Legal Commentary

Copyright, Cook & Cuomo (Warnings, Wendy & Wind)

By David A. Giacalone

.. three stories from around my town . .

Copyright and Community Message Boards: To be honest, I’m surprised it took them so long.  This week, our local newspaper, the Schenectady Gazette, sent demands to stop copyright infringement to two popular community message boards that have for years been posting several Gazette articles a day in their entirety (with attribution). One internet community focuses primarily on Schenenectady and the other on our major suburb Rotterdam, NY.  They both have lively discussion on public issues every day.

At their Editors’ Notebook weblog, the Gazette Managing Editor Judy Patrick, posted an explanation titled “Link to us” on Thursday (Nov. 6, 2008).  It gives the unbelievable impression that Gazette editors were somehow never aware of postings at the message boards until reporter Justin Mason referred to one of them this week.   After praising the robust discussion at the internet fora, Patrick says:

“We at The Gazette like our articles to generate public discussion anywhere: in diners, on private message boards or here on our own Web site. But please remember that our stories are protected by copyright and posting them in their entirety without our permission violates that copyright.”

She correctly states that Fair Use rights do not cover such posting [to learn more see the useful set of Frequently Asked Questions about Copyright and Fair Use, from The Chilling Effects Clearinghouse].  The Gazette editor then suggests an alternative that this weblog and millions of others regularly practice:

“Posting our entire stories is not fair use of our copyrighted work. We don’t object when sites summarize one of our stories and then provide a direct link to the actual story on our Web site. That?s become a fairly standard way bloggers refer to published works. People who want to read the whole story are provided a quick and easy way to reach it. That sends readers to our Web site, which is important to us, but as well allows them to return to the original site.

. . . . . By regularly posting a variety of Gazette articles in their entirety, the community sites probably do deprive the Gazette of some news-stand and at-home purchases, and certainly deter click-throughs to the Gazette website, which help attract advertisers.  Patrick is correct on the law, but whether this copyright crackdown is worth the bad will being created in the community is questionable.  She tries to explain:

“We are not a big corporation trying to stifle public comment; we are a small, family-owned newspaper trying to safeguard our intellectual property.”

I’m not sure how the two community message boards are going to react.  The Rotterdam site initially issued a cryptic statement about curtailing its activities.  But, today, it seems to be back to business as usual.  The rowdy regulars at both sites have been quite vocal in their contempt and anger for the Gazette. Some are suggesting that it is criticism of the Gazette by the site administrators that provoked the crackdown after years of the Gazette averting its corporate eyes to the copyright infringement issue.

In a surprise twist, Gazette reporter Justin Mason sent an email to the Rotterdam forum’s administrators, apologizing for the actions of his editors.  See “Justin Mason explains and apologizes” (Nov. 7, 2008)  He gave permission for the message to be posted at the site.  Among other things, Mason says:

“I just wanted to offer my apologies to [Administrator Jo-Ann Schrom] and the other users of the forum for my newspaper’s recent overreaction toward Rotterdamny.info reprinting Gazette articles.”

He opines that the suggested practice of summarizing with short quotes and a link to the Gazette website is “much more flawed than the format Rotterdamny.info used, seeing as though the Gazette still doesn’t publish more than a third of its print content online.”

He also declares: “Both myself and other reporters have discussed the site with them dozens of times before without them expressing any concern for copyright issues and whatnot.”

Mason is probably correct saying that “I have no power or influence over the editorial decision making process” and that cooler heads probably will not prevail. We shall have to wait to see how this public rebuke of his bosses and their “poor error in judgment” will affect Mason’s career at the Gazette.  How the two internet community sites will adjust is also up in the air.

We think the link-quote-summarize approach used successfully by so many weblogs should sustain valuable discussion at the community sites.  However, it takes a lot more work for the administrators than merely copying an article in full, so may limit the topics presented.  It also will mean that many of those joining in the discussion will not have all the facts available in the full article before they voice their reactions.

..  Wendy Cook Gets It Together:  Because she’s the daughter of Funny Cide horse-owner Jack Knowlton, Wendy Knowlton-Cook’s slide into drug abuse and its criminal consequences has gotten far more attention than the initial sordid facts might otherwise have warranted.  (See our earlier posting about her arrest and halting attempts at rehab.) Ms. Cook lost custody of her children, did eight months in jail, and has spent three months in rehab, after an arrest in October 2007 for performing sex acts and snorting cocaine with her then 2-month-old son and 5-year old daughter in the back seat of her car.  Today’s Schenectady Gazette brought news that she may have turned the corner and be heading for brighter days. According to the article “Mom gets kids after rehab: Woman accused of prostitution” (Nov. 8, 2008), Ms. Cook now shares joint custody of her children with her parents, and is officially on probation, while continuing in a substance abuse program, and with ongoing monitoring by Social Services.

Wendy has admitted to possessing cocaine, but not to the other charges, and yesterday told reporters:

?I made a commitment in this process.  I surrendered wholly to the creator. I have to come first. If I don?t take care of me, I can?t take care of my children. It?s just an everyday commitment to wellness.?

As a former Family Court Law Guardian (lawyer for the child), I’m rooting for Wendy and her kids, and hope that her strong family support and personal commitment will mean she has favorable odds of success.  Like Schenectady City Court Judge Christine Clark did at court yesterday, the f/k/a Gang says:

?I?m happy to see you doing much better.  I hope you keep it up.?

Cuomo’s Quixotic Code of Conduct:  We told you last July, in “Cuomo tilts at pols and windmills,” that New York’s Attorney General Andrew Cuomo had opened an investigation into possible improper dealings between two wind power companies and local government officials, and into possible anticompetitive behavior by the firms.  Last week, we learned that the two target firms have agreed to abide by a new Code of Conduct promulgated by the AG’s Office to make the process of siting wind-farms more open and fair.  See “Wind power companies, Cuomo reach agreement,” The Buffalo News, Oct. 30, 2008); and “Amid Talk of Hidden Deals, Wind Firms Agree to Code of Conduct” (New York Times, October 30, 2008).  According to the Buffalo News:

“The code bans wind companies from hiring local government officials or their relatives for one year after approval of a wind energy deal. It also bans companies from seeking, using or receiving ‘confidential information’ obtained by a locality about a pending project. Companies also will have to post on a web site the names of any municipal officials or their relatives with any financial stake in the firms.

“Wind easements and leases will have to be publicly filed with county clerks. Companies must conduct seminars to educate their workers about preventing conflicts of interests in dealings with local officials.”

The Code is, however, voluntary, and an article in yesterday’s Schenectady Gazette (not available online without a subscription) is headlined “Wind poewr code gets mixed response” (Nov. 7, 2008)  It’s one thing for two companies feeling the pressure of a high-profile investigation to “voluntarily agree” to abide by the Code, but quite another for the industry in general.  As Kevin Crosier, Supervisor of the Albany County Town of Berne told the Gazette:

• “It’s a lukewarm response to a very serious problem that’s plaguing local government throughout New York State.” And,
• “Basically what they’re doing is leaving small communities to fight this on their own.”

The article states that at least one citizens group (Schoharie Valley Watch) plans to lobby to make the Code mandatory.  Cuomo and legislators such as State Sen. Hugh Farley, R-Niskayuna, say we should wait to see how the voluntary rules work.   Despite the popularity of wind power these days, we think the public is much more in the mood for regulation of energy companies than it might have been only a year ago.  The process of siting wind farms should be just as clean as the energy they hope to produce.

You may recall that my brother, East Aurora attorney Arthur J. Giacalone, frequently represents homeowners in Western New York against wind power companies. He recently told the Buffalo News — in the article “Like it or not, wind power is changing the landscape in WNY” (by Michael Beebe, October 26, 2008) — that the wind companies decide where they want to develop and then approach large landowners and town officials to seal the deal before most of the town knows a project has been proposed. The News continued:

“Giacalone has won some and lost some in the wind battle, but he said the wind companies and the towns have the upper hand. His lawsuits are aimed at conflicts of interest, zoning violations, and making sure the state?s environmental quality reviews are followed.

? ‘It?s hard for me to see the positive side of any industry when I see the sordid side of it,’ Giacalone said.”

I’ll see if I can get Arthur to stop by and Comment on this topic at his brother’s humble little website.

p.s. Apologies to anyone who thought the word “Wendy” in our headline referred to the luminous Wendy Savage, Esq.  If you need your WS fix, try this post or that one.  If it’s haiku you seek, here are a few from Billie Wilson, the centerfold guest poet in the newest edition of Upstate Dim Sum:

last light
wicker baskets
of nectarines

anniversary –
small craft warnings
on the radio

to-do list done
the day softens
into dusk

wind chill
the priest lifts her arms
to bless the fleet

… by Billie Wilson - Guest Poet in Upstate Dim Sum (2008/II)

Full post as published by f/k/a . . . on November 08, 2008 (boomark / email).