Facebook, UCC, Copyright and those Damned Notices Everybody is Posting

See credit below: royalty free image

I'm sure you've seen them.  Seems like half the people on Facebook are posting this "Notice" that everything they post on Facebook is "privileged" and that it may not be copied for commercial purposes.*  Then smiting all who may violate this edict with Section 1-308 of the Uniform Commercial Code.  The avowed purpose is to keep Facebook, since it is now a publicly trade corporation, from taking ownership of all your photos to do with as they wish.

So here's the truth.  It's all bullshit.

Sorry to be so blunt, but I've seen so many people - including some lawyers - posting this useless drivel that it has me annoyed.  Even more annoying is that people think this is the way the law works.  You post some sort of technical disclaimer that nobody understands, citing statutes that you don't know anything about, and it has some magic qualities.

That's NOT how the law works, folks.

So let's get the facts out there:

1.  In order to use Facebook, you have to agree to the terms of use and policies of Facebook.  You cannot alter the terms of the Facebook agreement by posting some type of unilateral notice.  You can't do that with any contract, which is exactly what your clicking on that agreement in order to use Facebook created.

2.  Facebook does NOT own your content.  But depending upon your privacy and sharing settings, by clicking the little button agreeing to its terms, you agree to  "a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)."  In other words, unless your privacy setting prevent it, anything you post on Facebook is fair game for others to share on Facebook.

2.  Your options with Facebook are:  (1) Don't agree and don't sign up to use it (2) Sign up then participate in Facebook's Site Governance in an effort to persuade Facebook to change its policies; or (3) Quit using Facebook.   And again NO!  You can not unilaterally change the terms of the agreement by some post on your wall.

3.  No, Section 1-308 of the Uniform Commercial Code does NOT allow you to post a notice and avoid the impact of the Facebook Agreement, or any other contract.  The UCC, which is adopted with variations by every state, governs commercial transactions. It is one of the more complex things in the law to fully understand.  It takes a full semester class in law school to just get the basics. 

So  in short - you are not preserving copyright in your works by publishing this inane "Notice."  You are not changing the terms and policies of your agreement with Facebook.

Look like you know what you're doing.  Don't post that stupid insipid Notice.


 *Here's an example of the inane posting that you will see:

For those of you who do not understand the reasoning behind this posting, Facebook is now a publicly traded entity. Unless you state otherwise, anyone can infringe on your right to privacy once you post to this site. It is recommended that you and other members post a similar notice as this, or you may copy and paste this version. If you do not post such a statement once, then you are indirectly...allowing public use of items such as your photos and the information contained in your status updates.
PRIVACY NOTICE: Warning - any person and/or institution and/or Agent and/or Agency of any governmental structure including but not limited to the United States Federal Government also using or monitoring/using this website or any of its associated websites, you do NOT have my permission to utilize any of my profile information nor any of the content contained herein including, but not limited to my photos, and/or the comments made about my photos or any other "picture" art posted on my profile.
You are hereby notified that you are strictly prohibited from disclosing, copying, distributing, disseminating, or taking any other action against me with regard to this profile and the contents herein. The foregoing prohibitions also apply to your employee, agent, student or any personnel under your direction or control.
The contents of this profile are private and legally privileged and confidential information, and the violation of my personal privacy is punishable by law. UCC 1-103 1-308 ALL RIGHTS RESERVED WITHOUT PREJUDICE

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Oatmeal vs. Oatmeal: Mushy Trademark Fight Heads to Court

Mmmm . . . Oatmeal

The Oatmeal has been sued again.  This time by Oatmeal Studios.

When I was growing up, oatmeal was that warm, stick-to-your-ribs breakfast that my mother served just before I went out on a cold day.  It kept you warm as you walked to school, and kept you from getting hungry on those morning playing in the snow.

No more.

Now its Oatmeal Studios vs. The Oatmeal in a battle over trademarks and marketing of greeting cards.

The Oatmeal, otherwise known as Matthew Inman, is a quirky artist - for some, this generation's Gary Larson.  He rose to some notoriety with a 2011 lawsuit against humor aggregator Funky Junk, whose users posted Inman's cartoons to the Funky Junk website without his permission.

The dispute garnered attention on the internet when Inman ranted against Funky Junk on his blog, then against Funky Junk's lawyer, including a cartoon of the lawyer's mother  "in flagrante delicto" with a Kodiak bear. Threats of defamation suits flew, and the matter eventually was resolved.

With that dispute now behind him, The Oatmeal launched into a venture of greeting cards, teaming up with Papyrus, one of the nation's largest producers of greeting cards.

But alas, there was already an Oatmeal Studios, a small New England company that has been marketing "Spencer gift type" greeting cards for 35 years. 

Oatmeal Studios claims that it markets to the same people that the new Oatmeal by Papyrus will target, and that there is a substantial risk of name confusion and delusion of its intellectual property rights.

The lawsuit was filed in late November in the United States District Court in Massachusetts. 

All in all, it seems a legal mush.  Maybe some brown sugar and cinnamon will make all seem a little more palatable.

Is Identity of Anonymous Poster Protected From Disclosure? Indiana Appellate Court Issues Stay, Sets Hearing For Tuesday

The Indiana Court of Appeals has stayed a trial court order that the Indianapolis Star disclose information that would lead to the identity of anonymous posters in its online comments.  The Court has set a hearing on the issue for Tuesday, November 27.

The hearing can be viewed live online at www.courts.in.gov.

The stay and hearing are only the latest events in a long history arising out of comments made in the case of Miller v. Junior Achievement, et al.   Among the "et al" are the Indianapolis Star, Indianapolis Business Journal, and an unknown person using posting on the Star's website as "DownWithTheColts."

 (Note: if this poster is identified and the case goes to trial, his moniker will make for some interesting voir dire examination of the jury pool - half of whom may show up in Colts gear.)

At the center of the dispute are assertions made by “DownWithTheColts,” Jeffrey Miller, former Junior Achievement president, and his wife were responsible for missing Junior Achievement funds that money “can be found in their (the Millers) bank accounts.”

Marion County (Indianapolis) Superior Court Judge J.K. Reid ordered the Star to disclose the information requested by the plaintiffs (such as IP Address) which would likely lead to the identity of the person making the comment.  Last spring, in a 3-0 33-page opinion authored by long-time appellate Judge Nancy Vaidik, the Indiana Court of Appeals rejected that anonymous posters qualify for protection under Indiana's Shield Law.  However, the Court held that both the U.S. and Indiana Constitutions required a balancing test between the benefits of allowing anonymous speech and the harm from defamatory speech, which is not protected.  The Court of Appeals remanded the case for the trial court to consider that balancing test.

On remand, the trial court again ordered disclosure of the information about the anonymous poster.  The information was to be disclosed last week, but the Indiana  Court of Appeals issued a stay and set the hearing.

Indiana has a history of being very strongly supportive of protection to journalism and free speech.  It is only three states which require a showing of constitutional malice for matters involving private citizens if they become involved in matters of public interest.

It should be a fascinating argument to watch, and an interesting decision that may have implications in the world of electronic media far beyond the present case.

Happy Thanksgiving

Have a happy Thanksgiving.  I'm taking a break from the blog for Thanksgiving holiday.    I want to express a special thanks to those who have been reading and sharing my posts.  And if you have a chance, drop me a note and let me know what you think of the blog, plus any suggestions for future topics.

See you with new posts next week.  I'm starting off with a post about the case now before the Indiana Supreme Court on anonymity and internet posts.

In the interim, check out some of the older posts -- and keep writing.

--Stephen Terrell

Fair or Foul? James Patterson, Robert Parker and Authors In Name Only

Plagiarism is not just copying, but fraudulent copying that enhances of value of a creative work by false representation. 

That's one view expressed by Judge Richard Posner, legal scholar, prolific author, and long-time judge on the United States 7th Circuit Court of of Appeals, in his excellent work A Little Book of Plagiarism (Pantheon 2007), pp. 43-48.

Concealment is at the heart of plagiarism," Posner writes: "The plagiarist does not play fair," Id. at 17

So what about the recent proliferation of "institutional" authors - that is, authors (or estates of authors) who lend their names to books which they did not write.  Are they "playing fair?"

I think not.

Posner keys in on Margaret Truman, the late daughter of President Harry Truman.  Her cozy mysteries set in Washington, D.C. (Murder at the National Cathedral, etc) have long been rumored to have been written by someone else.  Truman denied the assertion until her death.  Posner casts his lot with those who doubt that being a President's daughter is a qualification for a mystery writer.

No matter how good an impersonator, it's NOT Elvis

But more troubling to me is the proliferation of  James Patterson's books - seemingly a new one every month.  JAMES PATTERSON is spread in huge block letters across the cover.  Below, in relatively small type, is the name of a co-author.  Few doubt that the co-author actually wrote the book.

In fact I hope Patterson himself is not writing these books.  I've read two - okay, 1 1/2 - and they  are just hideous.   The second was so bad that I  broke my personal rule and did not finish it.

My opinion seems to be shared by many. An Amazon forum excoriates the quality of "co-written" Patterson books.  (Click here for the link to the Amazon forum)


It is even more evident with the recent Robert Parker books.  I absolutely love the Spencer books.  But Mr. Parker died in 2010.  His estate hired a writer Ace Atkins to continue the Spencer books and Michael Brandman to continue the Jesse Stone series. I've not read any of the new stuff, and both Atkins and Brandman are successful in their own right.  But they aren't Robert Parker.  The new books are being published with covers that in huge type tout them as ROBERT PARKER's, with the actual author in small type at the bottom of the cover. 

So who is hurt by this marketing?  According to Posner, its not the readers.  They get a book which is what they bargained for.

I disagree with Judge Posner on this point.  When you plunk down $25 for a James Patterson hardcover, that's often not what you are getting.  Had I spent my own money (instead of checking out the book from the library) for The 4th of July, I would have felt ripped off.  This was not a taut thriller with the same skill in plot development, tension, and rich characters that you find in Kiss the Girls and other works clearly written by Patterson.  Instead, it was soap-opera styled drivel with cardboard characters, irrational motivations and strained plot devices, set in the legal system of which the author clearly was ignorant.

Posner suggests, and I agree, that the real damage from this type of misrepresentation is to other authors.  Across the nation, thousands of authors are working hard, trying to get published, or if published, trying to get their works noticed.  They are the ones whose works are being shoved off publishers lists, being buried on back shelves,  and not being reviewed.  Meanwhile, "brands" such as Patterson and Parker are given front shelf space.

There are ways to fairly deal with this situation.  The James Bond books have continued on since shortly after Ian Fleming's death in 1964.  The most recent Bond book was written by noted thriller author Jeffrey Deaver, and Fleming's name does not even appear on the cover. Other post-Fleming Bond novels identify only the real author, or identify the author "writing as Ian Fleming", but all in print at least as large as Fleming's name.

The publishers of Patterson, Parker and others may not be dealing in misrepresentation, but its close.  And they certainly are not playing fair, either with the reading public or with other authors.

It's not quite plagiarism.  It's not quite fraud.  But from where I sit, its not quite legitimate either.

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The Past Isn't Dead - But It Is Copyrighted: Faulkner, Woody, Quotes & Fair Use

Faulkner's quote as part of Northrup Grumman ad.  Is it "fair use."

Can the use of a single well-known quote from a noted author constitute copyright infringement?

That is the issue in two copyright infringement lawsuits brought by the estate of one of America's greatest authors, William Faulkner.

On the other side in one dispute are Woody Allen and Sony Pictures for the 2011 film Midnight in Paris.  In the other suit, the defendant is Northrup Grumman Corp, (NGC) one of the nation's largest military contractors, and the Washington Post, which ran the NGC advertisement that is at issue.

At issue is the extent to which a single quote - even one that has fallen into the lexicon - can be the basis of a copyright infringement claim.

In general, the fair use doctrine permits use of short excerpts of copyrighted works even without the author's permission.  Most frequently this comes in the form of quotes in new works, scholarly works or parody.  Whether the use is for commercial purposes or not also plays into the balancing tests used by courts.  But to this point, courts have not created a black line demarcation in fair use between commercial and non-commercial use.

Midnight in Paris case:  At issue is a single misquote by Owen Wilson as the lead character in this Woodie Allen movie.

The premise of the movie is that while visiting Paris with his fiance, Wilson's character is transported nightly by a car into the 1920s where he meets numerous literary figures including Faulkner, Hemingway and F. Scott Fitzgerald.  At one point Wilson's character states: "The past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

The actual quote is from Faulkner's 1950 book Requiem for a Nun.  "The past is never dead. It's not even the past."

The quote is perhaps the most known, and most repeated, of any from Faulkner works.

But few would think they have to get permission to use the single quote, or in this case an attributed misquote.  But Faulkner Literary Rights, LLC, the family-owned LLC that controls the rights to all of Faulkner's works, differs. 

Lee Caplin, who manages the literary estate, says its not a matter of money, but rather control over the literary work.  Capln maintains that use in a commercial project such as Midnight in Paris requires obtaining a license, even for use of the single quote.  Caplin points to Ron Howard who obtained a license for a Faulkner quote used in the initial episode of Modern Family

Sony maintains that inclusion of the quote was fair use and that the lawsuit is frivolous.  Some noted legal scholars have sided with Sony, calling the Faulkner claim "overreaching."  (See Huffington Post Report - click here)

An interesting note: the Estate did not attempt to sue for use of the name or purported likeness of Faulkner in the movie.  Generally the right to publicity for a person's likeness dies with the person.

Northrup Grumman case: This case presents a different aspect of fair use.  While the Faulkner Estate would have granted a license to Midnight in Paris, Caplin says the estate would not have granted a license to NGC for any price.

NGC ran a full page in ad in the Washington Post (see above) subtly touting by implication greater expenditures for defense.  In addition to showing the American flag, the ad featured a quote from a 1956 Faulkner essay:  “We must be free not because we claim freedom, but because we practice it.”

Faulkner's estate maintains that the quote is taken entirely out of context and used to support something which the Estate would not support at any price.  The quote came from a 1956 Faulkner essay which appeared in Harper's.  The subject was school desegregation and the 1954 Supreme Court decision in Brown v. Board of Education, not national defense.

The question in that case becomes not only one of commercial use, but also of controlling the message.

Undoubtedly seeking a home-court advantage, both lawsuits were filed in Federal Court in Oxford, Mississippi, Faulkner's hometown, where they remain pending. (Click here for report from Law.com).

SMT Note:  My own take is that the use of the quote in Midnight in Paris is fair use, even though used in a commercial project.  To hold otherwise would mean that every time one wants to use a quote in a play, movie or article, one would have to obtain a license.  That is far too narrow an interpretation of fair use.

The Northrup Grumman case presents a different - and much closer - question.  In Midnight in Paris, the quote was a single line used in an extended work. But NGC used the quote as a central feature of its ad, effectively making Faulkner's words the central message. 

The Northrup Grumman case strikes me as effectively stealing Faulkner's words as its message rather than a fair use of limited words as part of a much bigger work. 

Self-Plagiarism and Copyright

Last post I discussed my view that many of the shrill cries of self-plagiarism are misplaced.  But there are legal implications for writers copying their own works.

First and foremost is the concern with copyright.

When writers are slaving away in proverbial basements, pounding out insightful blog posts or that Great American Novel that has not yet seen the light of day, there is no concern about self-plagiarism.  Copy yourself all you want.

But for paid writers - magazine writers, columnists, published authors - the issue is quite different.

If you have done a work for hire, or you have entered into a contract to publish your work, you have likely given up much, or perhaps all of your copyright interests. 

As a general rule, when your work is published by someone else, or someone who paid you to produce it, it is no longer your own.  Legally, your right to copy those words  is no greater than a stranger who just happened upon them on the Internet.

This issue pops up with the self-plagiarism case of Jason Lehrer, the Wired and New Yorker columnist who was forced to resign after a plagiarism claim, on top of fabricated quotes in his latest book.  The initial paragraphs of Lehrer's initial column for the New Yorker was lifter verbatim from an op-ed piece he did months earlier for the Wall Street Journal.

Now one first has to question Lehrer's judgment.  It's not like people who read the New Yorker don't also read the Wall Street Journal.  And its not like he didn't have fans who would seek out his columns in whatever publications they appeared.

But that aside, Lehrer's real guilt was violating copyright.

So when an author takes a previous work and seeks to use it - whether using it as a starting place to revisit the same issues, modifying it based on new information, or refining it based upon further thought - the author also needs to consider:

1.  Do I still have the sole and exclusive copyright?

2.  If not, is what I am doing fair use or does it violate the copyright interest held by someone else?

3.  If it is likely in violation of the copyright, can I obtain permission from whoever holds the copyright?

There's No Plagiarism Like Self-Plagiarism

Royalty free image: photo credit below

Self-plagiarism his the news in a big way earlier this year.

Best-selling author and columist Jonah Lehrer "resigned" from his job at The New Yorker after it was revealed he had lifted his opening paragraph in his innaugural New Yorker column from his own op-ed article published a few months earlier in the Wall Street Journal.

This followed revelations that Lehrer has simply fabricated quotes allegedly from Bob Dylan for his latest book, Imagine, a biography of John Lennon.

Now making up quotes is one thing - but what about quoting yourself?  Recycling your own words and thought?  Is there anything wrong with that?  After all, when you see a noted speaker giving a speech, you know he or she has given that speech before. In campaigning they even have a name for it -- the "stump" speech.  The speech politicians used to travel around and give to crowds while standing on the stump of a tree.

Some in academia and certain journalism circles, and certainly among the preveyors of anti-plagiarism software and websites, seem to go into apoplexy about self-plagiarism.   Google and plagiarism-seeking software have resulted in a geometric escalation in cries of "You're plagiarizing yourself."

But does is self-plagiarism illegal?  Is it unethical?

My view tends toward that of Judge Richard Posner that a writer's repeating himself/herself seldom rises to a level to support an accusation of "self-plagiarism."  See Posner's excellent book, A Little Book of Plagiarism, pp. 40-44.

Posner cites the example of novelist Laurence Stearne who sent love letters to his mistress.  The problem - well one of the problems - was that his letters were copied verbatim from love letters he sent to his wife at an earlier (and apparently more copecetic) time.  Posner's response: "Tacky, but is it plagiarism?  Id. at 41-42.

Posner's response was "no."  He goes on to state:  "{R}eaders should realize that authors repeat themselves;  it is only wholesale and literal repetition that should disappoint."  Id. at 43

 
Utilizing one's own prior ideas and work, in general, is neither an ethical nor legal violation.  The cries of "self-plagiarism"  at every repeated phrase or paraphrased idea are off target.  And the number of assertions of self-plagiarism are excessive to a matter of magnitudes.

But self-plagiarism does exist.  And there are legal issues when writers start repeating themselves.  But that's the topic for my next post.



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Copyright, Twitter, the DMCA and Takedowns

Twitter is not a copyright free zone!

You can violate copyright on Twitter just as you can on your blog - or any place else.

This was made clear when Twitter announced that upon a complaint from a copyright holder, Twitter would take down tweets which were asserted to violate copyright. The policy is Twitter's effort to comply with the Digital Millennium Copyright Act (DMCA).

The policy was recently modified when Twitter sent out the following tweet:

"We now offer more #transparency in processing copyright reports by withholding Tweets, not removing. Learn more: https://support.twitter.com/articles/15795 . "

I guess this would be classified as a Twitter tweaked tweet. 

But there is no humor in the policy.  Twitter will take down the purported offending tweets.  The tweet will not simply disappear into the ether, though.  Rather, the tweet will be "withheld" with a notice appearing instead of the tweet.

The full policy and procedure of Twitter is set out in the Twitter Help Center.  It is rather detailed, but not filled with a bunch of legal jargon.

The real lesson is that even in this era of social media, retweets, reposts, sharing, and even copy and paste, copyright laws still apply, whether its a photo, an article, or a 140-character tweet. 

I would set out the entire policy here . . . but there's that copyright thing.  So instead, just CLICK HERE to go to the Twitter Help Center's Copyright policy.

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Well I'll be f%#$d ! Supreme Court Strikes Down "Fleeting Expletive" Rule

Holy s%*# !

 The U.S. Supreme Court in a rare unanimous opinion struck down hefty fines imposed by the FCC against ABC and Fox for "fleeting expletives."

The case, which has been bouncing between the FCC and the courts since 2004, evolved from three episodes:

1.  Nicole Richie dropped a couple of expletives on the live 2003 Billboard Music Award, stating: "Have you ever tried to get cowshit out of a Prada purse? It's not so fucking simple."

2.  Cher responded to her critics on a live music awards show by saying "Well fuck 'em."

3.  And then there was the image emblazoned on America's eyeballs and psyche -- pudgy middle-aged Dennis Franz showing his bare backside for 7 seconds on NYPD Blue.

The Court decided the case by an 8-0 vote, unusual in this day of divisive 5-4 decisions. New Justice Sonia Sotomayor did not participate since she served on the 2d Circuit Court of Appeals when it considered the same case.

The Court struck down the FCC's actions on a very limited basis. that is the failure of the FCC to give sufficient notice of what conduct was prohibited, and therefore the FCC fines violated due process.  But the Court passed on the "hot potato" issue of whether the FCC can regulate content at all without violating the First Amendment.

Of some interest, Justice Ruth Bader Ginsburg wrote a concurring opinion which stated that the First Amendment prohibited the FCC from regulating profanity.  This is the same position that Justice Clarence Thomas took in a concurring opinion in a previous appeal.

So fleeting expletives are safe - for now.  Makes you wonder what the f#*king acceptance speeches at the Grammys and Academy Awards will be like this year. Don't know about you, but  I'm gonna be watching those motherf*#@ers !


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Plagiarism Detection Tools

In times past, plagiarism was very difficult to detect.  But no more.

Plagiarism tools are just a mouse click away *

Now an Internet connection and the click of a mouse can detect the plagiarist in seconds.  And they are getting faster and more proficient every day.  And it is no longer a service restricted to those those with financial resources.  Many of the online services that detect plagiarism are free.

For eons, teachers and professors often suspected students of plagiarizing their work.  Sometimes the phrasing of papers in a class was just too similar, or the student who had difficulty determining subject from verb suddenly turned in a paper that sang with stylish prose.  But except for the student who simply copied from a book in the high school library, or tried to claim the words of Emily Bronte as her own, the teacher had a difficult time proving her suspicions.

The problem was exacerbated in the 1990s as services selling term papers over the Internet proliferated.  For $50, you could purchase an "A" paper from a university on the other side of the country, download it, print it off on your own computer - even adding a spelling mistake or two to allay suspicion.

But no more.

The past decade has seen the development of a myriad of plagiarism detection systems.  Whether it's protecting your own work, or making sure that the work submitted by others is truly original, these are useful tools and the bane of the lazy student.

How do the programs work?  They all have their differences, but essentially they create a huge database of student papers and other known works, as well as capabilities of searching online resources.  A student, teacher or publisher then submits the new material.  The computers run a check and determine if there are large segments of text that are copied exactly or nearly from all the text in the database.  The system then spits out a report on the likelihood of copying, and the source from which the copying may have occurred. 

Among the pay resources available:

Turnitin - an online service by iParadig used by many schools, colleges and universities

Attributor - for protecting authors and publishers from unauthorized use of content

Veriguide

PlagScan

Copyscape (for checking online use of your copyrighted material)


Among the free resources for plagiarism checking:

Plagium.com

Chimpsky - developed by the University of Waterloo

eTBlast - provided by Virginia Tech



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Graphic Books Offers Great Primer on Copyright and Fair Use

While doing

some recent research, I stumbled on a graphic book -- a comic book, if you like -- that is one of the best short primers I've found on the law of copyright and fair use.

Bound by Law: Tales from the Public Domain looks like a comic book, or maybe more accurately, a graphic novel.  But don't let its for fool you.  This is maybe the best short-hand treatment of the law of copyright and fair use that I've come across. Sit down with this paperback and 40 minutes later you will have a pretty good founda

tion on laws that are essential to writers and other creative artists.

The book is written and illustrated by Keith Aoki, James Boyle and Jennifer Jenkins, and was published by Duke University Press in 2008.  It features a foreward by Davis Guggenheim, Academy Award winning diretor of "An Inconvenient Truth," with a very insightful introduction by Cory Doctorow, award winning Sci-Fi writer & co-editor of Boing Boing website.  

Image copyright by non-commercial Creative commons  Attribution, non-commercial, shar-alike licence.