Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: Gawker Removes Leaked Sarah Palin Book Excerpts

First off today, Gawker media was forced to remove excerpts from Sarah Palin’s unreleased second book from its namesake blog after a copyright complaint by Palin’s publisher Harper Collins. Palin had seen the excerpts and tweeted about them, prompting another blog post from Gawker making fun of Palin’s displeasure, but Harper Collins filed suit against Gawker on Friday and received a court order that brought the excerpts down pending a cout hearing on the 30th. Gawker will most likely attempt to claim fair use in the excerpts but may have an uphill battle as unpublished works are granted greater protection.

2: “Put Up or Shut Up” Time for US Copyright Group

Next up today, the judge overseeing the U.S. Copyright Groups’ litigation against thousands of suspected file sharers may be running out of patience. With thousands of potential defendants already having been named by their ISPs, having received a settlement letter and not being named in the suit, the judge has given the group until December 6 to name those that it wished to sue in that court, an indication that the court is losing patience with the process. The U.S. Copyright Group had requested an extension of five years as the court had ruled Time Warner, a major ISP, was only required to send a few contacts per month, requiring five years for them to complete the entire list, but the judge ruled that would be unfair to the defendants who had already been named by their ISPs.

3: Daily Mail Accused of Copyright Infringement, Once Again

Finally today, the London newspaper the Daily Mail is in copyright hot water again after another photographer has found his photo being used on the paper’s site without permission or payment. The paper recently found itself in a lawsuit with another photographer, where the paper famously claimed that, since the image was distributed over TwitPic, that they had been given an implied license to use it. Most legal experts find that to be a stretch of an argument though the case is being closely watched.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

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Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

The ordeal began when author Monica Gaudio noticed that one of her articles, a piece entitled “As American as Apple Pie – Isn’t!” had been published in Cooks Source magazine without her permission. Cooks Source is, or at least was, a magazine that claimed to specialize in Western New England area food.

Upon this discovery, Gaudio wrote the managing editor of Cooks Source, Judith Griggs, asking for an apology to be printed and for a $130 donation to the Columbia School of Journalism. The response she got was less than sympathetic. Griggs said:

But honestly Monica, the web is considered “public domain” and you should be happy we just didn’t “lift” your whole article and put someone else’s name on it!

Griggs went on to insult the original piece, saying that it needed a great deal of editing, and also insinuate that Gaudio should have paid them for their time and work on the piece.

This, in turn, caused Gaudio to write about this on her LiveJournal blog (see link above) and her post was followed up by a friend of hers as well. Soon the story began to spread like wildfire. Cooks Source site became inundated and is not functioning as of this writing and their Facebook page became slammed with angry comments.

The incident also drew a great deal of mainstream media attention including mentions on MSNBC, The Guardian, The LA Times as well as a comical look at The Boston Globe to name a few.

The story also took off on Twitter, where author Neil Gaiman jumped into the fray, and countless blogs jumped into it as well.

Now, with the scandal almost four days old, little seems to have been resolved. Griggs allegedly posted a more mocking response to her Facebook page, though there is some question if the comment is authentic, but there seems to be no resolution in sight.

But while it is easy and tempting to make fun of Griggs for her lack of understanding of copyright, it is important to note that the misunderstandings that fueled her reply are very common and have actually helped create many of the Web’s other copyright dustups.

As such, it’s worth taking a few moments to look at exactly where Griggs went wrong and why that view is seemingly so prevalent, even among people who should know better.

Public Domain vs. Public Domain

The day the scandal hit, I found myself in a Starbucks with Sara from SavingForSomeday, who is also a part-time copyright attorney, talking about the case. We both agreed that Griggs position was indefensible, from an ethical or legal standpoint, but also realized quickly that “Public Domain” may be the most unfortunately named element of copyright law.

The reason is that Public Domain can actually mean two things. First, it is a legal term used to describe works without copyright protection, usually older works who have had their copyright expire. Second, it is a broad term used to describe things that are public, such as works posted online.

This means that some things can be in the public domain, in the more mundane sense, and not be in the public domain in the legal one. Considering that you don’t have to register your work to have copyright protection in it, nor do you have to include a copyright symbol with it, it’s best to assume that everything you see is copyright protected until you can prove otherwise.

However, many people, don’t seem to understand this difference. Looking at the filings in the Lara Jade case, it seems that Robert Burge made many of the same mistakes himself, confusing appearances of the work onlne, with and without copyright symbols, as meaning the work is in the public domain (in the legal sense).

Both Burge and Griggs, at least supposedly, have decades of experience in their respective fields, fields that depend on copyright as laws that govern the industry. (Note: There seems to be some doubt as to Griggs background).

Though it might seem odd that, in an era where most high school students understand the basics of copyright, that so many who have made their living in copyright-related fields do not, it’s not surprising.

The reason is that the Internet changed the way these industries interacted with copyrighted content and, though they might have been well aware of how the law worked within the old paradigm, the Web has changed the rules, if not the law itself.

Just as most end users never had to really struggle with copyright before the Web, most publishers never had to deal with users and small publishers before the Web, thus setting the stage for some very embarrassing misunderstandings.

5 Minutes and $130

Of course, the one thing that is even more striking than Griggs’ misunderstanding of the law is her attitudes toward Gaudio. The entire matter could have been resolved in a matter of minutes with a written apology and a small $130 donation. If Griggs had done that, the matter would have likely blown over without another sound.

Instead, she approached someone obviously upset and angry with an equally hostile attitude. Far from apologetic, she was insulting, demeaning and completely deaf as to the reasons Gaudio was upset.

Now, as a result of this, the Web has declared war on this small magazine, completely overrun its Facebook page, shuttered its site and, most damning of all, found other examples of Cooks Source pilfering content from other sources.

Now, it seems likely that Cooks Source will face legal action from one of the other victims of their lifting, including several major publications and its future certainly doesn’t look to be too bright.

This isn’t to say that Cooks Source wouldn’t have eventually met its end for its infringement without this case, it’s amazing it went on for so long, but certainly would not have happened so soon.

The magazine may have saved itself a few bucks by thumbing its nose at Gaudio but it hardly seems as if it was worthwhile.

Copyright Infringement, Not Plagiarism

One thing that has been worrisome to me as I’ve read the varying reports on this is that many bloggers have called this matter a case of plagiarism. Unfortunately, thats just not the case.

By all accounts Cooks Source actually listed Gaudio’s name with their printing of the work. While that makes it a copyright infringement, it doesn’t make it a case of plagiarism. Simply put, plagiarism is the taking of another’s work and claiming it to be your own, that did not happen in this case (though the magazine didn’t provide a link either).

From an ethical standpoint, there is only a slight difference here. Griggs’ response is, in my view, at least as offensive as an act of plagiarism would be. Still, it is worth noting that since the work was cited, even though it was used without permission, it is not a work of plagiarism.

It may seem to be a minor detail, especially since it doesn’t paint Griggs in any better of a light, but it is a distinction well worth making.

Bottom Line

In the end, it seems unlikely that Gaudio will be getting much in the way of satisfaction for the infringement. Since it’s unlikely she registered her work, she doesn’t have any ability to sue and, if she does register it after the fact, will be limited to actual damages. Given the nature of the case, she would be hard pressed that the magazine gained much of anything from her work, certainly not enough to justify a legal case.

Sadly, from a practical standpoint, it’s unlikely Gaudio will be getting much of her demands met. That being said, she can definitely take pride in calling attention to Cooks Source behavior and, very likely, getting them in legal hot water with other publishers who do have their works registered and legal teams large enough to follow-up on the case.

All in all though, this case is a warning to those who publish online. There are many out there with great misconceptions about copyright law and at least some of them are in very dangerous positions. If you plan on ever suing for your work, you need to register your copyright and so do every three months. Likewise, you need to offer clear licensing guidelines and make your terms of reuse clear.

Though it’s frustrating that such steps are necessary, as this case illustrates, they are.

Hopefully Griggs and Cooks Source will get what they deserve for their infringements, not to mention their approach to those who are upset about it, but it unfortunately won’t be Gaudio herself that has that satisfaction. Instead, she’ll have to be happy with the fact that she set the dominos in motion and that anything that does happen will be the result of her standing up for herself and what she believed in.

However, this has given me a strange chance to monitor and track Myspace’s responses to DMCA notices and I’ve found it to be both worrying and interesting as it seems much of the response has been far from traditional.

In short, rather than simply taking down the infringing content or suspending users, especially those that repeatedly infringe, Myspace is marking their blogs or profiles as private and thus blocking them to all but the friends of blogger, making it unclear if the work has been removed or what other reprimands the person involved has received.

This new tactic is very disconcerting both from the perspective of a copyright holder seeking removal of the work and the user, who could be censored far beyond what is needed.

It is a bad policy for everyone and it has already ensnared at least one major Myspace user.

What Happens

If you file a DMCA notice, or likely an other abuse request, with Myspace, the reaction to it is inconsistent. Though this is somewhat expected given that the site seems to have many dozens of agents working on these issues, at least some of the responses are very frustrating.

Generally, you can break down the responses into one of three categories:

1. No Response: A few notices seem to fall through the cracks and receive no response at all. This is to be expected to a small degree and resending the notice almost always fixes the issues. The number is higher than I would like, but not so high as to frustrate me.
2. Remove the Work Directly: Myspace typically removes the work surgically, neither disabling the account nor the page itself if there is any non-infringing material. Photos are removed from galleries, individual blog entries are removed, etc.
3. Mark as Private: Finally, and most worrisome, is that Myspace will frequently mark blogs and profiles that have been the subject of notices private, thus removing them from the public view and making them only visible to the friends of the person.

Of the three outcomes, it can be difficult to predict which will happen and I am yet to find anything that seems to be an indicator of which will happen. Whether this is a case of individual agents having a wide amount of leeway in making decisions or me simply not having a large enough sample is hard to say.

Why this is Worrisome

This is a DMCA strategy where nobody wins. Though setting a blog or profile to private might seem like a great way to quickly remove an infringing work, it actually hurts both the complaining copyright holder and the person who is the subject of the complaint.

Consider the following:

• No Confirmation of Removal: If you’re the copyright holder, there is no confirmation that the infringing work has been removed and you are actually barred from seeing it for yourself (unless you can trick the other person onto “friending” you). If the work has been removed, there is no way to prove it.
• Doesn’t Resolve the Issue: If the work has not been removed, setting the blog to private does not resolve the issue as many Myspace members have hundreds, or even thousands, of friends that can still see it. Though search engines won’t be able to access it, many of the other dangers of plagiarism remain intact.
• The “Censorship” Factor: If you are the member that had the notice filed against you, this can turn what would usually be a very simple removal of infringing material into a censoring of everything posted. Where removing a single image or blog post might have sufficed, this censors all material posted, including that which is not infringing.

In short, it does not matter if you are the copyright holder or the user, this system has potential to backfire and backfire it has.

The PostSecret Debacle

Earlier this month, PostSecret, the popular blog and art project, had their Myspace blog shut down by the admins. At the time, the Postsecret Myspace blog was the most popular blog on the service but the Myspace admins set the blog to private, making it so that only friends of the PostSecret account could see it.

Though there was no clear explanation as to why the blog was set to private. The operators of PostSecret have since reposted the controversial postcards and have published a response from the Myspace admins saying the following:

As you may know, MySpace currently has nearly 118 million monthly active users around the globe. As we continue to grow we stay focused on keeping our online community safer, comfortable, entertained and informed.

While we welcome self expression and the ability for users to connect and share their offline lives online, we think it is important to keep you informed of how to have a safer and more secure online experience. And that is why we encourage you not to post personal information such as your cell phone number.

Though the matter seems to be resolved, the incident has left the PostSecret community, along with others on the Web, with a very bad taste in their mouth about how Myspace handles questions of abuse.

Conclusions

Dealing with abuse is difficult. Companies like Myspace and Facebook have my sympathies as they have millions of members, many of whom spam, post inappropriate content, use the service for copyright infringement or generally create trouble for the community. It is hard to create good abuse guidelines, even harder to find good abuse personnel and still even more difficult to implement those policies effectively.

However, it is important that users and copyright holders alike keep on top of companies to insure that their policies are both fair and effective. The reason is simply that it only takes one or two negligent hosts to create headaches for millions and a host with a bad policy toward its users can create a hostile environment for creativity and posting works.

Balance is the key but the current Myspace solution seems to injure both sides equally. In that regard, it needs to be stopped, if for no reason than to avoid future incidents like the PostSecret one.

Patry cites two reasons for closing the site down. The first being that many have refused to accept that the blog was a personal one and not one representative of his employer, Google.

To this effect, I personally have seen his blog quoted many times in the press and almost always associated with Google in some way. However, he makes it clear that Google did not ask him to abandon his site and, instead, encouraged him to write.

His second reason, that he has become too depressed over the current state of copyright, has been the subject of much more conversation. However, once again I am forced to understand his emotions (and often times share them) and respect his decision.

Though he will be missed dearly, I can find no fault in his reasons and can truthfully understand. Instead, I want to take just a moment to bid farewell to him.

A Great Copyright Mind

If you haven’t heard of William Patry, you would not be alone. Though you’ve probably read his writing, seen him quoted and felt his influence at some point, his name is not well known by those who don’t live and breathe copyright news.

Part of this is because his blog was what you might have expected from a 26-year veteran of copyright law, a rundown of the latest rulings, decisions and theories in the field. It was an invaluable resource to those of us who pondered these issues day in and out, but to those with a more passing interest, it was a steep learning curve.

Yet, it was a learning curve well worth taking on. Patry was, and still is, one of the smartest people in the room when it comes to copyright law.

Though his position as head copyright council to Google often put me at odds with his company’s policies, when he spoke on his personal blog, I, as well as many others, listened and we did so with a kind of reverence usually reserved for a teacher. His wise, thorough analysis of ongoing issues were always on the mark and his wisdom came through in every post.

His thorough analysis of current copyright decisions and his balanced, centrist view on the law that made his blog a powerful tool and a must-subscribe for anyone wanting to talk about copyright news on the Web. Both he and his valuable resource will be missed.

Even though it has been several years since I mentioned his blog on this site , save regular appearances in show notes for the Copyright 2.0 Show (I stopped covering most copyright news on this site a few years back), his influence has definitely been felt here and on countless other blogs and in the mainstream press.

William Patry’s blog will be dearly missed and I wish him the best with his future endeavors. I feel certain he has made an incredible difference in this area and leaves behind a great legacy.

Still, in a copyright landscape dominated by extremists, his centrist voice will be dearly missed.

Mr. Patry, thank you for everything.

Other Farewells

Technology Liberation Front
RIAA vs. The People
Patent Law Blog
Rob Hyndman