Like many, I have found Michael Yon’s reporting from Iraq to be indispensable and the flat-out best journalism currently being published on the war.
Like many, I have told myself that I am going to financially contribute to him in order to help support his continued efforts.
Like many, I haven’t actually contributed yet, and have felt quite guilty about it.
That is still all true – but today I’m feeling slightly less guilty about it.
Those of you familiar with my posts know how I come down on this issue.
I fully support Yon’s efforts – but
only with the implicit understanding that he will make his work freely available to every person on the globe to be consumed, used and debated in any manner that they deem fit. By “freely” available, I do not suggest that he should be given any financial incentives to continue his great work. I simply mean that the specific method of financial incentive should not be predicated on a “pay-per-view” style of access to the information. Nor should it be curtailed to certain audiences under the rubric of intellectual property rights.
I am admittedly still confused about what’s at the core of Yon’s complaint here. If he is merely protesting the fact that a picture he took is being incorrectly attributed as the work of someone else (i.e., an army photographer) – then I certainly understand him raising the issue. However, threatening a copyright lawsuit against the U.S. Armed Forces is the wrong way to go about it. All he would need to do is protest the issue on his blog. The rest of the blogosphere would certainly line up behind him which would no doubt result in a correction and apology from the Army (which I assume has also appreciative of his work on many levels and wouldn’t want to deliberately insult him).
However, if he is protesting the release of the photo because he personally finds the image disturbing (which seems to be the case ), then I’m afraid that is a different matter in my view.
So now that my views are laid out on the table, lets get to the reported legal defense that the Army has posited.
On its face, equating intellectual property infringement with damage to your real property or person seems like quite a stretch. However, many defenders of the current restrictive intellectual property scheme have not hesitated in equating intellectual property with real property in order to philosophically justify the current state of the law. I think both arguments are a grave mistake. But if you hold that one has an inherent right to intellectual property that they create just as they have a right to own real property, then you shouldn’t be surprised when those accused of infringement turn to defenses based on long standing notions of real property.
But as I said – I think both arguments are flawed at their core.
It seems to me that the Army has at least two more defenses that are more straightforward and on stronger legal ground:
1. The use of Yon’s photo is classic “fair use”. There is a “news” and commentary exception that factors strongly in a fair use analysis. On the surface at least, it seems that the Army was using the photo to report war-related news on their own and comment to their target audience that such events are what the U.S. Army is all about.
If Yon has a valid claim of infringement against the Army, then it seems to me that he would also have a valid claim against every single newspaper (and blog site) that printed it. Does this fact disturb you? It should. But unfortunately, given some of the conversations I have had with fellow bloggers on the bigger issue of copyright, I’m not so sure that it does.
You also need to consider the fact that Yon already gave permission to the Army to use the photo in their training manual. He didn’t want it going to the press because he is personally upset about the underlying event depicted in the photo. That may be understandable – but it doesn’t justify legal action against the Army in my book. In fact, it further proves the point that copyright restrictions have been completely divorced from the original justification of providing “economic incentives” for their distribution. Yon’s argument more closely follows the European notions of “moral rights” that an artist has for any work that is created – thereby being able to control how it is used even after it is sold or transferred to another individual.
What if those who shot the video of the planes crashing into the World Trade Center claimed that they were so upset about 9/11 that they didn’t want their video to be shown at all. No newscasts. No documentaries. Nothing. Therefore nobody would ever be allowed to see the images again? Would you give them the same consideration that Micahel Yon is asking for? What about the Zapruder film of the Kennedy assassination? That is a historically vital document that has generated debate in the past concerning the copyright/news value dichotomy. If you consistently say that all of these people have the right to forever banish their works from the public – OK, at least you are consistent. But then you should also be aware of just how far reaching copyright law is in allowing other people’s whims to shape your access to information in a democratic society.
What if the Army had decided to simply release their entire training manual to the press instead? Would that change your analysis – given the fact that gave explicit permission for it to be included in the manual? Does the inclusion of his photo then give Yon carte blanche to dictate who, when and where the Army can distribute their own training manual? That seems to me to be a frightening legal notion.
Also, the legal tenants of fair use are broad enough to consider the fact that Yon would not be able to do what he is doing without the protection and cooperation of the Army on some level. I am also assuming that he did not get specific permission or a release form from the Army soldier that he took the picture of. Given these facts, it seems that the Army has an perhaps even broader fair use claim on Yon’s photos of the Army in action than other entities or individuals.
2. The other argument is a simple one based on “sovereign immunity”. As a general rule, we usually don’t allow people to sue the Army for blowing up their property or injuring them if the injury was related to their conducting war operations. Propaganda is certainly a vital wartime activity. (I do not use the term “propaganda” as a pejorative here. It is merely meant to convey the fact that the U.S. Armed Forces as an entity has a right to communicate its side of how it sees events to the world, and the aspects of the story that it feels people should concentrate on.) That is a core military function, and it seems to me that they should be immune from liability if the use of one’s “intellectual property” can be shown to be rationally related to that function. (It should also be pointed out that there is Supreme Court case law expressly holding that states are immune from various forms of intellectual property lawsuits in the U.S. It would seem bizarre to have that conclusion and simultaneously hold that the Armed Forces are subject to such lawsuits in the midst of a war.)
But hey, I still love Yon’s work and am grateful for his efforts. I’m open to the notion that perhaps he deserves a formal apology from the Army. Hopefully that’s all it would take to put this incident behind us. That way I can go back to being an unabashed Michael Yon lover, instead of having to say, “I really love his work, BUT...”
[Update: Apparently the issue has been resolved as far as Yon is concerned. However, questions still remain over the specific reasons for the dispute and just what legal rights he is claiming for past and future works. So I think this post still remains relevant for people to ponder.]