06 Dec 2004 | karl said...

Is it just me, or is the reaction to the Sony-Kottke thing a lot larger than the actual information anyone has warrants?

I mean, he posted what was clearly a not-yet-released audio segment from an upcoming broadcast, and they asked him to take it down. I'm not sure how that's stifling his free speech. If anything, it's them asking him to not alter the intended delivery of their speech.

That being said, the Jeopardy viewership was probably a lot MORE that night because it leaked out that KJ was going to lose. I can count 4 people in my apartment alone who would have otherwise been giving their ad-viewing eyeballs to ESPN in that timeslot, and because of Kottke's months-old report of "he loses on attempt #75", we watched Jeopardy instead.

So, you know, if people are just looking for a "holy shit a big corporation is silencing a blogger!" event - I think they should wait and pick something a little more significant.

06 Dec 2004 | Peter Cooper said...

Am I missing something? I've read Kottke's update, and it doesn't seem as if it's gone any further than a cease-or-desist (although he doesn't say this explicitly). If Sony sent a cease-or-desist, and he removed the copyrighted material, then that would have been case closed, I'd have imagined.

Still, if they jumped on Kottke so quickly for such a small transgression, I wonder if the MP3 blogs will be next..

06 Dec 2004 | Jamie said...

Sorry to be so pessimistic here, but to echo a previous post on this blog...this is great press for Kottke AND Sony. I'm not really sure what all the fuss is about. But I'm sure it translates into big clicks for both parties. Any press is good press as they say ... right?

Also, hasn't this sort of stuff been going on with Mac/Apple rumor sites for years?

06 Dec 2004 | Jamie said...

... I forgot to also say: "and more clicks for Jason Calacanis too."

06 Dec 2004 | One of several Steves said...

I'm not sure of the regs covering putting this out before the show aired, but after it airs, Kottke would be covered under the fair use provision of copyright law. The problem is, he'd have to go to court and make that argument, which costs him time and money.

I wouldn't be surprised to see big companies go after bloggers in this fashion. The bloggers don't have the money to mount the legal battles, even if they were to get their legal fees reimbursed by court order from the plaintiff. Most bloggers are just going to do whatever it takes to avoid having to spend thousands of dollars and waste hundreds of hours.

Unless someone decides to form a bloggers' legal defense fund, the company's are going to have a huge upper hand in this area. And I'm sure they'll use it with increasing frequency, because it's not likely to cost them much in terms of negative publicity. Blogs and their regular readers are still a very small-scale phenomenon when it comes to the vast universe of people who purchase consumer goods.

06 Dec 2004 | Darrel said...

Jason has hinted that it's gone beyond just the cease and desist notice. But who knows. I certainly wouldn't be surprised at Sony doing this.

I think it has brought up an interesting point, though...what power/rights do bloggers and other independant publishers have? In today's landscape, money trumps individual rights...as anyone with a crapload of money can lobby for irrational laws and pretty much sue anyone without necessarily having a solid (or even valid) case.

06 Dec 2004 | CM Harrington said...

I am going to pedantic for a moment and point out that you, as an individual are not an alumni of anything, you are an alumnus. Of course, this assumes you don't have multiple personality disorder.

06 Dec 2004 | Ian Firth said...

So would it be OK if I took some of 37Signals property without asking and use it to promote myself ?

Yea, I didn't think so.

Some day, when you all grow up and work in the real world, you'll understand that taking things that don't belong to you is a bad idea.

06 Dec 2004 | S.A. Miller said...

Kottke's was in the wrong, and he knew he was in the wrong.

This is much-ado about nothing.

06 Dec 2004 | Rimantas said...

Oh, "real world" and "grow up" again. Those are strong arguments...
I'd like some clarification: which one of the real worlds: Ian's, Kottke's, Sony's, or the one of Washington Post?

Quod licet Jovi non licet bovi?

06 Dec 2004 | Darrel said...

Some day, when you all grow up and work in the real world, you'll understand that taking things that don't belong to you is a bad idea.

And some day, people will realize how ridiculously insane and lopsided current IP law and litigation is these days.

06 Dec 2004 | Jon S said...

So...let's get this straight:

1) Kottke receives an audio clip from his "reliable source" and posts said audio clip for the world to download. Now, the clip was not only copyrighted but taken from unreleased material.

2) A WA-Post journalist finds the clip and writes a story detailing Ken Jenning's loss. This paper goes out to 5 million people (and that's just the print version).

3) Sony takes notice of kottke.org and brings in the lawyers. Whether or not this is much more than a cease-and-desist letter or a full on lawsuit we don't know.

What kottke did was wrong, plain and simple.

If I was at Sony I'd be pissed, and rightly so.

06 Dec 2004 | roar said...

people, you're suppose to side with jason, because he's a blogger and sony is just an evil giant corporation!

06 Dec 2004 | Darrel said...

If I was at Sony I'd be pissed, and rightly so.

About what, exactly?

07 Dec 2004 | CM Harrington said...

Actually, from what I understand, this is a rather clear cut case of fair use. This is specifically what the fair use doctrine is for. There was attribution, it's only a snippet, blah blah blah.

Kottke got hosed because they knew he didn't have the backing of a large publisher.

07 Dec 2004 | One of several Steves said...

Yep, fair use allows this sort of thing very clearly. The only wrench in the gears is publishing it before air date. I don't know the ins and outs of copyright law to know if fair use provides a shield or not. But posting an excerpt, with proper attribution, is perfectly legal, and any company trying to bury an average person under a pile of legal bills in order to deny them their fair use rights is being a bully.

Now, if the copyright laws cover anything like publishing something that would be ordinarily covered by fair use but before publication/air date, than Kottke would be in the wrong. But I don't know if there are any such provisions.

07 Dec 2004 | Jon S said...

It's not a clear cut case of fair use. To excerpt an article on fair use:

"Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, it weighs against fair use."

and from that same article...

"Do not take the "heart" of the work you're copying from. If what you've copied is important to the original, it will weigh against finding fair use."

From Lloyd J. Jassin's Article on Fair Use

Allowing the public to download the 2 minute audio clip certainly speaks to both of these points in the article.

07 Dec 2004 | stp said...

When Kottke posted the material, it was at that point in time an unpublished work, and therefore he had no right to post it. Sony was right to send him a letter telling him to take it down, and Kottke was right to comply. The issue needn't go any further than that, and as far as I know it hasn't. All parties involved should just move along....

07 Dec 2004 | Paul said...

Was it an unpublished work although the program had already aired in Macon, Georgia?

07 Dec 2004 | pb said...

And Canada.

So would it be OK if I took some of 37Signals property without asking and use it to promote myself ?

You mean if I quoted a few of 37signals holliday commerce tips and instructed readers to tune in?

07 Dec 2004 | stp said...

Was it an unpublished work although the program had already aired in Macon, Georgia?

Honestly, I think that would probably take a judge to decide, and I'm just saying that all parties involved would be foolish to even pretend they're going to let it get that far. But you're right to point out that grey area.

07 Dec 2004 | Darrel said...

When Kottke posted the material, it was at that point in time an unpublished work, and therefore he had no right to post it.

Weren't the prison torture photos unpublished? I'm sure the US Military didn't grant permission. ;o)

07 Dec 2004 | Carl said...

Kottke was definitely wrong. I wish the damn blog community would get off their righteous ass and understand they aren't special.

07 Dec 2004 | Craig said...

Weren't the prison torture photos unpublished? I'm sure the US Military didn't grant permission. ;o)

As I understand it, photos taken by U.S. Military personnel are public domain unless otherwise ruled classified.

07 Dec 2004 | Darrel said...

My point is that there are a lot of comments in here along the lines of 'he's definitely wrong' when there's simply no way to state that blanketdly.

IP law is a mess. 'Right and wrong' don't necessarily map to the laws. There's issues of journalism, fair use, copyright, damages (or lack thereof), etc. To say Jason was simply 'right' or 'wrong' is to completely gloss over the issues regarding the state of IP law.

The reason Sony is vilifies, whether right or wrong in this particular case, IS because most large mega-corporation legal teams are bad guys. I have a close friend that left the legal profession after working for the IP team of huge company that would sue for sport.

As to the facts we can see, did Jason profit? Did sony loose money? Are there any actual damages? Is the content news? Is it journalism? Was there malicious intent? Is a clip from a game show really a big deal to begin with?

07 Dec 2004 | Ian Firth said...

IP law is simple.
Don't take what isn't yours without asking.

07 Dec 2004 | Tim URuski said...

Just like to note that I'm amazed how many folks are siding with Sony over this one. Whether Kottke was in the right or wrong for posting the clip seems small in comparison to the damage that Sony can do (and is doing) to him.

07 Dec 2004 | One of several Steves said...

Nice red herring, Darrel, regarding the Abu Ghraib images.

Back to the point at hand, while it's not black and white, if Kottke did publish this before the "publication" of the show, he's on less firm ground than he would be if he had posted the excerpt after the fact. Whether it represents the "heart" of the show or not could be easily argued either way. And it's not like news accounts don't have the pertinent info all over the place. Fair use doesn't distinguish between who uses the material; it applies to the New York Times as well as some guy on the street equally.

By the way, Darrell, the questions of whether there's malicious intent or if a game show clip are both irrelevant to copyright law. Malicious intent is part of libel law, not copyright. The question of news is also largely irrelevant. The only relevant questions are actual damages, and adherence to fair use.

07 Dec 2004 | Darrel said...

IP law is simple.

Obviously, you're not a lawyer.

07 Dec 2004 | One of several Steves said...

IP law is simple.
Don't take what isn't yours without asking.

It's not that simple. I can quote from a book without asking if I'm citing it in research, if I'm writing a review or a commentary. I can play clips from movies if I'm reviewing them or writing a paper or teaching a class on the history of film. I'm allowed to make personal copies of entire works for my personal use from ones I've already purchased (like ripping a CD I own so I can have it on my iPod as well) without asking anyone for permission.

It's not so simple as asking for permission. Even the question of what is "yours" isn't black and white.

07 Dec 2004 | Darrel said...

OOSS...IP law doesn't directly map to 'being right'. There's a lot of room for interpretation.

Unless any of us are lawyers, we really can't debate the minutia of the law. We can debate matters of ethics, but it's apparent we all disagree on those. Personally, I'm stumped as to how this hurt Sony in any shape or form. I'm all for retaining the right for entities to sue, but I'm also for entities using common sense and decency when doing so.

07 Dec 2004 | Darrel said...

Oh...regarding the 'red herring' my main point is that Jason has brought up the issue of 'what is reporting?'

Which I think is a more interesting debate.

07 Dec 2004 | pb said...

Kottke was definitely wrong.
No, he is definitely not wrong. That's like saying that the AP shouldn't publish Olympic results before NBC broadcasts them later that night. NBC would obviously prefer that the results not be known. That the program hadn't been aired (actually it had) has nothing to do with it.

07 Dec 2004 | pb said...

And, Ian, that's not how IP law works at all. There are all sorts of fair use rights that allow, for example, anyone to quote a passage from another source without the source's permission. This is so well-known that it's difficult to comprehend how you're oblivous to it.

07 Dec 2004 | karl said...

I think the rub is that this is the equivalent of a slow-news-week story, only with blogs. Unless you are Jason Kottke or Sony, you can't possibly have any idea of who, if anyone, has been trampled upon or censored/violated/whatever.

08 Dec 2004 | JD said...

Isn't this (37signals) the same company that moans when someone with a lot less of a following than Kottke rips off one of your designs?

08 Dec 2004 | Jon S said...

A lot of people are downplaying the fact that Kottke posted actual audio from the show. He copied it without the permission of Sony and let the world have it before it was officially released.

He posted 2 minutes out of a roughly 22 minute show. That's 9% of the episode, and easily the most important part of that episode (the "heart" of the work). That is not journalism. He's certainly free to paraphrase or post snippets of the transcript. He's free to blab about it all he wants.

The courts have ruled in the past that the publisher is the one who controls distribution. Releasing parts of a copyrighted memoir/text/letter/video before the publisher to "scoop" their planned release is, in most cases, not lawful. Yes, IP law is one big grey area, ultimately it's up to the judges.

Yes, there are corporate bullies who have silenced many blog posts. However, I don't feel what Sony did was out of line. Sony is simply protecting something they have invested millions of dollars in.

08 Dec 2004 | Darrel said...

He copied it without the permission of Sony and let the world have it before it was officially released.

And the world has suffered terribly because of it.

08 Dec 2004 | One of several Steves said...

Darrel, the point isn't if the world suffered. The point is if it was contrary to the law, and if Sony suffered damages. What the rest of the world suffered or didn't is totally and utterly irrelevant.

08 Dec 2004 | Darrel said...

I think the point of this discussion has long left the room. ;o)

09 Dec 2004 | daniel harvey said...

If I'm not mistaken, Kottke posted the KJ loss about 30 episodes before it happened. How on Earth does Macon, GA -- little, tiny, Macon get Jep eps. so far in advance? Does anyone have a link to explain this odd bit?

09 Dec 2004 | pb said...

before it was officially released.
It *was* already released so please stop using this untruth in your argument.