I’m usually hesitant to write about something like the Christopher Dorner affair and what may or may not have happened this afternoon, but in this incidence it is perfectly clear the media and law enforcement will never provide a truthful account of want happened south of Big Bear. Put simply whatever happened in that cabin amounts to a murder in the name of revenge.
First let’s start with the media blackout that news networks in California and national cable networks willingly complied with. CNN claimed these blackouts were done in the name of freeing air space for police helicopters and to prevent Dorner (or whoever was inside the cabin) from shooting at the media helicopters. However if you listened to the scanner the only reason voiced by police was that the helicopters were giving away SWAT positions. This can be a serious threat to law enforcement if Dorner wasn’t a trained officer who undoubtedly knew the tactics the teams were working to implement against him. Additionally it became clear rather quickly that the cabin had no access to the Internet or television so it seems unlikely Dorner could have benefited from live media feeds. Additionally, given that police only voiced concern about their positions being shown, the media helicopter could run a feed to the station that could he edited/delayed and provide additional eyes in addition to police helicopters. Yet none of this happened, media willingly bowed to “requests” to pull coverage.
With no media present there was little incentive for police to make a reasonable attempt to take whoever was in that cabin into custody alive. Shortly after the media pulled out to shoot roadblocks far away from the cabin (more on that later) commands for a tactical operation and “burners” were heard over the scanner. Within minutes of police lifting those roadblocks the media helicopters scurried back to show the cabin now in flames and police making no movement to put out the fire. In a subsequent press conference a police spokeswoman claimed that whoever was inside the cabin started the fire, contrary to the earlier reports of police using “burners.” In other words police set fire to the cabin (either via a flash grenade or some other means) and then claimed they didn’t do it. Looks like the owner isn’t going to get money for that cabin. Here’s footage from CBS Los Angeles of SWAT teams standing around while the cabin burns.
While US Marshalls reported someone attempted to escape out the back of the cabin and was forced back inside, the AP reports the suspect did not attempt to leave and police heard a shot prior to torching the place. This would seem to confirm reports on Twitter of blood in the cabin prior to the fire. Regardless of whether Dorner killed himself or was pushed back into the cabin police made absolutely no attempts per all available sources to take Dorner alive and try him in court for his alleged crimes (assuming of course the person in the cabin was Dorner and he did indeed die).
One last thing is the roadblocks the sheriff’s office set up in and out of the Big Bear region. As far as I’m concerned these were both unnecessary (police believed Dorner or the suspect in the cabin was completely surrounded) and unconstitutional. You have the right to refuse a vehicle search yet few people are going to do so when they approach a roadblock full of police with guns drawn. Luckily from the footage I saw no one was arrested for incidental violations during the searches.
Maybe you’ve heard of Teri Buhl. She’s a journalist living in Connecticut who up until last week was best known (supposedly) for her reporting on the financial sector and Wall Street. However, last week she boarded the last train to Crazy Town and hasn’t gotten off. If anything she’s commandeered the train and doubled the speed. See Teri Buhl is the person who wanted to sue someone for publishing one of her public tweets. While short phrases (and thus by most accounts, tweets) are not copyrightable, she decided they were. When lawyers pointed out her legal fallacy she tried to go down a variety of dead-end legal avenues, settling on claiming copyright infringement by anyone (and I mean anyone) who used a picture of her Twitter bio in reporting the story.
Now using the picture of the Twitter profile, which is at the center of the story, would seem to qualify under any definition of fair use out there. But not according to Teri Buhl and an anonymous lawyer she talked to. In a long, rambling blog post in desperate need of an editor, Buhl doubles (or triples down at this point) on her arguments. I’m not a lawyer or a copyright expert, but I (and anyone else) doesn’t need to be one to see the mile-wide gaps in Buhl’s legal logic. Shall we?
First, here’s the Wikipedia page on Fair Use. Each subsequent block quote relates to the four criteria listed under “Fair Use Under US Law”. Here’s her first contention:
These bloggers have used my whole twitter profile photo to write stories that have generated them ad revenue from page views and an increase in readers. They’ve taken the image to report or opinion with a really negative tone creating what some could see as a negative affiliate with the photo.
For one the bloggers aren’t using her Twitter profile photograph, they’re using a screenshot of her Twitter profile that includes part of the photograph she claims a copyright to. Secondly, as Wikipedia mentions, almost every fair use claim is commercial in nature, and as such, the courts have largely focused on whether the work is transformative in nature and contributes something or advances knowledge. As the screenshots are used in news reporting on whether or not tweets can be copyrighted, and modify the original image by including the Twitter bio, it’s seems clear that they qualify under fair use. Lastly, no one is associating a negative tone with the image, and even if this debate is doing that it’s only because Buhl has dragged it out. So maybe it’s more appropriate to say people are associating a negative tone with the person who took it but not the image.
Number two: In determining whether it is appropriate to invoke fair use, courts ask two questions about the copyrighted work itself: whether the work has been previously published, and whether it is factual or creative. Here, although my photos had been previously published on my Twitter page, this alone does not mean that this inquiry weighs in favor of fair use, only that my photos were not previously “private” (unpublished) where fair use is typically unsuited. Creative works justify stronger copyright protection and are less amenable to fair use. Here, my background Malibu landscape photo is not a “factual” work – but rather represents my artistic representations designed primarily to express my ideas, emotions, and feelings in the context of creatively capturing a landscape photo – timing, composition, angle of the sunset/sunrise, flight of the birds (pelicans), reflection of the water, etc. My photo is creative and as such, analysis by the courts of factor two weighs against an excuse of being able to claim fair use.
I honestly have no idea what any of this means, less because of my legal knowledge, and more so because it’s so badly written. The question of creative versus factual is mostly used to prevent public facts from being copyrighted. Buhl obviously has a copyright of the underlying photograph, no one disputes that, so this paragraph is just a bunch of words that mostly mean nothing for this debate.
Number Three: the alleged infringer used 100% of the photo – the heart of the photo. The background photo on my Twitter page had nothing to do with the comment that they were really citing and reporting on. They could have simply pointed their readers to the feed, or better yet, have “cropped” my Twitter page with its background photo to just show the quoted material in the background: “No Tweets are Publishable”. Instead they chose to capture 100% of the original content. This factor weighs against a finding of fair use.
They took 100% of the Twitter header, not a 100% of the photograph as parts of it are obscured by the text and her profile picture. Also looking at the screenshots I’ve seen, it seems clear most people cropped the photograph to some degree, but again irrelevant.
Number Four: As to the final factor courts ask whether the alleged infringer’s use actually inhibits the your production by negatively impacting my market. Since this question goes to the heart of whether allowing or prohibiting a use furthers the ends of the Copyright Act, market effect is regarded by some courts as being the single most important element of fair use. You see I could seek to license out the use of the Malibu photo to websites, bloggers, etc. that might desire to display such creative, artistic content for a fee. Thus, by bloggers who declared such use of my Twitter/photo backdrop to be “fair use” in this situation they would destroy this potential market. This again appears to weigh against fair use.
Yes, bloggers who took a screenshot of the photograph with added text, another photograph, and far smaller than the original image are destroying the potential market value of the photograph.This is like saying a smaller, obscured copy of Starry Night used by someone (and I’m sure someone uses it) as a Twitter background is going to destroy the market value of the original work.
Put simply, Buhl’s original full-sized photograph is in no way negatively affected by people screen capping her Twitter profile. She still retains copyrights to the photograph (which no one is using contrary to her claims) and can sell it for as much as she would have two weeks ago. Now for some other comments on her nuttery.
This was the legal view point I got before I emailed some of the publications, like seasoned media journalist/blogger Jim Romenesko, asking them to take the photo down and alerting them to the fact they could end up in a copyright infringement suit. Knight’s Jouranlism in Americas nonprofit complied and so did a journalism schooling and non-profit called Poynter Institute. Romenesko surprised me when he wrote back “Really Teri, this won’t help your case”. Romenesko had turned from a reporter on the story to one of the tech bloggers acting as an activist against my idea that not everything you see on the internet is yours to use for free and make money off.
What Knight and Poynter did was bow to an Internet bully, not uphold any copyrights, yet in doing so they gave Buhl the ability to claim simply upholding standard fair use copyright exemptions is “activism.” Fair Use is there for a reason, in part to stop people like Buhl from suppressing ideas, and as a journalism school Knight would’ve been wise to school their students in the importance of upholding fair use.
So what happens next – the bloggers who have kept up my copyright photo must want to license it – so I could send them bill and if they don’t pay file a suit/complaint. I still have to figure out if that could be done in CT small claims court or if federal court is needed. I could also file a federal copyright infringement suit and sue for thousands in damages. If I have any readers who are copyright lawyers and want to take the case on contingency I’ll gladly you offer 70 percent of what you can collect. For me this copyright suit would be about principle.
If I talked to a copyright lawyer about potential legal actions against someone, my first question would probably be about jurisdiction. It’s a federal copyright you’re claiming violation of Teri, why would a state small claims court get involved? Also what lawyer is going to take a case for nothing more than 70% of what they can collect, especially one this baseless?
This isn’t about ‘privacy issues’ as so many have assumed in their reporting on this saga it’s about journalist/bloggers taking/lifting each others work and making money off the expense of the person who created it in the first place. If I had unlimited funds I’d love to start a class action suit against Huffington Post or Business Insider the worst content scraper and re-writers I know.
Interestingly if you click over to Buhl’s about page you’ll notice she applauds Huffington Post for labeling her the third most dangerous financial journalist. She also claims she’s trying to trademark the slogan “smashmouth journalism” the Huffington Post author used to describe her work. Biting the hand that feeds you again eh Teri?
She goes on to get preachy about journalism, getting paid for it, and how she’s not like all the other lazy journalists out there. I’ve never read Buhl’s journalism but it seems she should be grateful it’s not nearly as bad as her legal understandings or blog editing.
privacyaddiction 