost? I don’t have FotoQuote, so I don’t know. The mind boggles.

The Apple rumour site Think Secret has posted a note saying that it has reached a settlement with Apple over the lawsuit the computer company filed against it for leaking company secrets, and that it is “a positive solution for both sides.” No doubt any kind of settlement that doesn’t involve millions of dollars or jail time is a relief for Nick Ciarelli — the Harvard student who ran the site and has been hounded by Apple for several years now — but I fail to see how it’s positive for anyone.

This case is separate from another case involving bloggers and company secrets, in which Apple tried to get PowerPage, AppleInsider and Think Secret to reveal the names of the sources they got their information from. In that case, a lower court ruled that the bloggers weren’t protected by California’s “journalist shield” law, and that they would have to turn over the information — but an appeals court disagreed, saying they were entitled to the same protection as journalists.

Think Secret was sued separately for divulging trade secrets — and while the site didn’t have to turn over the names of its sources, it has still been forced to shut down. Meanwhile, Apple comes off looking like some power-crazed South American dictator, the kind who can’t stand it when the media reveal government secrets and so arrests the entire press corps. I know that keeping secrets and then revealing them to an adoring public at Macworld is a time-honoured Jobs tradition, but this is ridiculous.

As Mike Masnick notes at Techdirt, this will have a chilling effect on journalists — and I’m including publications like Think Secret and Apple Insider in that description. Apple should be ashamed of itself. My blogging friend Rex Hammock has a moving tribute to Think Secret here.

Update:

Ars Technica has a good overview of the case and those that preceded it — and according to the EFF, Nick Ciarelli is pretty happy with the settlement (which the EFF suggests Apple was in danger of losing). If he got a half-decent settlement, then I’m glad. But I still think it sends the wrong message to shut the site down.

Justin Smith at Inside Facebook has the 411 on a new feature on Facebook — everyone’s social-networking walled garden of choice, it seems. The site now allows you to create (gasp) lists of friends, and then easily send messages to one list or another (don’t worry, no one will see whether you’ve put your boss or your high-school pal on the “Mostly Ignore” list). This comes along just as Mark Cuban is wrestling with how to rank his 5,000 friends — so now he can create three lists: people more important than me (a small list, I’m sure); people as important as me (also small, I would imagine); and everyone else. Josh Catone at Read/Write Web is right though — the new feature needs privacy settings built in.

At the risk of beating an already unrecognizable horse even further into the ground, I see that there’s a new “Bubble” video from the band Richter Scales available, with the offending image of Owen Thomas — the photo that Lane Hartwell filed a DMCA takedown notice about, forcing YouTube to remove the video — replaced by one of Kara Swisher from All Things D.

So is the whole sordid affair over, finally? Not really. Although the band has added credits for all of the images, apparently that’s not enough for Ms. Hartwell. She says she wasn’t able to come to an agreement with the band because they refused to pay her for the photo, although she doesn’t say how much she was asking for. She says she was planning to use the money to pay her legal costs and then donate the rest to charity.

Contrary to what some have suggested in comments on my previous posts (here and here) I don’t wish Ms. Hartwell any ill will, and I can see how she would be irritated that people keep taking her photos. But that doesn’t change the fact that what she did was wrong, and asking for money is even wronger. So the video got a million views on YouTube — so what? A startled prairie dog got 10 times that many.

If you want to read my thoughts in more detail, please have a look at one or both of my previous posts — and read the comments too, because there are some good ones (and some not-so-good ones) in there. In a nutshell, I think Ms. Hartwell’s actions are part of a trend that is chipping away at the principles of “fair use” and creating the impression that copyright law’s sole purpose is to act as a weapon for artists and content creators to police any use of their content, anywhere, for any purpose.

A photo that has been previously published and appears for less than a second in a video satirizing (in part) the subject of that video is fair use, plain and simple. Richter Scales doesn’t owe Ms. Hartwell a penny. Would it have been better if they had asked for permission or given credit? Yes. In their post on the subject, they say they tried to contact the photographer, but she was too busy filing a DMCA takedown notice.

There’s a good analysis of the issues behind this event at Plagiarism Today, and Chilling Effects has a good overview of fair use.

So a survey by NPD shows that only a tiny fraction of people have ever heard of Web-based document management tools such as Google Docs, and an even tinier fraction have ever used them. Does this really surprise anyone? Joe Wilcox at Microsoft Watch says “RIP, Web 2.0 Office Suite” — but given the title of his blog, that’s hardly surprising either. Presumably, Joe would like us to believe that the Web is no threat to Microsoft, that Live Office will rule the world, and so forth.

Does anyone remember when no one had ever heard of Firefox? I do. It’s still a relatively small proportion of the browsers out there, but it’s growing. Anyone remember when Facebook was virtually unknown outside university campuses? I do. Obviously, Google Docs is no Facebook — but the phenomenon of Web-based document management is not a fad, and I think it’s a little early in the game to be writing obituaries for something that has only been around for a year or so.

So a majority of people have never heard of Google Docs, and are happy to use Microsoft Office for everything. So what? A majority of people still search in vain for the “any” key on their keyboard when installing software. What does that prove? Nothing. Microsoft will likely continue to dominate the office software market, just as it does the OS market — but that’s not where the action is, and not where the future is.

One of the reasons I’ve got my knickers in a twist over copyright and fair use — see my two previous posts on Lane Hartwell and her photo (and be sure to read all 100 or so comments) — is that I’ve been thinking a lot about it, in part because I was on a panel on TV Ontario the other day discussing just that issue. On the panel with me were Michael Geist, a professor of law at the University of Ottawa and strong critic of the government’s proposed copyright legislation; Rob Thompson, a correspondent for Billboard magazine; and David Basskin, legal counsel for the Canadian Music Publishers Association.

We talked about how the legislation was (or wasn’t) pulled from the order paper as a result of the work Michael did in setting up a Facebook group — which now has more than 20,000 members — in opposition to a Canadian DMCA, and we also talked about the principles of fair use, which in Canada are covered by an exemption for “fair dealing.” Our exemptions are more restrictive than under U.S. law, which could be why I’m so concerned about the issue. Please read my previous posts for more on this subject. The video of the panel is here, (click the tab that says “Copyright and Intellectual Property”) or you can click the image below.

It’s nice to hear that photographer Lane Hartwell is working things out with the band Richter Scales, after filing a DMCA takedown notice and having their video removed from YouTube because a photo of hers appeared in the video for less than a second. I wrote about this on the weekend because I thought her response was out of proportion to the harm done, and legally questionable as well, and I’m pleased to hear from at least one legal expert that I got it right in my original post.

Jason Schultz, who writes a blog called Law Geek — and who also describes himself as a fan of Lane Hartwell’s — has posted his analysis of what happened, and comes to virtually the exact same conclusion I did (for which I got a vast amount of flak in the 80 or so comments on my post, and on other people’s blogs as well). He says that while asking for permission is nice, it is not required when something qualifies as fair use, which he says the use of Lane’s photo does.

While the use of the photo might be seen as impacting Lane’s livelihood, Jason says that it is clearly “transformative,” and therefore is covered, and the video is clearly meant as commentary on the world that her photo is a part of, and therefore it is likely covered. The photo is also a published work, which would likely weigh in favour of fair use. Schultz also makes the same point that I did, which is that copyright:

“is and always has been a balance between the rights of original creators and the rights of the public and subsequent creators to use copyrighted material. No one person ever has absolute rights under the law to control every use of a copyrighted work.”

In the comments on my original post, and since then on lots of other blogs — including Shelley’s at Burningbird and Tara Hunt’s at Horse Pig Cow — the point is repeatedly made that I am missing the real point, which is that it was rude and uncaring of Richter Scales to not ask for permission and give Lane Hartwell credit. Tara says if people respond that way, creative people won’t allow their works to be on the Internet.

Maybe it was rude. But that doesn’t justify getting the video pulled with a DMCA notice. Richter Scales might have been wrong, but so was Lane Hartwell — you don’t go whipping out the DMCA just because someone was rude to you. And if people continue to do that, then creative people won’t create things any more for fear of prosecution. Lane’s full statement is here, and she is still wrong.

Note:

I’m not going to comment on the whole sub-drama involving a comment made by Mike Arrington on my original post, which referred to Shelley as having a sexist agenda. It was irrelevant then and it’s still irrelevant now.