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

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.

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  1. Froward69 says:

    1) more readers

    2) much more thought put into posts here that at the Denver Pravda.

    3) getting the “scoop” a day or two BEFORE the Denver Pravda does.

    4) forcing the Denver Pravda to actually do its job and report on the buzz Pols creates.

    5)the Denver Pravda is jealous that the posters here can and do use colorful adjectives freely. True Free speech cannot be tolerated.

    lastly

    6) All of us “leftists” Here at Pols Mocking the Pravda’s new found bias towards the dark side, They must QUASH descent.

    When in reality it appears the Pravda is beating a dying horse, nothing more.

    • VoyageurVoyageur says:

      They [The Post] must QUASH descent.

        Actually, they support descent, as they descend further into the swamp of far-right politics and policies every day.

       It’s

      dissent

      they want to quash.

    • Libertad says:

      being that a media mogul funded his grand kids trust funds and bought horsies for his ranch on the backs of reporters and editors labor, what’s Voys take.

      Heck he’s a guest editor, what would his policy be to live within Fair Use, keep moguls trust funding ability and enable CPs to address today’s political issues.

        • VoyageurVoyageur says:

          since my secret subsidy as FPE is paid directly from Soros [Sorry to nag, Georgie, but it still hasn’t been deposited to my off-shore account in Glendale.]

            Seriously, Pols can obviously win a lawsuit based on fair use policies.  But can it afford to?  The Post once spent half a million dollars getting a libel suit thrown out on summary judgment.  Can pols afford that kind of legal bill to score a pyrrhic victory in district court on its way to bankruptcy court?

            This is one reason I favor the British system of “loser pays” in civil suits.

             

          • allyncooper says:

            I had a suspicion all along Soros was behind you, and I now officially retract my vote.

            Sad but true what you say about the costs of defending a lawsuit. But there might be the possibility of pro bono work being done since this would be a precedent setting case, and as I stated below a legal defense fund could be set up.

            If Dan Maes can raise $ 50,000 just for “drive around money”, would this be impossible?

          • Colorado PolsColorado Pols says:

            But our bigger point in all of this has been that we have no need to challenge this in court. As we’ve said, it’s no big deal for us to stop using content from the Post or these other newspapers. The success of Colorado Pols will have nothing to do with whether or not we use content from these newspapers, so it’s not a fight worth waging in our minds.

            We could go through a long legal fight and “win,” but for what? To get a court’s affirmation that we can use content that we don’t really need anyway?

  2. bjwilson83 says:

    All of a sudden now that you’re not linking to them or quoting them they want to remind you that you can link to them under fair use. They’re worried that they’re losing traffic from Colorado Pols, which they are.

    • BobMoore says:

      There’s a win-win scenario unfolding here. ColoradoPols is a gathering spot for people who want to learn about and discuss Colorado political issues. The greater the breadth of information sources, the better the discussion. There’s no question that Pols can link to and quote some degree of information from other media sources under fair use; the only real debate is over what constitutes “too much” when it comes to quoting. I think a “summarize, link, discuss” approach works well. See my diary today on the 4th Congressional District race. I summarized the content of my Coloradoan story, provided a link and started a discussion. A number of posters have followed. It’s clear from the discussion that some readers followed the link and used information that was in the story but not in the diary to add to the discussion.

      • Another skeptic says:

        Bob Moore is showing how to comment on the work of himself and others.

        The Denver Post is making a big deal out of its favorite fall guy, Tom Tancredo, who’s forced the paper to pay attention to him again. The Post doesn’t explore the merits of Tancredo’s comments, it just issues a standard snear.

        That makes Tancredo look human and the Post look snide.

        Tancredo could have been more diplomatic, but that wouldn’t have started the discussion he wants us to have. Ironically, we’re still not having that discussion.

        Why?

  3. allyncooper says:

    I think the real reason Dinky initiated his strong arm tactics is out of displaced  aggression and frustration in continuing to lose money in a “unsustainable business model”. As I said before, his problem isn’t on the content end of the business (other than the quality of his content degrading), but on the revenue end. His action will do nothing to staunch his flow of red ink, but may very well accelerate it.

    Several years ago I published a website exposing a criminal developer doing a large real estate project in the Denver area. They sent me a “cease and desist” letter (I told them to go fuck themselves). They threatened to sue me (I told them go right ahead, I’d see them in court.)  They even threatened me with criminal prosecution under the statutory criminal liable and slander laws (I told them to have a DA present me with the charging documents).

    Their threats were just that, because when I invited them to carry through on their threats, they did nothing.

    My stance would be bring it on Dinky, I’ll see ya in court. But this isn’t my blog so it’s not my decision. But I’d be willing to contribute to a Pols legal defense fund. Just put up a PayPal Donate button on Pols for that purpose.

    Stand up to Dinky and I bet his face turns as red as his P & L sheet.  

  4. Ignatius O'Reilly says:

    Say Mr. Pols hires a bunch of engineers and musicians to record a new album. Some of his songs turn out to be popular.

    Is it fair use for me to build my own business around long samples of your songs, without your permission and without paying you royalties?

    What if Mr. Pols produced movies? Could I build my business replaying long segments of those films without your permission?

    Where’s the line between fair use and stealing?

    • Added commentary, satire, size of quote, content of quote all go in to it.

      If CP were to quote 5 paragraphs of a DP story, three of which were direct quotes from a politician’s press release or rally speech, is that “fair use” under the DP’s supposed 2 paragraph rule?

      If CP adds their own analysis, does it alter how much they can post of a story so that the proper context is provided?

      Or perhaps they’re quoting long portions of an editorial in order to satirize it.

      All of these are allowed, where quoting the same amount of text in other contexts would not be.  The courts have ruled that quoting even a sentence or two can be Copyright infringement, if those few words express something highly proprietary; on the other hand, you could quote the entirety of the DP quoting someone’s public speech transcript, or long quotes with lots of analysis and those would be considered fair use.

      • Ignatius O'Reilly says:

        Pols (and a lot of the posters here) are standing up for the principle of taking someone’s work without permission and without paying for it.

        Even Republicans don’t go that far.

        • Colorado PolsColorado Pols says:

          Just about every website on the Internet could argue that other websites are “stealing” from them if the quote some of their writing — or even if they provide just a link. Technically, aren’t you “stealing” someone’s link if you don’t ask them?

          But that’s not what the Internet is. The whole point of the Internet is to share content and links. We don’t quote any website that requires a paid online subscription for their content — that would be stealing, but that’s not what is happening here. We don’t excerpt entire articles, either, which would be a completely different argument. And we don’t try to pass off someone else’s writing as our own — we always clearly indicate the source and author.

        • Ralphie says:

          We’re standing up for the principle of “Fair Use.”

          Google it.

          • Ignatius O'Reilly says:

            Sounds like the content owner doesn’t believe his property is being used fairly. So why all the butthurt here?

            • Ralphie says:

              And that affects all of us who run commentary sites.

              • Ignatius O'Reilly says:

                Pols says not using MSM won’t hurt this site. I disagree. Why isn’t the Post story about Bennett’s intern on the front page here? What about other MSM scoops, like Suthers signing off on the release of a psycho killer? From here on out, will Pols just ignore stories like that because of the source?

                To me, the strength of this site ain’t the unique content. It’s the unique commentators, who (usually) are are lot more fun and knowledgeable than the commenters on the Post site.

                Dumping the MSM from Pols just gives us fewer topics to argue about. Boring!  

                • If the Bennet diary posted by Firewalker hadn’t been so inflammatory, I’m guessing it would have been promoted already.

                  As to ignoring stories based on the source, if CP has been sent a cease-and-desist letter from Singleton’s lawyers, they have few legal choices.  If the papers had wanted CP sending them traffic based on quotes, they wouldn’t have started with a C&D – or at least they shouldn’t have.  At this point it’s up to the papers to come crawling back, IMHO – it doesn’t take other news organizations long to follow up on breaking news in a way that this site can use it without running up against a threatening C&D orbital lawyer strike.

                • Colorado PolsColorado Pols says:

                  Some stories haven’t gotten much play this week on Pols because we’ve (understandably, we hope) been focused on the legal stuff.

                  And it’s also true that once someone writes an inflammatory diary about a topic that gets a bunch of comments, it can make it less important for us to get something up right away.

            • Fair Use is a one-way street.  If the content owner objects, they can file suit to challenge the use, but they have to meet the legal burden of proof that the defendant’s actions do not meet the Fair Use exemption.  That is their only defense; whining and saying “we don’t like that” is not.

              As noted above, CP probably would have won such a case, but why bother?  Singleton’s fish wrap isn’t the only place on the Internet where CP can point their users for more details on a story.  If he doesn’t want the hits on his web sites, no need to send CP readers his way.

        • It is in the power of Congress to grant Copyright and Patent to promote advances in the Arts and Sciences.  That’s a broad power, and Congress has made many changes in it over the years.  Currently, the law governing Fair Use says pretty much what I just quoted, plus a fair bit more that doesn’t apply to this situation.  Fair Use is a broad exemption to Copyright, designed to promote the use of Copyright materials in ways expressed by the Constitution.

          I’m a content producer – I’ve said this before.  I sell my photographs (Copyright), and I create application code for my employer (also protected by Copyright).  I’m all for fair Copyright protections, but it is a limited right and shouldn’t be abused.  (E.g. I believe that the current Copyright term is ridiculously outside the bounds imagined by the Founding Fathers; a term similar to that of Patents would be more appropriate, and probably a bit too long.)

        • AristotleAristotle says:

          … then every college student who ever wrote a term paper “stole” material, regardless of whether the properly used endnotes to show their sources – unless they pay.

          • Colorado PolsColorado Pols says:

            We’re going to start using that one, too.

            • Ignatius O'Reilly says:

              1. College students, unlike bloggers, aren’t lifting other people’s writing for personal profit.

              2. When I was in college, my grades were docked whenever I ran long, attributed quotes from source material. My professors always demanded independent writing and analysis, not a cut-and-paste job with a few lines added afterward.

              3. There’s a lot more booze and sex in college than Colorado Pols.

              • 1) Bloggers aren’t often lifting work for personal profit.  I don’t know if the Dead Guvs make a salary on this gig, but I’m guessing they have other, more profitable pursuits.  And college students are betting their professional life on their papers; if that’s not personal profit, I don’t know what is.

                2) If you’re doing papers in certain fields, long quotes are inevitable.  Of course, so is a lot of your own analysis, but if you’re just complaining about the length of the quote, then many many college students are indeed guilty and should be sued by the papers.

              • AristotleAristotle says:

                1) Neither is Colorado Pols. It’s not “lifting” when it’s being attributed. And all the credible commentary on the legality of this says that it is legal for Pols to quote the articles in the manner that they did.

                2) That doesn’t mean the comparison doesn’t stand. You brought up the issue of compensating the authors of the source material. Cutting and pasting like this just means it’s bad term paper writing (or bad blogging, if you will) but not unfair use of said material.

                3) Don’t be too sure. Have you been to a Pols meetup?  😉

  5. gertie97 says:

    With the newspaper-that-shall-not-be-named taking its ball and going home, it opens up the field for the Colorado Statesman to move in more on Capitol political news.

  6. Ellie says:

    The new publisher of the Daily Sentinel has so far been a breath of fresh air after the paper wondered in the wilderness for a period after Mr. Orbanek retired.  

  7. Gray in the mountains says:

    I subscribe only on Sunday to the print version of the Post. But, everyday, even on Sunday, I open browser windows in the same order. I have a touch of OCD. First comes my email, then my bank, the CoPols, then the Post. I click on links in Pols but also read any articles in the online Post, and most of the editorials, that are of interest to me. My use of Pols has not diminished in any way my use of the Post, only enhanced it.

    • ajb says:

      Newspapers are struggling to find ways to derive revenue from the internet. Demanding that a popular blog no longer link to their content surely isn’t one of them.  

  8. ClubTwitty says:

    GOP looks to lock up key energy county in contentious GarCo commissioner race

    Both Houpt and Jankovsky expect outside influences will try to sway voters in the nearly 3,000-square-mile county of more than 55,000 residents that stretches from Glenwood Springs in the east all the way to the Utah state line.

    In 2008, the nonprofit Western Tradition Partnership, founded in Montana but with offices in Denver, spent money on mailers in support of Martin and Samson, both of whom denied any coordination with their campaigns and denounced outside influences.

    Another 501(c)4 that campaigned in the race, Western Heritage, was funded by $10,000 each from current Republican gubernatorial candidate and former congressman Scott McInnis and Paul Rady, CEO of Antero Resources, [emphasis Twitty] a Denver-based drilling company pursuing a 200-well project in GarCo’s Battlement Mesa community.

    A third nonprofit, Small Town Values, reportedly spent more than $7,000 on advertising for Samson and Martin. The group was registered to former Colorado Republican Party legal counsel John Zakhem.

    Two 527 groups, so named for a section of the IRS tax code, insinuated themselves in the election, with both coming back to GOP strategist Scott Shires – an operative with a long history of questionable campaign tactics that have led to legal action. Shires failed to register one of the groups – the Colorado League of Taxpayers – and was fined $7,150 in the case.

    Environmental nonprofits under the umbrella of the Western Organization of Resource Councils reportedly spent $15,000 campaigning in support of Democrats Bershenyi and Carter. WORC includes grassroots activist groups like the Grand Valley Citizens Alliance and Battlement Concerned Citizens, which are working to limit the impacts of Antero’s drilling plan in Battlement Mesa.

  9. jW says:

    It’s fair to point out that The Statesman goes on to quote Bob Moore:

    “But at the same time,” (Moore) added, “I do cringe when I see Colorado Pols taking eight paragraphs out of a 10-paragraph story. It is piggy-backing for free off the work others have paid for.”

    I guess that’s the difficulty here. One of these days Big Media is going to have to take a wealthy blog owner to court and have this thing out. There is such a fuzzy line to draw. Do I think Pols has crossed it on occasion? Yes. But that doesn’t mean they are definitely in the wrong.

    I also completely agree with Pols and how they’ve responded. This could have been handled in a much more professional manner by Beall and his clients. But they chose this route and will most likely end up worse off for it.

  10. DavidThi808DavidThi808 says:

    Is they have not made their website a compelling destination. And that is because fundamentally they are trying to fir their existing model onto the web. This is one of those things where all the King’s horses and all the King’s lawyers can’t put Humpty Post together again.

    It’s a shame because a strong daily is a good thing. And people will find a way to make a profit delivering news over the web. But the Post is not yet desperate enough to try the truly radical changes success will require.

    They’re trying to manufacture buggy whips for automobiles.

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