Excelsior the book

That is so absurd.

How come? If I suddenly found that ILX was a direct reason for me getting a $1,000 excess bandwidth bill (and normal use of pix of mine doesnt worry me, I might add), I'd be shitty at that; if I was quoted in a printed copy of something no one will make money let alone profit from, it wouldnt bother me at all.

And I am a published writer. I also have works of mine online. Someone could potentially take those and make a book of it on cafepress without asking me. But I still wouldnt be pissed off - because it still says I wrote it (assuming nothings been changed, as I assume here also), and no one else is making money off my work. Net result, I get more exposure, which any writer wants.

I know thats not the point here though, but still. Anyway this has all become a bit silly.

To make an analogy (and I hate making analogies between the 'real world' and the internet simply because they are always both limited and misunderstood) it's a bit like this: the publishing of a web page is akin to providing a series of little packages in a storefront. Each package contains either an image, a slab of text, or layout instructions. There's one package labelled "pick me first!" which usually contains information on what's in the other packets, and how to assemble a 'front page' from a collection of image packets and text packets. Each of these packages must be taken separately and assembled by the viewer.

Complaining about image leeches is akin to this shop owner saying "Hey! You can't just buy that image packet! Sure, I'm providing it here, but you're supposed to use it in conjunction with these other packets over there!" There are 'real world' ways in which this store owner can enforce his packets are taken in specific groupings, just as there are ways image leeching can be prevented online. (it is ridiculously simple technically to prevent images from being linked from other sites, it's just most people would rather complain and whinge than try to solve the problem)

Ugh, that was rather unclear but I hope it makes my position known.

This book hurts no one. There is no potential for it to cause harm - it costs no poster income (as copyright infringement is designed to protect), and it doesn't increase public exposure (as everything included in the book is already public and Googlable).

Thus, bandwidth-leeching is inherently more harmful and thus worse than this book, because the former has the potential to do harm, where the latter doesn't.

Neither is something the average ILX poster needs to worry about, but saying that one is irrelevant to the other, or that image-leeching pales in comparison to this doesn't hold a lot of water.

Monetary damage is a visceral thing, yes. And reputational damage, among other things, is harder to prove, yes. But the latter can lead to the former.

Bandwidth-leeching can be easily controlled by your hypothetical site's owner. ILX threads published through Cafe Press cannot. The one thing to Mark's credit is that, even though he didn't ask beforehand, he at least notified ILX. What if ILX is not so lucky next time?

Anyway, clearly there's never going to be a consensus on this, and I disagree with a few things on here, but there's nothing more to be said than that, really.

If the comments were edited or altered in the book, that would be one thing. But a straight copy wouldn't raise any issues, as the words poss. causing damage to someone's reputation continue to exist at ILX.

A couple totally irrelevant things I'm still confused by: (a) Tep, the whole "charging for binding" thing is ridiculous; even above the fact that they don't sell blank books, I'm guessing we've both run enough profit/loss statements on print-on-demand books to know that price point leaves as much profit as any publisher. It may not be much, and who knows what percentage kicks to Mark, but it's a book for sale like anything else. (b) Reprinting those particular threads may not be likely to inflict monetary harm on anyone, but I can think of instances where the precedent certainly could: I've noticed time and again that a lot of the paid critics on ILM wind up gussying up things they've said on the forum for use in paid articles. There are also people over there whose words, based on their reputations alone, are inherently sellable, and therefore maybe worth protecting, in whatever limited way.

In any case: a whole lot of people have made the point on here that this particular book is completely meaningless and won't be bought by anyone except as a joke and so on. Which, sure, fine. The point here is one of principle, which is why I'm loving the slippery-slope pics. Throw the copyright rule out the window and I'll be the first one sitting in DaCapo's lobby with my edited-down "Selected Conversations Between Several Music Critics Whose Books You've Paid to Read Before."

Well then no one would know, no one would buy it, and no fighting!

If professional critics are even vaguely considering using something as a money-making effort, they shouldn't be posting it or talking about it on a public forum to start with. The concept of stealing someone else's work wholesale has been around since, I dunno, Guttenberg. (Steve)

If you took a "selected conversations" book to a commercial publisher or stood to profit off of the content - which CafePress technically doesn't, as I read it - then you'd have to pay the "several music critics" to start with, and everyone wins.

14 cents per unit, I think he said; if and only if it adds up to more than $25.

It's a printing service, not a publisher. It's ridiculous to see it as anything else, independent of how you feel about Mark's using the service. Sure, they make a profit -- again, so does Kinko's, so does a Xerox machine, etc.

If you honestly can't see the difference between this and a book from a publisher ... then I really don't have any interest in putting anything after the ellipsis.

Jesus, Milo, you don't have to go to fucking law school to see the precedent: Milo's just republished, wholesale, in a different context, copyrighted works that people have not permitted him to take off of this server! If you allow that, you've just shattered whatever modicum of control the copyright is supposed to allow us!

And if site-owners can be allowed, in milo's hypothetical, to use "I just didn't know any better" about their ignorance of image-link-blocking, we might as well say it's fair that site-posters can use "I just didn't know any better" about anything they post here. Obviously I'm not on the side of that.

Except it's up there on the page right next to a bunch of other unrelated stuff which seems like it might possibly draw a crowd. Sure, most people probably wouldn't buy it on spec just cause it's next to a Beth Orton calendar...but you know, maybe it might happen.

OTOH, I'd love to see people band together, like some of us did on a usenet group Im on, to contribute stories and poetry etc for a book we could work on and print up. Stuff written not here, not online at all - but FOR a book.

It seems there's people here with a talent for great ideas - we should use them constructively :)

The odd superstitions touched upon were all prevalent among children
and slaves in the West at the period of this story--that is to say,
thirty or forty years ago.

Although my book is intended mainly for the entertainment of boys and
girls, I hope it will not be shunned by men and women on that account,
for part of my plan has been to try to pleasantly remind adults of what
they once were themselves, and of how they felt and thought and talked,
and what queer enterprises they sometimes engaged in.

THE AUTHOR.

HARTFORD, 1876.

" I'd like to see you try it."

Those are my favorite parts.

And Tep, I'm starting to wonder why you're even attached to this printing vs. publishing thing; what possible difference does it make, rights-wise? When the end result is a bound volume that costs $18 to buy, it makes very little difference whether it's got an ISBN on it; whether it's CafePress that does the inking or RR Donnelley, it's the same product.

I dunno, I care very little about this particular book, but I've typed a whole lot of text into this box and I very very strongly prefer that none of it goes anywhere else without my knowledge and permission.

Precedent was set centuries ago (when was the first set of letters published? the first posthumous diary?) and precedent for overtly commercial ventures doesn't matter.

You really have to stretch to worry about ILX posts as "copyrighted works." Which screams "I want to be upset about this but don't really have a good reason" to me.

Except it's up there on the page right next to a bunch of other unrelated stuff which seems like it might possibly draw a crowd. Sure, most people probably wouldn't buy it on spec just cause it's next to a Beth Orton calendar...but you know, maybe it might happen.
As with the hypothetical "selected conversations" book (if some ILM writers were smart they'd get together, edit a half-dozen threads and sell it together - I'd actually buy one of those), if it becomes a profitable, commercial enterprise

But it wasn't, and it was never going to be.

The printing v. publishing difference is key. As a publishing company, CafePress is liable for the content of the works. As a printer, it's not. They're charging Mark $17.96 per book, so they make the profit of a publisher, but legally avoid the troubles.

Liability of Duplicating Houses for Copyright Infringement

By Bruce E. Colfin

Any duplication or replication business can be a copyright infringer without intending to be one. It may not even know about it until it is too late! The following scenario may apply to any manufacturer, duplicator or replicator of publishing media, whether it is print, CD ROM, audio only, video, film, photos, or other media.

SALE, Inc., ("SALE") purportedly the owner of the rights in a master tape, delivers the master to DUPE, Ltd., ("DUPE") a duplication or replication business, and orders thousands of copies of compact discs and audio cassettes. Assuming that in the normal course of business SALE has obtained all of the required rights, the order is taken by DUPE, paid for, completed, and copies are then delivered to SALE for distribution.

Shortly thereafter DUPE and its principal owners are served with a lawsuit for copyright infringement in a United States District Court. It is alleged that SALE had not acquired all of the rights necessary to make copies from the master, and DUPE is a party to numerous acts of copyright infringement. The owners of DUPE protest, "We didn't know! We only duplicated the copies for our contracting client, SALE. We didn't intend to infringe anyone's copyright!"

Under the American copyright laws of the United States, DUPE may be a copyright infringer. Generally, neither knowledge nor intent is required for one to be liable for copying someone else's work without permission. Being an "innocent infringer" has little bearing on liability, although it is important in determining the dollar amount of damages. A duplication business may also be liable if the contracting party (SALE) has a duty to obtain the owner's authorization and fails to do so.

In 1993, a federal court in Chicago decided that a printer of advertising brochures was liable for infringing the copyright of certain photographs its contracting client used in the brochures. In that case, the printer was unaware that its contracting client, who created the brochures, had failed to pay a licensing fee for the use of the photos. Nonetheless, the court found that the absence of knowledge or intent was not a defense.

DUPE's liability arises because it is an agent of the primary infringer (in our case, SALE), or it has the right and ability to supervise infringing activities, and has a direct financial interest in those activities. Copyright infringement does not require knowledge or intent of the illegal act.

Although DUPE may have performed the actual duplication, it is not solely liable for the infringement. SALE, Inc., is the primary infringer, and thus is jointly liable. SALE has the ability to supervise the duplicating house's activities and has a direct financial interest in the duplication of the product. DUPE, as the duplicating house, may be considered an agent of SALE, and would thereby be a vicarious infringer. Courts have imposed vicarious liability upon printers because a printer may be in a position to police the primary infringer's conduct.

Despite the apparent liability imposed on duplication businesses, a 1970 New York case, decided otherwise. In Leo Feist v. Apollo Records, the court decided that a company which had recorded, edited and prepared master tapes for its contracting client was not liable to the copyright owner. In fact, the court attributed sole responsibility to the primary infringer, the record manufacturer. The New York court cited an earlier case, in which the court dismissed a musical copyright owner's complaint against a record pressing company "on the grounds that the record presser was not a `manufacturer' within the meaning of" the U.S. Copyright Act. In the New York cases, the courts decided that the general manufacturer did not act "jointly" or "in concert" with the presser simply because it hired the presser for the duplication. The contracting party, and primary infringer, was the general manufacturer in fact as well as name and thus was solely liable for the infringements.

The New York cases appear to protect duplicating or replicating business from unintentional infringement liability. However, these cases may be limited to their particular facts and can be interpreted by courts very narrowly. In other cases, the courts still find a duplicating house jointly liable for infringement along with the general manufacturer.

The Copyright Act prescribes the minimum amount of damages an infringer will pay. In an average case, the minimum a party would pay would be $500 per infringement or the lost profits. In a case of innocent infringement the court may reduce the amount to $200 for each infringement. In order to deter future infringements, courts have the discretion to increase the damages in cases of willful infringement. Public policy dictates that willful and intentional infringers should be punished more harshly than innocent infringers who had no prior knowledge or intent, although the burden of proving innocence is on the infringer. The Copyright Act states that the infringer must prove that he "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright."

Although the law establishes a minimum amount, there is no reduced ceiling for an innocent infringer. Thus, based upon the specific facts of a case, an innocent infringer could be required to pay up to the maximum statutory damages for all the infringements, although many courts would probably be reluctant to do so. There is very little deterrent effect if the infringer had no actual knowledge or intent. Nonetheless, even only a minimum amount could be costly. In addition, a court may award profits, actual damages, court costs, and attorneys fees when warranted by the circumstances of the case. The payments to defense counsel alone, even if found blameless and without liability, could be staggering to a small business.

There really is no legal standard for how thorough an investigation is needed prior to accepting a prospective duplication. By law, whether or not DUPE searched to see if SALE had procured the rights, or how reasonable the search was, is immaterial to DUPE's basic liability because of the strict liability standard.

It would have been in DUPE's best interest to secure copies of the "valid" licenses entitling SALE to duplicate. The review of SALE's licenses is relevant to DUPE's potential damages. Other businesses in similar circumstances should insist on reviewing copies of the contracting party's licenses.

DUPE, may have legal recourse against SALE, if DUPE, included an indemnification clause in its contract with SALE. An example of an indemnification clause would include the language similar to the following:

SALE warrants that it has procured all rights to duplicate the master and agrees to fully indemnify DUPE, and hold DUPE harmless from and against any and all claims, demands, losses, damages, liabilities, costs, and expenses, including all legal fees arising out of or by reason of a breach by SALE of the representations, warranties, or agreements made under this contract.

Some courts, however, may find that a "hold harmless" clause does not represent a good faith effort to avoid copyright infringement, but is actually an attempt to circumvent the copyright law. This notion was alleged in a recent St. Louis case in which a federal appeals court strongly affirmed the law that "hold harmless" clauses do not protect duplication and replication houses from copyright infringement liability. The St. Louis court further stated that a copyright owner does not give consent even if the "employer" is actually the investigator hired by the copyright owner, so long as the investigator "approached the [duplicator] in a conventional manner."

Although a warranty and indemnification clause may be irrelevant for the purposes of determining basic infringement liability, it is important for the assessment of damages.

Although an indemnification clause would not have protected DUPE from being sued by a legitimate copyright owner, it would have given DUPE the right to seek full compensation from the intentional infringer, SALE. If DUPE, were forced to defend itself in an infringement suit, SALE would have to compensate it for all expenses and attorney's fees paid, plus the amount of damages for which DUPE is held liable. In reality, indemnification, or reimbursement is not easy. It may require further litigation and the likelihood of repayment is questionable. Indeed, DUPE's judgment against SALE may be worthless and uncollectible. Duplicating or replicating firms are in a tight spot. It is not cost effective to do a background search on all contracting parties. Irregardless, a firm may be somewhat liable with the contracting party for copyright infringement. The importance of indemnification clauses, and more so, the prior review of all the relevant licenses, cannot be underestimated.

This article was prepared with the assistance of Laura Schneider, University of Miami School of Law.

And I totally agree and understand and support that opinion Nabisco, except we none of us can control where what we say in public ends up on the innerweb.

Ive found usenet posts of mine end up in all kinds of odd places I'd not been asked permission to copy to there. Like the time I made guesswork of the lyrics to a Throwing Muses ep and later found out a large 4AD fansite had pasted it verbatim as some kind of canon of what the words were, even tho I got some of them wrong and most certainly didnt get permission from the 'muses myself. It made me look like I claimed some expertise on the subject. I was very suprised, but let it be.

Google yr online names, and be very aphraid =)

As for letters, you might be interested to know that letters were long understood to be the given property of the recipient. And ILX posts are not letters: if anything, they're already-published works!

And I find this poo-pooing of those who care about their copyright to scream something closer to "I get so much joy out of acting more casual than others that I just can't keep my nose out of their business and personal decisions." I can think of a dozen good reasons I wouldn't want things I wrote here to be reprinted or paraded out of their original context.

ISPs buckle under copyright cases
Matt Loney
ZDNet UK
December 10, 2002, 11:37 BST

ISPs buckle under copyright cases

Internet service providers (ISPs) are reporting rapidly increasing incidences of take-down notices for copyright infringement material, in contrast to a diminishing number of requests to remove defamatory material from sites they host.

As the burden on ISPs increases, it is becoming increasingly difficult for them to fairly deal with cases where people or companies feel their copyright has been infringed, or where they feel they have been defamed. While ISPs have a duty to remove offending material, they say that because they also have a duty to their customers, the current situation in which they have to act as judge and jury is untenable.

Complaints related to copyright infringement now account for 54 percent of take-down notices issued to ISPs based in the UK, according to a preliminary survey by the UK's ISP Association (ISPA), which is being conducted as part of a bid to rationalise the process of removing possibly illegal material. Twenty-seven percent of take-down notices are related to defamation complaints.

ISPA is gathering the data to illustrate the growing problem with take-down notices in a bid to persuade the government to publish a code of practice that, it says, should effectively remove liability from ISPs. The work is being done by ISPA's sub-group on content liability. The sub-group spokesman Mark Gracey, who is also legal liaison manager at ISP Thus, said take-down notices are a huge burden, with each case costing between £50 and £1,000 to deal with.

"Anybody can put us on notice of take-down," said Gracey. "There is no standardisation of processes -- a ten-year-old child can do this by writing the notice on the back of a cigarette packet." At Thus, said Gracey, the number of take-down notices for alleged copyright infringement is "going through the roof."

But removing content -- whether because it is said to infringe copyright, defame somebody, be criminally racist or break laws such as the Obscene Publications Act, is not a simple process and can lay ISPs open to legal action.

"ISPs are rarely aware of the full facts of the case and could easily make a wrong decision," said Gracey. "ISPs are at risk of liability from the person giving notice and from their customers. Do we take down the content when asked by a complainant and if so, should we put it back when our customer who posted the content in the first place tells us to? We are the piggy in the middle. We are playing judge and jury."

ISPA is trying to encourage complainants to make contact with the person or organisation who posted the material in question, rather than the ISP. But there is an urgent need for a code of practice that would create a standard form for take-down notices and dictate who can issue them, sad Gracey. It should also address the issue of how and when content should be put back on the Internet if the ISP's customer is able to prove that it does not infringe any laws. "Rights holders do have rights, but we also have to consider the rights of our customers. Infringements are not always what they appear to be."

"There is also the notion of a safe harbour for ISPs, to provide freedom from liability," said Gracey. "That's what we need the government for." However, he said, any code of practice would take some drafting. "It has to be fair to ISPs, to their customers and to the complainants."

Gracey said the DTI does appear to be receptive to the idea, "but the government is still saying it is no convinced there is sufficient reason to go ahead." ISPA hopes to use the results of its survey to get across the fact that there is a big problem, and ISPs interested in filling out the survey or contributing their own horror stories should contact ISPA.

Gracey knows the problems as well as anybody. Thus owns ISP Demon, which in 1999 lost a defamation case brought by scientist Laurence Godfrey over comments posted on a Usenet conference hosted by Demon.

In that case the judge ruled that Demon's defence of innocent distribution was untenable because the ISP had been informed about defamatory messages.