Do as I say, don’t do as I do.

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.)


  1. That’s a great article and an excellent illustration of the old adage about a crime’s seriousness depending on whose ox was being gored. Your ox gores my ox, that’s very bad. My ox gores your ox, ‘Hey, can’t we just forget this little thing?”

    This debate about publishing without permission hard-to-get works isn’t new. Some of the arguments that Google and its supporters were offering to defend their settlement depended on the claim that an out-of-print work was deserving of less legal protection than one still in print. The settlement collapsed in court, in part, because the Berne Convention not only doesn’t recognize that claim, it’s quite hostile to it. Under Berne, a writer need do nothing to protect his copyright. He doesn’t have to register the book. He doesn’t have to keep it in print. And most important to the settlement’s demise, he doesn’t have to opt out of some online scheme.

    But the argument also fails on other grounds, including:

    1. The ultimate out-of-print status is never having been printed. If a book can be posted online because only a dozen or so copies are available via interlibrary loan, then a manuscript in some obscure and distant archive or hidden in some attic, which is available to almost no one, can certainly be published online–or at least compiled into a database with snippets displayed.

    2. These arguments also postulate something that, to my knowledge, has never been enshrined into law, much less an international treaty such as Berne. That’s an alleged a right to read someone’s writings in defiance of their wishes. The reality is that copyright law gives an author an absolute right to control who copies his work, including the right to prevent anyone from copying it (beyond fair use). And keep in mind that an author who doesn’t want something published isn’t engaging in censorship. Censorship is when a government bans the publication of something an author wants to publish.

    There are any number of reasons why an author might want to prevent publication. He may be embarrassed by just how awful his early writings were. He may differ with what he said then and regard the republication of what he said then as forcing him into a position where he is promoting ideas he now abhors. He may even feel that the publication of his views on some controversial topic may make more difficult what he is trying to achieve by his writing in other, less controversial areas.

    I’d add a final note. The ability of an author to keep his work from being published is a plus for the freedom of authors. He is free to publish one POV and, if his mind changes, stop publication of that POV. He can explore, in the privacy of his own study, certain ideas, secure that those ideas won’t be published until he chooses to do so.

    Also, keep in mind that at the root of all these debates is the gross incompetence of our political classes. Berne hasn’t been adjusted since the late 1970s, despite enormous changes in technology. Copyright law in the U.S. hasn’t been adjusted in any useful way since the early 1990s, when there was a minor change concerning unpublished manuscripts to correct a blunder in the chronically out-of-line Second Circuit.

    What the U.S. Congress is doing is catering to powerful, well-heeled special interest groups (meaning Hollywood). That’s why we had copyright term extension in the late 1990s and why we had this recent attempt to pass SOPA. Money speaks so loudly inside the DC Beltway, that almost no other voice is heard.

    That’s why the efforts to block SOPA mattered so much. But keep in mind that blocking something bad by scaring politicians is far easier than getting Congress to focus on constructive ways to adapt copyright laws to the technological changes that have been going on for some three decades. To do that, I suspect, we’re going to have to elect a completely different sort of representative. Business as usual isn’t going to work.

    –Michael W. Perry, author of Untangling Tolkien

The TeleRead community values your civil and thoughtful comments. We use a cache, so expect a delay. Problems? E-mail