Thursday, May 27, 2010

Clarifying - Sorta - The RJ Web Policy

[Update: Sherm Frederick laid out his explanation today in a blog post that clearly acknowledges that discussing and linking to R-J material is fair use but ripping it off wholesale is not. In the process, I believe, he is protecting the value of the work the company owns. I'm appalled by most of what Frederick and crew have done in new media, but this legal effort seems prudent and appropriate.]

Many of you have written concerned that I could be in legal jeopardy because I frequently quote from and link to stories and other features on the Las Vegas Review-Journal's website. The cause for alarm comes from some recent lawsuits filed by a company called Righthaven LLC defending the R-J's online copyrights.

In those cases, Righthaven, a for-profit entity assigned the R-J's copyrights, is suing MajorWager.Com, Henderson Re/Max realtor Matt Farnham, and Citizens for Responsibility and Ethics in Washington Inc., MoneyReign Inc., and the National Organization for the Reform of Marijuana Laws.

To read this Las Vegas Sun piece on the matter, you'd have the impression these entities are in trouble for merely linking to the R-J website. I found that hard to imagine and, in fact, a little further checking shows that in each case they had republished stories from the site in substantial part or in whole, sometimes providing links and sometimes not.

Still, it seemed something was afoot and it seemed prudent to ask Review-Journal Publisher Sherman Frederick what was going on. Was the R-J, as Stiffs & Georges blogger David McKee put it, wish to secede from the Internet? Did they want to stop bloggers and others from sending readers to their website or to stifle online discussion of what's in the newspaper?

Frederick -- after saying he'd be writing about this very topic soon -- turned my questions over to R-J Legal Counsel Mark Hineuber. And while it was a private exchange, I feel like other bloggers need to know what I learned so as to protect themselves or resume feeling comfortable with what they've been doing.

The appropriate procedure for reusing Review-Journal stories is to post the headline of the story and then the first paragraph with a link to the original story. ... Also, to avoid future confusion, attached is a nonexclusive license for you to link to Review-Journal editorial material using this procedure. If you will respond to this message with "Agreed" we will consider the license to be effective.

At first, this freaked me out. I've got to sign some contract with them? WTF?

Allen Lichtenstein, the chief lawyer for the American Civil Liberties Union of Nevada, was the one who calmed me down. That's interesting because Lichtenstein is defending some of the parties who have been sued. Nonetheless, he said that this procedure -- and even the contract -- was not unusual or onerous. [I'll forward the contract to anyone who wishes to see it, but I don't wish to bog down this post with it.]

I started to realize that Hinueber isn't talking about the sort of thing I -- or most bloggers -- do. VegasHappensHere.Com is not a clipping service; if I draw your attention to a story, I just say what I like or dislike about it and link to it, usually not including any of its content or certainly not much. If I excerpt passages, I do so to comment on them.

To be sure, I followed up with Hinueber with these questions:

1. If I refer to a piece from the Review-Journal and link to it without citing the headline or the first paragraph, will I be sued? For example, in this case where I reference pieces by Arnold Knightly, Mike Weatherford, Scott Wyland and Howard Stutz and provide links.

2. If I excerpt paragraphs of an R-J story that I wish to point out to critique, will I be sued, as in this post where I quoted from a Thomas Mitchell column.

To which he answered:

Thank you for your additional questions. Unfortunately, I can not answer these specific questions since they call for legal conclusions on the issue of "fair use" under the copyright law and I am not your legal counsel, to whom these questions should be directed. However, in general, we do not believe that "cut and pasting" liberally from our website constitutes "fair use" under applicable law.

Hinueber answered the question by not answering it, I think. He's saying he can't say much other than that lifting passages "liberally" aren't "fair use." That means they're fully aware of what "fair use" means, and it means that if I quote a paragraph of a story to not why it's well written or badly reported, that's not the same as just plopping a big wad of text on my site for no particular reason.

That's sensible. I have the same problem here; entire posts of this blog get picked up by other sites, often without credit or a link-back, and there's little I can do about it because I have no legal team to address it. But there's a right and a wrong way to do it, and the right way is to follow a little common sense.

The alternative, of course, would be devastating for the Review-Journal. If they sued people solely for providing links, nobody would ever be able to, say, Tweet a story. I'm not terribly impressed with their website or their online journalistic strategy, as you may have read a few times, but at the moment I can't say the R-J or this mysterious Righthaven outfit have done anything that should scare me about how I do this.

Fact is, I've also quoted from and/or linked to probably thousands of R-J stories on this blog, sometimes attacking the content viciously, and I've never heard from their legal folks. That's probably a good sign that they're not completely loony tunes and that my understanding of their view of the matter is correct.


Michael said...

Interesting stuff, thanks for taking some time and tracking some of this down. It's a bit fascinating to me, as just a novice blogger, I've never really thought about all the repercussions from other people's material. I mean if I'm discussing something and have the link, I post it, or if I can't find it online (as recently happened with a article) at least do my best to reference the author or date of actual puplication, but I tend to forget the 'legal' side of the issue. Anyway, appreciate it and glad to see that from the looks of it, you can still go through and call out the RJ for their issues. said...

I'm not going to lose sleep over it. I believe they are clearly after blogs and sites who repost their stories mostly in their entirety.

I suffer the same problem. I PAY someone to go write an article or review for me and the next thing I know, it has been reposted elsewhere WITHOUT a live link. And in this Google-centric world, live links are GOLD. Hell... give me a couple of links and I'll let you repost the whole damn thing! But if you just repost it with no links back to the source, that is stealing.

We've actually delayed the unveiling of our news feed because we need to find the balance between scraping news and the problem that some XML feeds contain an entire post. Including all links and back-links but it our software still grabs the entire XML feed.

BTW Steve, we have your feed in there and I wrote a few months ago to get permission to either run it as our software scrapes it or we'll remove it (if you feel it is scraping too much and violating your copyright). Would like to hear back from you with either the permission that it is OK as is, or "Sorry... used too much". Hunter gave thumbs up, Tim Dressen thumbs down. I need to finish permission contacts before I can make it live and start promoting it (ted.newkirk ()

At the end of the day: Yes, it upsets me that stuff gets reprinted with no credit and I can completely understand why the R-J is going after offenders.

Anonymous said...

Most of the guilty parties did have live links, in more than one place.

It strictly revolves around the fact that entire articles were lifted (WITH SOURCE INFO ATTACHED btw on more than 80% of these cases) and placed on other websites.

Thus in their eyes, an immediate ad revenue loss since they like to claim that once a person is at their website, they will look for other news there or see an ad they like and buy a $25,000 dollar RV. Lawyers are like that with their claims. They claim unknown damages have occurred since the very act of taking away customers was present.

Now sadly, the other side of this is that many of these websites are non profit. They are as you put it, clipping services, and often times just messageboards with members sharing a story they thought everyone would enjoy. Many of the stories would NEVER have been seen or read or picked up if it wasnt for that initial "illegal" posting. With live links, in lawyerly terms, one can claim that even just one additional viewer on that main lvrj website is one more than if nothing was posted.

With hundreds of thousands of guilty parties out there (just google search, I think many are just unaware of the law. A Cease and desist order seems more orderly if they still wanted links posted in their proper fashion on those blogs.

But it becomes more apparent, they are all about the money. Many of the lawsuits are available in PDF form on various websites.

They are losing fans and viewers, but maybe not as quickly as they are gaining lawsuits. From 22 to 26 in a weeks time. I have no doubts they will be at 50 by the end of July.