In 1984, when I was 13, I wrote an article on revising the AD&D combat tables, sent it in to Dragon magazine, and it was published the following year. Before it hit print, I was given a contract to read and sign. The contract specified that I was selling "first serial rights" only, and retained all rights for republishing, putting in anthologies, etc.
I signed the contract, and got a $100 check.
20 years later, Dragon released a CD-ROM compendium of all content. My article was included, without my permission.
This was not "initial" serial rights - this was a republishing.
I sent an email saying "you owe me additional payment".
They wrote back saying "no".
I filled out a small claims court form in MA, submitted it along with a $40 processing fee, and waited.
A few weeks later I was given a court date.
I showed up. The Hasbro magazine rep (Dragon was published by TSR, which had been acquired by Wizards of the Coast, which had been acquired by Hasbro) did not show.
I won the case by default.
The court mailed the judgement to Hasbro.
A month later Hasbro mailed me a check for $2,000, in accordance with the judgement.
It's actually quite frustrating, because there are a number of magazines that want to publish back issue electronic archives, but can't because in they never imagined that they'd want to republish articles electronically and there's no practical way to chase down all the authors, artists, photographers and potentially the advertisers to get the rights.
I know one magazine publisher that just shrugged his shoulders and gave up. There are decent-quality scanned copies of every issue on the torrents now, but he isn't pursuing any action to stop it.
I sold the first serial rights for $100.
I would have sold all rights for $120 or so.
...but they never asked.
That's rather the problem - asking every person who holds the rights can be genuinely difficult.
In your case, the original magazine was published years ago. Even if the publisher had kept your contact information - and didn't lose it when the got bought out by another company, and THAT company didn't lose it in the next level of buying out, etc. - the contact would no longer be accurate all those years later.
Even if they did somehow manage to contact you, it's possible that you wouldn't have responded to the letter asking for rights anymore than they responded to your letter asking for payment.
There could be this same problem for every article in every issue for the entire span of the magazine.
Hasbro could have noticed somewhere along the path to you initiating court procedures and have offered a quick payment of $120 to make you happy instead of the $2000 default judgement, but a corporation as large as Hasbro probably gets a lot of complaints, some of them nuisance complaints or crank calls.
It's quite possible that the $2,000 they had to pay was cheaper - maybe even dramatically cheaper - then the filing and/or legal footwork involved in accurately determining that it was necessary to pay you.
And when determining what you need to do in order to comply with a law is very burdensome or difficult, I would say that it's fair to call that a problem with the law. A good law should make it easy to obey the law - not easy in a moral sense where it's a low standard, or easy in the loophole sense that you won't get caught anyway, but easy in the accounting sense that accomplishing non-nefarious, law-abiding objectives should cost small amounts of money in overhead activities.
> That's rather the problem - asking every person
> who holds the rights can be genuinely difficult.
I'd be willing to bet that almost no print media is currently securing the rights to directly load content into the brain. They may regret that 50 years from now.
Basically, 'anything, everywhere, forever'. The language was probably developed by the insurance companies that handle claims for E&O (Errors & Omissions), and who know exactly how common these problems are. Chances are, that's where the $2k came from too; not Hasbro, but Hasbro's underwriter.
If that were still the copyright law, you'd have had no case unless you renewed your copyright in 1998. And even if you had, by 2012, the work would be public domain, republishable in collection/digital/etc. format by anyone.
So, yes, copyright law is relevant, and shorter terms would free up a lot of magazine material now in limbo because it's impractical to clear the rights.
I wonder if that's why there is no huge PDF archive with all issues of BYTE magazine since #1
Here is some additional information on the process. You have to find the "registered agent" for the company, which can usually be looked up online at the Secretary of State site for the state where the company is located. If they are out of state, serve the complaint by certified mail, with return receipt.
This could probably be argued under contract law as the defendant having exceeded the use they contracted.
Personally, I'd be filing small claims against them on the order of a thousand dollars or so and include a claim for expenses. Good chance it's job done and you got the cash.
The thing that struck me most about this reply was how perfect it is as an illustration of how not to deal with people when a problem arises.
1. When someone is angry about something you did, it is not right to adopt a breezy tone, as if you are doing some online chat with a friend. This is a disrespectful way of denigrating the concerns raised by that person.
2. The same can be said about the patronizing attitude - the "I have been around forever and know all there is to know about copyright and don't need to hear complaints from someone is an ignoramus on the topic" attitude. Even when you are in the right in dealing with, say, a disaffected customer, you never patronize in this way. It immediately causes the person to feel "shat upon," if I might use that phrase, and to react badly, even if you are correct in your position. When a problem exists, address it directly and don't play games with trying to act superior to the person making the complaint.
3. If you are going to address a legal complaint, at least make some minimal effort to understand what you are talking about. I understand that people can have philosophical disagreements about how copyright is enforced but one should not purport to make statements about technical issues of law when one has no idea what one is talking about. Here, just about everything the writer says about copyright is wrong and very obviously so.
4. When someone is already upset, you don't go about gratuitously provoking that person in responding to the complaint. "We stole your work but it really stunk and we did you a favor by writing it far better than you ever could have done" is the sort of response that must rank right up there with other classics in asinine fatuity.
I am sure there are other things wrong with this as well but this is surely a list of very obvious things to avoid in dealing with a complaint. This sort of thing is guaranteed to provoke, inflame, and escalate the problem to a point where this person will surely regret it.
The only conclusion I can draw is that she doesn't use a computer for much more than e-mail. I have a rule when communicating with a vendor or a costumer from my company: Would I like it if these words and my attribution (as well as my company's) ended up on every major news aggregation site (or just "4chan" works).
Put through that filter, I'm required to look at it from the perspective of not only how "I think it sounds" but "How it could be misinterpreted". The web site for the magazine is down. I can't imagine what her inbox must look like at this point. If this was my error and my responsibility, I would have driven the $130 to the Columbia School of Journalism that afternoon, apologized as requested and begged my company for reimbursement (that I wouldn't have deserved and likely wouldn't have received).
Now for the advertising postmortem...
That would be magnificent and a giant feat of social engineering, but I don't think it is. It's too subtle, there are too many unknown factors to be able to control the situation (how were they going to know that a person with a high-profile blog would respond with just a claim of 100$?) and the time line is too long for a troll. Nor is there a (positive) connection to any brand.
But if it is, hats off.
More likely a genuinely clueless person who has been in 'print' for a decade or two but is largely clueless to the interwebs.
What is it with our culture where people just can't admit they were wrong?
Oh yeah.... http://www.huffingtonpost.com/rick-carnes/advice-for-jammie-...
I too have been in publishing for 20 years, and now work exclusively in online publishing. They violated her copyright, period. We get the rights to everything we publish for a reason, and if someone publishes something of ours without permission, we request them to take it down -- most do it instantly (I've never had to file a DCMA), but that's her next step -- DCMA/e-mail her ISP.
Really is mind-boggling that someone who considers themselves a professional journalist would send an e-mail like that -- embarrassed for our whole profession.
Sadly, though, Internet scraping by print journalists happens a lot. Wired editor Chris Anderson plagiarized material for his book (or by his account, "failing to cite sources") and there used to be a regular parade of plagiarists having their stories highlighted on Romenesko, a well-known blog and newsletter aimed at professional journalists. A common scenario is copying and pasting from other news sources, but Wikipedia figures prominently as well.
Copying and pasting is too easy and too big a temptation for people with low standards, and cheaters assume they won't get caught.
Though I am not one to suggest getting a lawyer, I would take the steps towards that direction, including DCMA takedown and the like, as suggested by several others.
If this editor has been knowingly doing 'this' activity (clearly violating copyright) a class action lawsuit against the entire company could be in short order for copyright violation en masse.
Having to pay a lawyer sucks and is expensive, but outright theft and then re-branding with their own copyright is disgusting.
I wonder how interested groups like EFF and ACLU would be in this story.
I'm always amazed at how any copyright law doesn't make it any easier to seek compensation if you are an individual. To the point where copyright only seems to have meaning if you have a team of lawyers on staff.
"Oh, really? Well the registered post office said that there's a signature on this from you, and it was definately hand delivered."
Please, nobody tell /b/...
Depends on your definition of "anonymous"; I don't imagine most potential recipients would require you to get the form notarized when you sign it (especially if they accept notices by email).
Sure it's be hugely illegal, but /b/ seems to have people who don't particularly care about that...
IANACopyrightL but I suspect that it's fine as long as you don't send it to the US! If you send it to the US then you've caused an illegal action in that jurisdiction and would be liable. You're probably not going to be extradited though (unless you're in the UK [kinda joking]).
So, maybe if the recipient's mail server is outside the USA then you'd be fine.
AFAIK there are no federal small claims courts in the United States, only state ones. The DMCA is federal legislation, and from 28USC85§1338,
"(a) The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases."
As I understand US law (IANAL), it costs $350 to file a case in the federal District Court, but the statutory damages you will be awarded if you win range from $750-$30,000 (depending on what the court).
Not only does the internet do a good job of exposing things, it catalogs everything, so it's hard for you to just remove something without someone or something saving it.
I once had someone wrote some crazy shit on their blog about my friend. My friend approached this person, and she denied it, and apparently tried removing her blog post. Luckily Google cached the entire thing.
At present, people seem to have found matches between Cooks Source articles and the Martha Stewart website; The Food Network; NPR; the website of Boots (the chemist); Alternet; Weight Watchers; and a website owned by Disney.
One source at Food Network stated their legal department is looking into it.
One does NOT fuck with Oprah.
Everyone is provoked to a belligerent counter-attack: demand restitution! lawyer-up! sue! But this only consolidates the underlying problem. It is just the wrongness of the system popping up in a different place. The way forward is less restrictions, less legal action, not more aggressive enforcement for everyone.
If someone plagiarises something, and then excuses themself with a pack of bumptious squirmy nonsense, they can be ridiculed. But generally we all ought to be copying stuff pretty freely.
Griggs was an idiot - but thats OK, there's no law against being an idiot. There _is_ a copyright law though. Griggs was offered a simple and inexpensive way to to fix the crime she committed out of her idiocy, and she chose to not take up that offer. What else should the copyright owner in a case like this do except get belligerent?
Which we can't do under the current laws, regardless of whether we ignore people who don't understand those laws. What's the best way to get the laws fixed?
"Convince everyone to ignore them" seems like a reasonable first step.
And angry comments keep on being posted on their Facebook page, although the ironic thing is I think you have to click "Like" to be able to comment ...
Interesting comparison in the reactions from HNers IMO.
However, a reform to copyright law I'd gladly see happen is that orphan content (which officially deleted websites arguably are) should be exempt from copyright. I mean, how can people seriously retain rights to profit from work which they OK'd (explicitly or implicitly) the deletion/ending the publication of? What reocities does, in my mind, whether commercial or not, is great.
I also think there should be a default, opt-out licence covering all new content published, along the lines of CC share alike - attribution - noncommercial. Creators are free to opt out of the licence - explicitly - and reserve ALL rights if they want.
Wouldn't cover CooksSource's actions (commercial) but it would stop you infringing my copyright when you forward my emails.
Also, responding to a takedown is a completely non-sequitur to 'how is that commercial'. For better, or worse; commercial, or not; you have to comply. Insane that such a logical fallacy can attract such karma.
However, approving having something deleted does not by itself make it an orphan work. After all, the copyright holder may have had it deleted in one place to publish it in another or had it removed so that it could be reworked into a new revision before being posted.
Orphaned works are those where either the copyright owner no longer exists (a corporate entity that went out of business for instance) or where there is no practical way to identify the proper copyright holder. Not merely those that have been removed from one particular place of publication.
And the overall situation with photography on the Web is probably much worse than writing. Even sites that wouldn't condone unattributed cutting and pasting of text routinely use all sorts of photos that I'm sure have been casually copied from somewhere on the Web.
Destruction of a work I retain the copyright on is part of my [moral] right. For example an artist may not wish their earlier work to be seen, they should have the right to prevent it deleteriously affecting their reputation without that work being considered "orphaned" and fair game.
Reocities bringing back my teenage webpages may mean that people find things authored by me that I no longer want to be available, I took the appropriate course in letting Geocities wipe their servers; what right do Reocities have to recover that without my say so?
I don't care as it happens but I could and assuming that the servers are in a Paris Convention/TRIPS country I should win. TRIPS requires countries to treat commercial scale infringements as criminal!
FWIW safe harbour only works if you know you're not holding works for which you don't have the copyright or a license.
>Orphaned works are those where either the copyright owner no longer exists [...] or where there is no practical way to identify the proper copyright holder.
The former are orphaned if their estates or business successors can't be found. The later are not orphaned, they're just a PITA.
As for what was above: I fully accept the issues over orphan works, I was just defending the Reocities iniatiative; by and large, the rebirth of utility in what really were orphan works.
No, you only get to delete copies you have control over. If someone has received a copy of the document within their rights they are fine. However, in Europe we don't have personal fair use rights [to the same extent] as you do in USA (I'm guessing) - so keeping a personal copy of something you saw online is an infringing act.
Why moral rights? Well that comes to the heart of what you see copyright as for.
Moral rights are the most important part IMO, I see that those who create a work should have the right to distribute it or not as they see fit (once distributed their rights are [or at least should be!] exhausted over the distributed copies). But simply because I'm no longer distributing shouldn't give you the right to take that work from me.
A creator should also have the right to be named as creator (perpetually IMO, even beyond copyrights current terms). They should also have the right to control modification ("adaptation"), within the term, a limited version of this is obviously necessary if the right to be named as creator is there. I don't think you should have the right to write what you want and put my name on it (this clearly overlaps with other laws, eg libel).
Basically what you're saying is other creators content should be free (libre+gratis) for me because I think what I'm doing is right. IMO that's not your call.
One question, how do you [legally] differentiate Reocities from someone who takes your blog post and republishes it with ads? You may not have a problem with that (use CC or PD licenses in which case) but most would. [Now you've defined the difference you can start your campaign to get copyright altered.]
Shall we do trademark infringement now too .. Reocities is almost certainly infringing there too, if the owners have a lot of money I could see a RTM troll picking up the mark and going to town.
In other words, I'm right that you think that more than issuing content on licences that are revocable, allowing a person to instantly revoke all licences and be in their rights to totally withdraw something from circulation and speech in society, you go much further than contractual controls over speech and culture - you make it a moral right! you said:
>> Destruction of a work I retain the copyright on is part of my [moral] right.
I am not totally against moral rights, by the way. I do know exactly what they are, and am not from the US, or France, both of which see them slightly differently than here, the UK. But that's irrelevant. I agree with you about correct attribution. Note that misleading attribution is really not so bad. People lie all the time, and where lies cause damage, we have laws in place for that - e.g. contractual misrepresentation/negligent misstatement, fraud, libel. Why add a super-powerful moral right, capable of reaching through space and time, and activateable at your wish, for all of time (I assume if you want that right to be enforceable, you're saying it should be assignable to someone after your death, and theirs, ad infinitum)?
You forget that every citizen with a computer (including a smartphone) is now a publisher. Copyright law is very, very complex, and that's fine if it only affected professional publishers, as it once did, and helped create a market capable of self-regulating copying. But all of that has changed, hugely, now. Are you really considering my moral rights when you cite my post in the one you just published?
Furthermore, copyright is a bundle of rights that reaches through space and time to control how people communicate, and also how your digital devices (your own property) can interact (DRM, region controls, etc). For it to exist, we have to sacrifice, for the copyright term, rights to free communication, to efficient cultural diffusion, cheap education, cheap and simple factual accuracy (since things must be paraphrased, incriminating emails cannot be reproduced, etc). We chose to do that, but our legislators perhaps forgot about that sacrifice every time they extended copyright. Have a read of the economists' amicus curiae brief in Eldred v Ashcroft (supreme court) to see what Coase, Friedman, Arrow, Varian, Akerloff, Buchanan et al thought about just the economic aspect of it (let alone my points just now about nonmarket efficiency and rights to free and efficient speech).
>Basically what you're saying is other creators content should be free (libre+gratis) for me because I think what I'm doing is right. IMO that's not your call.
Basically, that's not at all what I have ever said or felt. See above where I said that new content should be created - even with all rights from copyright as it is - under an OPT OUT implied statutory license for NON-COMMERCIAL, ATTRIBUTED and SHARE ALIKE use. (I think this covers your next question, too, by removing the strawman you based it on)
> Shall we do trademark infringement now too .. Reocities is almost certainly infringing there too, if the owners have a lot of money I could see a RTM troll picking up the mark and going to town.
I'm sorry, what's your point here. That Reocities is bad, or that IP laws are on many occasions very negative things indeed?
[Incidentally if Jacques is reading I'm not waging war against you.]
Silver lining to the cloud.