The Other Shoe Drops

I suppose it was the kiss of death to put a javascript counter at the upper-left counting up from the last time we received a "cease and desist" order.

On Sunday, the counter had finally reached 300 days.  Given the fact that I started the blog on July 25, 2005, that would mean we have never received such an order.

That is, until yesterday.

At least one lawyer out there seems to think that The Malcontent is infringing on his client's copyright.  His demand, however, is that we pull down 100 percent of all video and images related to this celebrity.

There are a couple of things wrong with this: First, we are not willfully infringing on anything, and that is very important from a legal standpoint.

And second, I always operate within the bounds of "fair use."  This is not some bittorrent site that is just making episodes of programs available willy-nilly.  It is a gay-related site, operated by a trained journalist, that provides portions of and commentary upon media materials of interest to the gay community.

Here is what the law says, in part, about "fair use":

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

(Emphasis added.)

I think it's clear that this blog and the content we make available fit within those definitions.  I have never tried to pass off the copyrighted work of others as my own.

If additional disclaimer is required or the "substantiality" of the content can be negotiated, then it will be.  But a blanket demand for removal of content is absurd, and that will be my response to the attorney.

So that brings us to our poll (upper-right corner) — more of a quiz, actually: Which celebrity is responsible for our first C&D order?

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UPDATE: In the "making matters worse" category, look which "random" Google ad sometimes just happens to pop up when you click on the poll results button (I swear, this is not a commentary on the correct answer):

Comments

[anapestic]

You should have known better than to mess with Lambchop. Even from beyond the grave, Shari Lewis is one vicious woman.

[Charlie Horse]

Lambchop was a drama-queen bitch to work with but after we'd get off work and the cameras had stopped rolling (and Shari's seconal had kicked in) GOD she made great video. We'd sneak back down to the studio and I'd slip my enormous horse thingy into her (we'd laugh and laugh because Shari had just had her whole fist up there and that's why only Big Charlie could satisfy her). It got so bad that the grip boys were calling her Catherine the Great behind her back! Crazy love -- we were so young then. Lambchop Baby, wherever you are, Charlie Horse hasn't forgotten.

[louis]

I'm thinking it was Griffen

[Katie & Terri]

Does this poll mean that Tom & Ryan are dating?

[Patrick]

Well, with the Griffin video, the sustantiality issue would definitely come into play. That clip was over ten minutes!

[Joe.My.God.]

I think the bigger question is whether you can and do write any original posts without using the videos, images, and text of others, thereby establishing this blog as a legitimate source of social commentary/criticism. This blog, like most of the other news/pop culture/gossip aggregator blogs, appears to merely be the relatively wholesale reposting of the creative work of others, albeit very cleverly done. What you are doing here may satisfy the tenets of Fair Use (I believe it does, btw), but so far I've not been seeing much of an attempt to deliver original content, other than providing a platform for readers to comment upon the materials that you have gathered and reposted. That does have some value, I suppose, but overall it's a not very compelling position if your C&D opponent proves to be skillful and/or tenacious. Good luck.

[Malcontent]

so far I've not been seeing much of an attempt to deliver original content

While we do bring a lot of content from other sources, I think your comment shows that you don't read this blog much.

[owlish]

Or even bother scrolling down the page.

Hell, you've got more original content than the local news.

[Joe.My.God.]

Fair enough, I just scrolled down the page for you, Owlish. I got a dozen or so posts with imbedded videos and images from other sources, and a handful of posts with imbedded text from other sources. I see two entirely original posts: one apologizing for the lack of posting, and this one about the C&D order. Again, nothing of probative value in the context of this issue. And for what's it's worth, I think Malcontent is one of the best of the aggregator blogs, although I do feel that the ax will be falling on these sites, and soon.

[Joe.My.God.]

The last two posts are from me, Joe.My.God, btw. I am on a shared laptop at the moment.

[Malcontent]

I see two entirely original posts: one apologizing for the lack of posting, and this one about the C&D order. Again, nothing of probative value in the context of this issue.

Joe, I never said we pretend to do what you do. You of anyone should know how hard it is even to provide what we do provide, and doing video highlights costs exponentially more than a blog like yours, and probably infinitely more time.

To do a simple "American Idol" highlight reel, even without writing anything, takes at least a couple of hours. (I also do most of the graphics and animations from scratch.)

While you may disagree, I think there is a creative element involved in consuming so much television or popular culture and then being able to repackage and interpret it. I want to share it because there isn't much of a "virtual hearth" like there used to be in the days when there were only three TV channels, as a way of helping define common experiences.

One can only hear so many stories about circuit parties, after all.

[Joe.My.God.]

Ouch.

One lousy circuit party story and a guy is branded for life.

[Joe.My.God.]

Anyway, what I'm saying Mal, and I'm *not* disparaging the quality of The Malcontent, as noted above, is that I do believe that there will be an increasing scrutiny of blogs such as this and the crux of your Fair Use defense will be your ability to convince the court that what you provide is much more than a convenient reposting service, which in all honesty, is how I think many of your readers treat this place. However, the two Fair Use cases I was involved with (at a previous employer) were text related, so I have no idea, really, about video. What I do know is that a lot of these gossip blogs that do nothing more than repost the work of professionl photographers, uncredited, with inane captions...those guys ARE in for some trouble.

[Joe.My.God.]

Actually, I think your "virtual hearth" concept could be quite useful in these situations.

[Tina]

I agree with Mal. There is a great deal of creativity in repackaging and interpreting pop culture - all forms of media. That's why I come to the sight. I could watch American Idol or Bill Maher or Oprah or all other shows myself and do. But I come to this site to see the funny and intelligent commentary/interpretation of these shows/events. I'm no Fair Use expert, but I hope this allegation is not successful for this blog or any other. Interpreation is inherent in aggregation - what is chosen to be aggregated and how is creative and a form of interpreation. If aggregation was illegal, then all academic writings would be illegal - have you seen the number of footnotes on those things?!

[Robbie]

I think there are times I record a lengthy clip and I want to make a longer post discussing the issues addressed, but I run out of time due to work or whatever else is going on.

Usually, this sorts itself out in the comments sections. We're able to come back and discuss the issue in ways we wanted to in the post but couldn't.

Like the Letterman clip at the top today. I've had the clip since Friday evening, but I waited until I was able to integrate it into a broader post about gay issues. I'm sure if I were careful to do that with our other clips in the future, there'd be less a possibility of potential copyright entanglements.

[Joe.My.God.]

How about DJs that create "original" mash-ups, using two copyrighted songs? What they have created is certainly unique and new, but do they have the right to then "sell" it?

[Jamie]

And here I thought the C&D would come from Posednik's people.

[Pot]

Now I remember why I didn't take the Intellectual Property classes when I was in law school.

[Malcontent]

Jamie: LOL. I had thought about including him on the list for the poll, but thought the others were more likely candidates as people who make their living not from sports talent, but from visual imagery.

How about DJs that create "original" mash-ups, using two copyrighted songs? What they have created is certainly unique and new, but do they have the right to then "sell" it?

These are all very good questions. As for "selling" it, I like to remind people that even though I'm not a 501(c)3, I'm also not profiting from this. My ads defray a small fraction of my expenses.

I think my main beef with the attorney is that he is trying to use a nuclear bomb on me. He has demanded that we take down ALL images or even "references" to the celebrity in question. That is such an overreach in terms of the law that it is not funny. He probably thinks I will be cowed into total acquiesence, given the stature of his client.

Instead, my response to him was an attempt to find the middle ground.

[Kevin]

Damn! Tried to light my "virtual hearth" and melted my monitor!

[Emerson]

Two letters and a number for you: VH1

[Famous Author Rob Byrnes]

As for "selling" it, I like to remind people that even though I'm not a 501(c)3, I'm also not profiting from this. My ads defray a small fraction of my expenses.

True enough. But as you know, the counter-arguement is that, however altruistic your intent, it theoretically deprives others of profit derived through their original labor.

Not that I'm saying that's my take on this particular instance. I'm just noting that when the 'Fair Use' line is crossed, someone's labor is not being properly rewarded.

And now, my Capitalist Cred underscored and italics abused, it's time to get back to writing things that no one wants to copy...

[Aatom]

Hmm...an interesting conversation. I was curious when you guys first started posting all of these video clips if you would run into any legal resistance, I'm honestly surprised you haven't gotten more static from it. Having said that, I totally buy your fair use argument, and I think a court would as well. As far as celebrities, why they don't understand the maxim "all publicity is good publicity" is beyond me. I see references to pop culture figures in your video posts that I would have never given a second thought to otherwise. They should be paying you for the PR, for god's sake.

As far as original content, that is honestly the only reason I come to this site. I don't watch the video clips at work, I only read the commentary on them and the original political/cultural posts that my boyfriend Robbie is so good at (Mal as well when he has a spare minute to write something down.) I find the comments sections of this site to be the richest source of content, of course, and I feel as if you genuinely do provide a kind of public square here for gay/cultural issues seen through the prism of a predominantly right-leaning crew of extremely intelligent lurkers. The conversations on this site are unique and important, and I learn something about my own beliefs every day here. It's no more of an echo chamber than any other blog, and there are certainly more than a few able lefties that keep us on our toes here, even if they are wrong about most everything. ;) So to say that this site has very little original content strikes me as somewhat absurd.

I voted for Jake Gyllenhaal, but I'm leaning toward Tom Cruise after seeing this conversation for some reason...

[Rich]

Joe -- I wonder what evidence you have for the "convenient reposting service" comment. I realize it's "how I think many of your readers treat this place," but are you polling people?

I also wonder if you would have piped up in the first place if you didn't believe that what you do ("creation") is superior to what Robbie and the Malcontent do (commentary). That first comment, especially, was mighty condescending. You're aware that the first tenet of criticism is to figure out the intent of the object, right?

Mal and Robbie -- this really doesn't have to do with the C&D issue, since I doubt it will end up amounting to anything, but: I think the most foolish thing that you can do is to IGNORE the technology you have at your fingertips. Blogging affords us features that print does not. The round of articles about blogging (esp. the New York piece) that surfaced earlier this year pissed me off because the general angle was, "There's no way blogs or Internet media will ever compete with print." Well, of course not if you're talking about text-based blogs. Duh. Trained journalists and writers, by and large, are going to have more talent, sources and clout than self-publishing amateurs. That's why awareness of the medium is key -- you can't imitate print, you have to transcend it. At least, that's my philosophy in my flagrant exploitation in all that the blogging medium has to offer, including words, images, sound and video. I'm in love with the medium itself, even beyond the immediacy it affords. In light of what's possible, a lot of text-based blogs seem awfully quaint.

So, what I'm saying, Mal and Robbie, is to keep on keeping on. Please.