[Air-L] Permission to reproduce webpages?
bholland at law.txwes.edu
Wed Sep 1 19:31:14 PDT 2010
A couple of quick comments:
I agree with Gil's sentiment that we should resist the narrowing of fair use. I don't think that Andre "should" have to ask permission, but he may decide that, all things considered, that is the best course of action to reach his publication goal.
My original comments were simply intended to highlight the difficulty of the fair use question, the chilling effect that follows uncertainty as to what is fair use and what is not, and the perspective of a publisher facing the potential of significant damages if they make the wrong calculation.
As to whether asking permission effects the fair use claim, as a strict matter I think the answer is generally no. However, some copyright holders have argued that moving forward with publication after being denied permission demonstrates bad faith -- a factor in the fair use analysis. But that argument has had mixed results. The contrary argument may, in fact, carry equal weight; i.e., that the failure to ask permission where one knows that such permission is potentially available suggests bad faith. This is, in my opinion, one of the more unfortunate aspects of US copyright law as it now stands, but it is nevertheless something with which we must contend.
Finally, I agree that a publisher cannot generally impose greater restrictions on content than those provided under copyright law. But they still try; e.g., broadcasters have been trying this for years with their "no unauthorized use" claims at the beginning and end of (American) football games. That said, content providers have been somewhat successful in imposing more severe restrictions via contract -- of course you have to agree to the terms and that isn't usually possible, but digital distribution is making it increasingly common.
I hope this is helpful and not too deeply law-geek.
H. Brian Holland
Associate Professor of Law
Texas Wesleyan School of Law
(sent from my iPad)
On Sep 1, 2010, at 8:52 PM, "Michael Zimmer" <zimmerm at uwm.edu> wrote:
> I'm not familiar with the notion that asking for permission might eliminate/jeopardize a future fair use claim. Is there legal precedent establishing this?
> Michael Zimmer, PhD
> Assistant Professor, School of Information Studies
> Director, BS in Information Science & Technology Program
> Associate, Center for Information Policy Research
> University of Wisconsin-Milwaukee
> e: zimmerm at uwm.edu
> w: www.michaelzimmer.org
> On Sep 1, 2010, at 6:33 PM, Gilbert B. Rodman wrote:
>> Two quick comments here, both AGAINST the notion that André necessarily has to ask for permission to use the images in question.
>> First, "fair use" arguably disappears -- in specific cases, if not as a whole -- the moment you ask for permission. At the very least, asking for permission potentially prevents you from asserting "fair use" later (which you might still want to do if, for example, your request isn't answered in a timely fashion), since it demonstrates that you don't believe your quotation of the material qualifies as "fair use."
>> Second, "fair use" isn't simply some technical quirk in US copyright law that allows scholars to get away with what is otherwise morally questionable activity. It is arguably one of the basic rights that enables us -- along with journalists, reviewers, critics, and a vast range of other cultural commentators -- to do our jobs. I'm willing to bet that the publisher André is dealing with is NOT making him secure permission every time he quotes printed texts. He undoubtedly needs to attribute such quotes properly, and there are likely to be restrictions on how much of a source he can quote ... but "fair use" is what allows scholars to quote words written by other people (and reviewers to quote bits of books, songs, plays, movies, etc.) in the ordinary practices of research, criticism, and commentary without having to formally granted permission to do so. Put a different way, "fair use" is one of the major things that keeps copyright holders from using charges of "infringement" as a backhanded means of controlling public commentary about the works in question.
>> On 09/01/2010 05:16 PM, Brian Holland wrote:
>>> The AP is particularly litigious in this regard. They have an extensive licensing program and they expect folks to use it. In fact, the existence of such a program is a major factor against fair use -- i.e., it makes your claim of fair use less likely to succeed.
>>> - Brian
>>> -----Original Message-----
>>> From: air-l-bounces at listserv.aoir.org [mailto:air-l-bounces at listserv.aoir.org] On Behalf Of André Brock
>>> Sent: Wednesday, September 01, 2010 5:08 PM
>>> To: Philippa Smith; air-l at listserv.aoir.org
>>> Subject: Re: [Air-L] Permission to reproduce webpages?
>>> Thanks, Philippa! I appreciate the heads up. Fortunately, the sites we
>>> examined (Racialicious, Jezebel, and Essence.com for those keeping score at
>>> home) aren't pulling from AP (thank god!).
>>> I'll keep y'all posted on my progress and outcome.
>>> On Wed, Sep 1, 2010 at 4:51 PM, Philippa Smith<philippa.smith at aut.ac.nz>wrote:
>>>> Just as an aside and to throw a spanner in the works - I've had a
>>>> situation where we wanted to use a screenshot from an online newspaper
>>>> but because the source of the article was Associated Press we had to
>>>> get their permission as well to reproduce the text. This came at a
>>>> financial cost. It's worth noting whether websites contain material
>>>> from other sources that might also need permission. Unfortunately this
>>>> is a can of worms scenario.
>>>> Kind regards
>>>> Philippa Smith
>>>> PhD Candidate
>>>> Institute of Culture, Discourse& Communication
>>>> AUT University
>>>> NEW ZEALAND
>>>>>>> André Brock<andre.brock at gmail.com> 09/02/10 9:41 AM>>>
>>>> Thanks to everyone who's answered me so far (Hi, Annette!). The legal
>>>> advice was particularly helpful, and i'm going to follow Ulf-Dietrich's
>>>> advice and contact the websites - i have contacts at a couple of them.
>>>> Does AoIR have a specific statement on fair use of Internet/ICT
>>>> for research in the field? I know we have an extensive set of materials
>>>> Ethics... (and no, i'm not volunteering to write it. i'm just asking)
>>>> On Wed, Sep 1, 2010 at 10:22 AM, Andre Brock<andre.brock at gmail.com>
>>>>> For the first time in, well, ever I've been asked by a journal to
>>>>> permission from a website to reproduce a screenshot of a webpage.
>>>> Not, to
>>>>> be clear, of an image on the page - but of the page itself. I've
>>>>> offered the option of removing the image and replacing it with a URL,
>>>>> from an archival standpoint that's problematic. Webpages with dynamic
>>>>> content change all the time, not to mention that authors sometimes
>>>>> formats/platforms, modify pages, or remove content that was included
>>>> in the
>>>>> original analysis.
>>>>> I don't want to miss the publishing deadline, but I need to know:
>>>>> dey do dat at?!?" (translation: since when did fair use guidelines get
>>>>> so badly in academic publishing?)
>>>>> André Brock
>>>>> Assistant Professor, SLIS/POROI
>>>>> University of Iowa
>>>> Andre Brock
>>>> Assistant Professor - Library and Information Science/POROI
>>>> University of Iowa
>>>> Iowa City, IA 52242
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