I'm sure that's fair use, and not theft, because the Gray Lady doesn't do such things, and you're vile for even suggesting it.
But seriously, yes, sue. And offer to settle if Bill Keller prints a front page apology that makes note of the disconnect between his self-righteousness on the topic of copyright violation and his paper's (apparent) willingness to engage in it when it suits them.
Sarcasm isn't needed here. This place has been great because people say what they mean.
You said "I'm sure that's fair use, and not theft, because the Gray Lady doesn't do such things, and you're vile for even suggesting it."
Which could have easily been, "I don't think that's fair use, and believe it's theft."
The rest I don't even know how to unparse because it's not particularly useful. Are you saying everyone does it? Are you saying the New York Times vilifies anyone who argues they don't? Are you saying other people vilify others that don't?
Sarcasm is a way to say very little, and just be cynical with no justification. It's not adding anything to the discussion.
Oh, eat a dick you, pretentious scold. Your comment wasn't even meant to add something to the discussion, just gratify your ego, and worse, is dishonest in the way it does so.
Further proof that when media says "content is valuable and must be protected", what the really mean is "My content is valuable and must be protected. I don't give a damn about yours."
Just in case anyone else glossed over them, all the links in the first few paragraphs are worth reading. A lot of pretty poorly articulated arguments lacking nuance, and a feeble half-defense of SOPA/PIPA that I didn't expect from the NYT, although I guess I could have known better, being the old gray lady...
Long story short: The original story was actually written by a freelancer that sold the story to a newspaper which The Phoenix gobbled up. The freelancer may have retained the copyrights to the story, except for the serial publication rights actually exercised by the original newspaper (but in either case, not the Phoenix). The Phoenix did not keep records or archives of its stories, and did not even know this story still existed...until the NY Times posted a copy of it.
The NY Times had no ability to get permission from the original copyright holder because no one knew who that was. They republished the original article as an appendix/supplementary item to another article published in the physical paper (available online at http://www.nytimes.com/2012/02/04/opinion/nocera-the-cost-of...).
This is the textbook definition of "fair use": providing a copy of an out-of-print, otherwise unavailable news article, for the purposes of supplementing a published news article. (Fair use is a multi-factor test with no fixed requirements...it's basically whatever use is "fair" in the context of the actual use.)
On what basis is it the textbook case? I'm not a copyright lawyer (or a lawyer of any kind), but here's the relevant section of the USC:
1. the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value
of the copyrighted work.
Note in particular item 3.
Mind you, the list is not exhaustive and judges are able to give their own interpretation on questions of substantiality. But very small units of copyrighted material (a few hundred words from a book, a 1 second sample from a 4 minute song) can break fair use. So I don't see how copying the entire work passes the substantiality test.
Furthermore, the NYT could have tracked down the source. They got the copy from Booth, Booth wrote it for the Real Paper, and a bit of legwork of the kind journalists are meant to be good at would have revealed that the Real News had been subsumed by the Phoenix.
Even if it's not a slam dunk, it's still a blinding act of inconsistency.
The points in consideration of fair use are just that.
Fair use is an affirmative defense. That is: it's not a right to copy, but a defense against copyright infringement.
There are four points to be considered. Generally a successful defense will hinge on at least one, but it may very well fail at others.
And there are other defenses which will also succeed. In Sega v. Accolade, copyright infringement was not supported, because the role of the work in which infringement was alleged was functional: Accolade were copying a verbatim string from Sega in order to provide game-cartridge / player compatibility. Copyright protection does not apply to facts ... or to functional aspects of a work.
Fair use IS a right to copy. Or more accurately, fair use is a limitation of the copyright holder's exclusive rights.
The term "affirmative defense" simply means the defendant "affirms" or acknowledges the action, but defends it on specific grounds (in this case, that the copying was a fair use and thus not a violation of copyright).
"...the fair use of a copyrighted work...is not an infringement of copyright."
The devil (or the lawyer's profits or the danger to user attempting to make fair use of a copyrighted work) is in the details of considering and balancing those four points, and that is done at the discretion of the judge(s) hearing the case.
Other limitations to the scope of copyright:
§ 102. SUBJECT MATTER OF COPYRIGHT: IN GENERAL
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
- Fair use isn't granted by some license-issuing or -exempting authority. It's determined in court. Meaning: you get sued for copyright infringement, you get lawyered up, you get a court date, you defend yourself. You're still out the costs and time, provided your accuser wishes to follow through. Law is very often a battle of attrition and wills. And often stupidity or arrogance among one or more of the parties involved.
- It's a defense. You're still making an unauthorized copy. That is, limiting a copyright holder's "exclusive rights to do and to authorize" reproductions, derivative works, etc. In order to assert the defense, you've got to be challenged at it.
Simply asserting "fair use" is not sufficient, though a reasonable copyright holder (or her legal counsel) might look at this and say "hrm, he's probably got a point".
I'm not a lawyer either, but from what I've read, the courts seem to evaluate all four of these bullet points when fair use is invoked. It's quite possible to be in complete violation of one or even two points and still qualify for fair use.
I have a hard time seeing how it doesn't fail all the fair use tests. Calling it a "textbook" case is huge overstatement, IMO.
1. The purpose and character of your use.
Verbatim republication, including original layout, etc. in a commercial publication - NYT.com is a paywall and ad-supported site.
2 The nature of the copyrighted work.
Originally published at some not-immaterial effort and expense in a reputable independent journal. Well known in the industry.
3. The amount and substantiality of the portion taken.
All of it, and the kitchen sink.
4. The effect of the use upon the potential market.
Destroys any chance the owner had of charging for this material.
You make assumptions about what the NY Times knew and didn't know that you yourself can't possibly know. My opinion is that it would have been easy for the Times (a crack news organization) to find the owner.
Also, you say that the Phoenix didn't know the story existed, despite the fact that the author clearly indicated that the story is legendary.
Long story short: spurious analysis of a complex issue.
This is far from textbook. If this is textbook anything, it is textbook "taking a calculated risk that no copyright holder is going to come after you for infringement". It's a variation on the risk calculation an individual does when downloading copyrighted material. In the case of an individual downloading an MP3, they may (unconsciously) decide that saving $0.99 is net positive versus a $5000 settlement (no better than 1 in 5000 chance that they're going to be discovered and lose). For the NYT, they must figure that whatever ad revenue they gain from the story isn't going to be offset by the expected value of a judgment should some unknown copyright holder emerge and actually assert their rights.
The only difference is the scale.
It didn't seem clear to me that the original newspaper was even going to be able to clearly prove it held the copyright to the material.
But this is not fair use. I'd categorize it as the same kind of benign and beneficial piracy that we all know promotes culture and the arts (just as sampling an MP3 illegally doesn't in fact harm the artist or even the label since it often increases the likelihood of future economic activity benefiting the actual copyright holders.)
Do you really believe if the shoe was on the other foot, the MYT would be ok with "it's fair use"?
I actually think the article's author would completely agree with you. Sane copyright would allow for this use, but I haven't seen anything resembling sanity WRT copyright as long as I can remember. and if NYT is pushing for that insanity, they absolutely should be held to that same standard.
IANAJ, but can you elaborate? I would have said they were the same, given that the editorial section seems to contain explicit opinions from the newspaper staff vs. other sections which are, at least theoretically, unvarnished fact.
"An op-ed, abbreviated from opposite the editorial
page (though often mistaken for opinion-editorial),
is a newspaper article that expresses the opinions
of a named writer who is usually unaffiliated with
the newspaper's editorial board. These are
different from editorials, which are usually
unsigned and written by editorial board members."
These usually have no bylines, or attributable to one person. They don't deal with topics covered by Mr. Keller, the most recent one being titled "The House’s Less Persuasive Ban on Insider Trading".
Essentially the Times has News, Opinion, Editorial. All of these are separate and the Editorial is the only one where the Times offers its "own" public opinions.
I think that's a good illustration of the quandaries of SOPA: the problem of figuring out these nuances of ownership without disrupting the flow of information. It's easy for a publication to determine whether they themselves are complying with fair use. Not so much with Google and it's automated high scale systems
Um. Slight over-reaction. They might be right, I'm not sure. They're certainly enjoying their moment in the sun to bring out this huge major offense against the Times. Its Jason Balir all over again isn't it!? OMG!
From what I can tell:
1. The NYT didn't run the story "Death and Football" on their site
2. They provided a link to a bad scan of the PDF of "Death and Football"
3. The story, "Death and Football", is not easily accessible anywhere else (if at all?)
4. The point of the main Times story by Nocera directly related to the article
5. The only offense so far is: the PDF was hosted on Times servers
The only thing you can argue against is #5 and I think you could make a valid "fair use" argument based on the some of the other points. The PDF provided context.
And again, if the "fair use" argument doesn't hold up I think any story about this "theft: would take 3 paragraphs and not 30 or so...
Disclaimer: I'm a former Times employee (developer)
Apologist much? The NYT posted the PDF on their own servers, not merely a link. The quality of the scan is immaterial. An entire article, without commentary or any other contribution, is exactly what fair use isn't. While _we_ may take an enlightened approach to republishing out-of-print materials, the thrust of the Phoenix's response is that the NYT hypocritically opposes reasonable approaches to copyright.
This is the textbook definition of "fair use":
providing a copy of an out-of-print, otherwise
unavailable news article, for the purposes of
supplementing a published news article. (Fair
use is a multi-factor test with no fixed
requirements...it's basically whatever use
is "fair" in the context of the actual use.)
> The only offense so far is: the PDF was hosted on Times servers
This is the entire offence. We're not talking about lifting a few paragraphs here, it's a pixel-perfect reproduction of a document with multiple overlapping copyrights, none of which the Times had permission to use.
My point was that the one thing you can take issue with is very likely "fair use".
I also believe that if the author has a legitimate claim it doesn't take 30 paragraphs to make a case.
Did you read it through? It took me a few reads to figure out the specifics of what he was talking about.
I'm guessing that the view by people here is that the NYTimes took an the Article and published it standalone, by itself, as they would one of their owns, without attribution.
That wasn't the case.
The NYT wrote an article, referenced the one in the PDF, and provided a copy of the PDF (of an old black/white scan) as context/background.
I understand the point you are trying to make - but the devil is in the details.
I don't think a Article and a Book can be properly compared. I also suspect that Harry Potter won't be out of print (digitally or otherwise), and as of now has a clear copyright holder to which you could ask (likes like original Times article includes interview with original author and may have their consent for what thats worth).
Each case is on its merits, and this is far from clear-cut. It is my opinion that this is very well fair use but there are plenty of opposing view-points here.
But seriously, yes, sue. And offer to settle if Bill Keller prints a front page apology that makes note of the disconnect between his self-righteousness on the topic of copyright violation and his paper's (apparent) willingness to engage in it when it suits them.