In response to the Phoenix editorial about the New York Times committing a copyright violation by posting a PDF of a 36-year-old newspaper article even as Op-Ed columnist Bill Keller blasts the copyright violations of others, Keller suggests that irony should be “[kept] out of the hands of the clueless,” but seems to be clueless that he’s committing a significant irony himself.

Keller writes that since the paper the article came from was long defunct without digital archives, he assumes the author of the article felt reposting the article “seemed a logical way to let today’s readers see Booth’s work and pay it homage.”

Keller continues:

In my column and blog post I disparaged some of the recent attempts to expand copyright enforcement, and said reforms of the law should be focused on genuine pirates who profit by distributing films, music, books, etc. (sure, columns, too) that belong to other people. The law should not go after minor transgressions. Moreover, I specifically said a real reform should also relax some copyright protections – such as cases where a work that is long out of print could be made widely available to a new audience. Nowhere did I suggest that the law should criminalize the illustrative uploading of a 36-year-old alt-weekly article that is otherwise unavailable.

The thing is, the law currently does criminalize (or at least provide civil penalties for) posting someone else’s work without permission, no matter how old or hard-to-find it is. (Anyway, the New York Times does profit, perhaps not directly from the reposted article, but from posting content in general.) You can’t just ignore the law as it is in favor of what you want the law to be.

I would have thought a paper like the New York Times would understand that—it’s certainly quick enough to object when it thinks other people are ripping off its content! But Keller airily “leave[s] to lawyers—if any care to waste the time” the matter of whether the PDF repost broke the law at all. (Good thing Righthaven is on the ropes. It has spent its short existence suing people and blogs who did exactly the same thing as the New York Times just did—reposting copyrighted newspaper articles they found particularly insightful so members of their communities could see them!)

The irony is, of course, that a lot of pirates Keller rails against, who illegally repost the copyrighted works of others, do it for the exact same reason: the works are not currently available any other way and they want more people to be able to see and enjoy them. But they don’t have the clout of a huge organization such as the New York Times behind them, so apparently what is okay for the Times is verboten for them.

And as a final amusing note, Keller says that the Times “took down the PDF” when the Phoenix objected. Except it really didn’t—it removed the links to it from the articles, but if one types in the URL from the screenshot in the Phoenix editorial, the PDF still loads perfectly well (at least at the time I’m writing this).

Most of the comments on Keller’s rant don’t subscribe to his point of view either. One commenter summarizes his argument as “I want my copyright violations to be legal, and your copyright violations to be illegal, I leave it for the lawyers to explain why this is okay.” And another most insightfully points out:

What Keller either fails to understand, or refuses to understand, is that current copyright law is already used against minor transgressors. What he also absurdly fails or refuses to acknowledge is that his original rant was aimed at those opposing SOPA – an act that, if it was passed, would have made it legal for the Phoenix to demand without ANY judicial oversight that the nytimes domain be taken down!

in other words, the debate is not about Keller’s dream copyright enforcement, but about real copyright enforcement – both as it is now and as it is envisioned by players like the MPAA.

Indeed, there are too many insightful comments to quote. It seems Keller may not have an easy time finding many people who agree with him.

(Found via BoingBoing.)

The article in question is a 36-year-old investigative report into football injuries which was scanned and uploaded in PDF form to the New York Times’s website and linked from an article and blog post talking about it. (At the time of this writing, the link seems to be gone from article and blog post, but when I manually typed in the URL displayed in the Phoenix piece, I found the PDF is still on the server.)

Presumably, the Times had the permission of Clark Booth, the story’s original author, to repost it. However, his permission only covered the text of the article, not the photos, ads, and layout featured in the original paper story.

Carioli uses this as a springboard to discuss the thorny matter of copyright in the digital age.

[Former New York Times executive editor Bill] Keller would like you to believe, even though he thinks of the world as being populated by digital pickpockets, that a sane anti-piracy legislation will be enforced only against the largest and most egregious copyright offenders. It’s as if he lives in some alternate universe where major labels haven’t already sued individual downloaders and their parents for hundreds of thousands of dollars in damages. The onus isn’t on the public to prove that copyright legislation won’t be used against us: it’s on legacy media protectorates to come up with solutions that don’t punish their customers.

He brings up the matter of the Pulse RSS reader, which the New York Times got yanked from Apple’s app store because it had the temerity to incorporate a publicly-available RSS feed of the Times’s articles into its app on launch. He also mentions a copyright case that the New York Times lost to freelance writers that has made it more expensive and difficult for newspapers to post their own archives online.

And he notes that the state of indexing and archival surrounding old newspaper articles such as the one the Times reprinted is something of a mess. Indeed, if it hadn’t been for the Times reprinting it, it is likely few people would ever have had the chance to read it again. And if the Phoenix did have a lawyer request the article be taken down, it would probably cost more money than either they or the Times would make out of it, and due to those thorny archive rights issues, it is doubtful that the Phoenix could post it anywhere itself.

So here’s my best suggestion: the Times should help us track down the photographer, pay him or her the going Times rate for the photos they republished, and then, with our permission, upload the Booth article to Scribd.comor a similar service, so that anyone can embed the piece wherever they want. (In the case that Clark Booth didn’t already give the Times permission to reprint his words, they should pay him, too.) Then the Times should promise never to do it again. On pain of — let’s say — taking down their paywall for a month.

I suspect the article will just end up being taken down instead.

Regardless, it’s amusing and perhaps instructive that one of the most distinguished newspapers in the world is capable of making this kind of copyright mistake, at the same time it blasts “pirates” for misappropriating other people’s material. If even the New York Times can’t keep it straight, what chance do the rest of us have?

(Found via BoingBoing.)

In their joint report, the plaintiff — that would be Penske, owner of Deadline — said it was considering whether to augment its legal complaint with a new claim for “hot news misappropriation,” some of which “occurred as recently as the week of the filing of this Report.” In other words, Penske says the Hollywood Reporter was lifting its stories even as the year’s Oscar nominations were being chewed over.

The hot news doctrine has been getting a lot of play over the last couple of years, as the digital nature of the Internet makes it a lot easier for news sites to rewrite facts from other news sites’ stories. Generally speaking, facts cannot be copyrighted, only the expression of them. I couldn’t copyright the fact that Obama was elected President, for example, but I could copyright the exact words I used to talk about his election. Someone else would be perfectly free to read my report, digest the facts, and rewrite them in his own words. (In fact, that’s a lot of what I do for my TeleRead blogging, and what a lot of tech bloggers do in general. If courts were to enforce the hot news doctrine, it could significantly change the whole e-news-reading landscape!)

But the hot news doctrine was evolved as an exception during World War I to protect a news agency that made a significant investment in frontline reporting from getting scooped by competitors who intercepted its reports. The nature of journalism has changed significantly since then, however. And last year, an appeals court ruled in favor of a news rewriter, voiding an injunction that prevented it from republishing facts from a financial company’s news feed until two hours after their release.

It’s unclear how or whether Deadline.com and the Hollywood Reporter’s case differs from that one, but it would seem that relying on the hot news doctrine might be a risky venture. I suppose we’ll find out in fifteen months.

This represents a bit of a double-whammy for ad-funded media like newspapers and magazines—not only are they getting fewer sales, but they’re also losing the print ad views of the demographic of people affluent enough to afford an iPad. That may not bode well for their long-term future.

He suggests a number of possible ways to keep printed papers relevant in an increasingly electronic world where free news is only a laptop, tablet, or smartphone click away. For example:

Adopt a hybrid circulation model. Turn your newspaper into a TMC product and deliver it to the doorsteps of all your market’s potential readers while continuing to sell it in stores. This strategy does a few things. One, by placing it at the doorstep, you’re showing your readers your newspaper is worth reading; two, it improves the odds of your advertisers’ message getting inside the home; three, it increases your newspaper’s penetration rate, making your advertisers happy; and, four, allows your retail partners to continue to make a few bucks from selling your paper.

(Perhaps I’m not Mr. Page’s target audience, but I found it kind of sloppy that there was no explanation of what “TMC” means anywhere in the article. I had to Google to find out that it stands for “Total Market Coverage,” those free newspapers that everyone gets delivered whether they want them or not but no one ever reads.)

Other suggestions include reformatting to a tabloid to sate people’s hunger for shorter news bites they can read in a hurry, lowering newspaper price to spur sales, bumping up the price of Sunday editions but including a weekly paywall pass in the price to cross-promote the print and web content, and giving away the paper free at schools.

Perhaps Page has a point about papers getting lost in the clutter of all the other websites, but there’s something to be said for reducing the number of trees that are killed to publish papers fewer people actually read. A publication should exist to service its reader’s needs, not just its publisher’s, and if people don’t want to read your printed paper you can’t trick them into changing their minds.

Whether Page wants to admit it or not, circulation numbers are falling year by year. It’s pretty clear which way the market is going. While paper may never die out completely, it will sooner or later reach a point of diminishing returns. Even papers that don’t plan to ditch their printed versions would still do well to pay attention to what the market wants.

Righthaven’s tactics continue to amuse:

Righthaven reiterated arguments in its court filing that Randazza is seeking to force the company to sign over copyrights that federal judges — in Hoehn’s case and in others — have ruled Righthaven doesn’t own.

This caused one of Hoehn’s attorneys, Marc Randazza, to remark during a hearing Monday that “they’re taking inconsistent positions in their appeal.”

Righthaven, in appealing the dismissals of several of its lawsuits, is arguing judges were wrong to find it didn’t own the copyrights it was suing over.

Righthaven was successful in a request that information about a debtor’s exam of Righthaven owner Steve Gibson and his wife not be publicly disclosed.

The company continues filing motions claiming that the amount of the legal fees award is too high, while Randazza argues the amount Righthaven owes gets larger with every court proceeding and filing. Mangano claims that the company’s assets now amount to about ten computers and a server—apart from their hard drives, which contain privileged information. “There might be a desk and a chair or two that can be sold as well.”

A judge still has to rule on whether Steve Gibson can be hauled bodily into court by US marshals to sign over Righthaven’s copyrights. (Found via TechDirt.)

In a separate article, Steve Green reports that the State Bar of Nevada has announced it is opening a formal investigation of Righthaven CEO Steven Gibson and two other former Righthaven attorneys. The Bar reports it had received complaints about Righthaven as early as fall of 2010 and has been watching the progress of Righthaven’s litigation.

Phil Pattee, assistant Bar counsel, said the agency couldn’t disclose the nature of the grievances against the attorneys or whether they relate to complaints from outside parties or the Bar’s own review of the Righthaven cases or both. But he confirmed the grievances relate to the attorneys’ work for Righthaven.

“We’ll be asking them about Righthaven,” he said.

The State Bar has the authority to recommend attorneys be reprimanded, suspended, or disbarred. The Nevada Supreme Court will then decide whether to act on those recommendations. (Found via Ars Technica.)

Who would ever have expected Righthaven to implode quite this quickly, or this completely? Normally this sort of litigation drags on for years, but it seems that there was nothing more to Righthaven after all than just a showy façade. When its copyright enforcement shakedown operation was challenged in the court, it turned out only to be the newspaper’s paper tiger.

At any rate, it couldn’t happen to a more deserving company. Righthaven needs to be smacked down as hard and fast as possible, to serve as an example to any other institutions considering running copyright enforcement shakedown operations. The court system is not your personal money machine.

Given the AP’s past parsimonious behavior, I find it a little funny that it’s taking so readily to social newsreading apps that will let their users share AP content with their friends and on social networks. I do hope it doesn’t plan to start charging sharers by the word.

A bit more amusing is the note from a few days ago concerning a January 5th hearing that Righthaven’s main lawyer, Shawn Mangano, blew off. When the judge phoned him to ask why he wasn’t in court, Mangano said he “thought it was tomorrow.” (Of course, that still didn’t explain why Righthaven failed to produce requested documentation a week prior to this hearing.) A new hearing has been scheduled for tomorrow, January 9th, at 9 a.m.—though it’s not clear whether Righthaven will “remember” to show up for that one either.

Go on, Righthaven. Do whatever it is you’re gonna do, and make me send out for more popcorn. The way you’ve acted so far, I can’t possibly predict what you’ll do next, but whatever it is, I’m sure it will be awesome.

I have to admit, Righthaven has been very entertaining these last few months. It doesn’t seem as if it can keep this level of entertainment up for much longer—though I am looking forward to hearing about the US Marshals dragging Righthaven’s officers into court in handcuffs. It’s got to happen sooner or later, right?

Regardless, I do think the Righthaven case has been an important milestone in the way that the courts interact with electronic media. I’m no lawyer, of course, and I don’t think we can say that it’s set any solid legal precedents yet—that sort of thing usually has to wait for appeals. But it has shown that courts are willing to say that even wholesale copying of news articles can be considered fair use in certain situations, and that the publishing industry cannot base its business model around using the courts as a money machine. These points could become more and more important as media becomes more and more digital.

First of all, the software can now read PDF files. I tried it out with a TV manual downloaded from the website of manufacturer I support in my day job, and it worked pretty well, including drop-down access to the table of contents. Of course, there are many other ways to read PDFs on iOS by now, including GoodReader, iBooks, Stanza, and Safari itself, but the Kindle Reader at least does it simply and well. People who are in the habit of reaching for the Kindle app first will undoubtedly be happy to be able to use it for PDFs, too.

The other change is a bit more important, however: for the first time, the app allows (almost) the same access to periodical subscriptions as the hardware Kindle. (The “almost” comes in if you have a subscription to something, such as the New York Times, that specifically only allows direct Kindle hardware integration.) This is one of the major hardware features that has been noticeably absent from Kindle apps, and it will undoubtedly come as a welcome addition for those who use it on their readers and had wanted to on their iOS devices.

I just noticed something else about the Kindle app that I imagine it has had for a while and I just never noticed: the ability to sideload your own DRM-free content onto it (and pull downloaded content off of it) through the iTunes apps tab. I never noticed this before, though I hadn’t looked in a while. Of course, for all I know it may have had it since sideloading through iTunes was even possible; I just know that its lack was something I complained about when the app first launched.

As of the Monday deadline, Righthaven had not complied, appealed, asked for more time, or declared bankruptcy—it seems to have ignored the order altogether. So the Randazza Legal Group has filed a motion asking the court to have US Marshals take the company’s principal officers, Stephen and Raisha Gibson, into custody to force them to comply with the order.

How much lower is it possible for this company to go? I think the limbo bar is on its last notch. I’m going to munch more popcorn and wait to see what happens next.

What’s more, Rushbass explains that tablet owners are reading more news than before, but reading it in different ways. He calls this the “Lean Back 2.0” paradigm (following the first “Lean Back,” which was paper books, then “Lean Forward”, which was the World Wide Web), and suggests that e-readers and tablets are ushering in a whole new age of reading, whereas the old publishing models of web and print are “irredeemably broken.”

The slide presentation is interesting, though I really wish that Rushbass had written an editorial essay putting the points into more readily readable text form. And Condliffe points out that a lot of the figures Rushbass gives in the presentation aren’t really useful for anything except impressing viewers because they lack sufficient real-world context for comparing them to anything.

That aside: he has a point. Reading from a tablet is more relaxing than reading at a laptop. Amongst those that I know, e-readers probably are having (some, small) measurable effect on the amount people read. These two facts are very positive.

I personally think it’s fascinating not just that people are reading more, but that advocates of one form are still calling other forms “broken” because they don’t do some things as well as the new form. You’d think people would have learned by now, but I suppose advocacy flamewars are eternal.

The assets in question are the newspapers’ copyrights. Righthaven needs these if it has any hope of persuading an appeals court that it has fixed the original problem that led a court to halt the lawsuits in the first place. In a nutshell, that court said Righthaven couldn’t sue because it didn’t own the copyright and now Righthaven is telling the appeals court , “Wait, we do own the copyright now. Please confirm this so that we can continue our lawsuits and raise some money.”

This puts Righthaven in a dilemma—if it produces those rights, they will be sold and it will be unable to continue its cases in the appeals courts. If it doesn’t, it will be in contempt of court.

The article adds some other amusing news:

In a related order on Monday, U.S. Magistrate Judge Robert Johnston ordered Righthaven’s lawyer and his wife to appear in court on January 5th to explain under oath where the assets are. If the couple doesn’t appear, the judge has authorized US Marshalls to hunt them down and bring them back.

If the Righthaven saga is winding down, hopefully it will provide a clear example to those who would seek to follow in its footsteps that trying to use the courts as a money machine is a losing proposition. Lawsuits should be filed for redress of grievance, not to try to scare people into forking over a few thousand dollars to avoid litigation.

The Financial Times is known for its successful paywall strategy in which it allows readers eight free articles per month but requires they subscribe beyond that. It recently launched an HTML5 app for iOS devices and other tablets that allows it to interact directly with subscribers and bypass Apple’s 30% app store cut.

The news that its online revenues are set to overtake ad revenues suggests that the future of newspapers may not necessarily be so tightly bound to print after all.

The rapid price drop of the Kindle led some to speculate that, if prices kept falling at the same rate, it would be free by the end of this year. It doesn’t look like that is going to happen, but the prices sure have fallen, haven’t they?

Rumors have long been with us about free Kindles. In 2010, Mike Arrington heard from someone claiming Jeff Bezos was considering giving free Kindles to all Amazon Prime subscribers. More recently, Amazon reps told an AllThingsD reporter that they still couldn’t work out the economics of such a givewaway (though that was before the latest price drop).

A couple of years ago, the Alley Insider estimated that, if the New York Times stopped printing the paper edition of its paper, it could afford to give all 830,000 print subscribers two free Kindles every year. Back then, the price was $359, and now the cheapest model runs considerably less than that. Indeed, at $79, you could buy five Kindle Classics for the cost of the original $399 device.

On Memeburn, columnist Martin Carstens wonders whether the decreasing price of the Kindle might make it more economical for newspapers to consider going that route: giving subscribers free Kindles in exchange for being able to reduce the amount of physical papers they have to print.

I wonder, if in fact, we should be looking to content creators and large institutions like the New York Times rather than Amazon to answer our question [whether the Kindle will ever be free]. When the economic logic of going purely digital becomes sound, news institutions like the New York times could be the key to forcing a free Kindle.

When that happens, it could be a pivotal moment in history, the final death knell to the traditional print newspaper, as digital devices become the new standard for consuming news

Of course, as I pointed out when I covered the Alley Insider’s calculations, the fly in the ointment is print advertising revenue. Print advertising still makes up the bulk of newspapers’ revenues, and if they eliminated print they’d also eliminate that advertising revenue. Of course, they’d also eliminate a lot of expenses. The question is whether the papers could also eliminate enough costs by giving away the devices to be able to continue making a profit on what they had left.

Sooner or later, newspapers will have to figure out how to make the transition. And if the Kindle keeps getting cheaper, the question might not always be a theoretical one. How low will the price be by the end of next year?