It’s a very common way for things to happen! All kinds of news entities, including MPR, routinely report on one another’s stories this way — for example, the Washington Post’s story about a Black 15-year-old Arizona teen with no arms or legs being brutalized by a Pima County Sheriff’s Deputy was picked up by dozens of news outlets big and small, who summarized the salient facts in the Post‘s article (which were largely derived from a KOLD report) and added context relevant to their readership.
Here’s what’s uncommon: On October 23, Minnesota Public Radio’s “Senior Paralegal,” Rocky Rothrock, sent us a “takedown request” that characterized my writing as infringing on MPR’s “language and concepts” and concluded with “MPR insists this story be removed from the Boing Boing website immediately.”
As the physicists like to say, “that’s not even wrong.”
Copyright — as any first-year law student can tell you — covers expressions of concepts, but not concepts themselves. In other words, facts, ideas and concepts are not copyrightable, though the words you use to describe these facts and concepts can be copyrighted. This is an absolutely key element of copyright law for journalists, including the journalists at MPR, who routinely make use of this bedrock legal principle in their own reporting. For a news entity’s legal department to insist that concepts are copyrightable (let alone copyrighted!), isn’t just advancing a suicidal legal theory — it’s also advancing a theory that is totally, unquestionably wrong.
Then there’s the brief quotation from the MPR story that I included in my own, which is unquestionably fair use, something that MPR also relies upon every day in its own reporting.
We’re no strangers to bizarre legal threats around here. Though most of these originate with obvious cranks, we also sometimes get these from thin-skinned fashion companies or failing soft-core porn companies or overcapitalized scooter grifters. We don’t capitulate to these threats. Instead, we fight and we win.
But this is MPR. I love MPR. I donate to six different kinds of public radio every year. I often turn down commentary requests from commercial radio or TV, but I rearrange my schedule and my life to get into a studio any time a public radio program invites me on. This kind of legal bullying is not what I think of when I think of public radio, nor of MPR, where I have often been quoted.
So I wrote back to “Senior Paralegal” Rocky Rothrock and asked him five questions about his threat:
I hope that you can spare a moment to answer some questions I have about the letter:
1. Your letter characterizes my work as a “copyright infringement” on the basis of “language and concepts.” Is it MPR’s position that “concepts” constitute a copyrightable subject matter? Does this position extend to MPR’s editorial policies for its own journalists?
2. You characterize my “language” as infringing. Could you expand on this? I’m assuming that you’re referring to the brief quotation from your story that is attributed to both MPR and the writer whose byline appears on that story. Does MPR believe that brief, attributed quotations are infringing? Is this view reflected in your own editorial guidelines?
3. How routine are notices like this for MPR? Are there are other journalists whose work you’ve “insisted” on having removed on the basis of alleged infringements due to “concepts” or brief, attributed quotations?
4. Have you ever taken formal legal action on the basis of one of these threats?
5. Why did you choose to send an informal “takedown request” without citing the statutory language required under DMCA 512, including the statement on penalty of perjury that you believe your request to be legally sufficient?
Thank you for your prompt responses to these questions. Please let me know if there is someone on your editorial side that I should speak to regarding editorial guidelines, or whether you are the right person to answer both legal and editorial questions on behalf of MPR.
After four days of radio silence from Rothrock, I wrote back to him, again with no reply. Then I wrote to the two named PR contacts for MPR three days later, and then again, eight days after that. Finally, last Friday, I tweeted the @MPR account and asked them to nudge the PR contacts, and I finally got an answer from Angie Andresen, MPR’s Director of Communications. Unfortunately, it was one sentence long and answered none of my questions:
MPR is committed to protecting the work of our journalists, and we stand by our efforts to do that.
(Ms Andresen did not respond to a followup email.)
So now I’m left in total bafflement. Is this a one-off from a paralegal who didn’t know any better? Is it routine bullying from a beloved public radio service that’s gone quietly rogue? Did Rothrock fail to adhere to DMCA 512 form because he knew that his threat had no legal validity, or because he’s so unfamiliar with copyright law that he’s never heard of DMCA 512?
In the weeks since we received the threat, I’ve discussed it with several copyright lawyers, and none of them can make any sense of it. The legal theories that MPR is advancing here are so weird that it’s hard to think of them as “extremist” — not when “ignorant” comes so readily to mind.
And since MPR won’t discuss this legal threat with us, I’m left asking these questions in public. Have you received a bogus threat from MPR? Leave a comment.
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