The title of this post says it all.
Beyond the "dummy" comment in the title, I'll spare you from what I really think of Ms. Kathleen Robbins and the Wiley company. This is a family oriented blog after all...
Part 4 of the Tyranny of Copyright here.
Many have opined on the Mohammed cartoon controversy, but perhaps none have captured the real issues involved as succinctly, as eloquently, and as convincingly as has Ed Morrisey:
Freedom of speech necessarily means that people will be offended by its exercise. It makes no sense to guarantee free speech and then demand "voluntary" speech codes designed to take all of the potentially offensive speech out of the marketplace of ideas. Under those circumstances, what freedom does anyone have left? Those who want to exercise speech now have to meet everyone's threshold of offense, which in a global community means 6.5 billion standards.Of course, what we're talking about here isn't refraining from offending everyone, anyway -- we're just talking about meeting the threshold of a group of people based on their capacity for violence. After all, as Kinsley points out, the Muslims themselves have routinely printed the most foul accusations and cartoons about Jews, Christians, and Westerners in general, and they're not proposing to stop. All they're demanding is that we don't offend them, and they're killing people in order to make their point.
Offering respect and restraint in response to violence isn't an act of "maturity" or responsibility, as some argue [e.g. Hugh Hewitt--ed.*]; it's a surrender, and more dangerously, it's an invitation for the violence to spread. After all, when people see that the way to earn "respect" from the West and its media is to commit violence and riot in large numbers, that behavior will begin to repeat itself. That is exactly the reason we don't negotiate with terrorists of any stripe -- and this is no different.
If newspapers print offensive opinions, let the offended protest, boycott, and use free speech to counter with their own opinions. Those actions are a proper exercise in a free society. When the free societies start giving up their right to speak out because of violence, they give up their freedom and tacitly endorse the rule of the bullet and the bomb. In the end, we will all wind up as dhimmis if we allow that to happen.
[* Hugh references supplied; key text bolded.]
Check out Morrisey's entire post, it's a worthy read.
PS—The real irony here is that the very violence intended to squelch these cartoons is the most compelling reason why they must receive maximum circulation; violence must never be seen as an effective antidote to free speech.
The corporatist assault on free speech should admittedly take a back seat to the current (and even far more dangerous) Islamist assault on it. In the near future, I hope to eventually post my comprehensive thoughts on that, as well as Bill Handel’s (and my own) side-battle over the same larger issue. But that is a much larger post that is going to take some time for me to write down in a comprehensive fashion.
In the meantime, that doesn’t mean that people should still be complacent about the corporatist theater in the free speech wars now ravaging the world.
Here is the latest example of how special interests are trying to kill free expression through small incremental cuts. [Hat-tip: Instapundit]
Most people aren’t even aware of the unjustified restrictions on their day-to-day liberties until they run up against the crazy intellectual property laws that the legal/business class has created.
"A small New York company called Sew Fast Sew Easy has launched a trademark battle against Stitch 'N Bitch circles across the country. Sew Fast owner Elissa Meyrich, who claims to have started the first such group in New York in 1997, says the others are infringing on her trademark for an online message board that incorporates the name."Here I am minding my own business, and then it becomes obvious to me that I have to be vigilant about what is mine and belongs to me," Meyrich said in a phone interview from New York City. "People, you can copy things all the time, but don't copy my trademarks."
Meyrich's company has told groups in Chicago and Cleveland that they were infringing on her trademark. On Jan. 13, Yahoo, at Meyrich's instigation, sent cease-and-desist letters to knitting circles who list under that name on the Internet portal.
The letters sent some of the groups into a panic, but many vowed they would not submit. The knitters insist that Meyrich neither founded the movement nor owns the name, which some say dates to the 1920s."
I could understand someone legally retaliating when they say “Here I am minding my own business, and then somebody comes up and punches me.”
But instead, what we have is “Here I am minding my own business, and then I suddenly realize that I have to take legal action against a group of people 2,000 miles away because they use the phrase ‘Stitch and Bitch’ for their local club even though I used the phrase before them on an Internet message board.” This last quote was admittedly altered a bit from the original article, but that is the clear implication.
Just who is minding whose business here?
Yet this attitude is not only allowed by the law – it is subtly encouraged by it...
Disgraceful!
Tyranny of Trademark Law – Part 3 here.
Steeler fans, it will not do to shrug off the abysmal officiating of Super Bowl XL as "[some] close calls from the referees." Face it, the referees were the MVPs of the game.
This from ESPN:
DETROIT -- Three weeks ago, after the Steelers held on to upset Indianapolis, Joey Porter was unhappy about the overturning of Troy Polamalu's fourth-quarter interception that could have sealed the win much earlier. Believing that deep down the league preferred Peyton Manning and the Colts to win, Porter publicly criticized the game officials, asking them not to "take the game from us."Well, the Steelers can call it even now, as the officials who performed well enough throughout the season to earn the privilege of working Super Bowl XL performed Sunday as though they were trying to make it up to the Steelers by giving them the game -- not just any game, but the biggest game. ...
[...]
Hasselbeck hit Darrell Jackson with an apparent 16-yard scoring pass in the first quarter, but the play came back when Jackson was called for offensive pass interference. It was a touch foul. Jackson extended his arm, yes, but both players were fighting for position, and he didn't create any separation by doing so. It was like a referee calling a hand-check in a key moment of Game 7 of the NBA Finals.
The Seahawks had to settle for three instead of seven.
Still, that was early, and that one didn't change the game as much as did a holding call against Sean Locklear early in the fourth quarter with Pittsburgh leading 14-10. That one wiped out an 18-yard catch by Stevens that would have taken the ball to the 1. Locklear supposedly held Clark Haggans, so instead of first-and-goal at the 1 and the chance to complete a 98-yard touchdown drive and take a three-point lead, Seattle faced first-and-20 at the 29.
[...]
Here's what referee Bill Leavy's crew did, point blank: It robbed Seattle.
Even a guy who believed the Seahawks "didn't belong in a Super Bowl," admitted,
The first-quarter offensive pass interference called on Darrell Jackson that turned a touchdown into a field goal was robbery enough. But the fourth-quarter holding call on Sean Locklear made you wonder whether the refs had even less of Aretha's r-e-s-p-E-c-t for your Seahawks than I do.
By any objective reckoning, the Steelers didn't ride 'the Bus' (or any other player) to their fifth franchise championship—more than anything else they hitched a ride on the refs.
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.]
Alito stumbles badly out of the gate.
If this was Meirs rather than Alito, we'd all be marveling how quickly she'd 'grown into the office' of Supreme Court Justice.
A very inauspicious beginning, hopefully he straightens up.