Of Catty Rants and Copyrights

Frequent Slashdot contributor Bennett Haselton writes "A newspaper copies a rant from a girl's MySpace page and reprints it as a 'Letter to the Editor' without her permission. Could the girl sue for copyright violation? This question provoked much more disagreement among legal experts than I expected." Read on for the details.

In 2005, a college student published a rant on her hometown on her MySpace page, beginning with, "The older I get, the more I realize how much I despise Coalinga." Her former high school principal found the rant while browsing her MySpace page (what?), and forwarded it to the town newspaper, which published the "rant" without the girl's permission, signed with her full name, as a letter to the editor (what?). The resulting fallout included death threats against the family and the closure of the 20-year-old business owned by the girl's father. Four years later, a judge ruled that the girl could not sue for "public disclosure of private facts" because the MySpace post was not private. But what about a copyright claim?

Normally the "damages" for unauthorized copying of a MySpace post would be so close to zero, that a moral victory in court is all you could get. But if her father's business lost so much money that it had to close, could the family sue for those losses resulting from the copyright infringement?

It is perhaps indicative of the mathematician/programmer mindset, that after reading about a school principal downloading a rant form a former student's MySpace page and arranging with a friend to "out" her in the town newspaper, the first thing that popped into my head was: "copyright infringement." But copyright law has a nice binary, one-or-zero, they-did-it-or-they-didn't quality that resonates with left-brainers. As several lawyers said to me while I was asking them questions for this story, the girl would probably have a better claim for "intentional infliction of emotional distress" and for "false light publicity" — but those rights of action are more nebulous concepts in law, and the trial outcome would depend more on the judge's personal opinions and on the history of similar rulings in the state. Copyright law is, at least in theory, standardized in federal law and laid out in black and white, so that even non-lawyers have a chance of understanding it. But I still wanted to ask some lawyers for their opinions.

This started for me as an investigation of copyright law as it applied to these situations. (I personally know a few people whose content has been reused on other people's websites or e-mail lists with varying degrees of legality, and I'd like to be better informed about what to tell them.) But it ended up becoming a case study in how to interpret conflicting opinions from different lawyers.

There were some notions that I had completely wrong about copyright law, and the lawyers that I queried pointed those out unanimously. On the other hand, there are some questions where the legal community is divided on the correct answer, and you might pick one answer and a lawyer with the opposite point of view would tell you you were "wrong," when a different lawyer might tell you that you were "right." Whenever lawyers tell me something, and especially if they tell me that I should listen to them because they're a lawyer and I'm not, I always ask the same thing: If I were to ask this question of 10 different lawyers, would at least 8 out of them of them agree? If the answer is No, then — while each lawyer is still be entitled to their opinion, it is just an opinion, not a settled fact within the profession. In fact, I wouldn't even trust the results if I asked 10 lawyers who were all in the same room; my general impression is that when I ask lawyers a question who are in the room together, they agree more frequently than if I ask them a similar question separately, perhaps consciously or subconsciously out of a desire to make it look as if the "expert consensus" is stronger than it really is. The fairest test would be to ask 10 lawyers separately and compare their answers.

So, I posted a notice to Peter Shankman's Help A Reporter Out service, asking for legal experts to comment on the copyright issue. HARO is a nifty way to get your name in print once in a while if you're an expert on any subject; you can sign up for the mailing list as a "source," and then reporters send queries to HARO that are redistributed to the mailing list asking for experts on a particular subject. (The very first day after I signed up last September, I got featured as a "web filtering expert" in an article in an adult industry trade magazine, whereupon I'm sure my mother sent the link to all of her friends right away.) But I was interested in using it in a different way from most reporters. Usually, reporters posting a query are looking for multiple expert opinions that they can synthesize into a consensus answer for their story. I was posting my query to find out whether any consensus even existed.

The questions I put to the HARO list were: Could the girl bring a lawsuit against the paper for violating her copyright? Is it something she could even do in Small claims court to save time and money? And as for damages, I knew that in cases of copyright violations for works not registered with the Copyright Office, plaintiffs were usually limited to actual damages. But could she claim the losses to her family's business as "actual damages," since the harm was caused as a result of the copyright violation?

Before reading any further, you might want to consider how you would answer these questions. Then you can see whether your answers agree with those given by the experts.

Pencils down. First, the things that all lawyers agreed I got completely wrong:

• Virtually every lawyer who responded said that you could only bring copyright claims in federal court. This advice passed the 8-out-of-10 test, as well it might, since this rule is laid out in the U.S. Code.
• Second, to bring a copyright claim at all, you first have to register your work with the Copyright Office by mailing it to them with a $35 fee. (There was some inconsistency in the answers here, but the consensus seems to be: You own the copyright on something as soon as you create it, but you can't file a copyright lawsuit until after you've registered your work. However, once you've registered, you can then go back and sue for copyright violations that took place before the registration date. If you register more than 90 days after the date of first publication, you can only sue for actual damages — your monetary losses, or the infringer's ill-gotten gains — for violations that took place before you registered the work. But if you register within 90 days of first publication, you can sue for statutory damages and attorney's fees, even for violations that took place before you registered.)
• Third: Suppose the court did find that the girl's copyright was violated. Can the harm to her father's business be counted under actual damages? Well, first there is the issue of whether she can consider these as damages at all, since they were to her father's business, not to her. As I put it to Paul MacArthur, Professor of Journalism and Public Relations at Utica College: If X violates the rights of Y but the bulk of the harm is done to Z, can Y sue, even though they weren't the main victim? Professor MacArthur, said: "Generally, no. But, perhaps, because it impacts her family's income, she can claim a loss."
  
  But the real difference is that harm indirectly resulting from the copyright infringement is not legally the same as actual damages, and here's where the different experts agreed. Said one legal expert who asked not to be identified by name:

  "In the fact pattern for this case, you have to know that the damage to the family is considered 'consequential' or 'indirect' damages - not actual damages. In a copyright suit, actual damages are the financial losses incurred as a result of lost profit from your work."

  Joshua King, an attorney with Avvo.com, a site that provides attorney ratings and other services to help consumers navigate the legal profession, agreed: "Even if a court were to consider the father's lost business, those damages would be considered consequential damages." Three other lawyers who responded all said essentially the same thing.

So those were the points where the lawyers agreed. But what about a fair use defense? From years of reading Copyright FAQs, you probably know that the fair use doctrine allows third parties to use portions of a copyrighted work without the copyright owner's permission under some circumstances. As Mike Plumleigh, an intellectual property lawyer in California summarized it for me, the four factors that determine whether a use qualifies as fair use are:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantially of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Although, whenever I read a law or legal text earnestly claiming that such-and-such depends on this other list of factors, it seems ironic that the list is intended to "clarify" the meaning of the law, when the list items are often just as open to ambiguous interpretation as the original item they were intended to clarify. The acid test of whether a rule has been "clarified" is how much experts agree on how to interpret the rule in a given situation; if experts can't agree to interpret it, then it's no more "clear" than it was before.

That seemed to be the case in this instance, where I got a lot of conflicting answers from the attorneys who responded. Joshua King said: "The newspaper may well have a fair use defense even though they published the whole thing." Mike Plumleigh agreed with the likelihood of the "fair use" defense and gave a longer explanation (referring to his numbered list above):

"Not to go into detail of how a court might rule on the analysis, but here's my quick take:

• Under (1), the use could be found to be for criticism, comment and (by the paper) news reporting (and the cases also consider 1st amendment factors under this one)
• Under (2) and (4) the original work was not intended for commercial purposes, had little apparent market value, and is more a short statement of fact/opinion rather than having significant creative or other "authorship" elements.
• Under (3), all of the "work" seems to have been reproduced, but this factor would likely be outweighed by the others.

I haven't seen the published letter or the original journal post, so my analysis above might be somewhat different if what was copied was a longer essay about life in Coalinga or similar. Nonetheless, the market value/effect would still be an issue, and the criticism/commentary purposes could still tip in favor of fair use."

Venkat Balasubramani, a Seattle copyright attorney, cast a vote-with-caveats for the fair use defense as well:

Fair use is always tough to predict and fact-intensive. On the one hand, there's little commercial value in the letter. Also, the fact that she published the letter in MySpace may itself be newsworthy and the newspaper is entitled to publish at least portions of the letter. Overall, her copyright claims are weak, damages minimal, and the newspaper's fair use arguments fairly strong. (Caveat again the fair-use is fact-intensive.)

In the other corner, Phil Marcus, a negotiation and intellectual property lawyer in Baltimore, commented, "I do not think 'fair use' includes using a person's words to get them run out of town." Professor MacArthur said, "There is no way what the paper's use of the student's writings qualifies as fair use." I asked if the other factors wouldn't weigh in favor of the newspaper, since there was no apparently commercial market for the essay, but Professor MacArthur disagreed:

"The nature of the copyrighted work as a temporarily published work that the girl choose to pull off of her MySpace page. She has the right to remove her writings from her MySpace page and no one has the right to continue to distribute those writings in their entirety without her consent. So, number 2 is her favor (really, issue number two looks more at non-published vs. published, with non-published being afforded more protection).

In terms of number 4, the claim could be made the that there is an impact on the market. These are her personal writings. Perhaps, in the future, she wants to put them on her own web site and make a profit via Google's AdSense or via a pay for content web site. The newspaper, by publishing her writings, may have lessened her ability to charge for this piece/monetize it. I'm not saying she is going to do this, but this issue is something for a judge/jury to decide."

Stephen Roe, an attorney with Lathrop Clark in Virginia, was even-handed but leaning against fair use:

"Were she to sue for copyright infringement, I think the court would be faced with a difficult decision. Were I defending the newspaper and principal, I would certainly assert fair use, in that the purpose was for news reporting and comment and criticism. However, they would appear to have a problem, in that the girl's letter was not submitted BY HER as a letter to the editor, and thus was falsely attributed to her as a letter to the editor... A court may be willing to find that the principal and the paper were NOT within the fair use safe harbor, especially if she could establish ill intent. Were I hearing the case, I would be very sympathetic to her situation, especially given the relationship between the principal and the editor and the apparent mis-attribution."

So, three votes on either side. I myself would probably argue on the side of the fair use defense against a pure copyright violation, because the girl was not selling her work, and the principal was trying to convey the fact of the girl's dislike for Coalinga (which is inappropriate conduct for a high school principal, but not against the law).

I think the lesson here is that even though many Internet copyright controversies depend on what is protected under "fair use," that is much less clearly defined than one might hope. If someone blatantly lifts content from your home page and posts it on their own website for commercial gain, that's a copyright violation, but what if they only post excerpts for the purpose of "commenting" on it? What if you posted something snarky on your blog, and later took it down, but someone else archived a copy on their blog in order to show the world what a dick they thought you were? You may not know offhand whether these actions are protected under "fair use," but it would be nice to think that the answer exists, and that a lawyer could steer you towards it. No such luck in some situations.

Or, perhaps the more general lesson is that when seeking advice from lawyers, it's worth getting multiple opinions. Sometimes if a lawyer tells you, "I'm sure that I'm right about this, because I'm a lawyer," they really are right, as in several of the points above where they set me straight. But not always. And the way to find out is to ask four or five different lawyers and see what they say. I'm a member of a cheap legal insurance plan ($20/month) that entitles to me to call "in-network" lawyers for a few minutes of advice each on a given legal question. The provider probably thinks of this as a cheapo option for people who can't afford real legal consultations, but I think that 10 minutes of advice from 6 different lawyers, is enormously more valuable than one hour of advice from one lawyer, because then you can categorize their advice into things they agree on (which are likely to reflect "the law") and things they don't agree on (which are likely to be just their opinions).

If more legal debaters recognized this distinction, perhaps many bitter legal disputes outside the courtroom could be resolved by agreeing to disagree. Prior to a court ruling, "the law" is just defined as the consensus among legal experts on how to interpret a statute. So if experts are divided on a given question, then by definition there is no consensus and hence no "law," so what are they arguing about?

Whatever the legal question

[elrous0]

This was unquestionably an EXTREME violation of journalistic ethics by the newspaper in question. At the very least, they should be publicly denounced by every other newspaper in the area and the staff involved should be booted out of any professional organizations they're affiliated with. I'm not sure if there is any journalistic equivalent of a "Razzie [wikipedia.org]," but if they're is, this should earn them one.

The wrong issue

[Anonymous Coward]

I would have thought the real issue wouldn't be copyright violation, but more of misrepresentation? The letter was represented as a letter to the editor from the girl, when it was not....

Tell her to file a suit

[NotBornYesterday]

in this judge's court [slashdot.org]. while you're at it, ask him again if the newspapers are the ones who need protection.

Re:IANAL

[Anonymous Coward]

Copyright is automatically granted upon creation of any work , in this case writing. Declaring copyright isn't even necessary anymore.

Re:Whatever the legal question

[Anonymous Coward]

"Journalistic Ethics" Does that exist anymore? The Fourth Estate in this country has been on a collision course with irrelevance for 15 years now. They care not a wit about ethics and right or wrong in their search for a controversy to sell papers/magazines/ad revenue. It's a Hard Copy world even in hometown newspapers. It's no wonder why they are all going out of business...

Re:IANAL

[NotBornYesterday]

IANAL either, but yesterday [slashdot.org] it was asserted that there is implicit copyright to any published material.

Re:The wrong issue

[Stumbles]

My thoughts exactly, and it is the Principle that should get hammered. Not only did this Principle make false representations, he also stole her identity by representing himself as her. At the very least this Principle should be sued on those grounds, and regardless of that outcome he should be fired.

Comment removed

[account_deleted]

Comment removed based on user account deletion

TL;DR

[vivaoporto]

Can anyone summarize the summary?

What about MySpace TOS?

[heritage727]

The first question that occurred to me is whether she even has rights to the piece. If MySpace has one of those all-your-rights-are-belong-to-us TOS, she might not be in a position to bring a copyright claim at all.

Re:IANAL

[CowboyBob500]

In the UK I have automatic copyright over everything and anything I write. I don't have to register anything, it doesn't matter if its public or private. There is no fair use law here so they couldn't use that excuse either. If anyone did this in the UK, they would have their asses sued off and they would lose. It's much more black and white here I think. And a good thing that is too from the looks of things.

Re:The wrong issue

[Anonymous Coward]

True. And what kind of redneck a-holes live in this town. Death threats... Running the family out of town... Over, their barely out of her teens daughters essay on why she hates the town. Like she is the first adolescent to feel this way. Didn't they just prove her right? What happened to being an adult and laughing off the antics of children rather than responding in a more childish manner oneself.

How often do lawyers really say...

[Anonymous Coward]

"I'm sure that I'm right about this, because I'm a lawyer?"

Any decent lawyer knows that unsettled areas of the law are, by definition, unsettled. Cases can end up in court because the facts are in dispute, but they can also end up in court because the law is not clear with regards to the situation.

The most common answer you get from a lawyer are the words: "it depends." An undisclosed fact, a pertinent case not considered, or the whims of a judge and jury can all affect how a case would play out if tried.

A lawyer saying "I'm right, because I'm a lawyer" would be like a programmer saying "this program is bug free, because I'm a programmer." It just doesn't (or at least shouldn't) happen that often.

What's wrong with this town?

[residieu]

Some kid writes a letter with the standard "this town sucks" theme, and people boycott her parent's business? What's wrong with these people? I bet half the teenagers and college-aged kids in that town agree that Coalinga sucks. Just like all the kids in every other small town think their home town sucks. Give them a few years after they move out of town and they'll realize the city sucks too.

Identity theft?

[MiniMike]

Maybe she would have some luck trying to tack on a charge of identity theft, for the principal submitting the 'editorial' using her name? It seems increasingly easy to throw that type of charge at someone these days. Or maybe some type of fraud? If the statute of limitations hasn't run out. Of course, IANAL. I hope at the least the school board reviewed the actions of the principal.

Re:TL;DR

[Sponge Bath]

Creepy high school principal roots around former female student's MySpace page.
Hick town turns vengeful against family of student.

Re:Whatever the legal question

[NotBornYesterday]

Not to mention a lapse on the part of the former principal. Although this would not seem to be a case of plagiarism per se, since he does not appear to be taking credit for someone else's work, his grasp of honesty and intellectual property rights should be advanced enough to prevent him from doing this. Legally bound or not, I think he was ethically bound not to republish without consent, and it shows enormously poor judgment for someone in his position. If the piece was inflammatory enough to result in death threats and the closure of a family business, he must have had some idea of how it would be received before he sent it in.

I'm not clear on whether the newspaper was complicit in publishing something they knew to be copyrighted. Did the principal send it in with a note that said 'Hey, I found this on the internet, thought you might like to publish it.', or did he simply send it in as if it came from her directly?

Re:Whatever the legal question

[JamesBarger]

Agreed. This is something every respectable journalism school teaches students not to do in practice. A journalist is betraying his profession when he intentionally sets out to "get" someone or hurt their reputation without a true news angle or some compelling reason to convey the information -- especially when the victim is not a public figure. Printing a quote or small excerpt from the original piece within a larger commentary or news story might be acceptable, but publishing the work, in its entirety, as if it had been submitted to the editor by the author, when it was not, is absolutely against good professional practice. That kind of unethical action -- if that's what happened -- is also a good hint that a basis for a lawsuit may linger within the facts (e.g. a common law tort action, such as intentional infliction of emotional distress), although determining that would require more information and analysis by a qualified lawyer.

Re:The wrong issue

[Anonymous Coward]

Really? You think the proper behavior for the High School principal is browsing former students MySpace pages and if he decides he doesn't like the content conspiring to "Out Them". Really? Is this the kind of person you want in charge of your child's education? The entire series of events is unclear but if he forwarded the post as her to the newspaper at minimum he fraudulently misrepresented himself and probably forged her identification. Since this was mailed that would constitute Federal Wire Fruad...

Re:The wrong issue

[NotBornYesterday]

Dear Coalinga,

Thanks for proving my rant accurate beyond a shadow of a doubt.

Sincerely,
- The 20something girl

PS: You still suck.

Re:What's wrong with this town?

[frank_adrian314159]

Actually, I think that the people of Coalinga have, by their actions, proved incontrovertibly that Coalinga sucks.

Re:Fundamentally censorship

[mr_mischief]

Who is benefiting from the work? Isn't the newspaper selling copies of its papers? Don't you think this work of the girl's sold more copies? If the newspaper benefits from making copies of her work and has no rights to do so, then her copyright has been violated, hasn't it?

the heart of most of the copyright problems

[drDugan]

given the nature of computers and the Internet, almost every action one takes makes a copy of digital content - making the "automatic copyright" at the heart of the current problems. copying is using, which makes all content created near useless without specific permission (fair use aside).

it seems to me, things would work a lot better if copyright had to be claimed, and it could be claimed by an easy and free method, digitally (eg submit a hash to a central registry, get a number, and post the number with the work) - and all other content was granted an automatic CC-BY or similar rights to the creator if they do nothing.

remain in place the system and penalties for infringement of claimed copyrights - but allow the rest of the world to create an open exchange of content and creative expression that encourages sharing and copying.

Re:Whatever the legal question

[JoeMerchant]

I don't believe it was a lapse on the part of the former principal, I believe it was a flagrant action with malicious intent. If she had decent representation before her first lawsuit, it might have gone differently for her:

As several lawyers said to me while I was asking them questions for this story, the girl would probably have a better claim for "intentional infliction of emotional distress" and for "false light publicity"

Re:TL;DR

[MozeeToby]

I love jokes that are as insightful as they are funny. I'm surprised no one has pointed it out yet, but I was always told the rule was "don't post anything to a website you wouldn't mind showing up in the local paper". Seems appropriate in this case.

This is a tricky situation to me; while the newspaper obviously has some pretty extreme ethics problems, it's hard for me to argue that they don't have the right to report on what she said. But then, they passed off what she had said as a letter to the editor, which it most surely is not. I would understand their behavior better if they had published it as an editorial, even if they reproduced it in it's entirety. Basically, I feel that claiming it as a letter to the editor makes it seem like the girl went out of her way to insult the people of the town, posting it somewhere else would have gone a long way towards making it clear that it was just a random Internet rant.

I would think that suing for harassment would be a better way to go if she were really interested in pursuing it. Also, question for the armchair lawyers out there, can you sue someone for libel for taking your own words out of context? Not sure if it would apply here, but to me taking an informal My Space rant and passing it off as a formal letter to the editor should qualify.

The real issue...

[azrider]

Her former high school principal found the rant while browsing her MySpace page (what?), and forwarded it to the town newspaper, which published the "rant" without the girl's permission, signed with her full name, as a letter to the editor (what?).

• It is not clear from the article whether or not her page was public.
• Even if it were public, without seeing the actual letter to the editor whether or not the principal wrote "I found this..." or whether the "letter to the editor" was portrayed as being submitted by the student.
• If the letter was submitted as the principal's opinion, then
  • He or she was wrong in identifying the student.
  • The paper was wrong in accepting the submission without obtaining consent from the student prior to publishing the content

In any case, there could be a good argument for damages (assuming a sympathetic jury), not from the abuse of copyright but from the assault on the family's privacy and business interests. However, this would be better if the suit came from the father (who lost his business) and/or the family as a whole (who suffered the consesquences), on the basis of slander (the MySpace entry portrayed the opinion of one as the sentiments of the entire group).

Re:You do end up sharing some of those rights, tho

[mrchaotica]

Well, read the TOS, and quit wondering. You grant YouTube (google) a non-exclusive right to redistribute as they see fit, and that includes deals with big organisations that deal with broadcast (TV) material.

Yeah, but that's for YouTube, so it's irrelevant. The question is, what do you agree to in MySpace's TOS?

Besides, even if we did assume it was like YouTube's in that you grant YouTube (or analogously, MySpace) a right to redistribute, the redistribution in this case was done by a third party who never had that right anyway!

Re:What's wrong with this town?

[JoeMerchant]

The whole problem is the forum in which the rant was "posted." Letters to the editor reach a particular segment of society, far different from the segment that typically kvetches on MySpace, seeing those opinions in black and white on their breakfast table apparently moved some codgers to action, yeah they're misguided idiots, but this isn't the first or last time a crusade has been/will be launched over ridiculous inflation of casual statements.

Re:The wrong issue

[RingDev]

Agreed. I would look at this like less of a Copy Right issue and more of a digital trespass issue. Although, I think the digital side would be much easier to prove if you could get a conviction for copy right violation. While the newspaper has pretty solid grounds for their publishing, I'd be hard pressed to believe that the Principal could make the same arguments successfully.

-Rick

Re:Is simple

[ScentCone]

if (you == RIAA) {
throw COPY_VIOLATION;
} else {
throw NOBODY_CARES;

Not really. If you are in the business of being a recording studio, the copyrighted material that you and the artists with which you work produce has a very real, commercial value to it. If you RTFA/S you'll see that some of the legal vagueness on this one surrounds the fact that her MySpace rant wasn't published in any sort of commercial context. It's just her, ranting. That doesn't have anything to do with whether or not she owns the copyright, but it has a lot to do with what's at stake when someone infringes on those copyrights. So, people who don't feel like meeting the price an artist is asking for the work they're selling, and simply rip it off, instead, are - correctly - the targets of a different sort of attention, legally. They're ripping someone off to avoid having to pay what the seller is asking. The MySpace rant wasn't for sale, and she doesn't earn her income through publishing her writings. That's an important consideration in arriving at a sense of what's at stake in the infringement.

The real issue is whether or not the newspaper knew they were misrepresenting the provenance of the "letter." The school principal sounds like a first rate asshat. Being buddies with the newspaper editor, it sounds unlikely that the "letter" made it into the Dear Editors area without it being well understood that it was a hatchet job. So, principal and editor are sleazy jerks. Fair enough, and this does strike me as a case of infringment, and other things besides. But the damages from the infringment aren't in the form of chipping away at what the rant author does for a living. And that's what's different, in this case, compared to a million kids buying themselves another Grande Iced Skim Half-Caffe Lattecino with the few bucks they saved by systematically ripping off the music of their favorite artists instead of paying a couple of bucks for it.

Re:What's wrong with this town?

[RomulusNR]

It's every small town and suburb in America, that's what's wrong with it. Insular, conservative, hyper-proud, self-important, sluggish, anti-growth, closed-minded, conceited, and delusional.

Re:What other papers?

[unfasten]

...people need to shun this circulation for its lack of journalistic integrity.

Considering the response the girl and her family received from the town after the rant was posted, I don't think the people in Coalinga care. If anything, the paper was only reinforced in its decision since it caused such reactions.

The response of the residents reminds of the response in the myspace suicide fiasco and yet no one was even hurt in this instance. All she did was rant about how she hates the town.

It seems to me she was right to despise Coalinga.

Re:IANAL

[1u3hr]

In the UK... There is no fair use law here

Bollocks. It may not be called "fair use" but it exists.

Fact sheet P-01: UK Copyright Law [copyrightservice.co.uk]
8 Acts that are allowed
Fair dealing is a term used to describe acts which are permitted to a certain degree without infringing the work, these acts are:

• Private and research study purposes.
• Performance, copies or lending for educational purposes.
• Criticism and news reporting.
• Incidental inclusion.
• Copies and lending by librarians.
• Acts for the purposes of royal commissions, statutory enquiries, judicial proceedings and parliamentary purposes.
• Recording of broadcasts for the purposes of listening to or viewing at a more convenient time, this is known as time shifting".
• Producing a back up copy for personal use of a computer program.
• Playing sound recording for a non profit making organisation, club or society.

Re:Whatever the legal question

[tsm_sf]

I don't believe it was a lapse on the part of the former principal, I believe it was a flagrant action with malicious intent.

Not to mention creepy as hell. Good going, Roger Campbell of Coalinga High. Now everyone knows you stalk teenage girls.

Re:The wrong issue

[jvkjvk]

Because we generally hold teachers, doctors, policemen, etc. to higher degrees of ethical standards than everyone else. And there are good reasons for that.

By letting us know that he is a scumbag, we as a society are then forced into action to remove him from the position of trust he has been placed in.

That's why.

Regards.

Re:Whatever the legal question

[interkin3tic]

It is telling that enough of the townspeople were offended by it that they boycotted her father's business out of business. I couldn't find the full thing, but unless she gave away the town's secret recipe for the world's best apple pie, or revealed that the town enjoyed ritualistic killing and eating of vagrants, I can't fathom what would get under reasonable people's skin that much.

Conclusion: Coaligna is indeed a town full of assholes.

Country Mouse

[rlseaman]

The appellate judge states as if established in fact:

"The community reacted violently to the publication of the Ode. Appellants received death threats and a shot was fired at the family home, forcing the family to move out of [AnyPlaceUSA]. Due to severe losses, David closed the 20-year-old family business."

Did the lawyers for both sides stipulate to these "facts"? Or were they somehow proven in the trial court? There are at least six assertions here:

1. The community reacted violently.
2. Appellants received death threats.
3. A shot was fired at the family home.
4. The family [was forced] to move.
5. The [business suffered] severe losses.
6. David closed the business.

Numbers 2, 3 and 5 are assertions that should be straightforward to establish evidentially. Although the precise scenario of the "severe losses" is not laid out. Did business simply drop precipitously? Or was there an extended period of tedious sniping back-and-forth, for instance in the local chamber of commerce? How exactly did the (former) customers learn that the business was connected to the girl's family? And what kind of business was it, anyway? What was happening with the business's competition at the same time? Did one profit at the expense of the other? Or did the entire local industry fail (a very familiar scenario in small towns)?

But was the business forced to close (#6) as a direct result of the republication? The implication is that the family moved due to both safety and economic concerns (#4). The first of these seems a criminal matter almost impossible to connect back to republication unless the bullet is traced to a gun and the gun to a death threat and the death threat to someone unhinged by a letter to the editor. In rural America, having a shot fired at a house is more likely to be an incautious sportsman. Was it deer season? While moving due to economic reasons is simply a restating of the prior assertion about the business failing. This is perhaps pertinent to damages, but not to the facts of the case.

What does it mean for an appellate judge to assert "the community reacted violently"? Surely there must be prior case law to understand this point? The implication in the Slashdot article is that this happened in fact and that it was causally related to one poor girl's teenage angst about where she happened to grow up.

It appears rather to this reader that the judge overreached unnecessarily. To come to the same decision ("go away little girl, you bother me") there was no reason to rule on the copyright aspects of the case at all. The judgement can be taken to say that any intentional "publication", no matter how temporary, to an online source permits a newspaper to republish your work. This doesn't do the newspaper industry any favors. Fair use is a two-edged sword:

"Having been published on myspace.com, the Ode was not private."

Doesn't this apply to everything a newspaper ever publishes? If there is no copyright protection of the girl's expression of her all-too-typical teenage thoughts, why can't complete articles from this newspaper now be republished at will as letters to the editor on MySpace pages? Either MySpace is a publication coequal with a newspaper - or it isn't.

One remains skeptical about the facts in this case. Surely the bad actions (as described) of the community's high school principal and newspaper publisher would have been even more likely to arouse community ire? While one could almost take a sensitivity to insult as a defining characteristic of small town life versus city life - similar negative screeds to city life are published every day in city newspapers - one is skeptical that this small town is such a caricature of the girl's description. In Aesop's fable, it is the Country Mouse who scurries home.

Re:Whatever the legal question

[ObsessiveMathsFreak]

This was unquestionably an EXTREME violation of journalistic ethics

I don't understand. Why would you use those words together like that.

where is the full text of 'Ode to Coalinga'?

[PJ6]

All this talk about 'Ode to Coalinga' and I cannot find more than the first sentence anywhere... I would very much like to read the whole thing. Everyone reports that the content was inflammatory - well, show me, please, so I can decide that for myself.

Re:The wrong issue

[Solandri]

Really? You think the proper behavior for the High School principal is browsing former students MySpace pages and if he decides he doesn't like the content conspiring to "Out Them". Really? Is this the kind of person you want in charge of your child's education?

I know the idea of an authority figure persecuting a former subordinate really riles up your sense of indignation, but you're making a "think of the children" argument. At a fundamental level, this is a case of an employee doing stuff on the web in (I presume) his free time which does not pertain in any way to his work. I haven't seen anyone claiming that he pretended to be the girl when submitting the rant to the newspaper, and the fact that the newspaper's editor was fired over this would seem to indicate the mis-attribution was the editor's fault. So it would appear the principal did nothing legally wrong.

In these cases, I would argue that one's legal online activities outside of your work hours should have no bearing on your employment. To argue otherwise would be accepting several employment practices I find dubious. e.g. employment contracts where the employer claims to own everything you create while employed even though they're only paying you for 8 hours/day, 5 days/week. Do I think what he did was despicable? Of course! But she was no longer a student, and thus not a subordinate, so there was no conflict with his position as a school employee.

Now that the story has become public, he is subject to the same whims of the public that the girl fell victim to. PTA members may question his mental fitness as head of the school, which could lead him to being fired. But that would be a firing due to pressure by the public. Not because what he did was a violation of his duties as a school employee.

Re:Whatever the legal question

[ImprovOmega]

That's what really boggles me about this. I mean, I could see getting pissed at the girl in question, but under what warped and twisted view of reality does that equate to being pissed at the father and boycotting his business? Maybe his kid is just a screw-up, it's not something he can necessarily control. Mob justice at its stupidest.

Re:The real issue...

[tnk1]

I can see the point of misrepresentation, but in the end, she's a moron. I am certain that she probably did not want her post plastered on a billboard (or in the local newspaper), but she posted it on the Internet. It may never be seen... but when it *is* seen, you're not only fucked, but people will be telling stories about how fucked you are for years, possibly decades.

Of course, the principal is an asshole, and probably a pedophile as well (I just made that up), but he is less than 1/2 the problem here. Most of the problem is her, and her freaky former neighbors in that shit-ass town.

Ironically, it seems like she's right about her town, she only neglected to include herself in the fail.

Re:Whatever the legal question

[Chyeld]

Never lived in a small town, have you? Where it's still possible to refer to someone as "one of the Salem Samples" or "one of the Doss daughters", it's entirely possible for the actions of 'one bad seed'(or conversely of 'one noble hero') to cast a shadow over the entire family.

Move into one of these towns and you will suddenly realize the level of blissful ignorance most suburban and urban folk live in when it comes to how heavily public opinion can impact your life.

Re:The wrong issue

[Avenger546]

Did he do those things? If the message he sent the editor said, in preface to the copy of the rant 'look what so and so said on her blag', then he didn't make a false representation or impersonate anybody.

The gist seems to be that the principal talked to a friend who worked at the paper and said "why don't you post this as a letter to the editor?" The friend published it, but rather than saying "I got this from the principal", the letter to the editor was "signed" with the girl's name, as if she had submitted it herself.

It may not have been the principal's suggestion; it may have been the editor's idea, or some combination of the two, but to readers of the paper, the letter appeared to be submitted by the girl, not the principal. The girl then sued because the principal and his friend at the paper conspired to post something that makes the girl look bad and incited violence against her family.

Unfortunately, the court disagreed.

Have there been any further legal proceedings regarding this case?

Re:Whatever the legal question

[Nekomusume]

I was thinking the same thing.

Last I heard, teens growing up in small towns often hate living there. They usually either grow out of it, or move out of the town when they get old enough.

Destroying her father's business, however, crosses the line into monstrous over-reaction. I have no idea what she wrote, but I have no choice but to assume that her hatred is very well founded.

Re:Whatever the legal question

[leamanc]

Reading around about this, it seems the principal forwarded to it his friend, who happened to be an editor at the paper. The editor took it upon herself to run the piece, without influence from the principal. So the principal is not that guilty; he just forwarded on a piece of interest to a friend. The editor was fired after the incident.

It sucks what happened to these folks, but I think all the justice that can be done, has already been done.

Re:The wrong issue

[turbidostato]

"Slashdot, where in one story the group harangues the though of stopping the ability to link to copyrighted material and in the next cuts down a man for sharing information posted to the internet."

Apples to oranges. I bet no one supports here suplanting authorship nor allowing misleading facts.

I for one have no problem on the copyright stanza for that girl's rant to be published on a newspaper. After all, if it's public, it's public. But I do see a problem when a person sends a letter pretending to be somebody else the one that sends it and/or pretending that its purported intention was to be published as a letter to the editor when it was not.

Re:The wrong issue

[turbidostato]

"At a fundamental level, this is a case of an employee doing stuff on the web in (I presume) his free time which does not pertain in any way to his work."

But it is. Do you think he would have payed attention to that rant were not because she was an ex-student? And even it was the case, once he knew she was an ex-student he should have stopped on the spot to avoid responsibility collusion.

"So it would appear the principal did nothing legally wrong. "

Except, of course, opening his mouth a bit too much, as the bare mininum.

"I would argue that one's legal online activities outside of your work hours should have no bearing on your employment."

Unless, of course, they relate to your employment.

" Do I think what he did was despicable? Of course!"

Do you think what he did was despicable in a way directly related to the abilities and expectations related to a school principal's job? Of course too! and that's *exactly* the point. It's not only that disregarding circunstances that man showed a lack of common sense which might have been pardonable (it could have been a school mate, for instance; still stupid but much less relevant), but that that's man job is being school principal on the school that girl went to.

Re:Whatever the legal question

[darthwader]

But on the other hand, the editor in question was fired over the incident. Not much else the paper could have done at that point [...]

There's lots more the newspaper could have done (and, for all I know, they may have done some of this as well):

• a front-page "we screwed up" headline and an article explaining exactly what they did, and why it was immoral and unethical.
• a human-interest story about how this mob mentality destroyed this business.
• a clear criticism of how the towns people behaved.
• financial assistance for the family.

Just quietly firing the person who causes embarrassment for the company is frequently all a company will do, but it's never all the company can do.

Re:Whatever the legal question

[Bourbonium]

Not true at all. Every Letter to the Editor I have had published was preceded by a phone call from the newspaper confirming that I was the author. At least in the four or five local papers in my area (San Francisco), the editorial pages are quite clear that this is their policy. They do not publish anonymous letters or letters ghost-written by someone under a false name. They clearly indicate that you must include your full (real) name and a phone number where you can be reached for confirmation. If you send in an LTE and they don't call you, it probably means they don't intend to publish your letter; if they do call you, then you can be pretty sure they're going to publish the letter (but they sometimes apologize for editing it down to meet space limitations). A good letter will fall within their standard lengths (no more than 300-500 words) so if you can say what you want to say in that space, they are more likely to publish it. If your letter exceeds the standard length, but they feel they want to publish it in full, they may call you and ask if they can publish the letter as an editorial opinion column, rather than an LTE. I've been happy to oblige them, and even added more text to fill a column requirement (usually a paragraph I earlier edited out for length).