The story goes like this.
Popular and influential weblogger Jason Kottke — who for the past few months has been following the saga of history-making Jeopardy! contestant Ken Jennings on his site — posts a short audio clip featuring Jennings’ final appearance on the show, a few days ahead of its scheduled network broadcast.
Kottke subsequently receives a request from a lawyer representing Sony Pictures to remove said audio clip (on intellectual property grounds, one would presume) and he duly complies; instead of the original clip, Kottke links to a transcript. However, shortly afterwards Sony’s lawyer contacts Kottke again, ‘requesting’ the removal of this transcript (and I think it’s fair to assume — since this _is_ from a lawyer — threatening legal action for failure to comply).
Meanwhile, The Washington Post publishes a television column discussing the Jeopardy! episode in question, citing Kottke’s site as a source. The article repeats verbatim an excerpt from the transcript that Kottke was ‘requested’ to remove from his site. But seeing as it’s still online as I write this, I think it’s safe to say that The Washington Post hasn’t been asked to remove its version.
So what’s going on here?
Fine, the producers of the programme request the removal of the audio; they made the show, they own the show, that’s their prerogative. One might cite ‘fair use’ legislation, but that’s still a murky area when it comes to audio (as you’ll know if you’re at all familiar with the music industry’s war against file sharers). On the other hand, where such legislation is clearer is when it comes to text. Kottke’s transcript surely falls within the definition of ‘fair use’, but it seems Sony didn’t see it that way. They sent the dogs after him and he did what anyone else in his situation, without ready access to legal counsel and large reserves of money, would do: he acquiesced.
This would be a bad enough situation in and of itself, but to see that the very text that got Kottke into difficulty is still available elsewhere online, on a widely-read newspaper website no less, is frankly nauseating. What are we to think? That the law only protects you if you can afford a lawyer to defend yourself?
It made me ask myself, what would I do if that happened to me? Well firstly, I’d shit myself. Secondly, I think I’d get the chills even looking at my computer, or hearing the word ‘internet’. Certainly the last thing I’d do is consider resuming posts on my website, no matter how important it is to me. I wondered how Kottke must be feeling right now: he’s been at this for _years_, and he’s excellent at what he does, and he doesn’t even get paid for it — he’s one of life’s givers, not a taker; his website is surely integral to his identity, but after this, he probably wants to toss his computer in a closet and take off to Tahiti.
Horrible as it is to contemplate that a singular incident with no real significance (I mean, it’s _a fucking TV show_ for chrissakes!) could cause one of the most committed bloggers of the medium to consider giving it up, my wondering wasn’t far off the mark:
>I can’t say too much about it (soon perhaps), but it sure has had a chilling effect on my enthusiasm for continuing to maintain kottke.org. As an individual weblogger with relatively limited financial and legal resources, I worry about whether I can continue to post things (legal or not) that may upset large companies and result in lawsuits that they can afford and I cannot … In the current legal climate, it may be that the whole “are blogs journalism?” debate is moot until bloggers have access to a level of legal resources similar to what large companies have. I’m certainly thinking very seriously about whether I can keep this site going in this kind of environment.
This environment that Kottke refers to here is one where webloggers, as editors and publishers as well as writers, are directly liable for anything they write. In contrast, writers for more traditional media channels are generally protected from any lawsuits that might arise in response to articles they produce. Current legislation, or at least that which is common in the US and in this part of the world, has been adequate for the latter model, although dare I say it’s caused the end of many a publication over time, placing as it does the legal ball into the hands of those with the power and the money. But as the concept of journalism is — in tandem with advances in information and communication technology — changing into something much more polymorphous, it’s plainly inadequate for the former.
The Jeopardy! controversy is of course not the first time anything of this nature has happened (visit the Chilling Effects Clearinghouse for more details). It’s a growing issue, and if it had a ready solution I’m sure Jason Kottke wouldn’t feel like he has the weight of an entire corporation pressing on his shoulders, and for what? A few minutes of audio from a show that’s already been broadcast? A few lines of text that are readily available through the mainstream media?
One thing is for sure: Kottke, as an individual without the protections afforded to most journalists, is an easy target; one that the law should protect from frivolous actions, but doesn’t. The consequences of this case, both for Kottke and the popular blogosphere, remain to be seen. What’s clear already is that the law needs to move with the times and, to use an obvious cliché, protect the nerds from the bullies.