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Of Catty Rants and Copyrights 339

Posted by kdawson
from the you-are-not-a-lawyer dept.
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?

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Of Catty Rants and Copyrights

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  • by elrous0 (869638) * on Monday June 29, 2009 @11:41AM (#28514757)
    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.
    • Re: (Score:2, Insightful)

      by 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...

    • by NotBornYesterday (1093817) * on Monday June 29, 2009 @12:06PM (#28515059) Journal
      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?
      • by JoeMerchant (803320) on Monday June 29, 2009 @12:27PM (#28515361)
        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"

      • Forget copyright: (Score:3, Interesting)

        by BrokenHalo (565198)
        A more scary aspect of this is the question of what a school principal is doing creeping through the MySpace accounts of his former students.
    • Re: (Score:2, Insightful)

      by JamesBarger (1585975)
      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
    • That's the best damned idea I've heard in a very, very long time. A local station's evening 'news' broadcast in my area (A-Channel News Barrie [www.atv.ca]) is one of the worst offenders - just abhorrent. I don't catch it very often, but when I do, I find something more to loathe about it, usually it involves a reporter hired more for their aesthetic appeal than their journalistic aptitude.

      Last week, there was a police shooting of a man who was allegedly threatening the officers. The reporter said (I'm paraphrasing, but

    • What other papers? (Score:2, Interesting)

      by Bryan Gividen (739949)
      The Wikipedia page for Coalinga, California (where I assume this is taking place) estimates the 2007 population at just over 18,000 people. (http://en.wikipedia.org/wiki/Coalinga,_California). It seems that the paper involved, the Hanford Sentinel, services all of King County (http://en.wikipedia.org/wiki/Kings_County,_California) which has a little over 150,000 people total. Granted, I am sure the LA Times or some other large circulation paper could condemn them, I doubt they cater to the same audience as
      • Re: (Score:3, Insightful)

        by unfasten (1335957)

        ...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: (Score:2, Informative)

      by j1mmy (43634)

      The editorial page is a free-for-all -- journalistic ethics don't apply. The editors don't do any verification of the identity of people sending in letters because 99.9999% of people send in their own letters. The newspaper did nothing wrong here. The malicious action rests entirely with the principal.

      • by Chyeld (713439) <.moc.liamg. .ta. .dleyhc.> on Monday June 29, 2009 @01:05PM (#28515973)

        Not presented in the summary, but still relevant, is the fact that the editor in question knew both that the letter was not submitted by it's author (because the editor and the principal were pals) and knew that the actual author did not want the letter printed (because the girl contacted the editor once she learned it had been passed along and requested they not print it).

        As such, regardless of whether I agree or not with your statements, they are moot. This was a deliberate act by the editor and not a simple mistake.

    • by Chyeld (713439) <.moc.liamg. .ta. .dleyhc.> on Monday June 29, 2009 @12:58PM (#28515865)

      Reading elsewhere, the girl pulled the post from MySpace a few days after posting it, found out the principal had already passed it along to the editor, and asked them not to publish it. At that point, the publisher said they wouldn't, and then turned around and did it anyway.

      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, one of the things about being an editor is that you don't have many people looking over your shoulder to see what you are doing.

      • by darthwader (130012) on Monday June 29, 2009 @05:25PM (#28520141) Homepage

        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.

    • This was unquestionably an EXTREME violation of journalistic ethics

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

    • Re: (Score:3, Insightful)

      by leamanc (961376)

      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.

  • The wrong issue (Score:5, Insightful)

    by Anonymous Coward on Monday June 29, 2009 @11:47AM (#28514829)

    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....

    • Re:The wrong issue (Score:5, Insightful)

      by Stumbles (602007) on Monday June 29, 2009 @11:51AM (#28514887)
      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.
      • Re:The wrong issue (Score:5, Insightful)

        by Anonymous Coward on Monday June 29, 2009 @11:58AM (#28514959)

        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.

      • by iamhigh (1252742)
        Why should he be fired? She graduated long ago, he is no longer responsible for her. What he did may be wrong, maybe even against the law, but why would you fire him? His job seems to have little to do with the case; would you ask for his job if he was a manager at McDonalds and she was a former employee?
        • Re: (Score:2, Informative)

          by Stumbles (602007)
          Apparently you missed or do not understand the phrases "making false representations", and "stealing a persons identity". People have gotten fired for a lot less. I think his actions qualify for more than a lot less.
          • Re:The wrong issue (Score:5, Interesting)

            by AceCaseOR (594637) <alexander.case@g ... com minus author> on Monday June 29, 2009 @12:16PM (#28515177) Homepage Journal

            Also, this is, to a certain extent, a betrayal of the trust of current students at the high school, it sends a message that, even if you leave town, we know where your family lives, and if you do anything that, by the moral standards of that community is untoward (even if the rest of the world doesn't find it unethical - like saying you don't like your home town and you're glad you left), your family can and will be punished for it, outside the law, by the community.

            Thus is the tyranny of small towns. I really wish the girl and her family had appealed, because I suspect if the case had reacheda court that wasn't as "tainted" by the region, she might have gotten an actual fair hearing.

        • Re: (Score:3, Interesting)

          by evilkasper (1292798)
          It's a matter of ethics, something you expect someone in his position to have a modicum of.
        • Re:The wrong issue (Score:5, Insightful)

          by Anonymous Coward on Monday June 29, 2009 @12:11PM (#28515119)

          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: (Score:3, Insightful)

            by Solandri (704621)

            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

            • Re: (Score:3, Insightful)

              by turbidostato (878842)

              "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 t

        • by Lumpy (12016) on Monday June 29, 2009 @12:54PM (#28515771) Homepage

          I agree, the best solution is to simply have people kick the crap out of him and leave him in a place and put him in a situation that will screw up his public life forever, Like tied to a bed in a local brothel wearing bondage stuff and a couple of shaved collies, take photos and call the cops that there is a guy in there with a gun. they come and arrest him, he get's exactly what he deserves.

          but dont fire the guy, that's just wrong.

        • Re: (Score:3, Insightful)

          by jvkjvk (102057)

          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.

      • by MillionthMonkey (240664) on Monday June 29, 2009 @12:21PM (#28515249)

        and it is the Principle that should get hammered

        The principAL should get hammered principALly as a matter of principLE.

      • The real issue... (Score:4, Insightful)

        by azrider (918631) on Monday June 29, 2009 @12:29PM (#28515403)

        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: (Score:3, Insightful)

          by tnk1 (899206)

          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

      • Re: (Score:3, Insightful)

        by RingDev (879105)

        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

  • by NotBornYesterday (1093817) * on Monday June 29, 2009 @11:49AM (#28514847) Journal
    in this judge's court [slashdot.org]. while you're at it, ask him again if the newspapers are the ones who need protection.
  • Law is bullshit (Score:5, Insightful)

    by Absolut187 (816431) on Monday June 29, 2009 @11:51AM (#28514889) Homepage

    I'm a computer-engineer-turned-patent-attorney.

    My undergraduate degree was filled with (relatively) clearly-defined and immutable rules of logic and physics.

    Law school was the polar opposite.

    • I'm a computer-engineer-turned-patent-attorney.

      I wonder how often this happens. I have a friend in CA who went the same route (is that you Dan?) though I hear he likes Grey Goose, not Absolut :-)

    • by goffster (1104287)

      Law is a simply a different discipline that takes skills other than brute
      force intellect. It takes creativity, reading comprehension, and lots
      of legwork.

    • by TubeSteak (669689)

      I'm a computer-engineer-turned-patent-attorney.
      My undergraduate degree was filled with (relatively) clearly-defined and immutable rules of logic and physics.
      Law school was the polar opposite.

      Making a computer "whole" is easy:
      You design software to fail gracefully and restart in the face of unexpected input/output.
      It isn't so simple doing the same thing with humans and laws.

  • TL;DR (Score:3, Insightful)

    by vivaoporto (1064484) on Monday June 29, 2009 @11:52AM (#28514893)
    Can anyone summarize the summary?
    • Re:TL;DR (Score:5, Funny)

      by Absolut187 (816431) on Monday June 29, 2009 @11:54AM (#28514921) Homepage

      Girl regrets MySpace post.

      Lawyers argue.

      • Re: (Score:3, Insightful)

        by Sponge Bath (413667)

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

      • Re: (Score:3, Insightful)

        by MozeeToby (1163751)

        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

        • by jvkjvk (102057)

          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.

          Is "report on what she wrote" the same thing as "reprint what she wrote"?

          That seems to be the crux of the copyright issue in this case.

          I would understand their behavior better if they had published it as an editorial, even if they reproduced it in it's entirety.

          And still, it would be wrong. You cannot distribute someone else's copyrighted work without their permission. You cannot reprint someone else's words even as an "editorial" without their permission.

          I'm sure that every newspaper editor will feel the same way - just try reprinting one of their editorials and see how far you get.

          Otherwise, I'm going to start "reporting" or "e

    • Re:TL;DR (Score:4, Informative)

      by Absolut187 (816431) on Monday June 29, 2009 @12:00PM (#28514973) Homepage

      Ok, slightly longer version:

      1. A girl's MySpace rant was copied by a newspaper and her dad's business apparently went under as a result (?)

      2. The girl sued the newspaper.

      3. This reporter surveyed a bunch of lawyers about the merits of her copyright claim against the newspaper, in light of the newspaper's possible "fair use" defense.

      4. He got a bunch of different answers on some topics, while there was agreement on others.

      5. Reporter seems surprised that there is a diversity in the accuracy/quality of legal opinions. The reporter then waxes philosophical about the nature of law based on the lack of consensus from lawyers.

    • by creimer (824291)
      Websites stealing from newspapers, not news. Newspaper stealing from little girl's Myspace page, hot news.
    • by shabble (90296)

      Student posts flame about hometown on MySpace, subsequently removes it.

      Ex-princicple saw it while it was up, posted it to local rag with her name and address attached.

      She gets threats, her father has to close his business.

      Laywers, when asked identical questions, disagree on certain aspects of copyright and agree on others when using copyright as a possible way of getting money out of the local rag.

    • Re: (Score:3, Interesting)

      by Greyfox (87712)
      In a nutshell he's saying Copyright law needs further clarification.

      Some years ago someone I was reading mentioned that you should always put an explicit copyright notice on your resume if you put it on the internet. Apparently unethical recruiting agencies will troll the internet for resumes and submit them to all their clients. This is a problem if you're trying to apply to a company your resume has been sent to, as company rules usually forbid directly hiring anyone who has already been submitted throu

  • 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.
    • by maxume (22995) on Monday June 29, 2009 @12:01PM (#28514981)

      6. Proprietary Rights in Content on MySpace.com.

      1. MySpace.com does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials (collectively, "Content") that you post to the MySpace Services. After posting your Content to the MySpace Services, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose. By displaying or publishing ("posting") any Content on or through the MySpace Services, you hereby grant to MySpace.com a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content solely on and through the MySpace Services.

      from:

      http://www1.myspace.com/index.cfm?fuseaction=misc.terms [myspace.com]

      So it sounds like she probably retains the copyright.

    • by ericrost (1049312)

      I had the same thought, but surprisingly no. I think its mainly because MySpace is for shitty local bands to publicize music. That would be wholly incompatible with a non-Web2.0 friendly ToS.

      http://www1.myspace.com/index.cfm?fuseaction=misc.terms [myspace.com]

  • Could you share more information about this cheapo legal insurance plan, or others like it?

    • by Lumpy (12016) on Monday June 29, 2009 @01:00PM (#28515889) Homepage

      I know that the internet is incredibly difficult to use, but there is this incredibly complex and secret thing called a "search engine" the most popular one is called "google" and it can give you what you are looking for.

      It is insanely difficult to use, I gathered several PHd's together and they found what you are looking for. It cost me millions but I love to help the helpless...

      http://tinyurl.com/n8499y [tinyurl.com] -- here is what you need. No need to thank me, it's my secret super power.

      Now I'm off to help a Nebraska woman not insert her curling iron into an orifice.

  • by Anonymous Coward on Monday June 29, 2009 @12:02PM (#28514989)

    "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.

  • by residieu (577863) on Monday June 29, 2009 @12:03PM (#28515005)
    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.
    • by frank_adrian314159 (469671) on Monday June 29, 2009 @12:19PM (#28515207) Homepage

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

    • Re: (Score:3, Insightful)

      by JoeMerchant (803320)
      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: (Score:3, Funny)

        by Lunzo (1065904)

        this isn't the first or last time a crusade has been/will be launched over ridiculous inflation of casual statements.

        I believe it was when Saladin's rant about how he hates Rome that got printed without his permission in "Civic Vatican Suckium" that launched the 1st Crusade.

    • by wjousts (1529427)

      What's wrong with these people? I bet half the teenagers and college-aged kids in that town agree that Coalinga sucks.

      Not only that, but now half of everybody on the internet thinks Coalinga is a backwards shit-hole. Nice work Coalinga!

    • by RomulusNR (29439) on Monday June 29, 2009 @12:33PM (#28515465) Homepage

      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.

  • Identity theft? (Score:5, Insightful)

    by MiniMike (234881) on Monday June 29, 2009 @12:03PM (#28515011)
    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.
  • by mr_mischief (456295) on Monday June 29, 2009 @12:05PM (#28515047) Journal

    She is therefore, in my mind, entitled to the revenues generated -- some or all -- from the unlawful distribution of her work. It can't be lawful distribution, because it was a reprint of something already copied without permission by the person who submitted it to the paper, who was not reporting news or making commentary.

    IANAL, but it seems fairly clear to me that damages include not compensating her for printing her work in whole (in order to sell papers) without her permission. I'd say she's owed something on those grounds.

  • Hmm. (Score:3, Informative)

    by apodyopsis (1048476) on Monday June 29, 2009 @12:08PM (#28515093)
    more info

    http://www.law.com/jsp/article.jsp?id=1202429677896 [law.com]

    http://arstechnica.com/tech-policy/news/2009/04/court-your-myspace-page-isnt-private.ars [arstechnica.com]

    And the court summary..

    http://fsnews.findlaw.com/cases/ca/caapp4th/slip/2009/f054138.html [findlaw.com]

    Interesting, I did not know of this. In the UK I think she would of had more success with the courts.

    In any case it is common sense to watch what you post online. Once you click that mouse its gone, and you can never be sure that you can retract or recover.
  • by Anonymous Coward on Monday June 29, 2009 @12:09PM (#28515095)

    Following a visit to her hometown of Coalinga California in 2005, Cynthia Moreno wrote "An ode to Coalinga," and posted it in her MySpace page [law.com]. The Ode opened with "the older I get, the more I realize how much I despise Coalinga" and made a number of negative comments about Coalinga and its inhabitants. The entry was posted for six days before Moreno removed it but that was long enough for the principal of Coalinga High School to find the ode and forward it to Pamela Pond, editor of the Coalinga Record, who published it in the newspaper's letters section. Local reaction was swift. Moreno's parents say they received death threats, a gun shot was fired at their home and her father's 20-year-old business lost so much money that it was closed and the family moved out of town. Moreno and her family responded by suing for invasion of privacy and intentional infliction of emotional distress. Now a Fresno based appellate court says Moreno had no grounds for her claim of invasion of privacy even if she meant her thoughts for a limited audience [findlaw.com]. "Cynthia's affirmative act made her article available to any person with a computer and, thus, opened it to the public eye," wrote Justice Levy. However, the claim for intentional infliction of emotional distress was not dismissed and a jury will get to decide if the defendants' conduct was extreme and outrageous. In the meantime the editor who republished the essay has been fired and lawyer Eric Goldman, Associate Professor of Law at Santa Clara University School of Law, wonders "if the violent and ostracizing community response to Moreno's post didn't in fact validate some of her critiques [ericgoldman.org]."

  • Seems to be she would be barred from another law suit since she already litigated the issue. At the time of the initial litigation, you are supposed to bring all the issues at the same time, not piece meal.

    However, this is a case for Super NYCL to weigh in.

  • The intent is basically censorship. The author wishes the material had never come to light, and wishes to punish the individuals who brought it to light. The proposed lawsuit for damages is basically an abuse of copyright law. Copyright is a limited monopoly granted to allow the author to benefit from the distribution of their work. It is not intended to allow them to suppress material.

    • Re: (Score:3, Insightful)

      by mr_mischief (456295)

      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?

  • She shouldn't bother suing because her myspace page is public. But the newspaper was able to fill its pages because of her work, and that means that they profited due to her actions. That says to me that she should bill them. I don't know how much reporters get paid per column inch, but that is what she should charge them. It won't be much, because reporters have to fill a lot of column inches to live well, but it is the best chance she has for getting something out of this.

    Major power blocks in the U

  • This is people being mean. Most kids hate their small towns. Most people hate their small towns (until they reach a certain age, at which point they consider anyone younger than them "newcomers" and feel the town was better without them). To print a kid's rant in a newspaper is flat out spiteful, unprofessional, and certainly not very adult.

    If a judge could rule in favor of the principal and newspaper being complete asses (which I firmly believe should be possible under the law, and if it's not, let's st

  • Would very much like to pay for a serious background check on this guy -- using public records, of course -- and see how he appreciates that info being posted on the net.

    • by Trepidity (597)

      You could a polite email to rcampbell@chusd.k12.ca.us indicating that you've heard things about his conduct as principal of Coalinga High School that you find concerning.

  • In a rush, haven't read the full post or comments yet, but this is screaming in my head:

    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.

    I don't think it's about "damages". Doesn't willful infringement for commercial gain carry extra penalties? Jammie got hit with $80k each for willful infringement not for commercial gain.

    What am I missing?

  • On the face of it, this is a fraudulent on the part of the paper:

    - They published the item as if it were submitted by her, which it was not.

    - They published the item as if they had permission to do so. It appears they did not.

    - They published the item as if it were intended to be published in their paper. It seems not.

    But copyright is so broken, she should sue for fraud along with much else, as some of the lawyers seem to suggest. Certainly she has a case for the paper exposing her to harm she did not in

  • Country Mouse (Score:3, Insightful)

    by rlseaman (1420667) on Monday June 29, 2009 @01:16PM (#28516141)
    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.

  • by PJ6 (1151747) on Monday June 29, 2009 @01:27PM (#28516305)
    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.

An age is called Dark not because the light fails to shine, but because people refuse to see it. -- James Michener, "Space"

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