Am I A Coward For Not Going to Court?

What a silly person your critic is.

I doubt that they'd have ever sued you. For starters the lawyers probably understand fair use more than the person who generated the letter. Second there is the issue of jurisdiction. Would they really want to do a trans-Atlantic lawsuit over part of one figure that was used with attribution and probably brought them more "business" than took away.

Bah. This wasn't worth going to court about... yet. People screw up, and deserve a chance to make things right. The publisher in question did just that. What was the problem, again?

It may have been a different story had they sued you for infringement, asked you to take down the new charts you produced, or otherwise shown that they stood behind the initial decision as an organization. That's not what happened.

In short, I agree with your response (:

Copyright is, or should be, kind of irrelevant in scientific discourse other than to ensure recognition for the author. But the system that has evolved and that we all still keep alive, relies on copyright as a kind of 'payment for services'. Let's face it, as researchers we use scientific journals to get the credits we need. "Publish or perish", remember? And journals have to defray their costs, so they charge for subscriptions. And in order to be able to charge for subscriptions, they need copyright. Copyright is therefore a kind of 'payment' on the part of the author for the services of 'formalising', officially publishing, their article in a peer-reviewed journal. Obviously, copyright is a poor mechanism to pay for those services. Not least because it comes with restrictive access. Much better to simply pay for those services with money, keep the copyright in the process, and publish your articles with open access, making all use of the material free, or at least all non-commercial use, on condition of proper acknowledgement. An increasing number of journals offer that possibility, and an increasing number of funders allow for payment of those publishing services from grant money (it's not all that different from page charges, after all), on the premise that publishing is an integral part of the research itself and therefore the cost of publishing is an integral part of the cost of research.

No, you are not a coward for not suing. In the first place, it was they who threatened legal action, and you had no cause for suing. It was clear from the beginning (to me at least, not a lawyer) that what you did was fair use. Check the US Copyright Office Web site. You did not even need permission for fair use, despite their later "apology." I doubt very seriously that they would ever have proceeded with any kind of suit. However, their bullying tactics struck a nerve with me, and obviously with a lot of other people.

Not going to disagree. Its imho unfortunate that there isn't some way to level the playing field in such cases and allow equal (both in money spent and expertise) council for both sides of issues. Then maybe some cases could be resolved, instead of either being left fluttering in the wind, with no outcome actually determined that can be used to make future judgements, or bad outcomes becoming defacto law, because of ineffective challenges, which then get looked up in case law when the next guy with the problem comes along. Both are serious problems.

And that is why some of us really wish it was possible to make such a challenge successfully and in a timely fashion. Its almost as bad to have settlements where no actual decision is made by the court or have companies just sort of go, "Ah well, in your case OK, but the next person that does it...", than it is to lose. At least in that case you can appeal and have some high judge decide that the lower court made a mistake and shouldn't have ruled that way in the first place. The only reasons that settlements are as common as they are is its like no-fault insurance. The guy with no money can't afford to be either proven to have done it, or lose because the other guy has better lawyers, and the prosecution loves it, because, **even if they are wrong**, it looks like they won and nothing was their fault.

I really wish someone with money and guts *would* push more or these cases to conclusions. But then, I also wish the system didn't define "best defense" as, "Near unlimited time to dump paperwork on each others desk, as many lawyers as you can afford to buy and the ability to stretch the whole thing out to the point where you sometimes have to give the defendant time served (yet never pay them for any time over that they wasted or rotted in jail, or help them recover if they turn out to be the victim and not the criminal)."

Its quite irritating.

There is nothing wrong with your reaction. You are not an expert in copyright law.

However, I don't think you were ever in any real danger of going to court. Companies don't allow editorial assistants to take legal action. Lawyers take legal action. As far as I can tell, you didn't receive any communication from a lawyer.

Here's what I would have done and how I think it would have worked out.

In my initial response, I would have said the following. My use is fair. Here's why (see my comment to the original post). Fair use doesn't require permission. If you can convince me that my use is not fair, I will request permission. If I am convince that my use is not fair, and I do not receive permission, I will take down the copyrighted material.

In hind sight, I would have suggested that the editorial assistant consult the legal department before responding.

If the editorial assistant didn't accept my response, I would have taken it to someone else (someone with more authority at the journal or at Wiley or any lawyer in Wiley's legal department).

I believe that any lawyer or high level employee of the journal or Wiley would recognize that my use is indeed fair and drop the issue. Even if I am wrong, I believe that any of these people would grant permission before I ask.

However, I understand copyright law and you don't. I don't see anything cowardly in your actions.

Good grief. The thought that you were a coward never even crossed my mind. After all, you did stand up to them in a balanced, sensible way that achieved a generally positive outcome. Not wanting to invest vast amounts of time, emotion and money in something to prove a point of principle doesn't make you a coward, it makes you a normal, rational person with better things to do. Furthermore, I think that actions such as yours are more likely to effect deep change in publishers than a few lost lawsuits every now and again.

Not at all.

At Dynamics of Cats, I said ...

...got a lawyer letter from the publishers(Wiley).

No, she didn't. I don't mean to pick on you, but there's a point here that's been missed by every ScienceBlog I've seen that's commented on this (although I may well have missed a couple).

The correspondence was from:

Lisa Richards Editorial Assistant Journal of the Science of Food and Agriculture

I'm not a lawyer, and I don't claim extensive knowledge in the area, but I have been involved in similar situations in the corporate world. In my experience, companies don't threaten legal action over the signature of an administrative assistant (let alone via e-mail from an admin assistant). That sort of thing sounds like little more than a ploy to see if someone will back off quietly. If the party at the other ends reacts aggressively, there's always the out of, "Oh ... misunderstanding. Our counsel really hadn't approved that communication. Never mind ...".

Mind you, I don't blame Shelley in the slightest for reacting the way she did; she's a grad student with many better ways to spend her time. However, I would have been tempted to reply firmly but politely in the following manner:

* Document for the record exactly what I'd done;
* State that to the best of my knowledge and belief, these actions fell within "fair use";
* Request specific guidance from Wiley counsel as to exactly where my actions went beyond fair use;
* If I have gone beyond fair use, I will of course remove the material and apologize.

Would have been interesting to see if they were prepared to go farther ...

I think the approach you took of republishing in your own format was more effective than telling them to go to hell: it makes them look even more petty and stupid.

Banish the thought. As one who sees courts up close and personal every day, there is nothing "brave" about getting yourself embroiled in litigation. And there certainly is nothing even sane in generating a lawsuit to vindicate what some other person thinks is "principle." Trust me, by the time the case is over the lawyers will have beaten every trace of "principle" out of the case.

I said it before ... you were under no duty to make sacrifices for the rest of us, especially when the simple act of standing up and rallying people around you probably did far more good than simply generating yet another precedent, for lawyers to stare into the navel of, ever would.

I can understand your not wanting to go to court, which would be a major waste of time, effort and lawyer fees, but I still think you should have held out for a pony.

Nonsense! As I see it your number one priorities should be prelims, quals, research, thesis, and defense. whichever comes next. Once you've graduated, you'll have plenty of time for more ah... esoteric pursuits.

-You can't risk that they would have sued you
-Nothing "coward" or "brave" about it, resist tendencies to characterize these things in the emotional sensationalism of teens and twenties, it's a lesson all businesses eventually learn. Valueable experience, more important battles later.
-This is the "chill" effect on restricting free speech, and what many would refer to as about 1/2 way down the slippery slope to the bottom. As mentioned here and elsewhere, copyright is an inefficient way to reward content creators, and capitalistic forces will push the envelope relentlessly until a legislative reaction is generated. Economically its often a barrier to entry into the marketplace, as the big guys have the ability to outspend the little guys, al-la medical association v. blogger, Verizon v. Vonage, Microsoft v. Netscape, etc.
-Cartwright, Esq. has pretty solid comment. What you really needed was a competent risk assessment of the situation in order to get a little more out of the battle. In the absence of such [i]competent[/i] risk assessment, yours was the more shrewd decision based on the cost-benefit analysis and your position in the marketplace.
-There are other ways to get meritorious cases supported, organizations like EFF, ACLU, trade associations, other bloggers, sometime offer a resource in the absence of a lawyer, or at least self-help whitepapers and the such. As you stated, you have more important things to do - another wise decision IMHO.
-If blogosphere didn't pick it up, let it drop and don't sweat the haters. Bloggers hating on bloggers is kind of . . . well, silly frankly. Nothing else to do in life? Keep your eyes on the big picture; (I have 30% hearing loss - artillery, ear infection - and need some new cochlear hair regrowth or whatnot.) Neuroscience is beginning to explode, lots for u to do.

Not at all. As someone who's gone through a PhD program, I know that you neither have the time nor the energy to devote towards this fight. Leave it up to BoingBoing and /.. It's what they do, in terms of stirring up the mud. Let's just hope that we can encourage more in our fields to go to journals with acceptable terms of service regarding 'reproduction' for publishing our "these pages are marked as advertisements". And we can only hope that if it ever got to the point where you were forced into a fight, you wouldn't end up like Keith Henson.

You might consider the advice of Carl von Clausewitz, a fellow who did a fair amount of thinking about human conflict:

"A battle offered and refused is not a battle lost, it is a battle delayed to a place and time of your choosing"

Or as Carl's mom would have said:

"He who fights and runs away will live to fight another day"

What nonsense.
Anyway, if tdaxp wants to force the issue, all he need do is grab some figures from a Wiley journal and stick them on his blog - ideally including scientific content, but he could claim a fair use in proving that fair use is fair. Er, you know what I mean.
If Wiley is really trolling the blogosphere to enforce their picture copyright, then they have to sue or they grant fair use by default.
Everybody gets to live by their principles.

Sorry, guess I'm not as brave as you.

I would have reduced that answer to two words. But you're nicer than I am. Anyone who thinks you should have fought it out more vigorously than you did has (a) more money, (b) less sense, than is good for them.

"A guest" gets it right:

"In my initial response, I would have said the following. My use is fair. Here's why (see my comment to the original post). Fair use doesn't require permission. If you can convince me that my use is not fair, I will request permission. If I am convince that my use is not fair, and I do not receive permission, I will take down the copyrighted material."

That's exactly my position.

I don't quite agree your misrepresentation of my post, Shelley (and I get the feeling that a number of commentators here did not read what I wrote), but you linked kindly to my blog twice, and I do admire what you write. So thank you.

Dan, I wasn't trying to pick a fight but I did feel a little hurt by your post suggesting that the really brave thing to do would be to throw caution to the wind and engage lawyers. I felt like you were calling me out and it seemed un fair.

I like your blog as well, and think its great that you were able to successfully stand up to the machine. But there's other equally valuable ways of getting points across.

Maybe I just think our society is a bit to quick to be litigious, too.

Anyway, no bad blood between us, I just felt that there's more to being brave than being foolhardy. And thats what it would have been in MY case.

I can't personally see anything cowardly about Shelley's conduct. There are people in a far, far better position (i.e. tenure) to fight this fight than she is.

Besides, sometimes a battle can be won more readily by manoeuvre than combat.

Poverty is the best bet against law suit. Lawyers will not take up civil law suit if there no big money gain for them. Nurse who make mistake which leads to patients death is usually not sued but the hospital or doctor nurse work for get law suit. Why? Money=responsibility=guilt.

Micheal Jackson get sued not because he is pedofile but he is rich. Mcdonald get sued for hot coffee for the same reason. If mom and pap store selling hot coffee, it would not get sued, also jury will never award plaintiff for her own studipity,

So you are safe as long as you remain poor.