Just How Stupid Is The NYTimes' Threat Letter To Quartz Over Copyright Infringement?

from the let's-count-the-ways dept

Whoo boy. Back in 2009, we were somewhat pleasantly surprised to hear the general counsel for the NY Times, Ken Richieri, speak out on Doug Lichtman's IP Colloqium podcast (which, sadly, appears to have gone away), going somewhat against the grain of other news publishers on the issue of fair use. Lots of news companies were up in arms about "aggregation" by other providers, but Richieri noted that he was a much stronger believer in fair use than some of his colleagues, in part because he realized that newspapers often have to rely on fair use themselves. However, either he wasn't paying that much attention to the latest kerfuffle, or he's changed his stance. Earlier this week, the NY Times sent a copyright complaint to Quartz (the horribly designed, nearly unreadable spinoff from The Atlantic). The issue? A story on Quartz that highlighted their favorite charts of 2012. It's a nice bit of aggregation, with a small version of the graphics, some praise for the original publisher and a link back to the full thing. Here's what Quartz had to say (and show) about the NY Times graphic:
Obama’s chances, deconstructed

What an awesome utility. I spent all evening on the day of US election glued to this thing, answering my own what-if questions, watching different branches disappear as different states were projected. I love how the graphic takes a problem that’s way too crazy for mental math—the combinatorics of electoral outcomes in swing states—and makes it tractable, not by simplifying it, but by providing a way to explore the complexity. —Ritchie King
High praise. But, according to a lawyer from the NYT's... infringement:
While we are delighted that Mr. King found the graphic so admirable, I must point out that The Times owns the copyright in the graphic and the current posting infringes The Times’s rights under U.S. Copyright law. Accordingly, we hereby demand that you immediately remove the graphic from qz.com and cease and desist from any further use of any New York Times content in any manner whatsoever.
In response, Quartz is sticking to their guns. They did add the phrase "from the NY Times" after the link to the blurb, but they're arguing that it's clearly fair use. The NYTimes position here is really, really stupid, for many reasons. Here are just a few:
  1. The NYT's original graphic was interactive. That's what made it so special. It was useful for those trying to figure out the probabilities and what needed to happen for either major party presidential candidate to win on election night.
  2. In no way, shape or form, does this use take away from, compete with or diminish the NYT's successful graphic. It was a single screenshot of the original interactive graphic, not the full interactive thing.
  3. That graphic, as amazing as it was, was really only "useful" leading up to the election as people were trying to understand the route to the Presidency. It might also be useful after the fact as a historical look at the situation, but, again, it can only be used in that way on the NYT's site. The screenshot isn't useful in that manner at all.
  4. Quartz's use could only serve to drive more attention and traffic to the NYT's by highlighting what an awesome job they did with the graphic (which they did). In fact, other publications had no trouble recognizing the valuable publicity. Bloomberg publicly thanked Quartz for including one of its graphics.
  5. The use was almost certainly fair use from almost any angle you look at it. It didn't harm the market for the NYT's original graphic. It didn't use the whole graphic. It was used for the sake of news reporting.
  6. As noted at the beginning, the NYT itself relies heavily on fair use at times, and arguing against it can only come back to bite the company at some point in the future.
  7. But, most of all, this makes the lawyers at the NYT's look petty and vindictive for no good reason.
If the NYT were smart, it would issue an apology, saying that they got a little jumpy on the legal cease-and-desist trigger, and that it appreciates the publicity.

Oh, and in case they decide to go in the other direction, our use of the same image above is doubly a case of fair use, because the NYT's actions have now made that blurb and screenshot a specific news item itself, and it would be impossible to discuss the copyright/fair use/stupidity issue without including the graphic to explain what was going on.

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  1. identicon
    Anonymous Coward, 19 Dec 2012 @ 2:35pm

    Re: Uhh - interesting

    "The general case: if I would build a machine that can combine atoms to something - I wouldn't directly own the copyright to the whole universe, because it's ultimately a combination of atoms that could be built with my machine?"

    No, because:

    1) You can't claim copyright on everything. Perhaps your machine can create atoms that correspond to a DVD of "Star Wars", but that would just mean you produced an infringing copy. Perhaps it can create oxygen, but as useful as that might be, it's not a creative work and thus not copyrightable.

    2) You can't claim copyright on things until you fix them in a medium. Photoshop might be capable of producing any picture not yet taken, but that doesn't give Photoshop copyright over them, unless and until an employee of Photoshop actually produces that picture.

    This case is different because the creative design elements of the page are coded in. The user can only select a few predetermined things. They probably can't change the names of the candidates, the colors, the font, or pretty much anything beyond which states are indicated as won by which candidate. This is NOT the same as Photoshop (or your machine), where the user has full creative control.

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