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Copyfraud by New York Times
  • You can send letters to NYT editors by using the letters@nytimes.com email. I've just done so, I am sure somebody can write a better one that mine. Go for it, and tell them about free culture - maybe one of us will actually elicit a response? --Piotr Konieczny aka Prokonsul Piotrus| talk 16:05, 26 October 2010 (UTC)[reply]
    • Yes. Please let publishers know that you notice, when they illegally claim copyright on images or text to which they do not, in fact, own the copyright. -- Ssilvers (talk) 19:54, 26 October 2010 (UTC)[reply]
    • Isn't the copyright notice merely meant to indicate that the caption they wrote is under their copyright? The other photo page linked from that article uses the same page-layout style to give credit to the AP photographer. IANAE, but this seems like a mistaken accusation on our part. -- Quiddity (talk) 00:14, 27 October 2010 (UTC)[reply]
      • Doesn't matter. They still need to say that the image is under the cc-by-sa. /ƒETCHCOMMS/ 22:12, 28 October 2010 (UTC)[reply]
        • Explaining to them how they are meant to format the attribution for a CC-license, is a completely different issue from "copyfraud". We should definitely do the former, politely; but if there is no "copyfraud" involved, then that should be corrected here, posthaste. YesNo? -- Quiddity (talk) 01:17, 29 October 2010 (UTC)[reply]
          • That's nonsense, the cited copyright notice of the nyt is a generic notice which appears on all of their pages, in no way this is intended to imply that they own copyright of any image they display. The accusation of copyright fraud is frankly ridiculous and it's a shame that the SP did it - we should on the contrary be honored to see that a commons image is used by the nyt. And it's well established in common law that newspapers are not obligated to specify the license, author attribution is enough. Cenarium (talk) 01:33, 30 October 2010 (UTC)[reply]
            • I'd be interested to see references proving your claims that such copyright notices can be ignored with regard to images, and that common law exempts newspapers from the requirements of CC licenses. (The Nobel Prize committee was able to fulfill them too ;) That being said, I deliberately wrote the original story to avoid a direct copyfraud accusation and I am not quite happy that it was added after publication under my byline. For example, there is also the possibility that the NYT got direct permission from Beyer - I consider this unlikely and didn't check with him (he has been inactive on Wikipedia for a long time), but it should be taken into account before making a formal complaint. Regards, HaeB (talk) 02:40, 30 October 2010 (UTC)[reply]
              • Assuming good faith, I think that whoever is responsible for photo attribution at NYT just doesn't understand the concept of a free license (which I tried to explain in my email). What they should do, indeed, is in addition to author's attribution (BY) respect the share alike clause (SA) and note that the photo is licensed under CC-BY-SA. By not doing so, and with the likely automatic C by NYT template they add to all their pages, they seem to be illegally claiming copyright over the image they cannot. Our job is to politely point out to them that if they want to use freely licensed images, they need to learn how to do it properly. And there is no doubt that they need to learn it. If we manage to get a letter published and draw some attention to this issue, the better (perhaps somebody should contact CC or EFT to that issue?). --Piotr Konieczny aka Prokonsul Piotrus| talk 18:28, 30 October 2010 (UTC)[reply]
                • It seems there's a fundamental misunderstanding which I need to clear up. Come on, have a bit of common sense, did you actually click on the 'copyright 2010' link ? I will cite it: "All materials contained on this site are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of The New York Times Company or in the case of third party materials, the owner of that content." (emphasis mine) This copyright notice which you say is an attempt to 'appropriate to itself' third-party material (the 'evidence' of 'copyright fraud') in fact affirms the content owner's rights. The NYT is not legally obligated to specify the licensing information because they refer for use to the written permission of the content owner, which in this case amounts to the licensing terms. I never said newspapers are exempted of following copyright law w.r.t. licensing, they are not, and the NYT did follow it. There's a difference between the law and the 'nice' thing to do in licensing (as CC says). This method, of using a generic copyright notice affirming the rights of the content owner in lieu of a license/copyright notice appended to each third-party image, as long as the use is consistent with the licensing terms, has consistently been considered lawful by courts. The other things which CC recommends are 'nice' things to do (as they say), but not legally required for using the content. Wikipedia is not the centre of the world, an incalculable number of websites do this, not only newspapers like NYT, you'd think we'd know if it was illegal.
I would strongly suggest that, before getting up in arms and accuse the NYT of copyright fraud, you'd show some basic due diligence in understanding copyright law and its application. And the SP should now better than even insinuating this. Now please remove the insinuating wording from the article, thanks. Regards, Cenarium (talk) 21:57, 30 October 2010 (UTC)[reply]
I am still waiting for actual references that back up the above far-reaching legal statements, but I am not very optimistic, considering the naivete of your arguments (such as "an incalculable number of websites do this ... you'd think we'd know if it was illegal" - nicely rebutted in this article from the NYU Law Review, which begins by stating "Copyfraud is everywhere", demonstrating it even in publications of the Metropolitan Museum).
The requirements that Creative Commons licenses and many other free licenses place on reusers are not merely "the 'nice' thing to do", but are intended as mandatory. And while there are not many court decisions yet, some of them have already been recognized as binding in a 2006 Dutch court case ([1], regarding the "NC" of a CC-BY-NC-SA license - here we are talking about the "SA" of a CC-BY-SA license), and in the US case Jacobsen v. Katzer in 2008 [2].
From your claim that it is sufficient to "refer for use to the written permission of the content owner" to fulfill the SA requirement, I have to assume that you haven't read the actual license text ("You must include a copy of, or the Uniform Resource Identifier (URI) for, this License with every copy of the Work You Distribute or Publicly Perform").
If you are still convinced of your assumptions, you may also want to educate the users who monitor non-compliant websites at Wikipedia:Mirrors and forks that for more than 7 years they have been victims of a "fundamental misunderstanding" that you "need to clear up", and nominate Wikipedia:Standard CC-BY-SA violation letter for deletion.
Ownership is a separate issue, for which the linked separate page offers some weak defense, but it contradicts the main copyright notice. And again, over-reaching boilerplate copyright notices are nothing unusual (see the NYU Law Review article), but that doesn't make them legal.
I stand by the original (= current) wording in the Signpost article. The two facts are not in dispute, and the "but" has been explained at length. I can't understand your objection to Piotrus' comment either, but will leave it to him to respond if he deems it necessary.
Regards, HaeB (talk) 03:21, 1 November 2010 (UTC)[reply]
First, there are two distinct issues here: the accusation of copyright fraud, and the breach of licensing terms. Please do not conflate them in an attempt to discredit my position. Second, your answer shows that you misunderstand the following:
  1. the nature and intent of copyright notices,
  2. the nature of copyright fraud as defined by Mazzone, and
  3. the legal implications of breaching a license agreement.
With regard to the accusation of copyright fraud, the only evidence you present are the notices “Copyright 2010”, followed by “The New York Times Company” found at the bottom of pages, which according to your interpretation means that the New York Times Company claims copyright on all material present on their site. Such interpretation is easily refuted, when one consults the US copyright act; indeed congress intends the copyright notice in collective works to not only affirm the copyright protection for the collective work itself, but also for all material therein, even if the copyright holder of a specific content is not the same as the copyright holder of the collective work, who in that case should be duly credited. To this effect, we can find in 401(b): "If a notice appears on the copies, it shall consist of the following three elements: (1) the symbol © (the letter C in a circle), or the word “Copyright” [...] (2) the year of first publication of the work; [...] (3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner." (note the use of 'owner') and in 404(a) :"However, a single notice applicable to the collective work as a whole is sufficient to invoke the provisions of section 401(d) or 402(d), as applicable with respect to the separate contributions it contains (not including advertisements inserted on behalf of persons other than the owner of copyright in the collective work), regardless of the ownership of copyright in the contributions and whether or not they have been previously published.". The NYT does this scrupulously, the authors are credited, and when the NYT claims copyright on the image, it specifically adds "for The New York Times" after the author (random example). “The New York Times Company” which follows the copyright notice, is not part of it; a copyright notice consists only of the mention: "Copyright" or equivalent, followed by the date of last publication (cf text of the act). It means that “The New York Times Company” holds the copyright of the collective work, but not of all the material within, and this is the standard, decades old, lawful practice (which is not in itself at issue in the paper you mention, see after), mandated by the copyright act itself. Therefore, the assertion that by using such a copyright notice, the NYT claims copyright on all of its images, is absurd. This would be sufficient to dismiss any copyright fraud accusation in this case, but I feel the need to refute several of your claims, and point out numerous confusions.
Regarding copyfraud, you may wish to read how Mazzone defines it:"Copyfraud, as the term is used in this Article, refers to claiming falsely a copyright in a public domain work." (emphasis mine). It seems that the Wikipedia article expanded the definition: "claiming a copyright in a work where one is not legally entitled", this is certainly a reasonable extension, which Mazzone certainly had in mind, but it isn't his definition and was not the subject of his paper, which focused on public domain works (Mazzone cites the imposition of restrictions on valid copyrights beyond what the law allows as exacerbating the problem). For the purpose of this discussion, I'll adopt the extended meaning. Of course, copyfraud is an important and widespread issue ! And one that concerns Wikipedia, specifically in the use of faithful photographs of two-dimensional public domain artwork, legal under Bridgeman Art Library v. Corel Corp.. But you are seriously misreading Mazzone's paper if you think it applies in this case. Not just because the paper was concerned with public domain while in the present case it's material license under CC, but because the paper never makes such a sweeping (and absurd) statement that any copyright notice applied to a collective work is copyfraud. In fact, if you look at the examples he gives, particularly for collections, you'll see that the copyright notices there are followed by statements such as “[a]ll uses ... of images from the collection[ ] ... must be licensed by the Society in consequence of its proprietary rights.” (1053). This is such claims that are constitutive of copyfraud, but certainly not a mere copyright notice ! Note that this is the fundamental misunderstanding I'm talking about. This is not to say that news providers all are irreproachable in terms of copyfraud, for example you may have a case with foxnews, which includes just before its copyright notice the blanket statement "This material may not be published, broadcast, rewritten, or redistributed".
Therefore, the paper does not rebut my arguments, on the contrary it gives them credit. It is not naive to say that an incalculable number of websites use generic copyright notices and that if it were illegal we'd know it, it's common sense. Again this is mandated by the Copyright Act; yes it can be abused, but not here. It seems evident to me that by "the owner of that content", the NYT means copyright owner, ie copyright holder, as inferred by the context, and does not refer to material ownership (also, you'll note that the copyright act uses owner as well). Now to expand upon potential copyright abuse in the news industry. When the NYT uses material of third-parties, it cannot be held responsible for false claims of copyright by such third-parties. When they use photos provided by photo agencies, they must credit those as required by their contracts, they're not at liberty for example to say this is public domain because of Bridgeman v. Corel so we don't need to credit them, or they'd loose their contracts, even risk litigation. Even so, it would be too great a burden for the NYT to investigate the copyright status of all such third-party material. This is valid for all news organizations, so they need to affirm the copyright of third-party content, and also vitally need to affirm their own copyright. In this regard, news organizations can be put in parallel with universities (as developed in Mazzone's paper), as they are both victims and contributors of abuse of copyright, to various degrees. The NYT is amongst the least offenders, they make no abusive claims of copyright, the same could not be said of the other example I cited above.
You assert that "over-reaching boilerplate copyright notices are nothing unusual (see the NYU Law Review article), but that doesn't make them legal.". I have already showed that the copyright notice used by the NYT is perfectly fine. I am not sure what you would like, maybe a statement like: "This does not imply that the NYT holds the copyright of all contents therein.". But this is evident for anyone who knows what a copyright notice is, and for those who don't, they just need to click on the link to have this clarification. As pointed out above, the article by Mazzone doesn't support your assertion in any way, as there's no false claim of copyright. Copyright notices are legal, obviously, as I explained at length already, copyright fraud occurs only when false claims of copyright are made, but even so, those are not necessarily illegal. This is the whole point of the paper, that there's no efficient legal remedies against copyfraud, and that congress and other actors should act to address this issue. As the paper confirms, the only federal statute governing fraudulent use of copyright notices is the very limited 506(c). It is very difficulty to establish a copyfraud under this provision, and prosecutions are extremely rare (cf p 1097), so copyfraud in its vast majority remains legal in effect, in any case not legally sanctioned.
The lack of substance of your accusation prompts you to poke fun at my position in suggesting that I nominate Wikipedia:Standard CC-BY-SA violation letter for deletion. Again you don't know what you're talking about. The purpose of Wikipedia:Mirrors and forks is to investigate licensing compliance of mirrors and forks of Wikipedia, which consists of copies of entire or part of articles, not images uploaded on Wikipedia. Ironically, you seem to think that Wikipedia, Commons, (represented by the WMF) or Wikimedia editors have some kind of standing to defend the copyright status of such images, you even suggest the possibility of a formal complaint. But even if the image happens to have been uploaded on commons, it doesn't give the WMF (and a fortiori editors) any sort of standing (also something discussed in the paper), that's up to the author, or people who depend on the work financially or have a legitimate interest in it, to do it. The standard CC-BY-SA violation letter can be used correctly or incorrectly, I'll just say that I hope that people use it correctly, and hopefully the documentation gives some good advice on how to use it correctly, though could do better.
Now regarding the breach of the CC license. I'll address general issues first. You mention Jacobsen v. Katzer, but obviously you don't understand what's at stake there. Jacobsen v. Katzer established that the CC licenses were valid copyright licenses, that using material subject to it implied tacit agreement with its terms, and so that breaching them could terminate the contract and expose the user to copyright infringement litigation. But you failed to acknowledge two important points:
  1. that a breach of the license didn't necessarily terminate it, it had to be substantial enough and grounded in law, ie 'enforceable'. Some clauses are deemed unenforceable by courts, this is a general concept in contract law, and occasionally entire licenses are deemed unenforceable - this case established that the Artistic license was enforceable, particularly the nc clause, but it doesn't mean that all of its clauses are. And you gave a good example of an unenforceable clause: the requirement to give the url of or link to the CC license is unenforceable, it's in the terms but can't be enforced, the CC admits it, as you can see in their FAQ: "If you are publishing on the Internet, it is nice if the license citation links to the license on the CC website." Those are nice things to do (CC mentions several others), but not legally required. I'm not the one to say it, the CC says it. Cf also the mitigating factor 'in a manner appropriate to the medium you use' (subject to the appreciation of courts), a url in a byline of a newspaper is appropriate ?
  2. that even if the license is breached to the point of terminating it and exposing the (re)user to copyright infringement liability, it doesn't necessarily mean that there is actual copyright infringement (as CC abundantly mentions in the legal text itself, eg fair use can apply, and plenty of other factors).
Now regarding the specifics of Jacobsen v. Katzer, the breach of license is absolutely massive: commercial use of material licensed under terms explicitly excluding commercial use, and the copyright infringement is equally massive: large portions of copyrighted code used in the commercial product. The Dutch case is just as straightforward, again a commercial use of an image licensed under condition of noncommercial use. We're talking about massive breaches of license and massive infringements of copyright for commercial purposes here, and you want to compare those situations to the present case ? Compared to those cases, any breach of the license by the NYT seems extremely minor (and in fact, inexistent, as I will show).
You allege that the NYT violates the share-alike part of the license, this strikes me as peculiar. The NYT didn't alter the image, at most it re-sized it to lower dimensions; in the absence of any sensible modification of the work, it's considered the sole work of the third-party and thus, as they state in their copyright notice, the copyright rests entirely in the third party, so they implicitly license it with the license the third-party used. The NYT didn't impose any additional restriction on reuse. The sentence you quote is not part of the share-alike clause, as you can see in the summary of the license: it's the 'notice' part, and as pointed out above, CC reconizes that giving the CC url is not legally enforceable, just 'nice'. I don't see how there could be any issue with the share-alike part here.
The only issue is that they didn't say the image was under cc-by-sa. This is a technical breach indeed, I'm not going to argue on its enforceability in general, because there's not enough relevant available case law I'm aware of for that. But the present case is clear-cut, we're talking about an editorial use of an image illustrating a newsworthy event. Such use is allowed by the license (even if it were noncommercial, editorial use is not considered commercial), and the attribution is done, though minimal. Remember it's by-sa, by stands for byline, the crux of the license is that you should attribute 'with a byline' and share alike. Now look at the text of the license itself, the attribution should be "reasonable to the medium or means You are utilizing", 'reasonable' is subject to the interpretation of courts. An attribution consisting of the author and if relevant employing society, which are the 'bylines', has historically been considered sufficient for the medium of newspapers (mostly out of first amendment concerns), there are so many potential licenses so newspapers refer to the copyright owners, and this essentially passed along to the Internet. So that breach is greatly mitigated, it doesn't constitute an enforceable breach. Now for the online edition exclusively, remember a license is a special type of contract, so (after having considered the copyright issues) a court will see if the breach can be remedied, and if the copyright holder has cause for repay of damages. The constraints of online publishing may not be as challenging as on paper, so as a matter of contractual law (rather than copyright law), it may be possible that a court enjoins the NYT to mention that the image is under cc-by-sa on its online version, but extremely unlikely to impose any other remedy. Indeed, what kind of civil damages could exist here ? You'd need congressional action, or cases of more serious breaches upholding this requirement which would result in a chilling effect, to force the mention of the license for licenses making such requirements of 'notice'.
And all that assumes that the image is question is actually copyrightable, which is certainly not evident ! The Mandelbrot set and how to obtain an image of it are all common knowledge, so whether this particular image implies original authorship is not certain at all (especially in light of Bridgeman vs Corel, basically, is there originality in reproducing the Mandelbrot set ?). I won't argue at length now on those last points as I've not that much time on my hands, but can do so if you reply to those points with real arguments. Cenarium (talk) 03:08, 15 November 2010 (UTC)[reply]


Agree with HaeB, I have to say. Tony (talk) 12:37, 1 November 2010 (UTC)[reply]

Any arguments ? Cenarium (talk) 03:08, 15 November 2010 (UTC)[reply]
Principal's memo
Necropants

"to activate the garment's revenue-generating functionality"

Signpost for the win. LMAO, in a good way. Keep up the good tongue-in-cheek work. — ¾-10 23:38, 26 October 2010 (UTC)[reply]

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