July 09, 2010 06:50 PM UTC

Legal Threat Gets More Bizarre: Attorney Admits They Have No Claim

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• by: Colorado Pols

We think today’s story from the Colorado Statesman’s Ernest Luning offers the most comprehensive look at our recent dispute with a number of Colorado newspapers that’s been written so far. We’ll add a couple of fine points, make sure you read it all, but there are a few parts that really jump out — like the newspaper group’s attorney saying that their legal threats actually aren’t all that valid:

[Beall] acknowledged his clients can’t force Colorado Pols to stop using its content altogether but said he issued the blanket demand because the website’s editors were so frequently straying so far out of bounds. [Pols emphasis]…

…“My clients cannot insist someone stop engaging in fair use,” Beall said [Pols emphasis]. “So Colorado Pols is entitled to engage in fair use of our newspapers’ content. The easiest course to avoid a dispute is to not engage in any copying, because then you don’t have to figure out whether the use is a fair use.”

He said the news organizations singled out Colorado Pols – and haven’t sent similar demands to any other blogs or websites – because no one else quoted from his clients’ articles so extensively.

Still, he emphasized, “Colorado Pols has a right under the Copyright Act to engage in fair use.” [Pols emphasis]

If the news organizations just wanted the website to post briefer excerpts and be sure to add some commentary, why initiate the discussion with such a hard-line stance? Beall said confusion about the law required hitting hard out of the gate.

“The position we stake out is, if you want to be sure you’re not infringing, don’t engage in any literal copying,” he said. “Go forth and make merry, but don’t engage in literal copying of the heart of the news coverage we create.”

The website doesn’t need to shut out the newspapers Beall represents, he said…

This admission that the newspapers took such a “hard-line stance,” knowing that they were legally wrong, is frankly an incredible statement. And it stands in stark contrast to statements from attorney Christopher Beall yesterday to Westword’s Michael Roberts, where he made vague reference to a “gentleman’s agreement” to not directly quote “more than two paragraphs” of The Denver Post–an assertion repeated in today’s Denver Daily News.

We have no idea what Beall is talking about regarding this “gentleman’s agreement.” We never had any such agreement with the Post or anyone else–but we do agree that the position Beall “staked out” in this letter is not legally defensible. And it’s nice of Beall to admit to readers that we don’t have to comply with his threatening letter, and perhaps some recognition that maybe this was a bad idea in noting that we’re not obligated to “shut out” the newspapers who signed on, but he’s only reinforcing our point by admitting this: we have absolutely nothing to gain by putting ourselves at risk citing the work of organizations who threaten us, and make demands far beyond their legal rights.

On the other side, as the Statesman’s Luning continues, are more reasonable voices in the print media, who understand blogs and find ways to benefit. You may have noticed that there are a number of newspapers who did not join MediaNews’ case-and-desist letter–Luning spoke with a couple of them, one of whom you’ll recognize:

A newspaper editor who was approached to join the complaint against Colorado Pols but declined – and who frequently posts links to his own breaking news on the website – said both sides went to the barricades too hastily.

“I do think there’s a middle ground if people just take a deep breath,” said Fort Collins Coloradoan executive editor Bob Moore.

He said he sympathizes with the owners of the aggrieved newspapers but also realizes the importance of inserting political stories into the online community.

“We really have not had that kind of problem with Colorado Pols,” Moore said, noting that his own efforts to promote Coloradoan stories on the website have helped increase his reputation among political observers statewide [Pols emphasis]…

Moore isn’t the only editor of a Colorado newspaper who sees the benefit of connecting their stories with Colorado Pols.

An executive at another newspaper – whose political coverage has already gotten a boost from Colorado Pols’ stance [Pols emphasis] – said he declined to sign on with the cease-and-desist letter from the other news organizations but understood why they sent it.

“We probably would have been part of this effort had we seen a clearer abuse of our intellectual property rights by Colorado Pols,” said Grand Junction Daily Sentinel publisher Jay Seaton…

While Seaton acknowledged he was happy the newspaper’s political reporting got more attention when Colorado Pols featured it, the publisher cautioned the website against taking his stance as a license to go hog wild. “If that happens, we will pursue a remedy against them,” he said.

This is a good opportunity to clear the air on this subject, which we’ll add is a lot easier to do with people who are willing to make reasonable requests–not unreasonable demands.

We’ve frequently cited the Coloradoan’s Bob Moore, as well as our online partners at The Washington Post and Hotline, as examples of the way that traditional journalists should work with blogs. Traditional media organizations who participate in that discussion should only benefit from doing so–to the extent that this blog is a hub for dissemination of news from many commercial sources, as well as original reporting and commentary, Bob Moore’s stories belong here, and we want them here in a way that benefits all parties.

With the introduction of our new Terms of Use, the method for resolving copyright complaints is clearly defined. In short, we value the relationship we have with the media, and we have no interest in doing anything to jeopardize that. In turn, both Moore and the Grand Junction Sentinel’s Jay Seaton acknowledge the value they get in return when their stories are more widely distributed from our blog. That’s how it’s supposed to work, and for media outlets smart enough get it, it’s a recipe for continued success.