We've written a couple times about the online retailer KlearGear and its stupendously ridiculous policy of inserting a "non-disparagement clause" in its terms of service, which claims that if you say something bad about the company online, it can fine you $3,500. This is exactly what KlearGeaer attempted to do to John and Jen Palmer. There were all sorts of problems (even beyond the obvious) with this, which we'll get to in a moment. A few weeks ago, we noted that Public Citizen, now representing the Palmers, had issued a demand letter to KlearGear, demanding that the company clear up the Palmers' credit, which the company had ruined, promise to stop using the non-disparagement clause, and to pay up for the serious difficulties created for the Palmers' by KlearGear's illegal stunt.
Kleargear's response was to ignore the letter.
That was probably a mistake. Public Citizen has now officially sued KlearGear in Utah, and you should read the full lawsuit to get a sense of just how terrible and obnoxious KlearGear has been throughout this process. Among the many, many problems with KlearGear's actions are the following:
The non-disparagement clause didn't even exist when John Palmer placed his order. He ordered in 2008, and it did not appear in KlearGear's terms of service until 2012.
KlearGear never actually delivered the product that Palmer ordered. The negative review on Ripoff Report appeared to be an accurate complaint about KlearGear's customer service.
John Palmer, who made the order, was not the same person who wrote the review. That was Jen Palmer, his wife. Even if the clause had been in there and had been binding, it would only have been on John. While KlearGear claims that John telling Jen about the problems still made him liable, that's just crazy.
Even if the clause had been in there, it's completely unenforceable. You can't bar someone from giving an honest review of your crappy service.
Palmer explained to KlearGear that Ripoff Report does not allow the removal of reviews, so that demand was impossible.
KlearGear not only demanded $3,500 and to have the negative review removed, it also told various credit bureaus that John Palmer owed them $3,500 that he wasn't paying, creating a serious credit problem for the Palmers.
When the Palmers disputed the debt claim with the credit bureaus, KlearGear insisted that the debt was legitimate and added an additional $50, again pointing to their terms of service, which had a "chargeback/dispute policy." Yes, this is adding insult to injury. Not only do they tell credit bureaus of a bogus $3,500 claim based on a bogus unenforceable term in a contract that didn't exist at the time of the failed exchange, but they add to the debt when the Palmers contested it.
I'm going to repeat that last point, because it's what shows how insane all of this really is. KlearGear failed to deliver a product, provided bad customer service, and then three years after all of this, the company added a "non-disparagement clause" to its terms, which neither of the Palmers agreed to. The company used that to demand $3,500 for the accurate review, then reported that bogus "debt" to credit bureaus for an accurate review of the company's own failures, based on an unenforceable term in a contract added years after the events took place. And then... it tried to charge even more when the Palmers fought back against the charge.
As the lawsuit details, the impact on the Palmers' life over a product John ordered which was never delivered, was fairly immense. The unpaid debt on their credit report harmed their credit, made it difficult for them to get a (pre-approved) car loan, likely increased the rate they eventually paid for the loan, meant that American Express refused to grant Palmer a card, and left the couple without heat for three cold weeks, because they were unable to buy a new furnace on credit, after their old one broke. Since then the Palmers have decided not to get a home equity loan to fix up their home, fearing the credit problem, and even though they want to sell their house, they're afraid to even try, given these bogus credit problems.
And KlearGear's response to all of this has basically been to stand by everything it did... and then to disappear when asked to fix it.
The Jonathan Coulton / Glee dispute has been getting a fair bit of attention lately, but it appears that Glee runs into this sort of issue quite frequently. Just a few weeks before all of this happened with Coulton, there was an article in Theater Mania about a choreographer pissed off that Fox refused to credit him for using his dance moves in a Glee rendition of "Let's Have a Kiki," by The Scissor Sisters. The song and the choreography (which was done by Brad Landers for free, without a contract, but with a promise to pay later if any money was ever made) became something of a minor viral hit last year, with a bunch of YouTube videos of people doing the same moves.
You can see the original below:
And... the Glee version, starring Sarah Jessica Parker:
It's pretty clearly a copy. Is there a legal claim there? Well... maybe. Choreography is copyrightable, and we've seen some lawsuits happen, but Landers was somewhat limited in what he could do because of the lack of a full contract and since he didn't register the copyright. In fact, despite Landers' complaints, one could argue pretty persuasively that he was made much better off by this situation. Thanks to the song appearing in Glee, that handshake deal finally paid off in terms of cash:
The Scissor Sisters, after receiving a sizable sum from Fox and Spirit Music for the rights to their song, paid Landers just as they had promised during that handshake.
What's interesting is that what upset Landers (and Coulton) was something that actually had little to do with copyright at all. Both were most perturbed by the lack of credit from Fox:
From the moment Landers saw the Tweet about "Kiki" on Glee, he has pursued one thing: credit.... Since, Landers has only pursued two things from Glee: confirmation that his choreography was being used in the November 29th episode, and some kind of documentation that stated his work was his work.
All of this raises a big question: why are Fox and Glee so averse to giving credit? It's been discussed many times before that credit or attribution is often much more important to artists than copyright itself. In fact, a recent study showed very strong evidence that credit has significant value to artists, often outweighing the value of any copyright claim.
So why doesn't Fox provide such credit?
It's free to do so. It basically costs them nothing, other than to add the names to the flashing credits at the end that nobody reads, or (better yet) in online notes to the show, which perhaps people will read. I've never understood why people are stingy with credit in such situations. Some suspect that (ironically) it may be copyright law itself that makes companies stingy with credit, since it opens up at least the potential of further legal ramifications. For example, if it's later found that a use is infringing, they can make a stronger argument that its "willful," potentially tripling any damages award. In other cases, it may just be general stinginess, and a feeling that the original creators don't deserve the credit, or that the people on the show would greedily prefer that they get the credit for such "creative" interpretations.
In the end, though, it seems like it would be a nice and neighborly thing to do to provide credit where possible, even if not legally required, and even if Fox wants to claim fair use. It would seem likely that such a simple free move would actually lead to much greater appreciation and support, rather than anger towards the show and its producers.
from the but-when-others-do-it...-it's-piracy? dept
Over the last few years, the NY Times has been whining about blogs and sites like HuffPo that it feels "pirates" its stories. Former executive editor Bill Keller trashed such things a few times over the past year.
Too often it amounts to taking words written by other people, packaging them on your own Web site and harvesting revenue that might otherwise be directed to the originators of the material. In Somalia this would be called piracy. In the mediasphere, it is a respected business model.
Now, as I said at the time, this is a pretty silly way to look at things. But it struck me as especially interesting since last week, we broke the news about the feds censoring Dajaz1.com for a year, before giving back the domain name. That was Thursday morning. Friday evening, the NY Times wrote its own version of the story... with nary a mention of our story. Their story didn't add anything beyond reporting what we and some others had done previously.
Now, let me be absolutely clear: I actually don't think crediting whoever scooped a story is really that big a deal. I tend to think it's a nice and neighborly thing to do, but hardly required, and I think some people put too much emphasis on it. However, I think it's kind of amusing that a newspaper like the NY Times, whose bosses have complained about others doing this kind of thing, would so regularly do this themselves. And, yes, the NY Times does this all the time. And, for what it's worth, people definitely noticed.
My point is not to complain about not getting a mention. My point is to highlight how the NY Times' looking down on other publications for supposedly just taking their stories and how that's "piracy," might deserve a pretty big rethink. News travels around in a lot of ways. Sometimes the NY Times gets there first, and sometimes they don't. Attacking others for reporting on the same thing they've reported on is going to make them look foolish when they do the same thing, as happened here.
Update: This morning both the editor and the reporter emailed to apologize and say that the original story did, in fact, mention Techdirt, but it got edited out by accident. To be honest, it's for reasons like this that I noted above that many people focus too much on the whole "credit" issue. The point of this post was never to demand credit, but to point out how when you always demand credit, it can come back to bite you. Either way, I appreciate the NY Times' quick response and the apology.
Whenever I speak about Free Culture at schools, I'm asked "what about plagiarism?" Copying and plagiarism are two quite different things, and you don't need copyright to deal with plagiarism. To make this clearer, I made a one-minute meme song and video about it:
As Mimi demonstrates with the giant Copy Machine, copying a work means copying its attribution too:
just copy the credit along with the work
When people copy songs and movies, they don't change the authors' names. Plagiarism is something else: it's lying. If Copyright has anything to do with plagiarism, it's that it makes it easier to plagiarize (because works and their provenance aren't public and are therefore easier to obscure and lie about) and increases incentive to do so (because copying with attribution is as illegal as copying without, and including attribution makes the infringement more conspicuous). American Copyright law does not protect attribution to begin with; it is concerned only with "ownership," not authorship. Many artists sign their attributions away with the "rights" they sell, which is why it can be difficult to know which artists contributed to corporate works.
I chose Beethoven to illustrate how copyright has nothing to do with preventing plagiarism. All Beethoven's work is in the Public Domain. Legally, you can take Ludwig van Beethoven's songs, Jane Austen's novels, or Eadweard Muybridge's photographs and put any name you want on them. Go ahead! You're at no risk of legal action. Your reputation may suffer, however, and you definitely won't be fooling anyone. If anyone has doubts, they can use that same copy machine - the Internet - to sort out who authored what. Lying is very difficult in a public, transparent system. A good analog to this is public encryption keys: their security comes from their publicity.
The song says "always give credit where credit is due," but in many cases credit is NOT due. For example, how many credits should be at the end of this film? I devoted about two and a half seconds to these credits:
Movie and Song by Nina Paley Vocals by Bliss Blood
But I could have credited far more. In fact, the credits could take longer than the movie. Here are some more credits:
Ukelele: Bliss Blood Guitar: Al Street Recorded by Bliss Blood and Al Street
What about sound effects? Were it not for duration constraints, this would be in the movie:
Every single sound effect in the cartoon was made by someone. Should I credit each one? Crash-wobble by (Name of Foley Artist Here). Cartoon zip-run by (Name of Other Foley Artist Here). And so on: dozens of sound effects were used in the cartoon, and each one had an author. What about the little noises Mimi & Eunice make? Not only could the recording engineer be credited, but the voice actor as well (as far as I know, these were both Greg Sextro).
I included a few seconds of Beethoven's Fifth Symphony at the end, which I didn't credit in the movie. Should I have? Why or why not?
I could credit the characters:
Starring: Mimi Eunice & Special Guest Appearance by Ludwig van Beethoven
I could be more detailed in crediting myself:
Lyrics and Melody by Nina Paley Character design: Nina Paley Animation: Nina Paley Produced by Nina Paley Directed by Nina Paley Edited by Nina Paley Backgrounds by Nina Paley Color design by Nina Paley Layout: Nina Paley Based on the comic strip "Mimi & Eunice" by Nina Paley
The ass drawing also came from Wikimedia Commons, where it's credited to Pearson Scott Foresman. But who actually drew it? I have no idea. I doubt that Pearson Scott Foresman could even legally claim the copyright on it to "donate" to Wikimedia in the first place, but there they are, getting credit for it instead of an artist. That's because copyright is only concerned with "ownership," not authorship.
Then there's the software I used, good old pre-Adobe Macromedia Flash. Should I credit the software? What about the programmers who contributed to the software? I also used a Macintosh computer (I know, I know, when Free Software and Open Hardware come close to doing what my old system does, I'll be the first to embrace it) and a Wacom Cintiq pen monitor. How many people deserve credit for these in my movie?
Mimi and Eunice themselves were "inspired" by many historical cartoons. Early Disney and Fleischer animations, the "rubber hose" style, Peanuts, this recent cartoon, and countless other sources I don't even know the names of - but would be compelled to find out, if credit were in fact due. Is it?
And so on. It is possible to attribute ad absurdum. So where is credit due? It's complicated, the rules are changing, and standards are determined organically by communities, not laws. I had to edit the song for brevity, but I kind of wish I hadn't excised this line:
A citation shows us where we can get more of all the good culture that Free Culture's for
Attribution is a way to help your neighbor. You share not only the work, but information about the work that helps them pursue their own research and maybe find more works to enjoy. How much one is expected to help their neighbor is determined by (often unspoken) community standards. People who don't help their neighbors tend to be disliked. And those who go out of their way to deceive and defraud their neighbors - i.e. plagiarists - are hated and shunned. Plagiarism doesn't affect works - works don't have feelings, and what is done to one copy has no effect on other copies. Plagiarism affects communities, and it is consideration for such that determines where attribution is appropriate.
At least that's the best I can come up with right now. Attribution is actually a very complicated concept; if you have more ideas about it, please share.
One of the worst parts of the DMCA is the anti-circumvention clause, which makes it a separate violation just to circumvent various "protection" measures -- usually DRM. There is a separate clause related to this, which focuses on altering "copyright management information" which most people have always believed to mean the digital information about the copyright holder associated with the DRM. However, a court case involving some naked DJs is putting that to the test. THREsq explains the details of the case:
In 2006, New Jersey Monthly magazine hired photographer Peter Murphy to shoot WKXW hosts Craig Carton and Ray Rossi for a "Best of New Jersey" issue naming the pair as "best shock jocks" in the state. The two radio hosts were photographed standing, apparently nude, behind a WKXW sign.
Later, after the magazine had come out, the WKXW website took a scanned copy of the photograph and put it on its website, inviting its fans to take the image, manipulate it, and submit the results. The station stripped away NJM's caption and Murphy's photo credit and never got permission to use the copyrighted photograph.
There are a variety of legal issues raised in the case (including a defamation claim for how the DJs reacted after Murphy complained), but the interesting one is that Murphy claimed that simply removing the credit line on the photo is an entirely separate DMCA violation, whether or not the use of the photo infringes itself, because it messed with the "copyright management information." The radio station and the DJs reasonably argue that this is preposterous, and the lower court agreed, granting summary judgment. However, the appeals court feels differently, and thinks it's an issue worth exploring, and sends it back to the district court to explore.
The court goes through what feels like a tortured reading of the DMCA to come to this conclusion, and determines that while this result may not be "desirable, it is not absurd." Really? It seems pretty absurd that you can violate a separate part of copyright law just by removing a credit. If this actually is ruled reasonable in court, it could mean that even in cases of fair use, if you remove the credit, you could still end up violating the DMCA. That doesn't make much sense.
You may remember, not so long ago, Rupert Murdoch was running around claiming that other publications "stole" from him. He gave a speech where he warned:
"The aggregators and plagiarists will soon have to pay a price for the co-opting of our content."
Of course, around that time, we highlighted the fact that Murdoch, himself, owned a whole bunch of aggregators, many of which acted much worse than the sites -- such as Google -- that Murdoch was complaining about.
However, over the weekend there was a nice example of how one of Murdoch's publications clearly copied a story from another publication and did not give any credit for it whatsoever. We noted earlier how Broadband Reports broke the story of AT&T deciding to put in place metered billing. Broadband Reports got a tip with a leaked email showing the new rules, and got confirmation from AT&T. Nearly every other report on the story credited Broadband Reports with breaking the story. However, when the WSJ (via Dow Jones Newswire) wrote the story, by reporter Roger Cheng, there is no mention whatsoever of Broadband Reports breaking the story.
Now, a few quick points, I don't think that every publication should necessarily have to credit who breaks a story. It's often the neighborly thing to do, and I think that many people appreciate it when it's done. But news is news, and if it's factual, then there's no proprietary nature to it. So, my complaint isn't simply that Dow Jones/WSJ didn't credit BBR. What I take issue with is when a company comes out and states, repeatedly, that it is going to crack down on other sites that copy its work -- who often do it while providing credits and links back -- and then chooses to publish without credit, that seems hypocritical. Don't say one thing and do another.
Of course, some others will (correctly) point out that Cheng appears to have contacted AT&T himself, and added a few tidbits to the story (even if it's been pointed out that he seemed to unquestionably accept AT&T's claim of congestion). So, defenders will claim this is "okay" because he did "additional independent reporting." And, again, it's great that Cheng did additional reporting. But it doesn't change that it appears BBR had the original report, and got the info out there. Even with the additional reporting, it appears that the WSJ was able to create a news report off of a lead from BBR. And this goes right back to the claims of Bill Keller last week in which he seemed to be saying when the NY Times builds off someone else's work, that's journalism. When new media sites do it, it's piracy. It's too bad that these newspapers claim that they're so against such things, but have no problem doing it themselves. Again, most of the actual actions that they do are fine... by themselves. But doing those things after claiming to be against them in others... that's hypocrisy.
This one is just bizarre. Romenesko points us to the news that the director of the University of Utah's Middle East Center, Dr. Bahman Baktiari, who regularly writes op-ed pieces for various newspapers, has been accused of plagiarism. His defense? He claims he had no idea he was supposed to attribute the content he copied. Plagiarism cases turn up here and there, but I think this may be the first time I've seen someone -- especially from an academic setting -- claim that they didn't even realize they were supposed to make it clear they did not write the content. And, it's not even like he picked obscure publications to copy. What brought this all to light was an op-ed he wrote for the Salt Lake City Tribune, which used at least four unattributed sources, including both the NY Times and the Economist. I guess that means if you're a student in one of his classes, you're now off the hook to copy at will without attribution...
The short(ish) version is this: the couple applied to refinance their home mortgage, as many people have done recently thanks to low mortgage rates. The plan was to use the refi to pay for some home improvements and to consolidate their debt by paying off whatever other debt they had. They asked the BofA rep they were working with for "the cheapest option," and the BofA rep simply put them into a program used for loan modifications -- specially developed for people who are behind on their mortgages, even though this couple was not. When they received the paperwork for this, they decided not to go with this program, because it had additional escrow costs and home insurance payments they didn't want -- so they instead decided they wanted a conventional mortgage.
What they didn't realize, was that as soon as the BofA rep put them into that particular "Making Home Affordable program," (even without the couple signing the documents) BofA immediately sent out a notification (without telling the couple) to the credit bureaus indicating that the couple wanted a loan modification due to financial difficulties. Almost immediately, all of their creditors freaked out: they dropped their credit limit on credit cards, had other creditors close their account, and had other debt automatically shifted to the highest possible interest rate category. Of course, this also killed any possibility of doing the refi, since their credit score no longer would allow a refi.
After many, many complaints to BofA, the bank apologized (in writing) and promised to remove the couple from being listed in the program and correct the credit report, but the couple was on their own in getting others to know about it. Except this foreclosure notice came months after BofA apologized and promised to fix things (which it hasn't fully done yet). The couple has been calling BofA to ask why and everyone they speak to notes that they've never missed a payment at all, but that the account is flagged as "under review." No one can explain why the foreclosure was set in motion.
Yes, this is a situation where BofA didn't just screw up, but after finally admitting its original error and promising to fix it, it has made an even bigger and more egregious error.
The TL:DR version: BofA screwed up and ruined a couple's (previously fine) credit rating, destroyed their plans for a mortgage refinance, and then after apologizing and promising to fix everything, decided to foreclose on the couple's house despite the fact that they'd never been late on a single payment.
Not surprisingly, the couple is now planning to sue BofA.
Remember that Washington Post reporter last month who got all sorts of attention for claiming that a Gawker writer "ripped off" his story, despite linking to it multiple times? Many mainstream press folks sided with Shapira, in using this as an example of how blogs "parasite" newspapers. Yet, as the actual numbers show, the real relationship is quite symbiotic, with stories moving back and forth across alternative media and traditional media. And... it seems pretty clear that alternative media is a lot more likely to give credit and/or link to an original story. We've highlighted a few different cases of those traditional newspapers taking stories from bloggers without credit.
So, the author of the blog post, one "Miss Heather" contacted one of the NY Post reporters, who quite openly admitted to using the blog post for his story, and then said it's against corporate policy to credit bloggers with scoops. Apparently, the same applies at the NY Daily News as well:
Post policy prevented me from crediting you in print. Allow me to do so now. You did a fantastic reporting job. All I had to do was follow your steps (and make a few extra phone calls).
I won't discuss at length the policy of not crediting blogs (or anyone else). I'll just briefly explain that as long as we can independently verify every bit of info, we don't credit.
Now, this isn't a surprise, but how come that Washington Post reporter's claims of blogs being "parasites" got so much attention a few weeks ago, when it involved a clear case where the blog quite deliberately cited and linked to the original -- but a situation like this, where the NY Post blatantly got the story from a blog and admits it, doesn't get any attention at all?
We've been hearing all sorts of stories recently about how aggregators and blog sites are apparently "parasites" on "real" newspaper reporting. For example, the CEO of News Limited (a subsidiary of Rupert Murdoch's News Corp.) just went on a nice little rant against bloggers, claiming that blogs are "barely discernible from massive ignorance." In fact, the idea that blogs are somehow "parasitic" to "real journalism" has been around for years.
Because of this, we're suddenly seeing a revival of the nearly dormant concept of a "hot news" protection, that would forbid other publications from "profiting" from a news source that has a hot scoop. We're seeing proposals to ban even paraphrasing the news from a source that breaks it or making profits from a story broken by someone else.
So, surely, a mainstream newspaper would never "parasite" a story from a blog without giving credit, right? We've already joked that newspapers (by their own definition) are simply parasites of the people who actually make the news they cover, but newspapers have a long history of getting their stories from other publications and rarely given credit.
To be clear: beyond common courtesy, I don't think there's anything wrong with this, and I'm calling out the following example not because I think the LA Times did something wrong. I just find it amusing that at a time when so many insist that it's the ugly mass of "bloggers" who "parasite" stories from the professional reporters, that we see the opposite. Last week, I believe I was the first publication to write about Yahoo, Microsoft and RealNetworks getting sued by MCS Music over failure to license composition rights on a bunch of songs those companies offered via their music services. That story was sent to me by Eric Goldman -- who I believe sent it to some others as well. A few other online only publications wrote about the story and credited my post, which was nice.
And then, the LA Times wrote about it, calling it an important lawsuit. Now, there are many different places where the LA Times and its reporter Jon Healey could have found that story. Others may have sent it to Healey. He may have been watching the legal filings himself. Eric Goldman (who sent it to me) could have sent it to him as well. But... what's interesting is that in describing the case, Healey links to the version of the filing that I, personally, uploaded to document hosting site Scribd for the purpose of including it in the Techdirt post. That suggests, pretty strongly (and I'm willing to find out otherwise) that Healey found out about the lawsuit on Techdirt (I know that Healey has read the site in the past, though that doesn't mean he still reads it).
Now -- again, since this will be misinterpreted -- I have no problem whatsoever if Healey did find out about it on Techdirt and if he then wrote about it and decided not to link to Techdirt as credit for where he found it. I'm not complaining about it. It's a neighborly thing to do, but certainly not a big deal in the long run. I just found the fact that this appears to be what happened rather amusing, given the claims of so many that it's the blogs who "parasite" the pros, when it appears that the opposite happens sometimes too. If some of these proposals that are floating around ever got anywhere, I could argue that the LA Times was unfairly profiting off of my "scoop." That would, of course, be ridiculous, but that's the sort of world we'll live in if those who are trying to jump on the "hot news" bandwagon get their way.
And that is the important point. News is news. Facts are facts. No one owns either. A lawsuit is just a lawsuit and if anyone wants to write about it however they want to write about it, they should be able to do so. To claim that whoever wrote about it first somehow gets to "own" the story or reserve all the "profits" from it -- whether it's by a newspaper, a new media publication or some individual -- is simply pointless.
And, the newspaper folks who are pushing for such rules might want to remember that it's just as likely to come back and bite them if such laws were passed.