Respectful Insolence

This is the sort of thing that really irritates me.

Shelley, over at Retrospectacle posted a rather nice analysis of a paper that appeared in the Journal of the Science of Food and Agriculture entitled Natural volatile treatments increase free-radical scavenging capacity of strawberries and blackberries. She was skeptical about news reports and press releases about the article, and did an analysis that showed that the paper did not show quite what the press was representing it as showing. In her post, she used a figure from the paper under the “fair use” doctrine to illustrate her point, and within a day received a letter from a lawyer threatening legal action if she did not immediately remove the figure. She complied, but, as Mark put it:

In a sane world, this would be a clear case of “fair use”: Shelley was not stealing or taking credit for anyone’s work. She did not reprint the article. She did not write about the work without giving credit to the original authors: she provided a full and appropriate citation of the article. All she was doing is what many bloggers do regularly: she was writing about an interesting piece of research that had been published in her area. But her article doesn’t fit the spin that the authors/publishers wanted to put on it. So they resorted to legal threats to try to shut her down.

Indeed. This was nothing more than intentional intimidation by a large, wealthy corporation against a lone blogger who’s a graduate student and thus unlikely to have the resources to fight back. Even though the letter came from the UK, and it seems unlikely to me that the company would mount a trans-Atlantic lawsuit to keep a blogger from fair use of their publication, Shelley couldn’t take that chance, and I don’t blamer her. (I also agree with Mark in that I suspect that, had Shelley’s piece fallen in line with the spin being put on the article in press releases and in the press, John Wiley & Sons probably wouldn’t have done anything.) In essence, these days copyright holders seem to think that they have an absolute right to control every word on a page and every electronic bit in a PDF file, fair use be damned.

I note that the work described in the article was funded by the USDA. I don’t know if the same law applies, but the NIH now requires any manuscript generated from NIH-funded research to be deposited in a database at http://publicaccess.nih.gov. There can be an embargo for a short period of time after the research is published, but eventually all NIH-funded research must be made freely available. Presumably any blogger (like me) could access the original manuscript and engage in fair use of parts of it for posts without even having to worry about whether a publisher will try to interpret the “fair use” doctrine to mean “no use.” I invite discussion in the comments of whether Shelley’s article did or did not represent fair use of a small portion of the article.

In the meantime, click on the link to the journal above–a lot. I’m hoping that Wiley & Sons notices that its action against one of my fellow ScienceBloggers has resulted in some negative publicity. Maybe PZ or Boing Boing will get on board. Then Wiley & Sons would really notice. While you’re at it, polite e-mails asking the publisher to justify why it thinks that Shelley’s use of the figure in her blog post did not fall under the auspices of fair use might make Wiley & Sons take notice.

Comments

  1. #1 Shelley
    April 25, 2007

    Thank you for your support Orac!!

  2. #2 Ahcuah
    April 25, 2007

    Orac wrote:

    . . . and within a day received a letter from a lawyer threatening legal action if she did not immediately remove the figure.

    Not quite. The letter was just from some “Editorial Assistant” (i.e., probably some low-level flunky) threatening a contact from their lawyers. There’s a good chance the lawyers never even looked at it. If they had, they might have laughed at this “Lisa Richards” (at least they would if they knew any law).

  3. #3 gwangung
    April 25, 2007

    Still doesn’t matter. An editorial assistant should still know the relevant law.

    And I think if you don’t get a response, a polite response asking why is appropriate.

  4. #4 mark
    April 25, 2007

    I don’t know to what extent blogs differ from traditional printed material, or if they should differ, but the Publications Guide that I worked with when writing reports in the US Geological Survey publications system specifically stated that it is the author’s responsibility to “secure the permission of the owner of any copyrighted material quoted or reproduced in a report,” and a letter acknowledging that permission had to accompany the manuscript when submitted for approval for publication. In most cases, the copyrighted material would be figures or plates. This is a stricter requirement than merely referencing an author as a source of an idea discussed. I notice that the journal article is available online for a cost–a further clue that first obtaining permission to reproduce the figure would be appropriate. I don’t know if permission would have been freely granted (some copyright holders do, some charge for it).

  5. #5 PattyP
    April 25, 2007

    Weird. I clicked on the journal link above, and got the message:

    Session Cookie Error

    An error has occured because we were unable to send a cookie
    to your web browser. Session cookies are commonly used to facilitate improved site navigation. In order to use Wiley InterScience you must have your browser set to accept cookies.

    Once you have logged in to Wiley InterScience, our Web server uses a temporary cookie to help us manage your visit. This Session Cookie is deleted when you logoff Wiley InterScience, or when you quit your browser. The cookie allows us to quickly determine your access control rights and your personal preferences during your online session. The Session Cookie is set out of necessity and not out of convenience.

    My browser is set to accept all cookies. LOL.

  6. #6 PattyP
    April 25, 2007

    mark,

    I think Orac’s point (as well as the other bloggers) was that the material excerpted fell, by all reasonable estimation, within the doctrine of fair use:

    http://www.copyright.gov/fls/fl102.html

    In such cases, the person excerpting the material is not required to get copyright permission.

  7. #7 VJB
    April 25, 2007

    I admittedly have this thing about journals owning the copyright to anything they publish. It really sounds as if someone publishes a paper describing, say, ‘fire’ and Wiley or Elsevier takes out a patent, squeezing out the authors (who may not legally hand out copies of their own work unless they BUY it at too many dollars per copy). In Shelley Batts’ case, the paper she cited was funded by the USDA, and if an author was a federal employee, the paper could be freely disseminated, but only if. So probably it was proper that Shelley should be threatened with getting put in the stocks and flogged. This really has to change.

  8. #8 scott pilutik
    April 25, 2007

    As I’ve not seen the portion that was pulled that is claimed to be fair use, I’ll limit my comment to procedure (but note also that I’m in general agreement that overreaching is the norm amongst copyright holders on the web, as they lack serious disincentives not to overreach).

    I also sympathize with Shelly not wanting to escalate matters, not having the resources to engage in games. But until your ISP receives a formal takedown notice, you aren’t in any real jeopardy.

    The DMCA has a procedure that must be followed before an American ISP will remove an allegedly infringing item. The copyright holder must send a formal request to the ISP, informing it that an item is infringing. The ISP is then required to inform the customer that they can either remove the allegedly infringing item, or risk suit. The purpose of the DMCA is to provide a mechanism by which service providers can indemnify themselves, and get out of the way of the real dispute between the alleged infringer and rights holder.

    But the DMCA also commits the rights holder to stand behind its claim; a fraudulent takedown notice (without a good faith belief that an infringement has taken place) places the rights holder at risk for misusing the DMCA (section 512(f) – see OPG v. Diebold). Rights holders routinely send out a warning letter, but warning letters aren’t enforceable–only a DMCA takedown request is predicate to legal action for copyright infringement. If they were serious, you’d have gotten a takedown notice from your ISP.

    You might also want to send the whole story and correspondence to chillingeffects.org, who operate as a clearing house for this type of overreaching.

    [Cross-posted to Shelly’s blog]

  9. #9 Corbs
    April 25, 2007

    In Australia you can be fined for threatening breach of copyright when it is inappropriate to do so. The idea of course to stop crap like this. Any budding US IP lawyers know if there is a similar US provision?

  10. #10 Susannah
    April 25, 2007

    I clicked on the link to the Journal, and got the “Session Cookies” box. When I clicked the link to the article, and then, from there, went to the Journal home page, no problem!

    Something fishy?

  11. #11 Greg
    April 25, 2007
  12. #12 TheProbe
    April 26, 2007

    Hmmm..should I point out to Wiley that they lost the war in 1776 and should just get over it?

  13. #13 Kristjan Wager
    April 26, 2007

    Not unless you want to be considered a smug idiot.

  14. #14 Tracy W
    April 27, 2007

    Richard Epstein, one of the big American legal thinkers, has argued that there should be an offence created in common law for over-claiming copyright – such as in Wiley & Sons case – to discourage people sending out cease-and-desist letters when something clearly falls under fair use.

    It would also cover those DVD upfront messages that say that copying all or any part of the DVD is prohibited.

  15. #15 Ian
    April 27, 2007

    I’d like to point out that none of the communications Shelley received were actually from Wiley itself, but from the journal’s producers, SCI. In every single Wiley license (and Shelley was working under one) there is a Fair-Use clause specifically allowing the kind of usage that Shelley wanted. It may be found at http://www3.interscience.wiley.com/tacou.html.

    Also, TheProbe, Wiley is an American company. SCI, the journal itself, is based in the U.K.

  16. #16 Ian
    April 27, 2007

    http://www3.interscience.wiley.com/tacou.html

    There’s an extra period in my other link.

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