Friday, March 12, 2004 - The Progress & Freedom Foundation Blog

And in This Corner - Ink vs. Photon

The New York Times has used the DMCA to force a website called The National Debate to take down a parody page called "Columnist Corrections."

As anyone who follows current political controversy knows, some people, known as "conservatives," are upset with what they charge is partisanship and inaccuracy on the part of NYT columnists, compounded by Times policy of not correcting alleged factual errors. The parody was a list of corrections that the critics think should have been made, but weren't. It did indeed use the Times logo, and someone coming on the site could have possibly have thought it was for real, if they did not look very closely. (Except for the content, the critics note with glee, which was impossible because the Times does not confess error. See Glenn Reynolds.)

The paper reacted with a letter saying: "Your actions are deliberately designed to confuse people and are clearly illegal. By using The Times's name, logos, advertisements, live links, design and layout, you are blatantly infringing upon our exclusive rights." It insisted that the site be removed, and sent a take down notice to the site's ISP, alleging copyright violations.

The blogosphere is fighting back. The National Debate has taken down the site, but others are re-posting the offending column (seven, at last count), and they have added a notice at the top that says, more or less, "this is a parody and not a real NYT site." So if the Times' lawyers chase them, the NYT will clearly be in the position of using copyright law to suppress political controversy, not to protect real economic interests or prevent confusion. The critics are moving from glee to ecstasy, and The National Debate is reporting the controversy in detail, missing no opportunity to mock the Times.

The notice and takedown provisions of the DMCA are reasonable provisions designed to protect intellectual property against the depredations made possible by the Internet. But this situation points up a problem - they should not be used for political purposes, and in the context of political controversy and parody, the doctrine of Fair Use should receive a broad reading. The NYT recently published an article called "The Tyranny of Copyright," (available for $2.95) and it should rethink its position here before it becomes fodder for a sequel.

It used to be said, "never pick a fight with someone who buys ink by the barrel." But the guerrillas of the Internet have photons by the google, so now things are a bit more even.

posted by James DeLong @ 11:48 AM | General