from the yeah-we-love-fair-use-and-all-but-[ATTORNEY-BOILERPLATE] dept
Fair use is apparently the last refuge of a scofflaw. Following on the heels of a Sony rep’s assertion that people could avail themselves of fair use for the right price, here comes the New York Times implying fair use not only does not exist, but that it runs more than $6/word.
Obtaining formal permission to use three quotations from New York Times articles in a book ultimately cost two professors $1,884. They’re outraged, and have taken to Kickstarter — in part to recoup the charges, but primarily, they say, to “protest the Times’ and publishers’ lack of respect for Fair Use.”
These professors used quotes from other sources in their book about press coverage of health issues, but only the Gray Lady stood there with her hand out, expecting nearly $2,000 in exchange for three quotes totalling less than 300 words.
The professors paid, but the New York Times “policy” just ensures it will be avoided by others looking to source quotes for their publications. The high rate it charges (which it claims is a “20% discount”) for fair use of its work will be viewed by others as proxy censorship. And when censorship of this sort rears its head, most people just route around it. Other sources will be sought and the New York Times won’t be padding its bottom line with ridiculous fees for de minimis use of its articles.
The authors’ Kickstarter isn’t so much to pay off the Times, but more to raise awareness of the publication’s unwillingness to respect fair use.
The Times’ claim has no legal basis, and represents an arrogant rejection of the principle of fair use that is ironic for an organization that presents itself as a defender of freedom of expression.
We could have paid this amount out of research funds from our University, but it seemed to us unethical to use taxpayer funds to subsidize a big media corporation and undermine a right that belongs to all scholars and the public in general. So we paid out of pocket (our advance on royalties for the book will be $800).
The Times statement in response momentarily reflects on its status as a beneficiary of fair use protections, but swiftly moves past that brief digression to let its lawyers talk.
The Times strongly supports fair use, which is a complicated and highly confusing concept of Copyright Law. We are regularly on both sides of the fair use issue, as both content creators and users.
It would be impossible for us to make ‘fair use’ judgments for the vast number of people and organizations that wish to use New York Times content — we leave that to them and their attorneys to work out for themselves, just as our lawyers make judgments about fair use for The New York Times. If those third parties don’t feel comfortable that their proposed use of our content is a fair use, then we are happy to make the content available through our licensing program.
Our journalism costs money to produce and we share royalties with the reporters, photographers and others who helped create it.
Somehow, I doubt the lower level, non-attorney staff members support the Times decision to charge $1,844 for three quotes ranging from 69 to 102 words. Those closer to the street (as it were) likely have more sympathy for authors who’ve been handed a bill for quotations that is more than double the amount of their advance.