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Thursday, December 18, 2008

Heckler's Veto: Blog Style

From Wikipedia:

A heckler's veto occurs when an acting party's right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party's behavior. The common example is that of demonstrators (reacting party) causing a speech (given by the acting party) to be terminated in order to preserve the peace.

While this normally applies to crowds of people at a public gathering, the internet is a similarly public place. And a similar thing is going on for the subject of copyright protection. There are those who oppose the idea of copyright itself--that people should be able to use any kind of work at all without fear of penalties--because creative works should be free. There are even those who feel that the internet itself is a domain where anything that's there should be taken. So, how do these people effect change in copyright enforcement? Heckler's Veto is an excellent strategy.

You start by seeding people with disinformation (about copyright) and holding up as examples those who have been sued for copyright infringement (especially those involving large sums of money). You then instigate crowds of people to submit loud, boisterous posts onto blogs and discussion forums, complaining about how wrong it is to sue someone just because they copied a photo. You then fool people into thinking that the "act" itself is not copyright infringement, and instead, the copyright holder is a "copyright troll". This then has the effect of those misinformed people committing the same act because they think it's ok. As this builds up, the aggregate total number of these actions build, copyright holders are either themselves misinformed about their own rights, or they are "drowned out" by the hecklers. And finally, the government steps in to revise copyright law to reflect what appear to be "social norms."

Sound like a bad TV show? If it were only so. It's been going on for a while, and the patterns of these goings-on is beginning to take shape.

A single case in point is this article from the website, cvillain.com. The article's purpose is to bring to light (and provoke discussion about) a claim of copyright infringement they received, brought by photographer Matt Rosenberg and his lawyer. cvillain.com used one of Matt's photos in a very brief blog article about garage bands. The problem is, the site didn't license the photo—instead, they used it without permission.

cvillain.com claims they did not infringe, and that the photographer and his lawyer are essentially exploiting copyright law to wrench a high settlement payment. They posit that the claim is "predatory," and that the company is now in the position of having to settle the claim, or spend more than $2500 in defending it. They are essentially boxed into a legal and financial corner. Their rationale for defending their case that they did not infringe is as follows (from their website):

  1. "...the use of the photos is Fair Use." Here, they included a link to a case involving Fair Use, along with the wikipedia entry explaining what Fair Use is.
  2. ... "we didn't post any pictures..." instead, "we only posted thumbnails." They also provide a link to legal case that mentions a particular case involving a thumbnail of a photo, and that the court ruled that the qualified as Fair Use.
  3. "... the use of the photos didn't actually harm the photographer or cause damages."

What gets my attention is not who's right and who's wrong. It's the dissection of the political strategy being orchestrated at a much higher level that I find interesting. The 757 comments (to date) posted in response to the incident are from people who sympathize with the defense, but the rhetoric they use is strikingly familiar. It's that familiarity that got me to take a much closer look at this case, and what might be going on underneath.

I use to the term, "Heckler's Veto" here, because a similar activity is going on among all the "hecklers" that wrote in to support the cvillain.com plight. While the term normally refers to government curtailing people's rights of free speech in order to keep the peace, the goal of the "hecklers" in this case is to effect the same outcome: to actually stop the copyright holder from exercising his right under the law to protect the economic value of his property—and to do this by voicing such objection to the practice, that eventually, the government may in fact have to step in to ... keep the peace.

The methodology used to achieve this goal is to employ the collective cries of uninformed readers who have no understanding or appreciation of how the law actually works, and to seed them with disinformation, which they then use to behave in ways consistent with those beliefs. To illustrate, here are the facts about their claims of defense:

  1. The claim that the use of the photo was permitted under "Fair Use" provisions of copyright law is baseless.
    In reality, Fair Use permits publication without consent when the purpose is to comment on the work itself. Just because there is a story and commentary, does not itself mean that permission is not required. If that were the case, then no newspaper or other media channel would ever have to buy images from photographers. That clearly isn't the case.
  2. The claim that "Thumbnails are not photographs" is silly.
    In fact, no one has ever made such a claim till now. But, I don't think that's what they really meant. It's clear their intent was to say that their use qualifies as Fair Use because it was published "as a thumbnail in an editorial context." The link they cite to support this is this article, which mentions a case where a website was sued for infringing on a thumbnail-sized photo of Brad Pitt, Angelina Jolie, and their baby daughter Shiloh. The use of the photo was deemed to be Fair Use, but not because it was a thumbnail. It was because the story was about the photograph itself, not the people. The story was talking about how the photo was sold for $4.1 million to a magazine. Because the story was about the photo, permission to use it is not required to reprint it. The fact that it was a thumbnail, or because it was editorial, is entirely irrelevant to Fair Use in this case.

    And that's precisely why cvillain.com is wrong here—they infringed on a photo because they used it for a story about garage bands, not as a story about the photo itself. To prove my point, I'm going to display the photo here, and I didn't ask permission from Matt to do so. (In fact, I don't know him, and I've never contacted him.) I am not culpable for copyright infringement because this story is about that photograph.

    Copyright Matt Rosenberg

    As a matter of fact, cvillain.com could now display the very same photo they are being sued about in the blog entry where they talk about being sued for using the photo. That would be a Fair Use of the photo because the blog story is about the photo. (Talk about irony!)

  3. The claim that the use of the photo did not harm the photographer or cause damages doesn't apply here.
    Determining whether harm was done is not used to determine whether an infringement took place. The only time "harm" or "damages" are used is for assessing the fines that are awarded to the copyright holder, such as lost profits, or harm to a person or company.

While it may appear that $2500 is a steep price for merely using a simple photo without asking, this is specifically by design: The very reason statutory damages exists in copyright law is because certain works (such as photos) may carry very little incidental value on on their own, where "harm" may not necessarily have been done. But unless there are strong financial consequences for stealing, artists have no other form of protection. If people like cvillain.com were to "steal" regularly and without worrying about being sued because there was no "harm", artists would never be able to make a living by selling their works because, well, no one would buy them.

There's no question that copyright law is a very detailed and provisional piece of legislation, and not everyone can necessarily get it. I see my photographs infringed upon fairly often, and when I notify someone of it, it's usually the case that they had no idea there was anything wrong, at which point, we work out an arrangement. Often, photo credit is sufficient; if it's a commercial use, we work out a "prevailing rates" license fee. In the few instances where the infringement is egregious, such as intentional removal of my copyright notice (which is on all my photos), or a blatant denial that they did anything wrong, or—worst of all—if it's a large corporate media company who themselves enforce strict policies for use of their content, then I can get pretty mean. And therein lies the responsibility of being a publisher: you have to know these things. If you don't, own up to it when you're informed.

Now, that's not to say that I'm unaware of or insensitive to the fact that some people can be caught up in a legal conundrum, boxed in a corner because of an unscrupulous copyright holder. But, the opposite can be true too: companies like cvillain.com can steal images and then cry wolf, hoping to get away without legally paying for works that they should. There are bad actors on both sides—anyone that "takes sides" on this issue is probably one that's been disinformed by someone on the other side, pushing an agenda.

And that's what I think is going on here. cvillain.com is so obviously guilty of infringement, that their denial of it begs the supposition that they really are aware of it, but are posturing their innocence for a greater agenda. Each of the websites the blog links to are all run by organizations that have a political belief that copyright itself is antithetical to free speech. Many also believe that damage awards are used to extort money by exploiting subtle and often inconsequential details of copyright law. So, in order to effect public opinion on the matter, they often hold up any and all copyright infringement claims as examples of such "bad behaviors."

The question then becomes whether their strategy is effective. On one hand, just about every untruth about copyright law is expressed in this blog, and such untruths are too easily disproved. It's hard to advocate a position that is so easily knocked down. Another strategy could be to play the "victim card" so as to garner public support: "We admit it! We were wrong! Don't exploit your rights unfairly! Help! Help!" While they may very well be crying crocodile tears, one can't really argue against it. At least, not on legal grounds.

The problem with that strategy, however, is that there is still the law itself to contend with; ultimately, that's what you want to change, and a whole bunch of sympathetic people don't help you. The armies have to mobilized and given a task. Hence, the original strategy of trying to confuse the public through disinformation has the advantage of encouraging certain types of behaviors under the (false) premise that "it's legal." For example, if people believe that thumbnails are not photographs, and that editorial uses of photos are permitted under Fair Use, and that you can publish photos without permission so long as there is "no harm" done, then people will do it.

So now, when it comes time to meet with congress and the copyright office, or to publish editorial opinions in the New York Times about how copyright is getting out of hand, or any other time you have a megaphone in your face where you can present your case to influential legislators, you can point to all those millions of people who are acting in compliance with your views of the world, and say, "See! All these people are doing it, and they're getting sued for copyright infringement." This may get the government to take away the rights that people once had under copyright law.

And then you will have achieved the ultimate Heckler's Veto.

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