I love this. And by “I love this” I mean “oh good grief I’d cry if I weren’t laughing about this.”

So, the Associated Press reported on Amazon’s acquisition of Woot.com. Looks like pretty standard reporting to me. A couple quotes here and there to give some substance — normal stuff.

How much do I owe you?

Woot noticed the article and realized that those quotes came from Woot’s blog. Woot remembered when the AP had cracked down on bloggers quoting AP material and created a handy web form for easy calculation and payment based on the number of words bloggers wanted to use when quoting the AP. And so, Woot decided that it was only fair to charge the AP for the quoted material. Here’s what Woot said (quoted for the purpose of comment and criticism, as allowed under section 107 of Title 17):

… We couldn’t help but notice something important. And that something is this: you printed our web content in your article! The web content that came from our blog! Why, isn’t that the very thing you’ve previously told nu-media bloggers they’re not supposed to do? So, The AP, here we are. Just to be fair about this, we’ve used your very own pricing scheme to calculate how much you owe us. By looking through the link above, and comparing your post with our original letter, we’ve figured you owe us roughly $17.50 for the content you borrowed from our blog post….

If you read the whole post, you’ll find that Woot proposes a compromise. I won’t spoil it for you.

So, since I quoted for the purposes of comment and criticism, here’s my comment followed shortly by my criticism.

Comment: I love Woot’s response because THIS IS SO DUMB! Oh, wait, that might have been my criticism. I guess I find it both hard to believe and stunningly easy to believe that the AP would have a web form that does everything it can to make you believe you have to pay $17.50 for up to 50 words of quotation. (It does mention Fair Use, in the little pop-up you can open if you want to know more about this license, but it makes Fair Use seem like a pretty rare thing, and a risky thing for both you and your employer.)

Criticism: This post is pretty much all criticism, I suppose, but I’m particularly critical of the “It’s only Fair Use if we quote you, not the other way around” and the “my lawyer is bigger than your lawyer” approachs to copyright. And then there’s the AP’s list of copyright dos and don’ts where all the dos are “do know about the risks of copyright infringement to you and your employer” and all the don’ts are “so don’t infringe our copyright.”

This isn’t copyright — this is playground bullying. If you take my milk, that’s stealing. If I take your milk, that’s my right.

Yesterday, somebody pointed me to a FriendFeed thread in which an artist and a FriendFeed user were working through issues of intellectual property and Internet etiquette.

The FriendFeed user, Kol, had bookmarked an image that he found on a site that allows artists to share their work with each other. In typical FriendFeed fashion, this bookmark appeared in FriendFeed with a thumbnail of the image he had bookmarked and with places for other FriendFeed users to comment on, “like,” or re-share the bookmark and its related thumbnail image with their own sets of FriendFeed friends. The artist objected strenuously (and not at all politely) to the fact that this thumbnail appeared on FriendFeed. Kol and other FriendFeed users tried explaining that Kol had not, in fact, infringed on the artist’s rights by bookmarking her image since thumbnails do not violate copyright and since the image was licensed under Creative Commons Attribution-Noncommercial 3.0 License (though the artist has since removed that license). In short, the artist was well within her rights to ask (politely) to have her image removed from FriendFeed as a matter of courtesy, but she was probably not within her rights to accuse the original poster of wrong-doing. That’s the sanitized version, at least, which I reproduced here at some length because of difficulties with the original material.*

So, except for the attendant drama, the issues seem to be garden-variety intellectual property confusion. But all the drama involved in this particular exchange was actually kind of illuminating.

First, it reminded me that as an information consumer, I’m used to the feelings of frustration involved in finding out that I can’t freely use other people’s stuff however I want to even if I cite my sources. I run up against the flip-side of these frustrations only very rarely, however, and they’re good to bear in mind. I happily slap Creative Commons licenses on lots of the stuff I produce, but I remember all too well the first time I found my work being reproduced and shared in a way that I didn’t particularly appreciate but that fell squarely within the parameters of the license I’d chosen. There’s nothing like working up a good head of righteous indignation only to remember that they’re doing exactly what I said they could do and no more.

This particular discussion might also be less straight-forward than it at first appeared. Licenses always trump copyright, and the original image** has license-like language attached to it that prohibits “use” of the work outside of a specific community. The artist clearly thought that this applied to bookmarking and sharing via FriendFeed, though that’s not at all clear from the term “use.” Kol either didn’t read those instructions, or read them but didn’t think they applied to bookmarking, or read them but didn’t think they constituted a license. (To be fair, I’m not completely sure they are a license, either, but I think good etiquette would be to assume that they do.) And where does all of this leave the artist’s fans? If they want to share bookmarks with other fans or potential fans, they can’t turn off the “suck in a thumbnail” feature of these social networks. The only way that gets turned off is if the originating site has lock-down features like Flickr does for the images its users make private.

Little did Kol know when he bookmarked this image that he’d bring down the wrath of the artist, spark a huge debate on FriendFeed (and a ton of re-shares of Kol’s post), and set this librarian to musing about the incredibly intertangled worlds of intellectual property, etiquette, and the Internet.

* I don’t like talking about things without linking to them, but this one has me on the fence for two reason: 1) the link may die suddenly since there was a promise to delete the thread as soon as someone from FriendFeed had seen and responded to the original poster, and 2) the language in this thread is decidedly not safe for work, or for kids, or for me. Still want to see it? Here you go. [Edit: yep, the original post is gone now.] I may or may not screen-grab the post for posterity. I haven’t decided yet if that’s fair to all involved, or if I want to have that kind of language saved anywhere associated with me. Call me a prude, if you want, but them’s my boundaries and it’s up to me if I want to cross them.

** I’m aware that by linking to that image, the artist may find my post, so I’ll just say right up front that while I welcome constructive comments and discussion, I reserve the right to delete any crude or abusive comments. And I get to decide what constitutes “crude” or “abusive.”

I’ve been working on a document that lays out the rationale for our electronic reserves policies as they relate to copyright. And as I did so, I realized that it’s hard to write such documents without using the phrase “we believe.” I found myself systematically going back through my drafts and notes looking for ways to rephrase things so that it reads less like a statement of belief and more like informed decisions. Systematically removing words and phrases from drafts can be tedious, but this time it was fascinating because it foregrounded just how much the act of interpreting copyright law relies on good faith efforts to make sense of antiquated, misunderstood, emotionally charged, vague, and tangled laws.

This is even more the case when making sense of the law as it applies to electronic reserves. Reserve services are governed by Section 107 (the “Fair Use” section).* Unfortunately, one of the best ways to know if any particular interpretation of Fair Use is correct is to see how court cases have handled that issue, and no court cases have yet dealt with electronic reserves.** This means that libraries everywhere have to make one fundamental decision without guidance from the courts: are electronic reserves more like coursepacks or more like print reserves? The former assumes an element of commerce in the creating and selling of the coursepack that isn’t present in electronic reserves, but offers the slim comfort that the creation of coursepacks has been tested in the courts.*** The latter builds on the idea of extending easy access to a subset of the library’s collections to a particular population of students, but it leaves libraries with no legal precedent to lean on.

And having decided between these two options, libraries then have to make a whole host of related decisions about how far Fair Use extends, what mechanisms should be in place to guard against copyright infringement, and how to make sure that all of this stays out of the way of the students’ learning experience as much as possible. All of this with only legal analogy, not legal precedent, as a guide.

Is it any wonder, then, that documents explaining the rationale behind our policies are more statements of belief than they are statements of fact?

This I believe: electronic reserves are not coursepacks. Yet they are copies of original articles and must therefore undergo the Four Factor test for each and every article, each and every time they are used. I also know that Fair Use was invented with education in mind, and therefore I believe we should weigh those Four Factors with confidence in the knowledge that they were laid out for us, that they are speaking to us, and that they are not grasses laid over legal snares that are lurking, waiting to torture us and demand our first-born children in payment for unforeseen infringement.

* Unfortunately, neither Section 108 (provisions for library copying) nor Section 109 (the “Doctrine of First Sale”) apply to electronic reserves. If they did, things would probably be a lot clearer cut.

** A case against Georgia State University is still in the works.

*** See the first two cases listed here.