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Jason Kottke To Stop Blogging?

When Jason Kottke posted audio of Ken Jennings losing on Jeopardy, it instantly became (in)famous in the blogosphere. Unfortunately, Sony’s legal team took notice of the audio as well, and socked Jason with a Cease and Desist letter to take it down. He complied with their demands, however I’m pretty sure that they’re not going to let Jason go so easily.

He wrote today on his weblog how his legal troubles with Sony don’t appear to be over. He also discussed how situations like this make him question keeping his weblog around, for what happens if he does get sued for multi-millions? Jason’s just an individual blogger and can’t afford the legal troubles huge corporations can handle.

This is extremely unfortunate, because the blogosphere is around in order to call out the Media’s bullshit and draw attention to news stories that might have fallen through the cracks. Jason was just providing his readers with a tidbit of information about one of the stories of the moment, and in no way was making a profit from posting that audio file on his weblog. It didn’t take away from any of Sony’s money, and in fact, probably made even more people watch that showing of Jeopardy which increased Sony’s bottom line.

Bloggers need to be able to express themselves, or else weblogs will become another moderated media outlet just like everything else.

About Mike Rundle

Comments

  1. The rebel in me says… How many people blog? How many of them are card carrying consumers? How many of them buy/use Sony products? How many could we convince to stop buying/using those products?

    The pragmatist in me says… Jason did what he was asked to do, when he was asked to do it. If they move forward with this, they will hurt themselves more than if they had not acted on asking for the content to be removed.

    Hello, Sony? Stop while you are behind. Make your point (already done) and then apologise. Then invite Jason to be on the next taping of Jeopardy. :)

  2. Jack Richards says:

    Hey, I’m all for a Sony boycot.

  3. Adam says:

    Kottke.org is the world’s best blog. Well, IMHO anyway. :)

    Regardless, I can (sort of) understand why Sony (initially) would ask him to remove the audio bite.

    It is their property. It was a spoiler. OTH, I agree with the logic here — Sony (in the end) benefitted from this.

    It gets harder for me to understand why they would ask him to remove the TEXT transcript (especially when it was blacked out) while the Washington Post ran free with their self-proclaimed spoiler.

    The WP’s reach is eons beyond that of Kottke… and they in no way attempted to shield their spoiler from those who wish not to be spoiled.

    All-in-all… the whole thing is pretty damn lame. I don’t believe Sony will or would pursue this beyond the cease and decist letter. Especially when I’m sure they send hundreds of those letters a day between their music, movie, and game pirating.

    I don’t blog. But I manage several massive message boards. I have received my fair share of “cease and decist” letters over the years. While I usually comply… It just strengthens my drive to help others share information.

    I would be dissapointed if Jason was scared off by this. He did the right thing. That should be the end of it.

    I also think that we should stop fueling the fire. This type of thing happens, cease and decist letters are a dime a dozen. So long as it doesn’t go beyond that — We shouldn’t make a story out of it… and Jason shouldn’t change his ways because of it.

  4. Adam says:

    OH — And similar to the “Sony benefitted from this” theory.

    In the end, I think Jason will benefit from this too.

    There is a whole lotta chatter out there about him, and in the end it will simply increase traffic to his site.

    I never got into the whole Jeapordy/Jennings craze… and I imagine there are alot like me. And as I do, will find his OTHER content incredibly gripping.

    Cheer up Kottke. “Rolling over” (as you put it) was the right thing to do. You get credit for breaking the story regardless… so just get on with it. Tomorrow’s another day!

  5. S.A. Miller says:

    Jason Kottke is a drama queen.

    …it sure has had a chilling effect on my enthusiasm for continuing to maintain kottke.org. … I’m certainly thinking very seriously about whether I can keep this site going in this kind of environment.

    A “chilling effect” ? Because he doesn’t understand copyright law, or find it necessary to follow it? What “kind of environment” ? An environment of laws? He should have known better before he posted that audio.

  6. Adam says:

    Hehe. I gotta sorta agree with Miller here.

    But “Drama Queen” comes with the terroritory these days it would seem. Take my comments on Zawodny’s blog as example.

    Like I said earlier, I’ve seen my fair share of “cease and decist” letters. I have found fairuse.stanford.edu an invaluable resource in dealing with these nuisances.

    Jason shouldn’t have posted the audio. Sony shouldn’t have snared him on the text while letting the Post slide. But it could be said that Sony was just driving home their point because of the audio posting.

    It was an innocent mistake on Jason’s part. Mistakes happen. I’m sure Sony realizes this, and I’m sure this is all blown out of proportion. Jason complied… That’s all Sony cares about.

  7. Adam says:

    Since I can never seem to say all I want to say in one post, I will (yet again) follow-up:

    If I sounded critical of Kottke in my last post, I am sorry.

    Like I said originally… I am a huge fan of Kottke’s blog and all that Kottke does for that matter.

    I’ve raised more than $3,000 for Children’s Charity this season thanks to Kottke’s DropCash.

    I am simply sore that Kottke could really be so sensitive to this little “slap on the ass” that he would discontinue all the good he does.

    Don’t post peoples copyrighted material. It is law. Bloggers are not immune.

    Knowing that, It’s over. Sony (mark my words) will not pursue this beyond the original request. So, Kottke, I love ya, keep up the good work, and give the fair use link I posted earlier a quick run through!

  8. Anil says:

    “Jason shouldn’t have posted the audio.”

    Why’s that? Copyright, whatever Miller thinks, doesn’t prohibit posting an audio clip of a legitimate news event. The problem isn’t merely that Sony’s being heavy handed, but rather that they’re being heavy handed about something that they have no legal basis in attacking him for.

  9. Adam says:

    Anil, I wouldn’t be quite so sure about that.

    Then again, I’m no copyright lawyer.

    However, I wouldn’t classify this as a “news event”. While there is much news to be had surrounding the event… the event itself is not about news… and is not the public domain.

    The audio (and video) are part of copyrighted television show.

    It is one thing to post a clip of the show AFTER THE FACT. But another (despite our theories about Sony benefitting) to post it before the creator itself has aired the event.

    This would be similar to someone distributing a Moveable Type source library prior to its release. IMHO.

  10. Mike Rundle says:

    Copyright infringement has everything to do with a loss of profits brought about by the infringement. I’m no copyright lawyer either, but I’ve learned enough to know that fair use (i.e. no money to be made) of copyrighted material is allowed, and I feel Jason was using this audio clip fairly.

  11. jkottke says:

    Sony (mark my words) will not pursue this beyond the original request.

    Actually, we’re beyond this point already, otherwise I wouldn’t be so concerned about it.

  12. Adam says:

    you will have a stronger case of fair use if the material copied is from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his expression.

    The problem here folks is that the audio was published before the show aired.

    I do not understand how one would be unable see something wrong with that?

    Profit or not, if, say, you were to get your hands on a piece of Six Apart before its official release… you can NOT GIVE IT AWAY for free or for profit.

    OK… Maybe the Six Apart analogy wouldn’t work. Six Apart being the cool company that they are and all. But I think you get the point.

  13. Adam says:

    Good to see ya Jason! So then my prediction is wrong? Sony is pursuing this beyond “cease and decist”?

    If such is the case, I would not be too worried. They don’t have much of a case, even though (I believe) they did have the right to ask you to stop. :\

    Friendly piece of advice though, J. If they are trully after you… STOP ANTAGONIZING THEM.

    Leave it alone, and they’ll go away.

  14. Adam says:

    Kottke:

    It’s currently “expensive” at 5:16 pm in NYC.

    If it really DOES get expensive… it is a damn good thing you’ve got DropCash!

    Should this really turn into something to worry about (which if you heed my advice I still believe it won’t) then setup a Campaign and I’m sure you’ll end up profiting off this whole mess :)

    I’ll kick in enough to make it worth your while, and I’ll encourage my comrades to do the same.

    Cheers!

  15. Mike Rundle says:

    I think what may be happening here is different than the normal cease and desist letters people have gotten (I got a few on Grey Tuesday, etc.) … what’s happening is that Sony realizes Jason is influential in the blog community and may try and make an example of him, obviously the worst case scenario.

  16. Adam says:

    Thanks for the hot fix, Mike.

    what’s happening is that Sony realizes Jason is influential in the blog community and may try and make an example of him, obviously the worst case scenario.

    You could be 100% right. Although, I don’t know how confident I am that Sony cares so much about the blogging community right now.

    I could understand them making an example of him if they had a reason — like other bloggers getting under their skin. But I don’t know of an instance of that happening. If it has with any frequency… then your theory could very well be right… And that would indeed be the worst case scenario.

    However, beyond Jason’s testament that his “legal difficulties with Sony are still unresolved” we don’t have much evidence that says Sony is doing anything other than scaring him straight. That’s what lawyers do.

    I doubt this has gone beyond some chump in the “internet affairs” legal department.

    I’m not saying I don’t believe Kottke. I’m just saying that it is quite possible that, to him, this is bigger than it really is.

    All our hearts jump a beat whenever we get some legal mumbo jumbo on heavy stock in the mail… his should be no different.

  17. Adam says:

    Kottke said it best himself:

    people have asked if they can help monetarily, which I very much appreciate, but the process is not quite to that point yet (and might never reach it)

    So again Jason… don’t fret. Their just ruffling your feathers i’m sure. :)

  18. Jason,

    If it comes down to it just let us know and we can smartmob them with a boykottke.

    Sorry, couldn’t resist.

  19. I’m not a lawyer either, but I know that most shows display a disclaimer at the end saying that segments cannot be publicly shown without expressed written consent.

    The Internet is of course public arena so I would say Sony was within its copyright rights. As such I don’t think “fair use” really plays into it.

    I will also say however that Kottke complied with the cease and desist and thus should be free from pending legal action. I don’t know why Sony would keep pressure on this.

  20. Adam says:

    Well said, Eric.

    Best of luck Jason! Let us know what we can do should things go sour. Upstate has your back ;)

  21. S.A. Miller says:

    Copyright doesn’t prohibit posting an audio clip of a legitimate news event.

    I would very much quibble that this was a “news event.” Also, as far as The Washington Post goes, posting audio is very much different than posting a transcript. A newspaper may give away parts of a movie in a review, but you do not see the newspaper posting clips of the given away scenes on it’s website.

  22. I looked for a trackback-opportunity. I didn’t find any – but my post about Jason and the flowerpower can be found at:

    http://blog.hoejberg.dk/archives/001079.html

    Best Regards
    Hans Henrik

  23. Martin says:

    Quite an interesting topic, and one which we could argue about for weeks…

    Just thinking: Are screenshots classified as copyrighted material? In the same breath, if you take a photo of a logo on a bus, and post in on your site, is that infringement?

    I don’t mean to be disrespectful to anyone, but (from an outside perspective at least), American society really likes suing left-right-center, just because “that’s what corporations do”…

  24. Adam says:

    Martin, you have to be more specific in those scenarios.

    As I said earlier, and as the snippet from the Fair Use FAQ suggests, the use in which you can share copyright information is largely dependent on whether or not that information has yet to be released by the author.

    As for Screen Shots, I think that is a fair bit different than posting an Audio Segment of a copyrighted Audio/Video program.

    The logo on the bus scenario, that falls under fair use. So long as you don’t profit off your photo, you are free to share it as you wish.

    I don’t think this is a sign of American society or anything of the sort. Sony, as do you, as do i, has a right to protect whatever material they produce on their own dime. That is more than fair I think.

    If I was making a movie.. I would be pretty unhappy if someone were to post a clip of THE ENDING on their blog.

  25. Darrel says:

    The copyright issue, like all copyright issues these days, is moot. It’s who has the more money and the bigger lawyers.

    Regardless, what bugs me is just the common sense aspect of it. Jason in no way hurt sony. As many have pointed out, it was free advertising for sony. We seem to arbitrarily assume laws created by mega-corporations are some how more ethically valuable than common sense at times.

  26. Darrel says:

    Didn’t finish my thought…I guess what I see this being is a company’s adherence to internal policy or external ‘selected laws’ without ever bringing in actual customers into the equation.

    This is akin to Target’s recent decision to ‘adhere to their long-standing policy of no solicitors’ and, even though they’ve allowed it for years, kick out the salvation army bell ringers:

    http://www.suntimes.com/output/business/cst-fin-target03.html

  27. Greg Farries says:

    I hate to play devils advocate here, but I think it is pretty clear that Kottke infringed on Sony’s copyright. Whether you think the state of copyright law in the US is flawed is besides the point – Jason posted something that was outside of the legal protection of “Fair Use”.

    What is surprising to me, and I agree with Miller assertion above (comment 5), is that so many of you are willing to defend and justify his illegal actions.

    I find it frustrating and disappointing that so many webloggers are willing to appeal to the “evil corporation crushing the little guy” attitude when one of their “A-Listers” suddenly finds himself in some self-imposed hot water. This wouldn’t even be a issue if Jason had complied with the cease and desist order quietly, rather than following it up with his “whoa is me” post.

    How can we expect individuals, journalists, business, etc to take weblogs and webloggers seriously if we can’t be bothered to follow the basic rules of law. Or even worst, how much credibility do we gain when we all blindly rally around someone whose been caught with their hand in the cookie jar?

    This is less of a issue about copyright and more of an issue about individual responsibility and journalistic credibility/integrity.

  28. gulliver says:

    Post above from Greg is a good one – totally on the money and just as I’d begun to despair at the ridiculousness of the thread.

    Personally I can’t see what the fuss is about. If you’re playing the game – expect the rules to apply.

    —-
    Bloggers need to be able to express themselves, or else weblogs will become another moderated media outlet just like everything else.

    Since when have blogs been a special case? Real world rules still apply.

    the blogosphere is around in order to call out the Media’s bullshit and draw attention to news stories that might have fallen through the cracks.
    —-

    Yeah right. You really believe that? Much of it is self-indulgent wittering among a closed audience.

    Whatever. Sure – totally negative comment from me…life’s like that sometimes.

    Hadn’t been here for a while – unlikely to again for some time, so if folks want to flame me follow the link.

    In preview, I notice the extra markup tags are still evident. Clearly you guys don’t care/know enough to fix basic errors. Ah well, not my problem.

  29. You are correct, gulliver.

  30. Adam says:

    Wow, Greg — Great post! Said what I’ve been saying all along… but so much more eloquently!

    Gulliver, you are spot-on:

    Yeah right. You really believe that? Much of it is self-indulgent wittering among a closed audience.

  31. How can we expect individuals, journalists, business, etc to take weblogs and webloggers seriously if we can’t be bothered to follow the basic rules of law. Or even worst(sic), how much credibility do we gain when we all blindly rally around someone whose been caught with their hand in the cookie jar?

    While having control of one’s intellectual property should be basic right, I don’t think there is anything basic about the rules of law surrounding this concept. Even most lawyers (guess here) have trouble with this unless they specialize. Not being a lawyer (or more importantly a judge or jury member) I don’t know for sure if what Jason did is illegal or not illegal. And that’s actually not the point for me, or most of the people supporting him.

    Tha point is, as is typical with cease and desist notices, once you do cease and desist, that’s usually the end of it. Moving beyond that, my understanding is that you have to be able to prove criminal intent or show how you suffered a loss from the act. My guess (again, a guess) is that they won’t be able to prove criminal intent or show a loss and I think they know that.

    My guess (hey look! another guess!) is the Sony lawyers are testing the water to see what will happen.

    As to blindly rallying… come on. We support our friends if we think they are being treated unjustly. Based on the information that is available, most people I have read on this subject feel Jason is being treated unjustly. That’s it.

    If Jason is wrong enough to be successfully sued or procecuted, then my hope is that the same fate is awaiting the WaPo and WMAZ-TV.

    On a general note: No one except Jason and the people involved at Sony (and those each side has told the whole story to) knows what is going on here.

    None of us know that Jason did or didn’t do anything wrong.

    None of us know that Jason did or didn’t comply fully with Sony’s demands.

    None of us know that Jason did or didn’t brake a law.

    So to summarize: Feel free to think Jason is deserving or underserving of Sony’s lawyer’s attention. Beyond that comment about legality only if you know exactly what happened, know the law very well, and know how scenarios like this play out in and out of court.

  32. Adam says:

    Oh, and Jason — Good to see you back on your feet today!

    I was surprised when I checked up on your site today to find a classic Kottke post and saw that a slew of quality Remaindered Links had been added!

    Back to business as usual folks. And I’m serious… ALL BLOGGERS… give fairuse.stanford.edu a good browse. Obviously the good lot of you are not as privy to copyright law as you should be.

    Especially you Rundle, you’ve got alot going for you and may very well lose it all by believing events such as “Grey Tuesday” are perfectly fine and dandy.

  33. gulliver says:

    Having had personal email in support I’m back here to check a link and couldn’t resist making this my close as enough energy has already been expended.

    Whole issue’s a no brainer. Clear infringement and protocol for redress. Statute is very clear – reinforced by case law.

    Did I mention my wife being a lawyer? Probably not. (Texan and redhead, too – another story.)

    And my point on the markup – met with as churlish a response as it was when initially raised several weeks back – is my less than graceful way to draw attention to the fact that whilst professing to be experts you’ve crippled basic MT features.

    Whatever. Be well.

    love,

    g

  34. The opportunity here is much as you just pointed out Adam: bloggers becoming familiar with copyright and intellectual property laws. Because while you use the phrase “good lot,” I would say “most people who have web access.”

    I don’t know what the good resources are for those who are legalese challenged, but I will look into the Stanford site well as Chilling Effects. When we add our resources page there will be a legal category.

  35. gulliver, be honest now… the tone you read into what I wrote in response to your post was your own. Feel free to ask me if I was being churlish, please don’t tell me I was being so.

    Oh, and as I tried to get to in an earlier comment: just because you or someone you know is a lawyer doesn’t mean you can solve the case with that lone attribute.

  36. Adam says:

    While having control of one’s intellectual property should be basic right, I don’t think there is anything basic about the rules of law surrounding this concept. Even most lawyers (guess here) have trouble with this unless they specialize.

    Agree. However, there are some very clear and basic fundamentals. The key points of copyright law can are taught in Kindergarten.

    I don’t know for sure if what Jason did is illegal or not illegal.

    IMO, it is clear. Jason violated Sony’s copyright by posting an Audio Clip.

    Tha point is, as is typical with cease and desist notices, once you do cease and desist, that’s usually the end of it. Moving beyond that, my understanding is that you have to be able to prove criminal intent or show how you suffered a loss from the act. My guess (again, a guess) is that they won’t be able to prove criminal intent or show a loss and I think they know that.

    Agree. In this case, we don’t have much suggesting they are trying to prosecute on this matter.

    As to blindly rallying… come on. We support our friends if we think they are being treated unjustly. Based on the information that is available, most people I have read on this subject feel Jason is being treated unjustly. That’s it.

    That is just the problem. Not much information is available. Blindly rallying is DANGEROUS. If the support is NEEDED, Jason will get mine. For now though, it appears as though he is just a bit shook up, and Sony is shaking the tree. That is what ALL LAWYERS DO. Sony or not. They frighten people.

    If Jason is wrong enough to be successfully sued or procecuted, then my hope is that the same fate is awaiting the WaPo and WMAZ-TV.

    If either WaPo or WMAZ posted taped segments of the show, such as Jason did. I agree 100%. Regardless, I’m confident it would never get this far.

    No one except Jason and the people involved at Sony (and those each side has told the whole story to) knows what is going on here.

    Right.

    None of us know that Jason did or didn’t do anything wrong.

    Jason violated BASIC “Fair Use” laws. It is simple. We heard it with our own ears. To his credit, he complied. However, not very silently… which is probably why whichever para-legal assigned to his case is reportedly continuing to drive the point home with him.

    None of us know that Jason did or didn’t comply fully with Sony’s demands.

    Right we do not know Sony’s exact demands. He did however cease and desist distribution of copyrighted material. I don’t believe Sony will pursue this beyond that.

    None of us know that Jason did or didn’t brake a law.

    But we do know. Maybe you don’t. But most of us commenting on this topic apparently do. I’ll say again.. read up at fairuse.stanford.edu! I am surprised that the “Business Logs” guys are not up on BASIC Fair Use guidelines. How can you give honest advice to any client which utilizes your services when you are so plainly indifferent to THE LAW by which you must comply?

    Perhaps “Business Logs” should only contract to clients in the Cayman Islands, it’d be safer that way.

  37. gulliver says:

    Matt – seems it wasn’t my final. This is, and feel free to come at me personally off site.

    Were you being churlish?

    And I’m not trying to solve any case. Also forgot to mention I studied law and draft contracts for lawyers. As I said, statute and case law is very clear.

    Anyway, this does nobody any good.

    ;-)

    g

  38. I’ll just do one comment for comments 36 and 37.

    Adam: Here’s the thing. Lawyers are around to tell a company in what the company’s action(s) will result. The company can in turn say, “We shall take the risk.”

    Now, just because a person breaks the law doesn’t mean they broke the law in the eyes of the law. The “law” hasn’t necessarily seen the infraction and lawyers aren’t the law. That’s what I was trying to get at.

    It isn’t up to you to say that he did something wrong. You cannot define that outcome. You can say, “Given the circumstances I know of, this is my opinion.” Now of course you can say whatever you like, but that doesn’t make you right. Doesn’t make me right either.

    The companies we have worked with so far have their own lawyers to tell them what to do. We come at it from the perspective of, “If you are going to do it, here’s how to go about it.”

    And lastly, because we are all beating a dead piece of wood against another dead piece of wood, I have a question for you Adam. Did you get permission to excerpt my entire comment in your comment? I think you are using my intellectual property without my permission. :)!

    Gulliver: no, I wasn’t. Thanks for asking. ;) I won’t “come at” you either via email or here.

  39. Adam says:

    I have a question for you Adam. Did you get permission to excerpt my entire comment in your comment? I think you are using my intellectual property without my permission. :)!

    In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose such as to comment upon, criticize or parody a copyrighted work. Such uses can be done without permission from the copyright owner. [source]

    Told you to read up on that link! ;)

    Now, just because a person breaks the law doesn’t mean they broke the law in the eyes of the law. The “law” hasn’t necessarily seen the infraction and lawyers aren’t the law. That’s what I was trying to get at.

    I think what you are saying is “Innocent until proven guilty in a court of law”.

    Fine. Fair enough.

    However, if I were to say… murder a bus full of children… post in on the internet… and admit it was me. Would you consider me guilty? Or would you still say I am innocent until a jury convicts me?

    Granted that analogy is at the extreme end of my point. Nevertheless, the fact is -Jason published COPYRIGHTED MATERIAL from an UNPUBLISHED WORK-

    That is a clear violation of the owners copyright and is not acceptable under any “Fair Use” doctrine.

    Jason broke the law. Whether he did it knowingly or intentionally would be for a jury to decide, true.

    It is safe to assume he did not do it KNOWINGLY, which is evidence by the removal of the copyrighted work upon reception of the cease and decist document.

    On another point… I’m with gulliver… please fix your preview! You are not making it any easier for me to break my post without preview habit :)

  40. barry bell says:

    Amazing. Maybe someone should remind Sony of this post.

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