Indeed, as most people who read this blog well know, I am a huge proponent of free speech. However, like all other enumerated rights, there are limits dictated by justice, and currently, a great number of bloggers have lept to the defense of a blogger in my city. However admirable the efforts to lend support are, we must remember that this is a matter of law, not ‘democracy’ or ‘mob rule.’
Let me preface this with a few broad strokes of the brush. The blogger in question is nobody that I know, nor have I ever read his blog until today. As far as this whole ‘situation’ is concerned, I do not take either side…I am merely giving my impartial, and semi-educated opinion. In no way am I intending to engage in the unsolicited practice of law, as I am a mere third-year student.
That said, Mr. Bates cites caselaw and claims that his hyperlinking of the concerned newspaper is protected by the “fair use” doctrine. The cited case is not on point with the issues in Mr. Bates situation; in fact, it is very far off point. In addition, this is not a case from the Tenth Circuit, which Oklahoma is a part of. Instead, it is a Ninth Circuit case from a federal circuit court in California. The Ninth Circuit is the single most overruled circuit in the country. In short, this is not a case that has any precedential value in the state of Oklahoma, either in federal or state court. Even if this was good law in Oklahoma, the analysis wouldn’t be precedential because the facts are completely different in Mr. Bates situation.
This letter in question received by Mr. Bates is not harrassing in any way, as it is a routine cease-and-desist letter. The material is copyrighted and encrypted by the newspaper, and they do have the right to ask you not to use it. It is not ‘fair use’ unless a court declares it as such. With copyrighted material, it is not their burden to defend it as such. Copyrighted material is the intellectual property of the holder of the copyright. This is not a matter of camraderie to arrive at a solution, as copyright infringement generally is a strict liability tort. Only a lawyer who undertakes to represent you can advise you on this matter.
Perhaps this is all fun publicity, and it must be a heady experience to receive moral support from the more highly respected bloggers. However, in this situation there are two options. Either comply with the request of the cease-and-desist letter and delink the copyrighted material, or secure legal representation. Our city has many fine lawyers who can advise you. Do not think that the blogosphere can serve as legal representation. It cannot.
9 comments
Caveat: this is not an attempt to practice law, merely an expression of an individual opinion, mine.
To use copy-righted material without the express consent (usually written) of the copy-right holder is a violation of copy-right law and tantamont to piracy and plagiarism.
I’m not familiar with Oklahoma law, but “cease and desist” means cease and desist.
There’s a difference between freedom of expression and piracy.
FYI. Here’s some info on the fair use doctrine at Title 17 U.S.C. section 107:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include”’
(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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
On second thought, Bates may have a point.
Yes, but relying on a Ninth Circuit case, when there is no S.Ct precedent concerning a blogger and a newspaper…. Plus, the ‘framing’ on site with paid advertisements on blog. And the paper encrypts. Just very ambiguous. Definitely legal representation is the way to go.
Yet obviously I respect your opinion, above all others round here.
Tidbits of wisdom from the proprietor of “I Can’t Believe It’s An Internet Law Firm!”:
“Mr. Bates, the state bar forbids me from promising you a big cash settlement. But just between you and me, I promise you a big cash settlement.”
“Don’t worry, Mr. Bates. I have a foolproof strategy to get you out of here. Surprise witnesses, each more surprising than the last. The judge won’t know what hit him!”
“Mr. Bates, don’t you worry. I watched Matlock in a bar last night. The sound wasn’t on, but I think I got the gist of it.”
Yea, norbizness, that’s the ticket. I’m sure Bates slept in a Holiday Express last night, too.
; )
Sadie you said: Only a lawyer who undertakes to represent you can advise you on this matter.
Best and Great advice.
You might add:
In the end, free legal advice costs more than a small retainer.
Going it alone can cost more than free advice or a retainer.
Linkage did not work in the Middle East, why should it work for you.
Frequently Fair Use is like Fox’s Fair and Balanced.
Nobody cares – really, nobody does – if he’s linked to their site or not, as we can get there without him. Except who the hell wants to get there.
Please forget everything I just said, as I am eleven years old, snuck to this site cause of the pretty babe at the top, and figured that while I was here I’d add my thoughts.
Sadie,
I respect your thoughts on this issue, and it’s nice to discover another Tulsa blogger.
I do have legal representation. Ron Coleman, an experienced intellectual property attorney, is representing me and has advised me that the World’s claims of infringement are meritless, and he has written a letter on my behalf advising them of the same thing. You can find the letter on http://www.batesline.com.
I take your point about the Ninth Circuit, but the point the judge made in that case about linking is true everywhere — you can’t violate copyright if there hasn’t been any copying. Fair use has nothing to do with the linking issue.
You mention that you hadn’t encountered my blog before, and in your comment you mention framing and encryption. I don’t frame anyone else’s content, I take active measures to prevent my site from being framed, and in fact I try to program all my links to open a new window, so it’s clear that the linked content is not part of my site.
I don’t see how encryption is involved at all. The pages I link to are unencrypted, and tulsaworld.com serves them using HTTP, not secure HTTP. They are not protected by a login or password.
As for quoting their content, I quote short excerpts for the purpose of commenting on it or criticizing it, and I link to the original so that people can read it in full and decide for themselves if my criticisms are fair or not. If you had to get their permission before quoting them to criticize them, it would chill public dialogue. That’s one of the reasons the fair use provisions exist.
I invite you to look through my site and see for yourself how I quote from and link to news sources.
The http:// protocol is founded on the principle of hyperlinking. The idea of “Deep Linking” being a crime is the product of corporate self-interest and lack of understanding about the nature of the Internet.
I’m a ‘leftie liberal,’ and I support Mr. Bates in this (and only in this). I also support the use of quoting legitimate news sources when producing criticism in a journal or blog.
Take the technology out of it for a minute. Imagine having to purchase rights to reprint conversations with strangers? The paper is basically a one-sided conversation with its readers, and IMO it is only fair that the reader / critic be allowed to respond in a logical and methodological manner: on their own web space that they pay for each month, in their own independent news source, wherever.
Perhaps corporate swindlers think it’s piracy to point to their proprietary content in a critical fashion. But I don’t. They should be honored that someone is providing feedback and actually reading the stuff. But instead, they take a cue from the RIAA and the MPAA and criminalize their readers. They ought to be ashamed of themselves.
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