{"id":10264,"date":"2008-11-08T18:58:33","date_gmt":"2008-11-08T23:58:33","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/ethicalesq\/?p=10264"},"modified":"2011-08-05T14:53:16","modified_gmt":"2011-08-05T18:53:16","slug":"copyright-cook-cuomo-warnings-wendy-wind","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2008\/11\/08\/copyright-cook-cuomo-warnings-wendy-wind\/","title":{"rendered":"Copyright, Cook & Cuomo (Warnings, Wendy & Wind)"},"content":{"rendered":"

.. three stories from around my town . . <\/em><\/strong><\/p>\n

\"\"<\/a> Copyright and Community Message Boards<\/em><\/strong>: To be honest, I’m surprised it took them so long.\u00a0 This week, our local newspaper, the Schenectady Gazette<\/em><\/a>, sent demands to stop copyright infringement to two popular community message boards that have for years been posting several Gazette<\/em> articles a day in their entirety (with attribution and a link to the Gazette<\/em> homepage, but no direct link to the article). One internet community focuses primarily on Schenectady<\/a> and the other on our major suburb Rotterdam, NY<\/a>.\u00a0 They both have lively discussion on public issues every day.<\/p>\n

update<\/em><\/strong> (Nov. 14, 2008): Yesterday, Pat Zollinger, Administrator of the local internet forum The Unadulterated Schenectady<\/a><\/em>, received the official desist letter from the Gazette<\/em>‘s lawyer, Michael J. Grygiel<\/a> of the Albany office<\/a> of Hiscock & Barclay<\/a>. Click to see the Letter<\/a>.\u00a0\u00a0 You’ll find a Comment from Pat <\/a>and my response below.<\/p>\n

At Schdy.Info and at the Rotterdam Internet forum<\/a>, there is a lot of talk that this whole crackdown is political, and Schenectady’s Mayor Brian U. Stratton is behind it.\u00a0 For the reasons given in my response below and my reply at the Rotterdam Forum<\/a>, I disagree.\u00a0 Of course, we don’t have all the facts and aren’t all that good at reading minds.<\/p>\n

At their Editors’ Notebook<\/em> weblog, the Gazette<\/em> Managing Editor Judy Patrick, posted an explanation titled “Link to us<\/a>” on Thursday (Nov. 6, 2008).\u00a0 It gives the hard-to-believe impression that Gazette<\/em> 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.\u00a0\u00a0 After praising the robust discussion at the internet fora, Patrick says:<\/p>\n

\"\" “We at The Gazette<\/em> 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.”<\/p>\n

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<\/a>, from The Chilling Effects Clearinghouse; or see my 2006 post at SHLEP<\/em><\/a> for more links and discussion, or my piece on Haiku and Fair Use<\/a>].\u00a0 The Gazette<\/em> editor then suggests an alternative that this weblog and millions of others regularly practice:<\/p>\n

“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.<\/em> That\u2019s 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.<\/p>\n

. . \"\"<\/a> By regularly posting a variety of Gazette<\/em> articles in their entirety, the community sites probably do deprive the Gazette<\/em> of some news-stand and at-home purchases, and certainly deter click-throughs to the Gazette<\/em> website, which help attract advertisers.\u00a0 Patrick is correct on the law, but whether this copyright crackdown is worth the bad will being created in the community is questionable.\u00a0 She tries to explain:<\/p>\n

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

I’m not sure how the two community message boards are going to react.\u00a0 The Rotterdam site initially issued a cryptic statement<\/a> about curtailing its activities.\u00a0 But, today, it seems to be back to business as usual.\u00a0 The rowdy regulars at both sites have been quite vocal<\/a> in their contempt and anger for the Gazette<\/em>. Some are suggesting that it is criticism of the Gazette<\/em> by the site administrators that provoked the crackdown after years of the Gazette<\/em> averting its corporate eyes to the copyright infringement issue.<\/p>\n

In a surprise twist, Gazette<\/em> reporter Justin Mason sent an email to the Rotterdam forum’s administrators, apologizing for the actions of his editors.\u00a0 See “Justin Mason explains and apologizes<\/a>” (Nov. 7, 2008).\u00a0 He gave permission for the message to be posted at the site.\u00a0 Among other things, Mason says:<\/p>\n

\"\" “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 Rotterdamny.info reprinting Gazette articles.”<\/p>\n

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

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.”<\/p>\n

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<\/em>.\u00a0 How the two internet community sites will adjust is also up in the air.<\/p>\n

We think <\/em>the link-quote-summarize approach used successfully by so many weblogs should allow the valuable discussion at the community sites to continue.\u00a0 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.\u00a0 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.\u00a0 Forum members need to be reminded that clicking through to the Gazette<\/em> article, and then returning to their forum, won’t really take more time than reading the full article at the community forum.<\/p>\n

background fyi<\/strong><\/em>: (Sunday evening, Nov. 9, 2008):\u00a0 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.\u00a0 I’m keeping them as part of the record and because they help explain a few of the messages in our Comment section:<\/p>\n

\"\" update<\/em><\/strong> (Nov. 9, 2008):\u00a0 As you can see in our Comment section<\/a>, I was quite surprised this morning to learn that the Gazette<\/em> staff has removed a Comment that I left at the weblog post by their Managing Editor that is discussed immediately below.\u00a0\u00a0 If I get an explanation from the Gazette<\/em>, I will let you know.\u00a0 I’ve attempted to reconstruct my removed comment here<\/a>. None of the other 52 comments<\/a> that I have left at the Gazette<\/em> website since February 2008 has been deleted by its staff. [You can use this Tiny URL to cite to this post: http:\/\/tinyurl.com\/fkaGazetteCopyright ]<\/p>\n

update<\/strong><\/em> (noon, Sunday Nov. 9, 2008): Gazette<\/em> Online Editor Mark Robarge just left a comment<\/a> 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<\/em><\/a>, where my first comment has indeed been restored.\u00a0 Given the number of senior moments that go on around here, I’m going to give Mark the benefit of the doubt.<\/p>\n

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\"\" ..\u00a0 Wendy Cook Gets It Together<\/em><\/strong>:\u00a0 Because she’s the daughter of Funny Cide<\/a> 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.\u00a0 (See our earlier posting about her arrest<\/a> and halting attempts at rehab<\/a>.) 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.\u00a0 Today’s Schenectady Gazette<\/em> 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<\/a>” (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.<\/p>\n

Wendy has admitted to possessing cocaine, but not to the other charges, and yesterday told reporters:<\/p>\n

\u201cI made a commitment in this process.\u00a0 I surrendered wholly to the creator. I have to come first. If I don\u2019t take care of me, I can\u2019t take care of my children. It\u2019s just an everyday commitment to wellness.\u201d<\/p>\n

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.\u00a0 Like Schenectady City Court Judge Christine Clark did at court yesterday, the f\/k\/a<\/em> Gang says:<\/p>\n

\u201cI\u2019m happy to see you doing much better.\u00a0 I hope you keep it up.\u201d<\/p>\n

\"\" Cuomo’s Quixotic Code of Conduct<\/em><\/strong>:\u00a0 We told you last July, in “Cuomo tilts at pols and windmills<\/a>,” 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.\u00a0 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.\u00a0 See “Wind power companies, Cuomo reach agreement<\/a>,” The Buffalo News<\/em>, Oct. 30, 2008); and “Amid Talk of Hidden Deals, Wind Firms Agree to Code of Conduct<\/a>” (New York Times<\/em>, October 30, 2008).\u00a0 According to the Buffalo News<\/em>:<\/p>\n

“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.<\/p>\n

“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.”<\/p>\n

The Code is, however, voluntary, and an article in yesterday’s Schenectady Gazette<\/em> (not available online without a subscription) is headlined “Wind power code gets mixed response” (Nov. 7, 2008).\u00a0 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.\u00a0 As Kevin Crosier, Supervisor of the Albany County Town of Berne told the Gazette<\/em>:<\/p>\n