Flipping Sides

In the last few months Lisa Kriger at the San Jose Mercury News has written articles that concern copyright issues and Stanford professors. When Professor Joel Beinin sued David Horowitz over the unauthorized use of his photo, her article sought to portray the issue diffierently from the actual copyright suit. Readers might mistakenly think that Beinin had just cause for charging Horowitz with libel. Krieger's article failed to account for the 'fair use' doctrine or academic freedom when it favored Horowitz.

With this background it is suprising to read today's article about Stanford Professor Carol Loeb Shloss's claim of 'fair use' and academic freedom. The earlier article on Beinin seemed to regard Horowitz's efforts towards academic freedom with little regard when he is highly engaged with the meaning of that term. Academic freedom stems from the 1940 document that attempted to codify these freedoms on behalf of professors but also limited their behavior in ways favored by the original understanding. According to that understanding

"...teachers should be careful to avoid controversial matter that is unrelated to the subject.When they speak or write in public, they are free to express their opinions without fear from institutional censorship or discipline, but they should show restraint and clearly indicate that they are not speaking for their institution."

Horowitz has attempted to see that policy enforced. Professor Beinin freely acknowledges that he doesn't conduct his classes to the standard.

'Fair use' is a legal term that can be useful to the court, but academic freedom is a standard subscribed to by academics and has no bearing on the suit engaged in by Loeb Shloss. Readers might have been helped if they knew how much of the Joyce correspondence Loeb Shloss wanted to use. Her publisher's lawyers seem to feel they would lose a challenge on the basis of 'fair use'. Did she consult these lawyers for their take?

Readers will have no trouble decerning where Krieger's heart lay on either of the articles but it's particularly apparent with regard to descriptions of Loeb Shloss and Steven Joyce; "The soft-spoken Shloss is an unlikely litigant. Fifteen years ago, she simply sought to...", ``He wrote back a scathing letter...", "He also threatened suit...", Joyce...is deeply hostile to scholars...". Can we assume that she took Loeb Shloss's word for her interactions with Joyce or did she attempt to contact Joyce? Well, since Joyce no longer speaks to the press, we only have an earlier comment to put this in context:

In 1989, however, in a letter to The New York Times Book Review, Mr. Joyce explained his thinking. A year before, he forced the biographer Brenda Maddox to excise material about Lucia from her book "Nora: The Real Life of Molly Bloom" (Houghton Mifflin.) "The Joyce family's privacy has been invaded more than that of any other writer in this century," he wrote to The Times. He denied "trying to drum up royalties" and said that by delving into biographical sources for Joyce's writing, scholars were taking "all the fun" out of reading."

Fair enough, when it comes to legal matters Krieger sides with academics. But it is striking how she seems to take different sides on the same issues and all that has changed is the name of the professor. Her article on behalf of Professor Loeb Shloss seems to feel that death of the author should have an affect on copyright. Stanford has an office that deals entirely with licensing the Stanford name and prosecuting copyright and trademark issues. Leland Stanford died many years ago--I wonder which side Kreiger would chose to support?

Immigration Law 101

President Bush is scheduled to speak to the nation Monday evening. Reportedly he will be discussing border security and other issues related to immigration from Mexico. Nearly everyone seems to have an opinion about what the president should do. Some want a fence to be extended accross the southern border similar to the 400 mile fence near San Diego. Others want the onus put on employers to ensure their employees are legal, and, if not, punished with fines or other sanctions.

At Stanford University the law school sponsors an Immigrants' Rights Clinic. Among their activities is to provide legal services, aid in obtaining welfare cash assistance, and a project to assist the ACLU in thwarting the activities of groups they describe as anti-immigrant vigilanties--apparently it doesn't occur to them or the ACLU that their actions constitute vigilante activity too. In short, the law school sponsors illegal activity.

Last week the Stanford Latino Law Students Association was called upon to provide very different services. A 33 year old woman from Mexico was struck and killed on campus. The students collected donations to pay for the return of Sandra De Anda's body to Mexico where her two small children live.

It will be interesting to see if the law students will hold the woman's employer accountable for employing an illegal. The deceased woman worked at the Stanford Law School cafe.

This woman is hopeless. But I could be wrong.

The Palo Alto Weekly carried a column written by local teacher Nancy McGaraghan that starts like this:

"Listening to the news can be dangerous to your health. Gas prices are at an all-time high and President Bush's approval rating is at an all-time low. There is seemingly no end in sight to the bad news. Consumers feel the pinch of inflation, and residents talk about a recent wave of break-ins. We worry about national security and the environment. Iraq, Iran, immigration reform, political detainees, genocide in the Sudan. And the most recent stressor: our poor health compared to other nations. Apparently, just being an American is stressful enough to be dangerous to one's health. Evidence suggests our poor health is itself stress induced. A double whammy. It's enough to make one think that Henny Penny was right: "The sky is falling. The sky is falling."

What's this leading up to you ask? This is how McGaraghan began her column about the 84th annual May Fete Parade--known locally as the children's parade. After taking the parade on a wild and inaccurate detour, the paper bizarrely titles the piece 'The merry month of May won't be highjacked by the 6 o'clock news.' Which, in fact, is exactly what just happened.

Joel Beinin's Stenographer

Professor Joel Beinin teaches in the history department at Stanford University and is outspoken in support of Palastinian objectives in Israel. Accordingly, David Horowitz compliled a booklet in which he describes Professor Beinin, and others, as supporters of terrorists--of Hamas in this case. Because Horowitz used the faculty portrait of Beinin on the cover of the booklet Beinin has sued for copyright infringement.

This became the reason for a story in the San Jose Mercury News. And while it is a copyright infringement case, the story provides much more background into Beinin's beef against Horowitz, going so far as to descibe the issue as follows:

"He's suing the book's publishers in what is the first counteroffensive by a professor against a growing campaign by conservative groups targeting left-leaning college educators."

Remember, the lawsuit is about the unauthorized use of one photograph. The campaign part is a little farfetched but you could hardly blame a wild-eyed reporter after reading the gibberish attached to the actual charges. Beinin's lawyers have fun with a little agit-prop on behalf of their client, but through it all the following facts emerge; 1. Beinin only claims a registered copyright after the book is published. 2. Beinin does not answer whether he owned the basic, non-registered copyright before he discovered that it was used in a book not to his liking.

The upshot is that Beinin isn't likely to reap much of a payback because registering the copyright after publication is significantly less rewarding. But then he gets the satisfaction that a large metropolitan newspaper is likely to print his version of events without asking him to provide evidence to substantiate the underlying charge.

Update: Beinin's photo was taken in 1997 by Palo Alto photographer Theodore Mock (complaint pg. 12). It's most often the case that the creator of the photo is the holder of copyright, but it can be legally transfered and, in fact, Beinin's lawsuit claims that copyright was transfered to him from Mock. The first published use of the photo was April 10th 1998. It's doubtful that Mock, or anyone, registered the copyright prior to January 26, 2006. The book on which Beinin's photo appears was first published on February 7, 2005--more than 12 months after Horowitz published the booklet.

Why is that important? Unless copyright has been registered prior to the infringement or 3 months after, the claimant is only eligible for actual damages--no punative damages, or court costs, or unnecessary verbage about conspiracies against Mr. Beinin will be considered. According to widely used photograph pricing tables the photo is worth between $170 and $330. But the publicity--priceless.

Further update: Professor Beinin's attorney is Mitchell Zimmerman of the law firm Fenwick and West. According to his online biography Mr. Zimmerman specializes in copyright cases and has this to say about his approach:

"Mr. Zimmerman's practice focuses on counseling, litigation and conflict resolution involving copyrights..."

Would it be fair to ask if Professor Beinin was counseled on conflict resolution in order to avoid trial? Or is a show trial the whole point?

Rather Blather in Berkeley

The Dan Rather rehabilitation tour rolled through Berkeley this week with interesting results. In front of an adoring crowd, Rather submitted himself to softball questions by the dean of the journalism school Orville Schell. Rather's nerves and rambling speech betrayed a significantly dimmed star of television news (go here to download the podcast).

Schell: This is a story, that if it had turned out differently, perhaps could have changed the election.
Rather: Well, I didn't think of it that way. That did not go through my head.
Schell: But how could it not have. I mean, it's just before and election
Rather: "It's very important that you know that I'm not the vice president in charge of excuses, and there are no excuses...it's not an excuse, but it's a fact, I went straight from the Republican convention to cover a major hurricane in Florida. And we had discussed this story before as a possible story, but to say I was busy with other things is not an excuse, but you say well "how could you not have thought of it". I didn't really think about much of it and for that I'm accountable and I should have thought more about it but I didn't. And things moved very quickly, but whether anyone wants to believe it or not, I didn't really think about it in those terms.

Translation: I had recently come from a political convention and I wasn't thinking about politics--that's not an excuse but it's my excuse.

Thought Bubbles from a Sinking Ship

"We haven't given up yet," said Luther Jackson, executive officer for the San Jose Newspaper Guild/CWA Local 39098. "All the people we talk to in these communities want more news, not less."

That's the spirit...now explain why circulation is sinking and McClatchy just bailed out.

The New Boss

It has to be unsettling for the guy trying to buy a group of newspapers to read the poor quality of reporting on something for which he has inside knowledge. Responding to question about his interest in buying four newly purchased newspapers from the McClatchey Company, Dean Singleton of MediaNews Group said the following.

"Never have I seen so many people write so many things they didn't know," he said, apparently referring to recent articles suggesting that he was close to buying three California papers and The Pioneer Press in St. Paul from Mr. Pruitt for $1 billion.

Ouch. One wonders if his reputation for cutting costs will be put to work where he knows the truth is in short supply. Reporters who lead the cheerleading for the 'worker friendly' Yucaipa Company might want to reconsider careers.

Techno Fear

At a time when newspapers struggle to remain relevant the San Francisco Chronicle unloads a silly article about the threat to privacy posed by cell phone cameras. According to the article,

"Camera phones threaten to turn everyone into amateur paparazzi," says law professor Daniel Solove of George Washington University, an expert on privacy law. "We are witnessing our personal space shrink because of the way technology is being used."

Cameras don't threaten--people threaten, such as those paparazzi whose photos the Chronicle likes to dress their pages with. Our privacy law expert wasn't asked to offer an opinion about the privacy rights of people appearing in the photo that illustrated the article. But he might have had an opinion about the embarrassment just last February when the Chronicle mistakenly identified a taxi driver in a photo as a police officer with a record of suspensions for using excessive force.

If that weren't enough, the article goes on to explain how California's anti-paparazzi laws which"forbid the use of telephoto lenses to capture images through the windows of homes", would apply to camera phones. Do they really mean to suggest that cell phones without telephoto lenses have greater legal protections than the equipment used by the paper's own photojournalists?
Wake me when cell phones come out with telephoto lenses.

The Constant Whiner

It should be no suprise when politicians hire successful consultants to work on their behalf. According to an AP story by Laura Kurtzman, it is noteworthy that Governor Schwarzenegger has hired political ad man Alex Castellanos who helped President Bush to victory in the '04 elections and has had a hand in the elections of eight US Senators and six Governors.

The AP describes Castellanos as a former Bush aide who is a "master at politcal attacks" and knows "how to eviserate the opposition". According to the AP's version only Republicans hire people who attack the credibility of highly qualified Democratic candidates, while Democrats, such as James Carvell, Paul Begala, Chris Lahane, Bob Mulholland and Gary South, are merely volunteering to dispense good cheer about a few happy-go-lucky public servants. Add to that the constant campaign of pro-Democrat AP writers.

After assuring readers for months that Schwarzenegger was in deep trouble, that voters no longer wanted him as governor, while pointedly not offering a candidates to compare his popularity to, a poll (oops, I mean this poll) released last week showed that Schwarzenegger would beat both Democrat Steve Westly and Phil Angeledes. Shocked into this reality the AP decided to elevate a mere campaign hire to serve as a rehash of the 2004 election.

The AP smells a winner and they aren't happy.