[Air-L] Permission to reproduce webpages?

[Gilbert B. Rodman]

  I'm happy to be corrected on the legal nuances of asking first. Doubly 
so, since I already knew the rough details of the case Dan mentioned, 
but had never thought of it in terms of the "asking first" aspect of 
things. So thanks to Dan for that. :)

That said, I'm going to quibble a bit -- in a friendly fashion, I hope 
-- with the notion that asking is "polite" and "less complicated."

To be sure, asking may be polite ... but it's not clear to me that not 
asking is necessarily impolite. Especially if one is asking a 
corporation, rather than an individual. I can certainly imagine it being 
polite to ask someone if I could use, say, a family photo of theirs that 
they'd posted to Flickr or Facebook. Not so much if I'm asking CNN for 
permission to republish a screengrab of the front page of their website. 
I’m not sure it’s even possible to be impolite to a corporation ... but 
that’s a philosophical question for another moment.

More to the point, the norm (scholarly and otherwise) when it comes to 
using other people's printed words is NOT to ask except in cases where 
the quote in question is exceptionally long. And we generally don't 
claim that it's impolite to quote other people's words without 
permission (or that etiquette demands we ask permission anyway). Quite 
the opposite, actually. We assume that as long as we follow scholarly 
norms of attribution and citation, that we can -- and must be allowed to 
-- quote other people’s words freely, and that they do NOT have the 
right to grant or withhold permission when we do so. Mind you, I'm happy 
to accept that there are real differences between words (on the one 
hand) and images, songs, websites, etc (on the other) that matter with 
respect to both copyright and fair use. But I'm not sure those 
differences typically register at the level of social courtesy.

And asking can actually be *very* complicated -- if only because the 
questions of *who* actually needs to be asked and *where* they can be 
reached is not always simple. I'll give one personal example to 
illustrate this, but I'm sure it's not unique.

A few years ago, I wrote an essay on Eminem that was accepted for 
publication by the journal Popular Communication. I'd completed the 
revisions the editors had asked for, and everything was set ... until 
the legal team at Lawrence Erlbaum (who publish the journal) said I 
needed to secure permission for any lyrics I quoted that were longer 
than a sentence fragment. I had to write the letters, pay the fees (if 
any), and produce documentation of all of this ... or drop all 
un-cleared lyric quotes from the essay. I pushed back -- arguing the 
quotes were all textbook examples of "fair use" (e.g., brief quotations 
for the purposes of scholarship and cultural criticism) -- but they 
didn't budge. (Not right away, anyway. Eventually, they relented. But 
I'm trying to keep this brief.)

So I tried to contact "Eight Mile Publishing" (Eminem's music publishing 
company) to request the permission LEA insisted that I had to have. But, 
of course, like most music publishing companies, Eight Mile is a paper 
corporation. It has no staff. It has no offices. It has no street 
address. It doesn't even have a post office box. Or, more crucially, if 
it has any of those things, that information isn't publicly accessible 
in any easy-to-find fashion. I went through every sideways and back 
channel I could imagine simply to figure out where to send a letter to 
someone who *might* be in a position to make sure that my query landed 
in the hands of the right people. None of the letters I eventually sent 
off ever resulted in so much as an acknowledgment, much less an actual 
response to my request for permission.

This whole process took several months. And it was far more complicated 
than it would have been simply to treat the quotations in question as 
“fair use” from the start. To be sure -- and this may be what Dan is 
getting at -- those several months of frustration were undoubtedly 
easier than being in the receiving end of a copyright infringement 
lawsuit. Even if “fair use” would have won out in such a case. I get 
that. But let’s also not pretend that "asking first” is necessarily an 
easy thing to do.

cheers
gil


On 09/03/2010 12:23 PM, Dan L. Burk wrote:
> No.  In fact, the leading USSC case on fair use, Campbell v. Acuff-Rose,
> involved a successful assertion of fair use after a request for permission
> to use the copyrighted work (Roy Orbison's song "Oh Pretty Woman") was
> denied.
>
> Asking is polite.  Asking is less complicated.  Asking is (usually) less
> expensive.  And if you don't get permission, you can claim your statutory
> exemption later.
>
> The rest of Gil's comment is spot on, however.
>
> DLB
>
>
>> 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?
>>
>> -mz
>>
>>
>> --
>> 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
> Dan L. Burk
> Chancellor's Professor of Law
> University of California, Irvine
> 4500 Berkeley Place
> Irvine, CA  92697-8000
> Voice: (949) 824-9325
> Fax: (949)824-7336
> bits:dburk at uci.edu
>
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