Just Because You Can Do A DMCA Takedown Doesn't Mean You Should...

from the think-twice dept

Many lawyers are taught (or learn from experience) to approach any legal issue by going to an extreme position, on the assumption that eventually there will be a negotiation with opposing counsel and a settlement will get worked out somewhere in the middle. That often made the most sense in many cases, but it doesn't work very well in lots of situations online today. And that's part of the reason we see, time after time, companies reach for the legal nastygram solution when an open conversation would work just fine. The latest example of that: Boing Boing alerts us to news that the site Apartment Therapy was the recipient of a DMCA takedown notice (actually, to be accurate, the NYT's lawyers went over their head and straight to their hosting company). At issue were blog posts on the AT site, which linked to the NY Times articles, but also used images from the Times' site.

There may be a fair use claim that could be made, but even if we ignore that and assume that this is, absolutely, infringement, the entire approach by the NY Times doesn't make much sense, and is representative of that "attack" line of thinking. As AT notes, if the NY Times had just approached them and asked them to stop using its photos, it would have. But, instead, the lawyers had to send a DMCA legal nastygram. Even then, it's difficult to see how this makes sense. The AT posts were designed to get people more interested in the NY Times' articles, by giving them a taste and sending them to the site. Why would anyone at the NY Times want to stop that? And that's especially true after the NY Times was just on the opposite end of a recent lawsuit. If people had just looked at this reasonably, rather than taking the default legal position, the NY Times might have realized that this site benefits rather than harms them, and even if they had felt otherwise, realized there was a much friendlier way to approach the situation.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Easily Amused, Mar 23rd, 2009 @ 3:40pm

    Mike, don't you know there is no room for common sense in our current litigious society?

     

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  2.  
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    John Duncan Yoyo, Mar 23rd, 2009 @ 3:43pm

    Richard III was right.

     

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  3.  
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    sehlat (profile), Mar 23rd, 2009 @ 4:49pm

    Not Richard III

    It was Dick the butcher.

    Henry VI Part 2 Act IV Scene 2

    Lawyers are useful, you just have to keep them on a leash. Of course in some cases, a leash about 9 feet long tied to the limb of a tree that's about 20 feet off the ground is about right.

     

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  4.  
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    Pay for Play, Mar 23rd, 2009 @ 4:58pm

    Incessant Infringement is not a Business Model

    Apartment Therapy screwed the pooch on this one. Not only do they freely partake of NYT staff photographers' images without getting permission, they also have published dozens and dozens of photographs from NYT contributing photographers.

    It should be noted that those photos, commissioned *by* the NYT, are not even available to be sold by the photographers themselves until an embargo period has passed.

    The reason for the embargo is to preserve the photographers' ownership rights while also protecting a period of exclusivity for the NYT, who paid for the creation of the pictures. It makes sense.

    That Apartment Therapy thinks it has the right to grab photos from other publications for free before the creators would even have the right to sell the pictures to them is warped to say the least.

    There are a lot of photographers feeling this recession very badly right now. And AT is doing a tidy business selling national ads to monetize their work without paying for it, and they are doing it wholesale.

    They'll keep doing it, too, until someone kicks them in the groin by filing an infringement suit. It's just a matter of time.

    Then they will start to get permission in advance of running visual content. Or, heaven forbid, actually spend some of that ad money.

     

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  5.  
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    Bruce A. (profile), Mar 23rd, 2009 @ 5:11pm

    To play a bit of the Devil's Advocate here:

    From reading the update on the post, it seems fairly clear that the primary issue was concerning the photographs used by Apartment Therapy.
    The reality in the world of commercial photography is that rights-managed usage licenses are the norm. The photographers charge for their work based upon the agreement that the licensee will only distribute it in accordance with their contract. Apartment Therapy was violating those licenses by "distributing" those images without permission--and apparently without even giving proper credit. As such, like it or not, this is indeed a clear violation of copyright.

    Now having said that, a couple thoughts come to mind:
    --Why is the NYT issuing the takedown notices and not the photographers themselves? If they are NYT employees, then ownership defaults to the NYT and the opinions above are valid, and
    --The world of rights-managed photography had better sit up and take notice of this situation as this type of "infringement" is becoming commonplace, and in many cases benefits the authors way more than threatening legal action. Allowances had better be written into the contracts *along with stipulations to provide proper credit* before the whole situations spins out of control like the RIAA/MPAA.

    Lastly, there is *no* excuse for sicking the legal staff before even making a phone call. But then, the NYT has gotten what they deserve from this, haven't they? A nice black eye from the AT readership.

     

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  6.  
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    Anonymous Coward, Mar 23rd, 2009 @ 5:25pm

    Re: Incessant Infringement is not a Business Model

    I read your post and all I saw was... BLABLABLA... I'm a liberal NYT fanboy...BLABLABLABLA... I like to hear myself talk...BLALBLABLA

     

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  7.  
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    Anonymous Coward, Mar 23rd, 2009 @ 5:41pm

    Fees

    If people had just looked at this reasonably, rather than taking the default legal position, the NY Times might have realized that this site benefits rather than harms them, and even if they had felt otherwise, realized there was a much friendlier way to approach the situation.

    But that friendlier way would not have generated nearly as money in fees for the lawyers. Don't you know anything about the legal system?

     

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  8.  
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    Anonophobe, Mar 23rd, 2009 @ 6:03pm

    Re: Incessant Infringement is not a Business Model

    Pay for Play:
    "screwed the pooch"
    "kicks them in the groin"

    You're kind of a sicko aren't you ?

     

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  9.  
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    Weird Harold, Mar 23rd, 2009 @ 6:19pm

    Re:

    If they are images submitted to the classifieds, example, they could be covered under a T&C that gives the times rights on those images (sort like what some file sharing companies do and facebook is trying to do).

    If the images are work for hire by the NYT, then they own the rights.

    If the images were outrightly purchased or used under exclusive contract, NYT may have the rights.

    What you call "sicking" (sic) the lawyers is actually pretty much normal procedure when it comes to takedown notices (you should see the ones AOL use to send out, man were they special). They are assuring compliance. Contacting the host with a dmca notice is a common way to do things, as discussed in other threads (and highly effecient). That they went to the hosting company first is a little surprising, but again, I have a feeling that not all of the story is out there for us to read. (I didn't run that red light, it had barely turned yellow).

    What I notice looking at the site is that they use the images in a pretty big way on the site, it isn't google thumbs level stuff, but rather galleries of images. Does anyone have an example of an offending page?

     

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  10.  
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    IDontGetIt, Mar 23rd, 2009 @ 8:28pm

    who owns what

    "If they are images submitted to the classifieds, example, they could be covered under a T&C that gives the times rights on those images (sort like what some file sharing companies do and facebook is trying to do)."

    This is interesting.
    Lets say someone wants to sell a print of a picture for which they hold the copyright. They then include a smaller copy for inclusion in the classified ... then who owns what ?

     

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  11.  
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    BREWTON, Mar 24th, 2009 @ 5:19am

    The NY Times has every right to take such action but it seems counterproductive, as traffic is being pushed to their site and most importantly, the pertinent content is being offered to the public, online, @ no cost. However, doesn't it make sense that they would need to proceed with such action regularly in order to establish a precedent were the site to become a subscription based service again?

     

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  12.  
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    Dave, Mar 24th, 2009 @ 6:41am

    Re: Incessant Infringement is not a Business Model

    But why not send them an e-mail saying please stop or we'll be forced to sue?

    Then if they do it again, send the legal nastygram?

     

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  13.  
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    Ray Beckerman (profile), Mar 24th, 2009 @ 8:46am

    Lawyers' training

    Mike said:

    "Many lawyers are taught (or learn from experience) to approach any legal issue by going to an extreme position...."

    How I would put it:

    Many [inferior] lawyers [of the type being cloned these days by large law schools and large law firms which are oriented only towards achieving large 'profits per partner'] are taught (or learn from experience) to approach any legal issue by going to an extreme position......"

     

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    lrobbo (profile), May 23rd, 2012 @ 11:02am

    Again this is just another way to increase publicity and stamp your authoritative brand about the world.

     

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  15.  
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    fodder99 (profile), Jun 14th, 2012 @ 9:04am

    Re: who owns what

    Come on.. that is taking things too far, all this talk of who owns what is all down to the Capitalistic world [Western] in which we live, we really need to stop and think about where we are heading.

     

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  16.  
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    Temizlik şirketleri, Sep 21st, 2012 @ 1:29pm

    Richard III was right.

     

    reply to this | link to this | view in thread ]


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