Hi Bill Keller. The New York Times just stole our column. Should we sue?





[UPDATE] NEW POST: Bill Keller? Me again. Here's another article the New York Times pirated [Thursday, Feb 9]

[UPDATE] NEW POST: Bill Keller responds [Friday, Feb 10]

[UPDATE] NEW POST: Joe Nocera responds, Booth article republished legally [Wednesday, Feb 15]



Bill Keller: I heard you like copyright. You wrote one provocative print column about it on Sunday, one blistering blog followup on Monday, and pointed to a third Times op-ed piece from Sunday (headline: "Perpetual War: Digital Pirates amd Creators") that says basically the same thing.

So here's an interesting data point: on Saturday, the New York Times blatantly and willfully violated the copyright of another publisher -- our publisher, actually. On the Times op-ed (web) page. And in a blog follow-up to that op-ed column.

More on that in a second. But before we get our lawyers involved, and for the benefit of everyone else reading this, let's go back and start with the Times's feelings on copyright.



Mr. Keller, the former New York Times executive editor who has taken up opinionizing, wrote a very smug column on Sunday. The op-ed appeared under the headline "Steal this column," but he was suggesting something almost the opposite: that the millions of people who'd galvanized to oppose SOPA had been brainwashed by tech companies who aren't really all that serious about preventing piracy. "Does this smackdown mean that any attempt to police the Web for thievery is similarly doomed?" he lamented. Keller wrote that he "regard[s] phrases like 'Net neutrality' as Novocain for the brain." And here's his conclusion: "[O]nline companies would be crazy to let piracy kill off the commerce that supplies quality material upon which even free sites like Wikipedia depend."

We've heard this kind of talk from mainstream media dinosaurs for years. And we've seen the interweb's response. So you won't be surprised to hear that Keller got a lot of comments from people pointing out how fool-headed he was. In response, Keller doubled down and took on the commenters in a follow-up blog post on Monday. Keller was surprised by "how willing people are to rationalize theft." He can't believe that "big, rich, (formerly) powerful corporations like the entertainment and publishing industries are regarded as greed-heads and enemies of free speech, while big, rich, (newly) powerful corporations in the digital space get to play anti-corporate populists and saviors of the First Amendment."

And then he wrote this paragraph:



Several readers pointed out that copyright protections have been expanded in some ways that are hard to justify. That is true. Works that used to enter the public domain after 50 years now reap residuals for their corporate owners for 70 years, long after the authors are dead and the cost of the work has been reimbursed many times over. Books that are out of print – works could be made widely available to new audiences online – stay buried because their copyrights have not expired. I would wholeheartedly support a more comprehensive reform of the copyright laws, including shortening of the protection periods. That said, most piracy is not of 50-year-old work, but of music and movies and books fresh from the artist. One email (from a lawyer, interestingly) insisted that “people who violate this stupid law are no more law-breakers than those who violated the Fugitive Slaves Act or the Prohibition laws–nominally criminal, but in fact not.” No. Stealing this work is not civil disobedience, and to liken it to the abolitionists is obscene. It is theft.

My emphasis there. None of this is any big secret. The New York Times is protectionist when it comes to its own copyright and intellectual property.

Which is why, even before Keller chose Super Bowl Sunday to make a big stink about copyright, we were shocked on Saturday to see the Times so blatantly infringing on another newspaper's copyright -- by stealing a famous story and re-publishing it on the Times's own site. Not only did they steal the entire story -- they also stole the photos and the layout. And then they blogged about it.

The story in question, a 1976 piece by the sportswriter Clark Booth, is a classic. "Death and Football" took an early look at the hidden and often brutal injuries suffered by the sport's players. It's an article whose prescience is astounding in light of what we now know (thanks in big part to Times reporting) about football and the long-term consequences of concussions.

A New York Times op-ed columnist, veteran journalist Joe Nocera, remembered that article from his days in Boston, tracked down Booth in Florida, and wrote a column for the NYT print edition about it. Nocera wrote that Booth provided him with a copy of the original piece as it appeared in the Real Paper, a Boston alternative weekly that existed for about a decade in the 1970s and early 1980s. When the Times published Nocera's op-ed column online, they also uploaded a PDF of the Real Paper story to their servers, and linked to it from Nocera's column. (They also linked to it from a subsequent, supplementary blog post.) It's still there. (Sorry, Bill, I'm not linking to the PDF -- I suppose that would be like Warner Bros linking to the Pirate Bay.) This is about the most literal instance of copyright theft, in terms of source material (someone else's), method (photocopied a print article), and intention of the law (don't copy someone else's stuff and distribute it as your own), as can be imagined.



Our copyright. Your servers.



What's all that got to do with us? Well, the Boston Phoenix, like many newspapers, has a long and winding history, and our legacy comprises the remains of several of our former alt-newsweekly adversaries. The Real Paper was once a competitor to the Phoenix and was later absorbed by it; the archives and assets of the Real Paper have long been owned by the the Phoenix Media/Communications Group, the independent, family-owned company that includes the Phoenix and radio station WFNX. In a legal sense, the New York Times just decapitated our copyright -- using the same approximate force with which the Giants stomped the Patriots in Super Bowl XLVI.

But wait -- you might ask -- could it be the case that columnist Nocera had the permission of Booth, the article's original author, to reprint the story? Perhaps: Nocera doesn't say. But in legal terms, it wouldn't matter. Depending on a newspaper's licensing agreements with its freelancers, Clark Booth may have had the ability to give the Times the rights to re-publish the text of the story, if they'd re-typed it and credited the original source. But in any case, that's not what the Times did. What Clark Booth could not have given the Times permission to copy -- because it didn't belong to him -- is the presentation of that story. Booth certainly doesn't own the copyright to the photos that were used in his story, nor can he grant the rights to reprint the cover of the newspaper, the advertisements that appear on jump pages (including the logos of bands such as Queen and Supertramp), or the layout of the pages themselves. Which means that even if the Times had Booth's permission to post the story, the Times is still violating multiple copyrights by hosting these PDFs of the Real Paper on a Times server.



We could stop right there and call the lawyers. It's an open-and-shut case. (And we would not be surprised if the Times's lawyers, having read this far, are frantically trying to have the Times take the PDF down right now.) But let's go a little further.

Keller would like you to believe, even though he thinks of the world as being populated by digital pickpockets, that a sane anti-piracy legislation will be enforced only against the largest and most egregious copyright offenders. It's as if he lives in some alternate universe where major labels haven't already sued individual downloaders and their parents for hundreds of thousands of dollars in damages. The onus isn't on the public to prove that copyright legislation won't be used against us: it's on legacy media protectorates to come up with solutions that don't punish their customers.

"I think it is impractical and self-defeating to go after the individual who copies a song for a friend, or downloads an episode of a TV show to see whether it’s worth buying the DVD," Keller wrote in his follow-up column. "The focus should be on major offenders, sites that are in the business of selling someone else’s work off the digital equivalent of the back of a truck."

So: Times steals our article and uploads it to nytimes.com. Are you borrowing that to show a friend, Bill, or are we looking at the rear end of the world's biggest digital truck?

Some of you may remember a news startup called Pulse that launched a $4 iPad application which offered readers headlines based on what their friends were reading. A New York Times tech blogger praised the app as "stylish and easy-to-use," and suggested it might be a guide to news organizations trying to figure out their next step into digital-tablet distribution. Hours later, lawyers from the New York Times had forced Apple to remove Pulse from the app store, claiming that Pulse infringed on the Times's (and the Boston Globe's) copyright, even though the app published only headlines that were released through the Times' publicly-available RSS feed.

Put simply, the Times nuked an app developer for merely publishing its headlines. Imagine what would happen if, say, the Village Voice decided to begin uploading 3000-word New York Times features to its blog. There'd be a shitstorm.

And there ought to be a shitstorm now that the Times has been caught brazenly stealing someone else's intellectual property.

But that also won't really solve anything. We don't need super-enhanced copyright protection: we need structural copyright reform. The Pulse app, and the current example of the Times bogarting the Real Paper's steez, are two very different examples at the shallower end of the copyright problem. There are deeper issues to tackle. Of course, the Times doesn't help when it asserts overly-aggressive copyright protection on its own behalf, and when it violates the copyrights of others.

On that subject, Keller evidently has a very short institutional memory. It was not that long ago that the Times lost one of the most significant newspaper copyright cases in new-media history: a multimillion-dollar judgement, upheld by the Supreme Court, that protected the intellectual property of individual freelance writers, while making it more expensive and more difficult for newspapers to reprint their own archives online. The lesson there? Copyright is not absolutely and always in a news institution's favor: as it is construed today, the law helps some pieces of the operation and harms others. (Hey, NYT: have you heard about corporations trying to censor news coverage by claiming that publication of leaked documents would constitute a copyright violation? Oh -- yes you have.)

OK, now for some real talk. Speaking only for myself, and not for the Phoenix, which is privately owned (not by me) and would not exist without copyright protection: I think copyright in this country is a goddamn mess. And cases like this are prime examples of it.



Early alt-weeklies were not meticulous about record-keeping. We have a primitive, card-catologue-like index that covers some of the Phoenix's early years, through the 1970s -- and absolutely no index of what's in the Real Paper. The cost of digitally scanning a newspaper's archives, converting scanned files into words, pushing words into a searchable database and indexing them, is extraordinarily high -- if it can be accomplished at all. Digitizing newspapers is an order of magnitude more difficult, for instance, than digitizing a wall of books. (Even Google, with its technical genius and deep pockets, tried and failed to undertake just such a project. The only authorized digitized copies of the Real Paper available online are from Google's News Archive Project, which Google abandoned last year after five years of toil.) The best guide to finding and surfacing the fantastic journalism contained in our bound-volume archives of the Real Paper -- or of the Phoenix and Boston After Dark, for that matter -- is often some version of institutional memory. It is a fact that if Joe Nocera had not publicly written about Clark Booth's article, the world would have missed an opportunity to read a fantastic story at a moment when that story had great relevance.

We want an internet and an intellectual-property regime that rewards discovery and innovation. We won't get it with copyright construed the way it is now.

Does that make it okay for the Times to have stolen the story and the photos? Now it's my turn to be smug: I'll let Keller's rant answer that question. ("It is theft.") Truth is, I get Keller's rant (completely disagree with him, but I get it). It is a stone-cold fact that newsgatherers are, now more than ever, engaged in the tight policing of their copyrights because all of us are struggling to figure out how to survive for the next hundred years, and because those of us with pre-digital histories would like to think that our long tails -- even the buried parts -- are oil in the ground. I hope to H.L. Mencken we're right.



So, all that said: should we turn our lawyers on the Times and make them take the PDF down?

That can't possibly reward anyone -- my guess is that it would cost us more to have a lawyer send an email to the Times than anyone will ever make from running advertising on that article or selling a subscription to it. And here's the final irony: if the Times takes the article down, we might not be able to put it up ourselves. Thanks to the aforementioned Supreme Court decision, the rights issues involved with re-publishing old stories can be prohibitively chilling.

So here's my best suggestion: the Times should help us track down the photographer, pay him or her the going Times rate for the photos they republished, and then, with our permission, upload the Booth article to Scribd.com or a similar service, so that anyone can embed the piece wherever they want. (In the case that Clark Booth didn't already give the Times permission to reprint his words, they should pay him, too.) Then the Times should promise never to do it again. On pain of -- let's say -- taking down their paywall for a month.



What say ye, Keller? We got a deal?

Or should we call the lawyer?

