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November 8, 2008

Copyright, Cook & Cuomo (Warnings, Wendy & Wind)

Filed under: q.s. quickies,Schenectady Synecdoche — David Giacalone @ 6:58 pm

.. three stories from around my town . .

Copyright and Community Message Boards: To be honest, I’m surprised it took them so long.  This week, our local newspaper, the Schenectady Gazette, sent demands to stop copyright infringement to two popular community message boards that have for years been posting several Gazette articles a day in their entirety (with attribution and a link to the Gazette homepage, but no direct link to the article). One internet community focuses primarily on Schenectady and the other on our major suburb Rotterdam, NY.  They both have lively discussion on public issues every day.

update (Nov. 14, 2008): Yesterday, Pat Zollinger, Administrator of the local internet forum The Unadulterated Schenectady, received the official desist letter from the Gazette‘s lawyer, Michael J. Grygiel of the Albany office of Hiscock & Barclay. Click to see the Letter.   You’ll find a Comment from Pat and my response below.

At Schdy.Info and at the Rotterdam Internet forum, there is a lot of talk that this whole crackdown is political, and Schenectady’s Mayor Brian U. Stratton is behind it.  For the reasons given in my response below and my reply at the Rotterdam Forum, I disagree.  Of course, we don’t have all the facts and aren’t all that good at reading minds.

At their Editors’ Notebook weblog, the Gazette Managing Editor Judy Patrick, posted an explanation titled “Link to us” on Thursday (Nov. 6, 2008).  It gives the hard-to-believe impression that Gazette editors were somehow never aware of the full-article postings at the message boards until reporter Justin Mason referred to one of them this week.   After praising the robust discussion at the internet fora, Patrick says:

“We at The Gazette like our articles to generate public discussion anywhere: in diners, on private message boards or here on our own Web site. But please remember that our stories are protected by copyright and posting them in their entirety without our permission violates that copyright.”

She correctly states that Fair Use rights do not cover such posting [to learn more see the useful set of Frequently Asked Questions about Copyright and Fair Use, from The Chilling Effects Clearinghouse; or see my 2006 post at SHLEP for more links and discussion, or my piece on Haiku and Fair Use].  The Gazette editor then suggests an alternative that this weblog and millions of others regularly practice:

“Posting our entire stories is not fair use of our copyrighted work. We don’t object when sites summarize one of our stories and then provide a direct link to the actual story on our Web site. That’s become a fairly standard way bloggers refer to published works. People who want to read the whole story are provided a quick and easy way to reach it. That sends readers to our Web site, which is important to us, but as well allows them to return to the original site.

. . By regularly posting a variety of Gazette articles in their entirety, the community sites probably do deprive the Gazette of some news-stand and at-home purchases, and certainly deter click-throughs to the Gazette website, which help attract advertisers.  Patrick is correct on the law, but whether this copyright crackdown is worth the bad will being created in the community is questionable.  She tries to explain:

“We are not a big corporation trying to stifle public comment; we are a small, family-owned newspaper trying to safeguard our intellectual property.”

I’m not sure how the two community message boards are going to react.  The Rotterdam site initially issued a cryptic statement about curtailing its activities.  But, today, it seems to be back to business as usual.  The rowdy regulars at both sites have been quite vocal in their contempt and anger for the Gazette. Some are suggesting that it is criticism of the Gazette by the site administrators that provoked the crackdown after years of the Gazette averting its corporate eyes to the copyright infringement issue.

In a surprise twist, Gazette reporter Justin Mason sent an email to the Rotterdam forum’s administrators, apologizing for the actions of his editors.  See “Justin Mason explains and apologizes” (Nov. 7, 2008).  He gave permission for the message to be posted at the site.  Among other things, Mason says:

“I just wanted to offer my apologies to [Administrator Jo-Ann Schrom] and the other users of the forum for my newspaper’s recent overreaction toward reprinting Gazette articles.”

He opines that the suggested practice of summarizing with short quotes and a link to the Gazette website is “much more flawed than the format used, seeing as though the Gazette still doesn’t publish more than a third of its print content online.”

He also declares: “Both myself and other reporters have discussed the site with them dozens of times before without them expressing any concern for copyright issues and whatnot.”

Mason is probably correct saying that “I have no power or influence over the editorial decision making process” and that cooler heads probably will not prevail. We shall have to wait to see how this public rebuke of his bosses and their “poor error in judgment” will affect Mason’s career at the Gazette.  How the two internet community sites will adjust is also up in the air.

We think the link-quote-summarize approach used successfully by so many weblogs should allow the valuable discussion at the community sites to continue.  However, the practice takes a lot more work for the administrators than merely copying an article in full, so it may limit the topics presented.  It may also mean that many of those joining in the discussion will not have all the facts available in the full article before they voice their reactions.  Forum members need to be reminded that clicking through to the Gazette article, and then returning to their forum, won’t really take more time than reading the full article at the community forum.

background fyi: (Sunday evening, Nov. 9, 2008):  Earlier today, I posted the following updates near the top of this posting; because the second update pretty much moots out the first one, I’ve moved them here, out of the way of the main story.  I’m keeping them as part of the record and because they help explain a few of the messages in our Comment section:

update (Nov. 9, 2008):  As you can see in our Comment section, I was quite surprised this morning to learn that the Gazette staff has removed a Comment that I left at the weblog post by their Managing Editor that is discussed immediately below.   If I get an explanation from the Gazette, I will let you know.  I’ve attempted to reconstruct my removed comment here. None of the other 52 comments that I have left at the Gazette website since February 2008 has been deleted by its staff. [You can use this Tiny URL to cite to this post: ]

update (noon, Sunday Nov. 9, 2008): Gazette Online Editor Mark Robarge just left a comment saying “David, my mistake in removing your comment from our Web site. I hit the wrong checkbox this morning while monitoring comments. It has been restored to the site.” He left a similar comment at the Gazette’s Editors’ Notebook, where my first comment has indeed been restored.  Given the number of senior moments that go on around here, I’m going to give Mark the benefit of the doubt.

..  Wendy Cook Gets It Together:  Because she’s the daughter of Funny Cide horse-owner Jack Knowlton, Wendy Knowlton-Cook’s slide into drug abuse and its criminal consequences has gotten far more attention than the initial sordid facts might otherwise have warranted.  (See our earlier posting about her arrest and halting attempts at rehab.) Ms. Cook lost custody of her children, did eight months in jail, and has spent three months in rehab, after an arrest in October 2007 for performing sex acts and snorting cocaine with her then 2-month-old son and 5-year old daughter in the back seat of her car.  Today’s Schenectady Gazette brought news that she may have turned the corner and be heading for brighter days. According to the article “Mom gets kids after rehab: Woman accused of prostitution” (Nov. 8, 2008), Ms. Cook now shares joint custody of her children with her parents, and is officially on probation, while continuing in a substance abuse program, and with ongoing monitoring by Social Services.

Wendy has admitted to possessing cocaine, but not to the other charges, and yesterday told reporters:

“I made a commitment in this process.  I surrendered wholly to the creator. I have to come first. If I don’t take care of me, I can’t take care of my children. It’s just an everyday commitment to wellness.”

As a former Family Court Law Guardian (lawyer for the child), I’m rooting for Wendy and her kids, and hope that her strong family support and personal commitment will mean she has favorable odds of success.  Like Schenectady City Court Judge Christine Clark did at court yesterday, the f/k/a Gang says:

“I’m happy to see you doing much better.  I hope you keep it up.”

Cuomo’s Quixotic Code of Conduct:  We told you last July, in “Cuomo tilts at pols and windmills,” that New York’s Attorney General Andrew Cuomo had opened an investigation into possible improper dealings between two wind power companies and local government officials, and into possible anticompetitive behavior by the firms.  Last week, we learned that the two target firms have agreed to abide by a new Code of Conduct promulgated by the AG’s Office to make the process of siting wind-farms more open and fair.  See “Wind power companies, Cuomo reach agreement,” The Buffalo News, Oct. 30, 2008); and “Amid Talk of Hidden Deals, Wind Firms Agree to Code of Conduct” (New York Times, October 30, 2008).  According to the Buffalo News:

“The code bans wind companies from hiring local government officials or their relatives for one year after approval of a wind energy deal. It also bans companies from seeking, using or receiving ‘confidential information’ obtained by a locality about a pending project. Companies also will have to post on a web site the names of any municipal officials or their relatives with any financial stake in the firms.

“Wind easements and leases will have to be publicly filed with county clerks. Companies must conduct seminars to educate their workers about preventing conflicts of interests in dealings with local officials.”

The Code is, however, voluntary, and an article in yesterday’s Schenectady Gazette (not available online without a subscription) is headlined “Wind power code gets mixed response” (Nov. 7, 2008).  It’s one thing for two companies feeling the pressure of a high-profile investigation to “voluntarily agree” to abide by the Code, but quite another for the industry in general.  As Kevin Crosier, Supervisor of the Albany County Town of Berne told the Gazette:

  • “It’s a lukewarm response to a very serious problem that’s plaguing local government throughout New York State.” And,
  • “Basically what they’re doing is leaving small communities to fight this on their own.”

The article states that at least one citizens group (Schoharie Valley Watch) plans to lobby to make the Code mandatory.  Cuomo and legislators such as State Sen. Hugh Farley, R-Niskayuna, say we should wait to see how the voluntary rules work.   Despite the popularity of wind power these days, we think the public is much more in the mood for regulation of energy companies than it might have been only a year ago.  The process of siting wind farms should be just as clean as the energy they hope to produce.

You may recall that my brother, East Aurora attorney Arthur J. Giacalone (see his essay “Zoning Challenges: Overcoming Obstacles“)  Arthur J. Giacalone, frequently represents homeowners in Western New York against wind power companies. He recently told the Buffalo News — in the article “Like it or not, wind power is changing the landscape in WNY” (by Michael Beebe, October 26, 2008) — that the wind companies decide where they want to develop and then approach large landowners and town officials to seal the deal before most of the town knows a project has been proposed. The News continued:

“Giacalone has won some and lost some in the wind battle, but he said the wind companies and the towns have the upper hand. His lawsuits are aimed at conflicts of interest, zoning violations, and making sure the state’s environmental quality reviews are followed.

“ ‘It’s hard for me to see the positive side of any industry when I see the sordid side of it,’ Giacalone said.”

I’ll see if I can get Arthur to stop by and Comment on this topic at his brother’s humble little website. [update (Nov. 17, 2008): See John Horan’s Global Climate Law Blog]

p.s. Apologies to anyone who thought the word “Wendy” in our headline referred to the luminous Wendy Savage, Esq.  If you need your WS fix, try this post or that one.  If it’s haiku you seek, here are a few from Billie Wilson, the centerfold guest poet in the newest edition of Upstate Dim Sum:

last light
wicker baskets
of nectarines

anniversary —
small craft warnings
on the radio

to-do list done
the day softens
into dusk

wind chill
the priest lifts her arms
to bless the fleet

… by Billie Wilson – Guest Poet in Upstate Dim Sum (2008/II)


  1. re: copyright

    I was surprised this morning to look at Judy Patrick’s blog post to find that your comment had been removed. has been posting articles in full since its inception in 2000 with the full knowledge of the Daily Gazette. It was deemed by Joe Slomka in an interview with Carl Strock for SACCTV-16 to not be a threat for the newspaper.

    It’s never been a threat. The articles are clipped from my copy and are in a picture format. Not unlike a copier version. To make them non-searchable by any of the search engines.

    I’ve always considered the paper to be the best for news coverage in our city and county, and would not like to see it go under. But the face of news is changing just as the population is.

    I wish our Daily Gazette the best always. I’m not sure at this point what to do, but I will take everything into consideration for our local paper.

    Comment by Pat Zollinger — November 9, 2008 @ 8:55 am

  2. Good morning, Pat. Thank you for sharing your perspective, as the Administrator of the site, and for telling me that the Gazette has removed by comment from Editor Patrick’s weblog. I was not aware of its removal and am quite surprised.

    I wish I had retained a copy of my comment. Here is my best recollection and reconstruction of what I said:

    Judy, You are clearly correct about Copyright law. Readers who want to learn more will find a useful FAQ on Fair Use and Copyright at this link:

    Whether asserting your copyright is worth the ill will created in the community is questionable.

    You give the impression that you did not know about the practice of posting Gazette articles at the community internet sites until this week. That seems impossible, unless the entire editorial board has been asleep the past few years.

    I have written about this controversy — linking, summarizing and quoting — at my weblog, f/k/a, and the post can be found here —

    At 9:18 a.m. today, I left this Comment at the Gazette weblog and so far it has not been removed:

    Judy, I’m surprised to find that my respectful comment, with a link to a useful resource that supports your position on Copyright Law, and one to my weblog post on this topic, has been removed by the Gazette staff. I would appreciate an explanation, and look forward to discussing it more fully at my weblog f/k/a, at .

    Comment by David Giacalone — November 9, 2008 @ 9:28 am

  3. David, I just looked again and your comment has been returned.

    I don’t know what to make of it outside of they reconsidered their position on your particular post.


    Comment by Pat Zollinger — November 9, 2008 @ 11:29 am

  4. David, my mistake in removing your comment from our Web site. I hit the wrong checkbox this morning while monitoring comments. It has been restored to the site.

    Comment by Mark Robarge — November 9, 2008 @ 11:35 am

  5. Thanks for getting my comment back up at your Editor’s Notebook, Mark. We’ve never mistakenly deleted a Comment at this weblog (it takes more than one click), but Senior Moments and Boomer Brainos abound among the f/k/a Gang.

    Comment by David Giacalone — November 9, 2008 @ 12:23 pm

  6. Good morning David. Regarding the copyright issue, I received a letter via FedEx from Hiscock & Barclay. It is posted on my website here:

    It is my understanding that this letter is mine and that I can copy it at will and freely distribute it. I also want to make note of the three specific articles at issue, all dealing with the “raise” that Mayor Stratton quietly slipped into the City of Schenectady’s 2009 proposed budget. It was taken out with the council vote, and I wrote a viewpoint and sent it to the Gazette in late October 2008. I got a phone call on Election Day from Judy Patrick which I returned and now I have received this.

    I don’t want to sound cynical, but I do believe that this is politically motivated because I have posted the articles in picture format for over five years now, with the Daily Gazette’s knowledge.

    And I wonder, is that three “business days”?

    Comment by Pat Zollinger — November 14, 2008 @ 4:53 am

  7. Good morning, Pat. Thank you for telling me about the desist demand letter from the Gazette’s lawyers.

    As you know, I think the Gazette is correct about the infringement of its copyright, but the move might not make much sense as a matter of public relations. Of course, we have no idea whether the Gazette has some other goal in mind that makes enforcing its copyright a rational thing to do for business reasons. They do not lose their rights by not enforcing them up until now.

    I don’t know whether there is any “political motivation,” but that would not change the legal rights of the Gazette. They had to choose a few examples of infringement, and I’m not at all sure you can read anything into their choice — except that they chose articles of importance to the public that might have brought people to their site or caused them to buy a copy of the Gazette, if they weren’t able to read the entire article at your site. Of course, you have long held political ideas at odds with Gazette positions that might have caused them to act against you at any time over the past few years, if politics were at the core of their crackdown.

    Also, their editors were against Stratton’s salary increase, as were you and most of your members, so I’m not at all sure why your coverage of the issue would upset the Gazette. Have you have somehow especially irked the Gazette lately? This could be an example of why they say “don’t bite the hand that feeds you.”

    At your site, you seem to say that Mayor Stratton is behind this copyright enforcement effort, but if he had that clout he would have asked the Gazette to curb your site a long time ago.

    At your site you say that you don’t think there is a copyright infringement because you are posting in picture format from your personal copy of the Gazette. But that doesn’t seem to make any difference under copyright law — it is just another form of electronic reproduction. You took their content, reproduced it, and disseminated it in another format. Also, I just went to your site, and merely dragged one of your pictures of a Gazette article to my computer’s desktop, allowing me to use it in any way I choose, and further disseminate it.

    The “three business days” begin on the day you received the letter.

    Comment by David Giacalone — November 14, 2008 @ 8:11 am

  8. David,

    With regards to what Pat and JoAnn do, and the Gazette’s position that this is copyright infringement, how is it different than say a clipping from the newspaper (entire article) posted on a bulletin board, perhaps outside Arthur’s Market in the Stockade – or any market, library or community center, for discussion?

    It would seem that this is the same thing – yet I’ve never heard them taking such a strong position as this.

    Comment by Joe — November 14, 2008 @ 9:13 am

  9. Joe, there’s quite a bit of difference. If you buy a Gazette you can let anyone read that copy, or you can clip something from it and display it on a bulletin board. At the Internet Forum, they have copied the article into another format (digital) where it can be seen by many other people and can be further reproduced off of the forum site.

    Comment by David Giacalone — November 14, 2008 @ 9:26 am

  10. I’m really not sure how that’s different – an unconfirmed number of people could read it in either location. Both Rotterdam and Schenectady sites are using information from a PAID copy of the paper – they, from what I understand, both subscribe to the Gazette – and are sharing it, just like an old fashioned bulletin board.

    Because it’s digital -v- paper it’s bad?

    I’m not trying to be argumentative, just trying to understand the intrinsic difference. Thanks for your reply.

    Comment by Joe — November 14, 2008 @ 9:40 am

  11. David, I greatly appreciate your candor and experience in this matter but I would like to extend a couple of thought:

    Just because you could drag and drop a picture of an article from my web site doesn’t mean I have infringed on the copyright of the gazette. You could actually download their entire website for whatever you want to use it for.

    And I can hardly see where they could think that my website is the reason for their potential demise. The case they cite involves much more than mine. So I can’t help but think that maybe Brian or even Mark got together with Judy.

    There is no way I am taking their business away due to posting articles where people can comment on them. The politicians have not liked not having complete control.

    Just my opinion. I don’t recall any reason why they might be exercising “bite” control. I have always had great respect for the newspaper even though I have at times greatly disagreed with some but not all of their editorials.

    Comment by Pat Zollinger — November 14, 2008 @ 9:45 am

  12. Hey, again, Joe. At the bulletin board there is the one original newspaper article that someone purchased. Just like the one at the Library. The number of people looking at that article might be few or many, but it has not been reproduced so that it can be used elsewhere.

    If you guys all went over to Pat’s place or Jo-Ann’s to read their personal newspaper, the Gazette would have no case.

    Digital isn’t itself bad, but being digital means that it can readily be copied over and over forever.

    Comment by David Giacalone — November 14, 2008 @ 9:48 am

  13. Hi, Pat, There is no doubt that you have infringed their copyright. My mentioning that I could capture it from your screen was in response to your saying at your site that you were just taking a picture of it and people could not reuse it like with an MP3.

    I don’t know why they waited this long to ask you to stop, but they don’t need a good reason to do so. As I said before, if the pols wanted you silenced aand had the clout to do it, it is surprising they waited years. My guess is that the Gazette has some business reason for doing this now. They surely would prefer that you merely summarize and link to them, so that they get more hits and be more desirable as a place to advertise.

    Comment by David Giacalone — November 14, 2008 @ 9:54 am

  14. Pat,
    I really think you should get yourself down to a Barnes & Noble – purchase the latest best seller – scan the pages in and post them to your message board…see how far you get with that. I really cannot see what the big deal is here – LINK TO THE STORIES – it is easy – you can reference then to open in a _blank (new) window, so you are not kicking people off of your own site. This is easier than the process that you are going through now anyway. Maybe you are just trying to make a big deal about this to create discussion??

    Comment by Jim Grandy — November 14, 2008 @ 10:16 am

  15. Thanks for commenting, Jim. This is the first time a Gazette employee has left a Comment, after all my linking to your newspaper, and it’s good to hear your perspective.

    Linking is probably a lot easier than scanning and posting an article. But, as the sole writer and pundit at this weblog I can attest that summarizing or excerpting and linking is more work for the site administrator than just sticking up a copy of an article.

    Comment by David Giacalone — November 14, 2008 @ 10:45 am

  16. Mr Grandy –

    The Libraries of Harvard, Stanford, the University of Michigan, the University of Oxford, and The New York Public Library Join with Google to Digitally Scan Library Books and Make Them Searchable Online

    This blog authors own University is participating in this, do you feel they’re violating copyright?

    Comment by Joe — November 14, 2008 @ 10:47 am

  17. Joe, At the end of October, Google settled a copyright law suit challenging it’s digital library project, and will pay $125 million to representatives of the authors. In addition, the project is now basically being turned into a digital bookstore.

    An article says in Library Journal says:

    Under the broad strokes of the deal, Google will pay some $125 million to make the suits go away, $45 million of which will be used to resolve claims for those whose books have been digitized—roughly $60 a book to authors. The rest will go to such costs as legal fees and the establishment of a “Book Rights Registry” to facilitate future transactions.

    Individual users accessing books on Google Book Search, meanwhile, will eventually be able to preview significant chunks of in-copyright books online, or pay to see an entire in-copyright book, as well as order a copy or print it on a home printer. Meanwhile, the “snippet”—the short glimpses of in-copyright book content initially offered by Google—will be replaced by a “preview” function, offering up to 20 percent of the book, including entire pages.

    Comment by David Giacalone — November 14, 2008 @ 10:59 am

  18. David, if I may respond to Mr. Grandy.

    I do not copy you newspaper in its entirety, nor do I benefit from having them on my website. However I have printed out copies of articles at the library of both your publication and the Times Union. And I have boxes of saved newspapers containing articles which when are scanned can be sent via email to anywhere.

    I have only tried to generate discussion about issues within our community and have no desire to injure any publication.

    And your crack about scanning in a book purchased at Barnes and Nobles isn’t even worth a reply.

    And I dare to say David, that even though you are positive that I am infringing on copyright, there will be other lawyers who would interpret it differently.

    For God’s sake. We’re not talking about a multi-million page views website that is making bucks hand over fist.

    I’ve got 3 business days to decide what to do about this. I am still in a state of surprise that it was handled as such.

    Anyway, I hope to see everyone at The 3 Redneck Tenor’s playing at Proctor’s tomorrow.

    My tax dollars at work. :)

    Comment by Pat Zollinger — November 14, 2008 @ 1:03 pm

  19. Pat, If a lawyer advises you that you are not infringing the Gazette copyright by including entire articles on your website, you better turn him in to Bar Counsel for violating the professional duty to provide competent service.

    That is, of course, different from a lawyer being willing to take your money to defend against an infringement claim or to negotiate a deal with the Gazette.

    Comment by David Giacalone — November 14, 2008 @ 1:24 pm

  20. Reprinting an entire article as fair use? Maybe in 1% of cases, such as where you are doing an analysis / commentary on the article and need the whole thing to do so. Besides that scenario, though, this opinionated lawyer who litigates issues such as this from time to time would not defend the use described as a fair use even for a fee!


    Comment by Ron Coleman — November 14, 2008 @ 2:34 pm

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