San Diego Unseen: An Urban Portrait
A few days ago, I was surfing around the web looking for stories, and came across the Chilling Effects Clearinghouse's Cease & Desist Database, a collection of letters sent to internet users alleging infringement, usually under the Digital Millennium Copyright Act.
A collaboration between the Electronic Frontier Foundation (see full disclosure below*) and seven law schools, the project collects and analyzes legal complaints about materials posted online. They believe that many companies and organizations send out meritless cease-and-desist letters, which have a chilling effect on users (hence the title).
The majority of San Diego-related letters in the database, which is far from exhaustive, were sent by locally based porn producers, specifically Naughty America and Corbin Fisher (whose heavy-handed DMCA lawsuits we've covered before). But then there were also three letters in the database from the North County Times, a daily newspaper covering San Diego County.
And at least one of NCT's letters, in our analysis, was without merit.
All three of the complaints were sent to Google in 2010 and alleged copyright violations by users of its Blogger.com service. Now, with major corporations like Google, it's important to understand that it's a guilty-until-proven-innocent system. Someone alleges copyright infringement, Google removes the posts and the user may then challenge the decision through an automated system that is, to be frank, nearly impossible to maneuver.** In all three NCT cases the posts were deleted.
In October 2010, the NC Times alleged infringement by a user on BobKowell.blogspot.com, the online home of the writings of Bob Kowell, president of the Murrieta-Temecula Republican Assembly, a Riverside county conservative club. NCT made a second, similar complaint against a related blog, Our Murrieta. Two of the articles they identified were written by NCT reporters; although one of them quoted Kowell, both seemed to be clear violations of copyright (or at least poor net etiquette; a blogger should generally use only a portion of a story and link to the original).The third article, however, was authored by Kowell himself as part of the NCT's "Community Forum" section, a sort of extended letters-to-the-editor feature, but in short essay form.
NCT argued in its complaint:
The first item is a community forum submission to the newspaper from community members. Because these submissions are printed in the newspaper and published on our website, we retain the rights.
This struck me as strange. There is nothing that discloses this waiver of rights on the submission form for Community Forum items. If you look at the fine print in the NCT website's Terms of Service, you discover this (emphasis added):
"You are granting us a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute and or display such Submission, in whole or in part, in any manner or medium now known or hereafter developed.
"Non-exclusive" means that the writer retains the right to publish the writing elsewhere and the NCT has no rights to claim exclusivity.
I shot an email over to the newspaper and managing editor Dan McSwain called me back within a few hours.
It was a heated conversation. McSwain explained how it is not unusual for NCT to send out half a dozen DMCA warnings in a single day, particularly if a popular story has been picked up by a content mill with paid staffers who steal reporting to capitalize on ad revenue. But he also admitted that the process is somewhat on autopilot and they may not have looked carefully enough at the Kowell blog to notice that he was posting his own writing.
"We have, in this instance, a person who routinely lifted news stories and put them on their web site," McSwain said. "We frankly didn't investigate any further. We found two incidents of news stories lifted and we saw another community forum and we complained about all three."
He added later in the conversation that community-forum writers shouldn't be worried about reposting their own work, unless they are also stealing stories.
"We don’t send cease-and-decease letters, we don’t complain to service providers until we see a pattern," he said.
We also called Kowell who said it is not unusual for him to send the same op-ed to several newspapers for publication. But, as it turns out, he doesn't actually control the blog. A volunteer blogs for him. Kowell says he hasn't even looked at the site.
McSwain admitted that it may have been a mistake to complain about Kowell's community-forum post and said Kowell's associate is free to post it again. In turn, now that he's been alerted, Kowell will likely have a word with his blog buddy.
So, problem solved.
Now for the funny part.
The third DMCA letter NCT sent out is not only valid, but illustrates how ridiculous some bigots act on the internet.
To quote from the letter (emphasis added):
The copyrighted work at issue is at least three articles originally reported and written by professional journalists at the North County Times newspaper located in Escondido, Calif.
These articles have been reproduced in their entirety (in violation of fair use) and without credit given to the North County Times. A fourth article copyrighted by the Associated Press was lifted from the North County Times website. The North County Times does have online reprint permission from the Associated Press.
In addition, the headlines of all the articles posted on the Blogger page were modified to be intentionally incorrect. These factually incorrect headlines paired with our original reporting could damage the credibility of our organization.
The anonymous blog in question is called ProSB10170.blogspot.com and, as the name explains, was set up to support Arizona's controversial anti-illegal-immigration law.
Perhaps, "support" is too imprecise a word.
The "Wake Up America!" blog rips off stories from other publications, then posts them with headlines manipulated to stir up anti-immigrant fervor. This is also one of those obnoxious blogs where, to get to a post, you have to scroll and scroll and scroll through several page-lengths of garbage. In this case, it's historical anti-immigrant quotes, YouTube videos of border crossings, definitions of words like "treason" and "illegal alien" and rants on President Obama for being a foreign national and/or traitor who "shit on the graves" of servicemen when he was photographed without his hand to his heart in front of an American flag.
Rather than deleting the posts, the blogger instead replaced the articles with snide remarks about political censorship.
Here's a breakdown of three of them:
Original NCT headline:
REGION: Latinos now outnumber whites in Escondido, Vista
Pro SB 1070 headline:
Illegal aliens now outnumber Americans in Escondido, Vista
Reason why Pro SB 107 says the post was deleted:
Article removed by the obama administration.
***
Original NCT headline:
OCEANSIDE: Latinos attend human rights forum
Illegal aliens hold a town meeting to talk about their rights that they don't have!
Reason why Pro SB 107 said the post was deleted:
Article removed by democrats.
***
Original NCT headline:
REGION: Vista man arrested in Encinitas false abduction case
Pro SB 1070 headline:
Illegal alien arrested in Encinitas false abduction case
Reason why Pro SB 1070 said the post was deleted:
Article removed by illegal alien advocates.
So, here's why the blogger's a racist.
Regardless of whether you support SB 1070, if you think "Latino" is synonymous with "illegal alien," then you're a bigot. Period. There are tens of millions of American citizens who are Latino. What makes it even worse is the blogger actually defines "illegal alien" prominently on his page, so he really has no excuse for it.
Only his third example is semi-accurate; law enforcement did believe the suspect was in the country illegally. The fact of the matter is that the Obama administration, Democrats and illegal-alien advocates had nothing to do with the removal of the articles.
The only person breaking the law was the blogger
* Along with Wikipedia, the Electronic Frontier Foundation is the only other nonprofit I donated to in 2010 that was not a news organization. In the modern digital world there are many non-profit organizations who release free software but need donations to keep going. I use several of EFF's applications, but in 2010 the one I wanted to support specifically was HTTPS Everywhere, an important privacy tool to combat Firesheep.
The other reason I contributed was Wikileaks. EFF is set up to protect the First Amendment (free speech) and the Fourth Amendment (privacy/search seizure) rights in the digital realm. At the very beginning of the Wikileaks' Cablegate dump, many national policymakers were talking of prosecuting media outlets who reported on the documents. I too reported the contents of the state-department cables, so I consequently have an interest in EFF's legal advocacy. I continue to have an interest. I just receive my complimentary pack off EFF stickers in the mail ... which I have proudly slapped on my laptop.
If you call me biased, then I'll call you naive: I'm a journalist. Of course I believe in the freedom of the press.
** I speak from experience here. Three years ago, I received a "strike" against my YouTube account after 20th Century Fox accused me of infringement. I had posted a video of a decade-old clip, Bear Essential News for Kids, a public-service series of news stories designed to encourage kids to get into journalism.
I was 10 years old and a "cub reporter" for the organization. The story I reported was about the Bart Simpson phenomenon, which was a relatively new craze at the time. When I posted the video on YouTube, Fox automatically assumed I had infringed on its content. I hadn't. While the clip aired on a local Fox affiliate, the copyright did not belong to 20th Century Fox. I called Bear Essential News, which had no problem with me using the footage, particularly because it contained my image, promoted their education program (after all, I'm a success story) and wasn't available anywhere else on the net. The Fox affiliate, an independent station, no longer existed. I emailed FOX and YouTube. No response.
Three years later, I still have the strike against my account, which has resulted in a loss of certain privileges on YouTube, such as the ability to post unlisted videos.
That's not to say that over the last few years I haven't made errors elsewhere when it comes to what's fair use and what's not. But we're in the pioneering days of the internet and the conventions that are developing are sometimes at odds with the poorly crafted Digital Millennium Copyright Act. These days I try to stick to stuff that I know is either public domain or licensed under Creative Commons.
Consider me chilled.
UPDATE: I remembered I also kicked a few bucks to Wikipedia, so I added that in.
