Fair Use

So Kos uses his blog, just like Michelle Malkin, to parachute on the AP controversy and call himself a hero. In the post not only does he quote an AP article (something I had done earlier that day for fisking purposes), but proceeds to dump on both Rogers Cadenhead, Bob Cox and Ron Coleman for having the temerity to talk with the AP about guidelines :

"The dumbasses at the Media Bloggers Association, of course, are walking right into that meeting because they crave nothing more than creating the impression that they, you know, represent bloggers (they don't)."

This, mind you, after the fact that Rogers had asked for those guidelines. Here's the back story :

I don't care how much of star journalist is Scott Hansell (whom I've met before when he has covered Net Art events here in New York City). Scott ought to know better than to publish something like this :

The A.P.’s effort to impose some guidelines on the free-wheeling blogosphere, where extensive quoting and even copying of entire news articles is common, may offer a prominent definition of the important but vague doctrine of “fair use,” which holds that copyright owners cannot ban others from using small bits of their works under some circumstances. For example, a book reviewer is allowed to quote passages from the work without permission from the publisher.

I think this is part of the reason why he never seemed to get Net Art : He really doesn't understand that quoting, re-mixing and mashups are intrinsic to the vernacular of the digital age. That quoting is an essential part of showing "the real deal", of presenting things unadulterated and unfiltered so that when a blogger or an net.artist creates their own interpretation of that source, it allows for the readers, commenter and art audience to parse the quote from the interpretation and, in their own way, to render their judgement and interpretation.

Having a piece of the original is absolutely imperative in the age of reproduction. In the blogosphere for some, quoting is the version of a courtroom's witness box. Nobody was better at that than Steve Gilliard. Steve would present, if possible, the entire article before proceeding to fisk the writer's thesis and shred their logic to pieces. Yet the quote and link back to the source without alteration allowed for Steve's readers to have access the source's words right there and at that moment, giving them the opportunity to render as fair a judgement as possible.

The other way of quoting is more akin to cooking.

Last time you heard me rant about the Associate Press was in relation to Rogers Cadenhead's plight, where he was hit with more than 7 take-down demands and threatened with a lawsuit. Please read "AP has their legal vampires chasing bloggers. I blame Hilary Rosen" and "More about the AP copyright takedowns against Rogers Cadenhead" for the back story.

Well, within hours there was a boycott of the Associated Press by a big chunk of the single and community blogs that form the "netroots". Why? Because we have back channels of communication through which we talk to each other for either political or business purposes.

That was the case this past weekend.

OMG! This is a whole phenomenon. Via Librarian's Matter, I found more Code Monkeys. Here's my favorites :

• The Anime One
• Awesome Clockwork Orange version
• Those Asian dudes
• OMFG! A machinima version made with "The Movies Game", for a machinima show called TrashTalk ... Sweet!
• And another machinima version made with Sims2.

I have just wasted almost an hour of my life following my sons recent obsession. LOL!

This post wouldn't be complete if we didn't include the original code monkey. I give you, Steve Ballmer --Microsoft's Monkey Boy-- The Remix :

I am a member of The Open House Project, a collaborative and bipartisan effort organized by The Sunlight Foundation to bring practices of transparency and openness to Congress through the use of digital and internet technologies.

Today we are able to declare a huge win for bloggers and citizen journalists alike. This is what Beltway Blogroll reports :

C-SPAN To Offer Free Access To Hearings
Andrew Noyes, one of my senior writers, has been covering this breaking story for Technology Daily the past couple of weeks. It started when House Republicans criticized House Speaker Nancy Pelosi, D-Calif. -- and then retracted that criticism -- for posting footage from House floor debates on her new blog, The Gavel.

The story sparked a movement to make more congressional video freely available, and C-SPAN quickly obliged.

Here's what two C-SPAN executives said about the change in policy:

-- Executive Committee Chairman William Bresnan, the CEO of Bresnan Communications: "The C-SPAN board sees this as helping us carry out C-SPAN's public service mission. The cable industry created this network to allow citizens greater access to their government, and this enhancement appropriately reflects the rapid changes in the online information world."

-- President and co-chief operating officer Rob Kennedy: "Giving voice to the average citizen has been a centerpiece of C-SPAN's journalism since our network's founding in 1979. As technology advances, we want to continue to be a leader in providing citizens with the tools to be active participants in the democratic process.

This is huge.

Government cameras film all Congressional proceedings. The footage though, is broadcast mostly through C-SPAN. It is not clear to me if C-SPAN is a 501c(3) --even though their tag line is "created by the cable companies, offered as a public service" nowhere in their site does it say they are a not-for-profit.

If they are indeed a non-profit, they have been quite bullish about the "copyright" they hold on the public domain footage they broadcast. Basically they've made it impossible to use congressional video footage by having a few seconds of original content a the beginning of all congressional videos, slapping their logo on it and claiming, then it's their original content.

As much as I would like to take at face value the comments made by the higher ups at C-SPAN, this admission of fair use shows they are scared of losing what made them precious : their role of gatekeepers.

From the brilliant people of Gizmodo :
Putting Our Money Where Our Mouths Are: Boycott the RIAA in March - Gizmodo:

Alright, we've been following the RIAA's increasingly frequent affronts to privacy and free speech lately, and it's about time we stopped merely bitching and moaning and did something about it. The RIAA has the power to shift public policy and to alter the direction of technology and the Internet for one reason and one reason alone: it's totally loaded. Without their millions of dollars to throw at lawyers, the RIAA is toothless. They get their money from us, the consumers, and if we don't like the way they're behaving, we can let them know with our wallets.

With that in mind, Gizmodo is declaring the month of March Boycott the RIAA month. We want to get the word out to as many people as humanly possible that we can all send a message by refusing to buy any album put out by an RIAA label. Am I saying you should start pirating music? Not at all. You can continue to support the artists you enjoy and respect in a number of ways.

The campaign is simple. Basically boycott anything put out by Warner Music (US), EMI (Britain), Vivendi Universal (France) and Sony BMG (Japan and Germany), the companies that fund the RIAA and their ridiculous campaigns.

This is what I got late last night :

From: margaret_langston@timeinc.com
Date: 28 February 2007 06:57:58 PM EST
To: Liza Sabater ...

Subject: Re: DMCA Copyright Notice

Dear Website Proprietor:
I am an attorney for Time Inc., the corporate publisher of People Magazine. This will put you on notice that Time Inc. has concluded an agreement with a photo agency for exclusive rights to publish photographs of Patrick Dempsey and his family (including his newborn twins) in People Magazine and on People.com. These are the only photographs of Mr. Dempsey and his twins now in existence.

In the past your website has posted photographs which have been licensed exclusively to Time Inc. for publication in People Magazine and on People.com, in violation of Time Inc.’s exclusive rights.
This letter is an official notification under the provisions of Section 512(c) of the Digital Millennium Copyright Act that the posting of any photographs of Patrick Dempsey and/or any other members of his family with his newborn twins, would infringe Time Inc.’s rights in North America, Australia and New Zealand.

I have a good faith belief that use of such photographs in the manner set forth herein would not be authorized by of Time Inc., its licensing representatives, or the law. The information provided herein is accurate to the best of my knowledge. I hereby swear under penalty of perjury that I am authorized to act on behalf of Time Inc. for matters pertaining to notification of infringement of its exclusive rights in its copyrighted material.

Very truly yours

Nicholas J. Jollymore
Deputy General Counsel
Time Inc.
nicholas_jollymore@timeinc.com

Here is my response:

It's Friday, the perfect day for a time waster. So what did I find on YouTube while looking for silly cartoons? An awfully funny and definitely politically incorrect parody of Nickelodeon's SpongeBob Sqarepants.

Check out the totally not safe for work (NSFW) clip after the jump.

I haven't done any business blogging in a long while. Well, I have a reason now : The idiots of Splash News and 6 other agencies are happy slapping themselves on the back for threatening Perez Hilton with a lawsuit for photographs they claim he "stole" from their website.

Perez Hilton is to be hit by a multi-million dollar federal lawsuit from the top seven paparazzi agencies in the US.

Splash News, INF, Ramey, Bauer Griffin, WENN, Most Wanted and Flynet have joined forces to stop Perezhilton.com from using copyrighted images.
"Perez claims he is making a fortune off exploiting pictures taken by photographers. He blatantly violates copyright and makes advertising revenue off other people's works," said Gary Morgan of Splash News.

[...]

The seven agencies have spent the last few weeks conferring over how to stop Hilton. In an unprecedented co-operation between paparazzi and showbusiness agencies, the heads of the agencies agreed to take action.
A letter was sent demanding full payment of all infringed material or face a lawsuit next week.

I honestly do not understand why people in the gossip business hate Perez Hilton (aka Mario Lavandeira) so much. I don't know if it's because he is :

1. A successful blogger
2. A successful gay blogger
3. A successful gay latino blogger

Even if professional gossip bloggers like Mario wanted to register with the Splash News site and check the prices on their photos (which are not posted publicly, by the way), this is what they are hit with:

And Ask A Ninja makes it effing hilarious to understand.

[via YouTube - Ask a Ninja: Special Delivery 4: Net Neutrality]

Doesn't he sound like Strongbad?

Now back to net neutrality.

UPDATE | 9 June 2006
It is amazing what money will do. While there are more then 15 prominent sites running the Brangelina photos --the embargo is over after all-- I was insulted and berated by one of the lawyers of the company that serves the IP to my hosting company.

There are proper procedures that IP and hosting companies have to go through when there is a C&D. A C&D is not necessarily an order for a take down. Can you imagine if everybody could invoke the DCMA on an email everytime they didn't like something written about them?

I have been informally adviced that it is illegal to not follow certain steps and procedures and so I am weighing my options. Especially since I did not use the image to write about gossip but to criticize corporate tactics meant to curtail fair use and freedom of speech.

I am writing a longer piece on this issue especially the need for cultural creatives and progressives to invest in rock hard IT businesses. Back in the days art collectives like The Thing [ www.thing.net ] where dial-up networks themselves, 20 YEARS AGO, because they knew of the danger of being shut down for unpopular art.

To save democracy we are going to have to build a new infrastructure capable of sustaining it. That means, investing in businesses that will fight for fair use and freedom of speech instead of cower to the bottom line.

I get an AIM from Lynn and her husband saying to call them immediately. I freaked out given her recent health woes; but they reassured me it had all to do with the Brangelina photo.

The lawyers for TimeWarner AOL and Getty Images invoked the Digital Millenium Copyright Act sent a Cease and Desist letter to AboveNet, a company that services hosting companies.

With no questions asked, AboveNet immediately contacted Simpli.biz, the company that holds our servers. They ordered a "DCMA TAKEDOWN". It means, it does not matter if TimeWarnerAOL is lying about the infringement of copyright allegations. They would force Simpli to force me to take down the image within 24 hours or risk losing their IP and their business by having it blacklisted. And they can force them to do so because this kind of harrassment is protected under the Online Copyright Infringement Liability Limitation Act.

It really does not matter if I claim Fair Use. If I did not comply within 24 hours they would blacklist the hosting company and all IPs they held. What that means is that, once they blacklisted the IP, they would in effect put Simpli.biz out of business.

So what exists in place with the DCMA is a legally allowed harrassment system in place. If you are writing a blog that a big media company like TimeWarnerAOL finds to their dislike, they can use the DCMA to take you down, no questions asked. And the cost to fight to get back online makes it almost impossible for anybody to fight these kinds of battles.

So I asked Lynn what to do. She knows that ten years ago a similar thing happened to my kids' father with his Barbie spoof, The Distorted Barbie. It was the first in a string of actions that would culminate in Mattel v. Walking Mountain Productions [PDF].

This is what came out of our conversation :

My friend Joy Garnett, who is the the source of culturekitchen's guerrilla man logo, has also become an expert on fair use. She sent me this bit posted at the FairUseNetwork mailing list:

The fair use doctrine permits anyone to use copyrighted works, without the owners' permission, in ways that are fundamentally equitable and fair. Common examples of fair use are criticism, commentary, news reporting, research, scholarship, and multiple copies for classroom use.

[...]

News reporting = blogging.

TimeWarnerAOL owns People Mag. They happen to be one of the biggest lobbyists behind the DCMA (after the RIAA). They also declared with their new "anti-spam" policy how the stand against net neutrality : they want to create different paying levels of access to email, rss, web, ftp, you name it. The want as many tolls they can lay and control along the information superhighway as they can.

Which is why it puts into a whole different context these comments from the people of Hello! and Getty Images :

[via Shiloh Not Ready For Close-Up, Gets It Anyway - Yahoo! News]:

"It's a complete mystery," Hello!'s Herd told Reuters. "And we are very concerned at this breach of copyright.

"It is very difficult to control the Web and this proves how rampantly out of control it is. We have absolutely no idea how the picture was leaked."

A spokesperson for People magazine, meanwhile, had other ideas.

"Somebody from Hello! must have leaked it," the unnamed rep told BBC News. "I don't know how it got there."

However it did, it makes for a particularly pricey stealing of thunder.

As for Getty Images, which Pitt and Jolie announced earlier this week would market the photos, they claim the picture could be seen more as a teaser, enticing the celeb-savvy public into seeing the rest of the shots.

"Our legal team are looking into it and we will take it from there," spokeswoman Alison Crombie told Reuters. "But I really don't think it will devalue the pictures as everyone is dying to see the full set."

The C&D's are after the jump.

This is meant within the context of, the "fair use" provision of copyright law, under which this site posted the new family's image. It's meant to raise important cultural issues here where we can examine them as free citizens:

Now retired from a public education career and home with my own children, I dedicate daily effort these days to supporting parents in making their own (legal, non-abusive) discretionary decisions about their own children, from whether to have them in the first place, to how to help them learn without signing them over to the government. Parents are the creators of, and therefore the primary protectors-decision makers for, their own baby and child. That's one important principle at play here.

But that doesn't make everything biological parents decide to do wise, or ethical, or best for the child. Or for modern society at large. That's a whole different conversation and one that society MUST be able to have. I don't see any parent's right to sell exclusive images of such private moments as a given, any more than I'd reflexively defend Michael Jackson dangling his baby out of a hotel balcony for the world to gawk at, as long as no actual physical harm resulted - in other words, if he got away with the exploitation without immediate, demonstrable and actionable injury to the child. (Dropping it)

Because every single media outlet will link back to you as well.

We're experiencing some incredibly heavy traffic. Please be patient with us. In the meantime, check out at Perez Hilton's how Brangelina have, all by themselves, devalued the fabled exclusive.

Ah ... the power of the internets.

WELCOME PEREZISTAS!
WELCOME CBS READERS!
Media Advisory
Liza Sabater is available for comments about this post. Please use the "write to the author link" to get in contact with her.

UPDATE | 08 June 2006
TimeWarnerAOL has used a claim of DCMA against our Fair Use of the Hello! cover photo to force our webhosting company to take down the photo "or else".

Read all about how TimeWarnerAOL can get away legally with this kind of harrassment here.

A little levity for the end of the day; since babies past, present and future are everywhere.

Lawyers can be the scourge of democracy these days. You'd think the automatrons at People Magazine would have thought about all the digital details involving the publishing online of Brangelina's baby photo. No they obviously did not think of the little detail of time zones when paying for an "exclusive".

The photo has been disseminated all over the internet but thanks to Perez Hilton's growing notoriety, he's been slapped with a cease and desist; which he is obviously relishing at Celebrity gossip juicy celebrity rumors Hollywood gossip blog from Perez Hilton.

I've been on one of those procrastinating funks this past week, not looking forward to the pain and misery of the possible Alito non-debate on the Senate over his nomination/confirmation. That's why I've been voogling and trolling the net for some good ol'mashups. I was hoping to find a lot of stuff with Lisa Stansfield since she is so discoey.

Jesusfruggingskipes in a handbasket.

It looks she has unleashed her attack lawyers on most of what is on the net. Thankfully, she hasn't come across Steve Lima ... or, if she has, seems his message of Shame on hold got through. It's a Lisa Stansfield and Evelyn Champagne mashup like none other.

This is why exclusivity copyrights are so damaging to building our humanity. They take away a part of our bodies and souls, our ideas, from the soft currency of culture and turns them into hard currency of capital; turning us, the producers, instead into commodities that in turn can be owned and traded as well.

Getting paid for one's fair share of labor is one thing. Turning ideas and expressions into cash with closed down copyrights is bad for not just for cultural production, but for our own souls as well.

Steve shows with his Futuro Mashups page what a soul warrior sounds like. Some notables:

Stoned Floyd
This one ought to be considered a masterpiece.
Conceptually, it's flawless.

What's Goin On(Unfinished)
What Cindy Sheehan has done for the anti-war
movement, Steve has done for the ultimate
anti-war song.

Free Love Child
Diana Ross and Nate? You don't have to be
a dancing queen to love how seemless they
sound here.

Born to Vertigo
The most perfectly illegal use of U2's music;
Negativland be damned.

Not only have these songs been given a new life, but they've gained a cultural significance that was not there until these mashups were created. Stoned Floyd is the perfect example of how two seemingly disparate songs from the same era come together stylistically when circulated for their enjoyment by people like me, hungry for the old to be new again.

In other words, there is nothing, and I mean, nothing like giving some things away for free and with no strings attached. Prestige but more importantly cultural currency are some things that money can't truly buy.