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May 12, 2006

Comments

I'd contact Dennis the Peasant.

Hah! It gets even better. The 'Obsidian Wings' link beside your name / by line is a dead one.

Happy Jack: done. (And I wonder who told John Aravosis about this?)

I think the "we" in the very last sentence of the post needs to be "they". Sorry to be Mr. Proof-reader today.

They're even adding photos to the posts, but without captions. But you can tell it's not an author photo if you're sure that Matthew Yglesias doesn't look like Mahmoud Ahmadinejad.

Ugh: well, someone has to, and since I'm apparently not doing it, I'm grateful to you for stepping up to the plate.

I can't imagine why you'd contact Glenn Reynolds.

Why not the obvious: Roger Simon?

But what Glenn has to do with PJ beats the hell out of me. Not that I've paid close attention to the shebang.

Quit fooling around, and send a cease-and-desist letter from a lawyer.

Any of the lawyers here want to write one for me? Or maybe I'll just do what I did on PACER and claim to be from the firm of (hilzoy's first name), (hilzoy's last name).

And Gary: he's the head of their editorial advisory board.

What a weird operation PJM is.

Would they be able to ride out a cease-and-desist threat with a justifiable claim of "fair use"? I would hope not, given the way the site and its affiliation structure is set up. Anyone know better what the law looks like here?

(Gotta run, will look back later.)

Hey -

The "reblogging" phenom happened to my friend Wayne and I not long ago. We both hated the idea of our material neing reposted without our permission. Wayne's site was even hotlinked by the offending reblog site, which jacked his server bills up tremendously without actually direscting traffic to his site. Wayne contacted the offending site with a very polite, constructive letter asking them to take his material down. They basically told him to get lost. Then he doctored the hotlinked images so on the reblog site they no longer had photos. Instead they had a big red text message explaining that the image had been hijacked. In the meantime, since Wayne got nowhere fast being polite, I decided to "go for the jugular". I wrote several scathing posts on my weblog, as well as equally scathing emails to the reblogging site. These emails and messages on my weblog caught the attention of some of the actual software designers for Reblog, and a little debate ensued... Anyways, finally my material and Wayne's material were both taken off of the reblogging site, and we both walked away satisfied (and a bit smug). The offending reblogging site has since enacted a policy of ASKING before they republish other peoples' content.

Keep the pressure on 'em.

The whole fracas can be found here:

http://tamingoftheband-aid.blogspot.com/2006/04/planting-your-tulips.html

http://tamingoftheband-aid.blogspot.com/2006/04/okay-now-im-really-done.html

http://tamingoftheband-aid.blogspot.com/2006/05/nuclear-option.html

http://tamingoftheband-aid.blogspot.com/2006/05/monkey-grab-peaches.html

I know that's a lot of links, but the whole affair took quite some time to work itself out. At least there's plenty of biting sarcasm and derision to keep any interested parties here entertained.

tf23

Here you go hilzoy, though you'll have to claim copyright infringement, rather than some other IP based tort (there's some tort for this, though it's escaping me at the moment):

Link

"And Gary: he's the head of their editorial advisory board."

Is he? I forgot that. I'd bet that that's absolutely meaningless, and purely titular on the basis of his being a Big Name Blogger lending his name, though. I could, of course, be wrong.

Whereas Roger was the major move and shaker in putting the thing together, along with, ugh, Charles Johnson. But while I have innumerable differences of opinion with Roger -- innumerable! -- I've always found him to be a fairly reasonable human being, overall, whereas Johnson, well, I will not speak further, having nothing kind to say.

Also, Glenn gets bombarded with a few thousand pieces of mail a day. Probably Roger also gets a lot, too, but I doubt if it's remotely as much.

But, bottom line, it's mostly Roger's operation, and simply not Glenn's. So far as I know.

"I would hope not, given the way the site and its affiliation structure is set up. Anyone know better what the law looks like here?"

I have some moderate lay knowledge on this particular area (copyright law), and I'd think it was kinda borderline; basically, quoting is fine, but making it appear that stuff is original to a site that is not, is not fine.

Their (PJ's) appearance in presenting such posts seems to me ambiguous enough that they'd be wise to make the distinction about the source of such material clearer; I'd think a cease-and-desist might have a salutory effect, perhaps, but I'd also suggest that anyone going that route be prepared to actually pay to sue, and also expect that such a letter is apt to possibly be posted and mocked, before it would get to a court stage, if the receivers feel obnoxious and inclined to fight.

Of course, I am not a lawyer, and this is not legal advice. Anyone seeking legal advice should contact a qualified attorney, of whom I do believe a few frequent this joint.

Hmm, y'know, looking at the page again, given that it's just a very brief excerpt, and that it links directly to your post with "read the whole thing," I doubt you have a case. I think it's pretty difficult to claim that that is significantly different from anyone else's quote-and-link.

I'm inclined to suggest that you may want to leave at simply requesting that you not be quoted and linked, if that's your desire, but otherwise I'm not sure there's any particular reason to be upset at being quoted and linked, other than simply feeling uncomfortable that you're somehow contributing to the financial gain of people you disagree with -- but on that point, the claim you'd have to be doing seems so minimal as to be a bit, um, petty.

But that's purely a personal judgment call, and yours to make, of course, and I can certainly understand the feeling.

But in the context of the standard practice of blog quoting and linking, and their standard practice of doing so with any and all blogs they think worthy of note -- exactly like almost all other bloggers -- I'm doubtful that you have a case that they're doing anything unreasonable or unusual.

Again, I am not a lawyer, and this is not legal advice.

But they're not putting your material in a frame to make it look original to the site, which is where trouble would lie. But they're not doing that. They're doing SOP for blogs, and there's no claim or indication there that you're somehow affiliated with the site.

They'd probably be wisest, and politest, to have a fine-print disclaimer line on the bottom of those posts, though.

I don't have a problem with PJM posting TalkLeft stuff. They only post excerpts, include a link to the talkleft post to read the whole thing and drive traffic to the site.

Their members are clearly identified on the left side of their site. We are not listed.

I'm not sure how this is any different than an aggregator, like Political Wire's Southpaws .

I also think it's to their credit that they link to posts from those of us on the left. When they started, everyone complained that it was only a right-wing sites.

Glenn Reynolds is the chair of their advisory board.

H, the legal issues are tricky, although given that they're a for-profit enterprise I imagine an unjust enrichment claim could be slapped together. Still, it might make sense to keep trying to work it out amicably for a bit longer.

Well, considering how these jackasses already got bit once in a copyright issue (the whole Open Source Media schmozzle) it doesn't surprise me if they're being sloppy with quoting, either.

I'd say a nice, polite, hard copy of a letter sent Fed Ex to them asking them to desist. If they don't, then bring on the lawyers.

You might want to contact Dennis the Peasant and get his suggestions on this.

Jeralyn, the reason I think it's different from PoliWire is that the latter features a prominent statement at the top of the page to the effect that it's an aggregator. If PJM did this, I'm not sure anyone would have a real beef, given the quote-and-link nature of the blogosphere. But I agree it's not kosher to make you look like an actual contributor to their site, which is how it appears in the absence of a disclaimer.

I'd say there's definitely a problem, in that PJM is a stable of bloggers that includes at least one highly objectionable blog, and that by displaying other blogs in this fashion, it makes the linked-to writers appear that they are part of PJM stable.

That may not be their intent, but it sure is to their benefit. I would hope that they not link to bloggers who request exclusion.

"I'd say there's definitely a problem, in that PJM is a stable of bloggers that includes at least one highly objectionable blog, and that by displaying other blogs in this fashion, it makes the linked-to writers appear that they are part of PJM stable."

I don't think it actually does. Their "stable" is listed on their left sidebar, as Jeralyn pointed out. There's no claim that others are involved.

I think the only possible grounds for confusion is that they present their quotes-and-links on individual pages as well as in aggregrate, and I don't think that's serious grounds for confusion. As I said, I think a line of fine-print clarification at the bottom of such pages would be a better practice on their part, but I don't see much serious grounds for confusion unless one is going a bit out of one's way to look for it. Obviously, if you're reading their site, you're familiar with it, as a rule. If you're not, well, it's not hard to figure out after looking at it for more than a couple of moments.

And as a rule, bloggers like being quoted and linked to. If they were doing other than tiny excerpts, and/or not providing links and saying "read the whole thing," that might be very different. But they're not. That's quite key, I think.

I don't think it actually does. Their "stable" is listed on their left sidebar, as Jeralyn pointed out. There's no claim that others are involved.

Maybe it's just me, but there were several names in that aggregation that I mistook for being on the PJM payroll before I figured out what they were doing, and this was well before Hilzoy noticed it. People are simply not going to read through that list to double-check their assumptions.

And as a rule, bloggers like being quoted and linked to.

I'd be a bit upset to be linked to like this by, for example, a white supremicist group's web site. And no, of course PJM aren't anything like that, but same principle. My little blog was linked to on one occasion by an aggregator, but it was policically neutral, and not a blog stable that might confuse readers into thinking that I was a member of the stable, and clearly indicated something like "hot topics on the blogs in the last five minutes" or something like that.

Gary: I think it's quite different from ordinary linking. Check out these two links: 1, 2. These are fine. They make it completely clear that someone at PJM is linking to another blogger. This is what they've done to my stuff on several occasions, and I have no problem with it.

Now compare those to this. Josh Marshall's name is in exactly the same place, same font, same everything as PJM in Barcelona, and in general the same place, font, etc. as all the people who actually post on that site.

That is not OK. (And the existence of posts which do make it clear that something is just being linked to only makes it more confusing.)

I would be interested to know whether Die Welt and other actual magazines take as tolerant a view of this.

I think this is different from aggregators. PJM seems to be taking selected posts from various blogs and mixing them in with posts from their stable of bloggers. It's not reasonable to think that readers are going to see a post in the list and then check the sidebar to see whether it's really a PJM post or not. They all seem to be formatted the same.

Heh. On a hunch, I decided to check and see whether they'd done this to Glenn Greenwald, an actual lawyer. They have. I emailed him.

Instead of pussyfooting around with IP law, I'm not sure you can't make out the elements for the tort of outrage.

Well, for you non-lawyers, that's a bit of a joke.

The elements include (a) that Defendants conduct was atrocious, intolerable and so extreme and outrageous as to exceed the bounds of decency; and (b) that the emotional distress suffered by Plaintiff was so severe that no reasonable person could be expected to endure it.

There's also an intent to cause distress element, which would likely doom the effort.

OT: Judge Sullivan stayed one of the Gitmo commission trials today, pending resolution of the Hamdan case in the Supreme Court. I liked this line:

The government also claims that this brief delay would imperil the war effort. The government has not explained, however, why the Court must adhere to the laws of war now, rather than wait a few weeks so that it may follow the rule of law, as it will be determined by the Supreme Court.

It's easy to forget just how fragile the 'war effort' really is, in the minds of the people pursuing it.

Heh, thanks Charley. I needed a pick me up. Nothing like a light bench-slap to bring a smile to the face.

"I'd be a bit upset to be linked to like this by, for example, a white supremicist group's web site."

I understand. I've had some links that made my skin crawl. One from what was essentially a legal (anything that might be illegal was specifically listed as prohibited) but nonetheless clearly a site for pedophiles. My skin still crawls.

Hilzoy: "PJM seems to be taking selected posts from various blogs and mixing them in with posts from their stable of bloggers."

I don't make a point of reading their site, and have only glanced at it on a handful of occasions. But my clear understanding is that the purpose of the site is to be a site to go to read links to other blogs. It's entirely unremarkable that some would be from those who affiliate with them, as well as those that would not. I can't see anything wrong with that. I see no intention of deception in it.

As I said, I think a line of disclaimer would be a good thing, but I don't see it as a big deal, either. YMMV.

"Now compare those to this. Josh Marshall's name is in exactly the same place, same font, same everything as PJM in Barcelona, and in general the same place, font, etc. as all the people who actually post on that site."

As it happened, since it was adjacent to the post linking here, I already noticed.

"That is not OK."

Okay. Why? Simple assertion isn't convincing.

I mean, you are absolutely entitled to feel that there's a risk of your being confused with someone affiliated with the site, and you dislike that, and would like it to be as clear as possible that this is so. I think it's great for you to write them and ask not to be linked to, if that is your desire, which it clearly seems to be.

But I'm not clear what the basis is for an absolute statement about abstract okay-ness, rather than a point of personal preference.

But this is because you see the format as leading to a confusion that I'm not seeing as significant, I think. But I do think you're entitled to see it as significant, even though I do not.

Myself, I think it's pretty clear when a post is labeled as from "PJM in [Somewhere]" and when it's labeled as "Hilzoy/Obsidian Wings."

If they said "Hilzoy/Obsidian Wings Of PJM," or something like that, I'd view it otherwise. But I can read English reasonably well, and the English of "PJM" and not doesn't confuse me in the least. Neither do I see why anyone would make an assumption otherwise, although confusion over anything is always possible and statistically inevitable in some cases, of course.

KCinDC: "PJM seems to be taking selected posts from various blogs and mixing them in with posts from their stable of bloggers."

The perfectly obvious difference is between posts native to the site, and those that merely give a tiny excerpt and say "read the rest" and link to the actual site.

As I already pointed out. No one could possibly mistake the latter for the former. The post isn't there. And in the former posts, the native ones, there's no link off-site. So no confusion is possible. You can't read the foreign posts there. It. Is. Not. Possible. They're. Not. There.

I can't see how this couldn't be obvious. Absent magic eyeballs that can follow HTML without realizing it, or something.

In other words, no offense, but this is false: "PJM seems to be taking selected posts from various blogs and mixing them in with posts from their stable of bloggers."

I mean, no, that's not what they're doing. Obviously. They're taking brief excerpts, and linking. As per blog SOP.

"And Gary: he's the head of their editorial advisory board."

Is he? I forgot that. I'd bet that that's absolutely meaningless, and purely titular on the basis of his being a Big Name Blogger lending his name, though. I could, of course, be wrong.

Sorry. This is the lamest excuse in the world. If you accept some fancy-sounding title you accept the responsibility that goes with it. No saying "I'm a big shot" when it doesn't matter and then ducking out when it does.

Bernard, a) it might be an "excuse" if he were giving it, but it's not as if I'm in any more contact with him than you are; and b) which part of "advisory" is unclear?

Asking Glenn (if you can get through the static) to take a position or pass on the message, or whatever, is entirely reasonable. Placing responsibility for managing the thing doesn't seem to be.

Incidentally, I'm quite sure I can come up with thousands of lamer excuses. "My dog ate the e-mail print-out" would be a start.

Okay, Gary, it's obvious to you, but it seems that since all these other people do find it confusing, it's not unreasonable to argue that the format is misleading.

I'm looking at the PJM front page. There are a bunch of articles from "PJM in *" that are very short and have no "Read the whole thing" links. You say that should make it obvious that they are completely different from the other articles (or excerpts) scattered among them. Okay.

But then there's an article from Protein Wisdom, which is part of PJM. And there's an article from Talking Points Memo, which is not. Both have the same format, as far as I can tell. Hell, the TPM article has the little pajama top next to it, while the PW article doesn't (it just has the vibration lines around "War on Terror"). Does that really seem like a straightforward distinction between PJM content and non-PJM content?

And what "blog SOP" are you referring to? Perhaps it's blog aggregator SOP, but PJM isn't really an aggregator. When blogs use excerpts and links, they're generally part of a blog post, with introductory text, and maybe following text, and usually blockquote formatting. That's not what this looks like.

There are several things going on here that are disturbing, both from ethical and legal points of view.

First, is that PJM appears to be trading on the reputations of the bloggers they are posting, yet they are not paying these bloggers (unlike their "stable"). Second, direct links to the articles from other blogs do not contain any disclaimer that this is a "linked to" article, not an article published for PJM purposes.

Third, even a blanket disclaimer on the front page that "hey these are article we have linked to" does not get around point number two above, and it strikes me as potentially denigrating the content of the linked-to bloggers. One, it potentially reduces traffic to the original post (relevant in terms of prestige and also ad revenue, if the blogger has ads). Two, it dilutes the goodwill and reputation of the blogger in question.

Matt Yglesias's, Glenn Greenwald's, etc. reputations are undeniably hurt by this. This is not meant as a swipe at conservatives or non-liberals, it is just a point. Reputation and ethics are very important on the web. Think of David Corn's decision to join PJM. I don't know if it has hurt him economically, but it certainly has in terms of reputation with some. While David Corn may not care, if a blogger does care, that is the test.

Defamation and dilution of reputation is what is going on here. The font is the same as PJM, the contents are the same as the orignal blogger's post, and PJM gains, while the blogger loses (or at least is not compensated like the "stable" of PJM bloggers).

If anyone tried to say that I supported a neo-Nazi group, I'd sue for defamation. The fact that I would be upset (not eqully so, but still upset) if someone said I endorsed a Republican is a question of degree, not kind. I do not have a blogging reputation to protect, but I have my reputation to protect, and the courts acknowledge this. Don't say I believe or endorse things that I don't believe or endorse. And don't manipulate perceptions of others in order to lead them to think something that is not true about me, and that I disagree with.

Cease and desist letter is exactly right. Defamation (catch-all for slander and libel), misrepresentation, dilution of brand, and other causes of action are possible. That said, the best way to do it is to send the letter and make sure this practice on the part of PJM is well-known and it is understood why it is objectionable on both ethical and legal grounds.

Best of luck.

Look who's posting on The Poor Man ...

I would have thought it obvious, but the legal test for confusion does not ask if someone who is familiar with the site would be confused; it asks if someone unfamiliar with the site would be confused.

The fact that a sophisticated consumer of the blogosphere could study the site and figure out what it's all about in relatively short order just doesn't enter the equation.

For some bloggers, I'm sure the tradeoff is welcome; PJM profits by using their name and words on the front page, they profit via increased traffic, so no one complains about the confusing misappropriation. But hilzoy doesn't want to play, and it's her right. Frankly, I'd be somewhat surprised if they didn't voluntarily agree to stop featuring her, as soon as she manages to get a real person's attention.

Bernard, a) it might be an "excuse" if he were giving it, but it's not as if I'm in any more contact with him than you are;

Gary,

Then why are you offering excuses for him?

and b) which part of "advisory" is unclear?

The part where it means he doesn't actually have any connection to the operation.

Well, you know, I have no connection to Pajamas Media, I hold no brief for them, and I'm not their hired defender. I've said what I had to say, and I'm not interested in carrying on further about it.

"Gary,

Then why are you offering excuses for him?"

I'm not offering any excuses for anyone. But thanks for putting it so poorly. As for why I said anything, it's because it's what I think.

I'm done now.

Abjectfunk is getting warm, I think.

Bill them. Bill them on a per-word and per-link basis. Give them standard business terms like 1/2% discount for paying in 15 days, net from 16-30, 5% penalty to 60 days, overdue after 60 days. Bring the action in small claims court. They won't show, but you can have a constable serve collection notice on them.

You can also post your terms on OW with the proviso that any site that excerpts within fair use, and clearly states that the source (OW) is not affiliated with the excerpting site, will not be billed. That'll cover any future examples.

The plot thickens. I left a comment, asking yet again not to be linked to in this way. Comments are moderated. I wonder whether it will (a) appear, or (b) have any effect.

Dear PJM media person (in-house counsel, president, etc.)

It has come to my attention that posts I have written on my own website are appearing on your wesite, with little or no acknowledgement that I am not a part of PJM media. While I appreciate the links to my site, I do not appreciate material I have written appearing on YOUR site without any indication that the appearance of my material on your site is not due to any efforts by me.

The lack of any introductory information, or any indication that I am not affiliated with you does not sit well with me. I am not paid by PJM media, and I do not endorse PJM media. I do not agree, nor do I with to align myself with, many points of view and many personalities and people that make up your site.

Please stop your current practices with regard to my material. If you want to link to me within a post that is clearly written by one of your own writers, that of course is fine. What is not fine is creating the impression that I am writing directly for you, or have agreed to be a writer for your website. I have not, and, to be frank, being thought of as being part of your site is something I do not want. I have nothing against PJM, but I am not part of PJM, nor do I want to be.

You could send something like the above to PJM's registered agent in the state of their place of business, or if you can't determine the agent, to the Secretary of State. If they are big-shots (or think of themselves as big-shots) they are probably in California or Deleware.

Even better, have a lawyer do it (one admitted in the state where PJM is located). I am sure you will find one able and willing. Of course, the lawyer will include the possibility of litigation regarding this issue if the practice is not stopped.

Best of luck. This is not legal advice, just a proposal and an idea of how to get someone's attention.

Gary,

Then why are you offering excuses for him?

I think he ain't. Gary is a more careful reader (and writer) than most, and therefore he may not experience the confusion that those of us who skip past the side-list experience. Which would be most of humanity.

I know, I've designed user interfaces and done useability testing. There are a small number of literal readers who actually read everything, and then there are the rest of us (me especially) who just go for the juicy bits and miss stuff along the edges.

Does this "Pajamas Media" have a Web site?

Looking in more detail at pajamasmedia.com, it is incredibly deceptive.

Links to PJM contributors such as David Corn open in their own window. Links to Josh Marshall and TalkLeft do not...they just go to the page. Some entries have "PJM in Sydney (or wherever)", while those from Marshall and TalkLeft do not. However, some PJM articles do not have the "PJM in X city" at the beginning either. Probably a mistake, but still.

Some links are direct, while others have "Read the Whole Thing" links in addition to the original direct links. The "Read the Whole Thing" links only appear in non PJM writer links.

It is designed to have distinctions without a difference. It is designed to mislead with plausible deniability. Mr. Farber is quick, studied, and understands these things. It took me a while ot figure out the differences, and I was looking hard. I am not stupid. I am not a genius, but I am not stupid.

So, in short, this whole thing is designed to fool folks, while preserving the idea that they should have known better, or that the differences in link styles or browser reaction mean something.

They don't. It is like every answer to hard questions that the Bush administration gives...technically true, but engineered to be completely misleading. Except when they goof and tell outright lies, which they explain away in different ways.

PJM is playing with fire, they are co-opting the work of others without providing intros or context. They are using and abusing bloggers non affiliated with PJM to enhance PJM's image, goodwill and "balance." In short, this is not blogging Standard Operating Procedure. This is deceptive. It is bad for non-PJM bloggers who are being co-opted, and it is bad for PJM readers who think that the bloggers' content is being used with permission, or even for pay.

Even when Atrios or others provide "blind links" without intros, the heading or context lets people know that it is an external blogger that has been linked, not someone affiliated with Atrios.

PJM is a consortium of writers that is trying to pretend that writers not associated with them are associated with them. They are claiming for their own content and people that are not their own, and many of whom actively reject or dislike PJM.

It is a shady, shady operation that should stop.

As I mentioned above, abjectfunk - while they are clearly coopting the work of others (sounds like unjust enrichment to me!), many bloggers may in fact appreciate the extra traffic and not really care about anything else. The only bad publicity is no publicity after all.

Without getting into the morality of it all, I could easily see someone adopting this as a business model, with the intention that if anyone complains, fine, we won't link to them any more. As a practical matter, as long as they live up to that, there's not much else that can be done about it.

I'm wondering if this spate of excerpting lefty blogs is new, or if it has been going on for quite some time, suggesting something about the readership numbers of PJM.

Don't ask a lawyer to volunteer to write a letter for you. It can't really work that way. The lawyer has to either represent you or not, and once the lawyer accepts representation, s/he takes on a host of ethical responsibilities.

On the other hand, you can probably do a little googling and find a non-profit legal group with interests in media/web ethics who will represent you for free. This is potentially a semi-high-profile matter and I think there are lawyers who would like to be involved. That is just a guess and I may be wrong but I do think it's worth your looking into.

In the meanwhile, I think it is fine for you to write a letter yourself directing them to desist from using your name and work. Make and keep a photocopy of the signed letter and send it certified mail and keep the stub when it is returned. Send your letter to:

Pajamas Media, Inc.
c/o Nina Yablok
1313 N. Milpitas Blvd., Ste. 185
Milpitas, CA 95035

Nina Yablok is a registered agent for PJM in the state of CA.

I don't get it. They provide a link to your site, and quote a paragraph or so of your text. FD: I am a PJM blogger. Wish they linked me more often!

I agree with Gary here - it's no different from an aggregator, with possibly the novelty beign that their own articles are mixed in. (Read the whole thing - SOP. Name of person linking to site - SOP. Small description - SOP).

Yes, they have been - erm - creative, in placing everything inline.

But nothing that doesn't go on every day in the blogosphere.

Interesting.

When Pajamas Media (full disclosure, I am a member) was launched, I heard quite a few people on the center left complained that all of the coverage was too in-network and/or center-right in nature.

The editorial board (of which I am not a part) apparently listened to complaints, took some into consideration, and linked to other blogs. This has been going on for months, at least since January, if not back into 2005. To the best of my knowledge, up until this point, nobody has complained.

Why would they?

Pajamas Media was providing a free, non-critical source of traffic to bloggers left, right and center, without asking for anything in return. It was and is performing an aggregation service as it has since the beginning, passing along worthy articles based upon the quality of or interest in their content. Some people actually like being linked. Strange, but true.

And then came hilzoy, who seems quite upset and confused. That is clearly not our intention, so let's try to make it right.

Hilzoy, on your behalf, I’ll be happy to pass along to our editors and to Roger Simon that Obsidian Wings requests not to be linked again. I’d suggest that if you don’t want this happening again somewhere else, you should compile a list of acceptable blogs that you would like to get links from, and send out a pronouncement that they have your permission to link to your content. As for the list of the other 50 million or so other blogs that aren’t on this approved list, it might take a little longer to contact them.

I’ll try to find out who the site design team is, and let them know that you find that labeling a link by author and blog name is too confusing. The fact that they are following a standard blogosphere linking convention shouldn’t be any sort of excuse, and I’ll be sure to let them know it.

As for removing or altering the existing link on Pajamas Media, it is typically seen as bad netiquette to do such things, but again that is not my call. Typically, the professional think to do is simply let it go. As for legal advice in the comments, I’d advise listening to Gary Farber. He sounds like he knows what he is talking about.

I hope this helps.

Trickster, your comment is spot on in terms of lawyer's ethical duties, etc. I was sloppy, instead of "volunteer" I meant a lawyer who would do the work pro bono, or for a very reduced fee. All ethical and legal obligations would then be in place. You are right that there are a number of legal services or individuals (or law school clinics) that might find this interesting.

Bob Owens, I think your post is quite valid aside from one point. I don't think bloggers get to choose who links to them. I do think that bloggers should request (and require, if possible) thet the links be transparent, that is, that it is clear that it is a LINK and not published content on a site such as PJM at the bloggers request. PJM is an odd situation, and I appreciate the difficulties in providing varied content while also respecting the content's producers. That said, if you employ some bloggers, and publish the content of others (wihtout compensation, or, in this case, without permission or adequate indication that is, in fact, what is happening), well, that isn't cool. It isn't cool because it is so easy to avoid, and because, as I said earlier, it smacks of attempting to coopt the content of others as your own.

Links are different than publishing stuff (even just intros) without any indication that it is the product of someone completely UNAFFILIATED with your for-profit company that HIRES bloggers for money. Unattributed links that conform to paid for posts in all manner (font, style, etc.) are not links, but rather are sleazy attempts to treat other people's stuff as your own. It is also crucial to remember, fairly or not, that many people do not want to be associated with PJM.

Look at the title/heading of the original post for confirmation of this fact.

So....links are cool, so long as they are obvious, attributed, and don't show up as content without the original blogger's permission.

Links within the context of a post don't need permission, in my opinion. That is fair use. However, that is far different than what is currently going on at PJM, and I think you understand this difference.

"I'm wondering if this spate of excerpting lefty blogs is new, or if it has been going on for quite some time, suggesting something about the readership numbers of PJM."

I've looked at them maybe six times before this, over a fairly equivalently equal distant period of time each time, and I've always seen links to lefty blogs.

They've linked to me twice, as I recall, and I got some hits off it. It never crossed my mind to complain. I'm a lot more inclined to want to (though I shouldn't), complain when people don't link to me. (Cough, cough.)

I was, in fact, invited to join them. I declined, emphatically, telling Roger Simon that I wouldn't be affiliated with anything in which Charles Johnson had a major hand, nor affiliate myself with him in any way.

Neither have I ever linked to them. Nor, in fact, ever mentioned them on my blog, in any fashion, so far as I recall.

But if they want to send hits my way, rather than vice versa, hey, fine. That's them endorsing me, not vice versa.

Please, abuse me some more this way.

Also, abject funk, for someone to write this that you suggest: "It has come to my attention that posts I have written on my own website are appearing on your wesite"

Well, that would be a lie. They don't do that. As I pointed out. You are making a false statement.

And writing to bloggers that you object to being excerpted/quoted and linked to, well, that would be different, wouldn't it? Certainly a stance one is entitled to take, but one could get awfully busy with that.

And I have to ask if we want to encourage people to start busily writing to their ideological opponents objecting to being linked to. It's not as if anyone here, including my beloved (no sarcasm) Hilzoy, has ever been shy about linking to and quoting people, including those she disagrees with.

But in the PJ case, they're not quoting and mocking, or quoting and disagreeing. They're just saying "here's an interesting post; go read the whole thing if this small excerpt interests you."

Abjectfunk: "So, in short, this whole thing is designed to fool folks,"

That's quite a bit of mind-reading.

I can also see the point of Baldilocks, a blogger I'm otherwise almost entirely unfamiliar with, other than having seen some references, and having read, I think, one post in the past from -- I think it's a her?

If their page links only to righty blogs, they'll be called ideologues and one-sided, and so forth. But now they're being accused of thought-crime for linking to left-wing blogs.

And now I stop again, not wanting to repeat myself.

Oh, but for the record, I quote and link all the time. Even people I disagree with, from time to time.

Once in a while, someone comes by and doesn't understand blockquoting, and gets all worked up as to what "I" wrote.

That they confuse easily is not my problem.

Sorry, one more thing. Steve, I think you are right, and I anticipate that once PJM gets an earful about this, they will change things. Even including "from other bloggers" or, "what others are wriitng" or something to that effect at the top of each post would probably do the trick. That is a far easier solution that the current situation where the post on PJM is not clear whether it is the original post, a link to a different post, or a member of PJM who is publishing the post both on his or her own blog AND at PJM (such as David Corn or other PJM members). Also, I think in the balance of things, it should be up to PJM to get permission or provide adequate context, not for individual bloggers to "opt out." I don't think you stated an opinion on this, I just wanted to toss it out there. Like so many things, the burden should be placed on the person or entity that WANTS something, not those who seek to AVOID something.

Peace, I have to go to bed. I have learned a lot on this thread and will check in tomorrow. I feel fuzzy.

OK, Gary posted while I was posting.

Gary, I don't think that we disagree about much here, other than you think that what PJM is doing is transparent and I don't.

You think a link is a link is a link, while I think that something that has no intro, no context, and appears just like any other PJM post is not in fact a link but rather an attempt to coopt or take credit for the work of someone not affiliated with PJM.

For your own work, you think this is fine, and that is cool. Others, such as hilzoy, do not. Hilzoy does not want people to think that the post originated at PJM, or somehow endorses, supports, or is in any way connected to PJM. I think people might think this, and reasonably so. You do not, and I don't dispute that your abilities to discern such nuances are quite good.

This is not the case for everyone, and I am merely saying that I think this is a conscious ploy on the part of PJB to muddy the waters and avoid transparency. It is akin to predatory lending. Suckers get fooled. But do we punish the suckers, or the ones who hid the 20% balloon payment in the fine print of the second mortgage? Obviously the stakes are different here, just saying that I don't like it when people try to mislead others, and I think that is what is going on here.

I think you disagree, and that is fine. That said, the fact that this little situation works to your benefit at times seems to be cool with you. As it should be. I'm just saying that others are less sanguine about being associated with PJM. You seem to occupy the odd position of having rejected their entreaties, yet benefiting from their links. That is enviable. And that is not snark, that just seems to be the situation.

So...I think things should be more clear at PJM, and while the "misleading" aspect I see might be harmless, I don't think it is a small thing, and I don't think it is SOP on the web, or within blogs. It isn't hard to say "here is something from someone else that might be interesting." I don't think PJM is doing a good job of making that clear right now.

I was, in fact, invited to join them. I declined, emphatically, telling Roger Simon that I wouldn't be affiliated with anything in which Charles Johnson had a major hand, nor affiliate myself with him in any way.

Neither have I ever linked to them. Nor, in fact, ever mentioned them on my blog, in any fashion, so far as I recall.

But if they want to send hits my way, rather than vice versa, hey, fine. That's them endorsing me, not vice versa.

Really? It seems to me (and this is just my opinion) that by using the posts in the manner they have, they are using hilzoy as a 'beard'. I mean, PJM is LGF, Malkin, LaShawn Barber to name three. If they were able to leverage the dulcet blog stylings of Hilzoy and others in order to make those opinions seem more centrist, I'm not sure that I would accept the endorsement. Of course, YMMV, but if you want to be Colmes to PJM's Hannity, that's your call, but I don't think it's such a good idea, especially when they can pick and choose what people from the other side of the aisle write, thus skewing the debate.

Bob Owens: As for removing or altering the existing link on Pajamas Media, it is typically seen as bad netiquette to do such things, but again that is not my call.

If you have offended someone, it is never seen as bad netiquette to admit your offense and apologize for it.

"I don't think PJM is doing a good job of making that clear right now."

Let's look back at some things I've said: "I have some moderate lay knowledge on this particular area (copyright law), and I'd think it was kinda borderline; basically, quoting is fine, but making it appear that stuff is original to a site that is not, is not fine.

Their (PJ's) appearance in presenting such posts seems to me ambiguous enough that they'd be wise to make the distinction about the source of such material clearer...."

"They'd probably be wisest, and politest, to have a fine-print disclaimer line on the bottom of those posts, though."

"As I said, I think a line of fine-print clarification at the bottom of such pages would be a better practice on their part...."

"As I said, I think a line of disclaimer would be a good thing...."

"I mean, you are absolutely entitled to feel that there's a risk of your being confused with someone affiliated with the site, and you dislike that, and would like it to be as clear as possible that this is so. I think it's great for you to write them and ask not to be linked to, if that is your desire, which it clearly seems to be."

"But this is because you see the format as leading to a confusion that I'm not seeing as significant, I think. But I do think you're entitled to see it as significant, even though I do not."

Was any of this unclear? Or was I simply insufficiently repetitive?

Contrawise, you keep repeating that they're posting other people's posts, and this is untrue. A brief excerpt of a post is not posting a post. Quoting a small portion of a post, and saying "read the rest here" is not posting someone else's post. A part is not a whole.

I've pointed this out repetitively.

As I already pointed out. No one could possibly mistake the latter for the former. The post isn't there. And in the former posts, the native ones, there's no link off-site. So no confusion is possible. You can't read the foreign posts there. It. Is. Not. Possible. They're. Not. There.

I can't see how this couldn't be obvious. Absent magic eyeballs that can follow HTML without realizing it, or something.

In other words, no offense, but this is false: "PJM seems to be taking selected posts from various blogs and mixing them in with posts from their stable of bloggers."

I mean, no, that's not what they're doing. Obviously. They're taking brief excerpts, and linking.

Yet you keep repeating your false claim.

"That said, if you employ some bloggers, and publish the content of others (wihtout compensation, or, in this case, without permission or adequate indication that is, in fact, what is happening), well, that isn't cool."

Publishing an excerpt and a link is not publishing someone else's content. It is, instead, what bloggers do.

"You think a link is a link is a link, while I think that something that has no intro, no context, and appears just like any other PJM post is not in fact a link but rather an attempt to coopt or take credit for the work of someone not affiliated with PJM."

No, I think that an excerpt of a post that is clearly an excerpt and that clearly says "from Blog X; go read the rest at Blog X [link]" can't be taking credit, and isn't posting the post.

As I've said a jillion times now, if they were reposting whole posts, that would be entirely different, and you would be right, and I'd be entirely agreeing with you and objecting to said practice.

But they're not doing that. You're factually wrong.

And I'm a tad irritated that you keep repeating your falsehood and thus causing my sense of right-and-wrong to object and thus "defend them: in a way that I really don't otherwise care to do, or care to give the appearance of somehow being someone inclined to defend them, rather than what is the case, which is that I hate to see false statements made and left to stand.

Lastly, "the fact that this little situation works to your benefit at times."

Getting one or two links in however long they've been around (I have a crap time sense: a year now?), well, if you think a few dozen hits every year is some sort of "benefit" that sways my head: whatever.

LJ: "If they were able to leverage the dulcet blog stylings of Hilzoy and others in order to make those opinions seem more centrist, I'm not sure that I would accept the endorsement."

I think the idea that simply linking to someone, or being linked by them, without comment, is endorsing them, is completely nuts.

Neither do I have a clue how Hilzoy's opinions would somehow make someone else's opinions more centrist. Is this like having liberal cooties to spread, or what?

"...but if you want to be Colmes to PJM's Hannity, that's your call,"

This is fairly offensive, you know. Not to mention a nonsensical analogy. If I were doing "Crossed Swords" with Charles Johnson, fair enough, but absent that: [SENTIMENT DELETED].

But go tell it to Josh Marshall, please. Or better, David Corn.

Jes: "If you have offended someone, it is never seen as bad netiquette to admit your offense and apologize for it."

Now that's comedy.

I think the idea that simply linking to someone, or being linked by them, without comment, is endorsing them, is completely nuts.

Sure, and if you show me where I said that, I would be happy to retract it. However, the fact that someone can use words that hilzoy has written when hilzoy doesn't want them used in that way doesn't seem, at least to me, to have anything to do with your point. It's not that it would appear that Hilzoy would appear that she is endorsing them, it is that they are using the content that Hilzoy has created in order to give the illusion that the PJM group is more centrist than it really is. I assume that is why you vehemently rejected their overtures, though if I am mistaken and there was another reason you rejected the opportunity to be one with PJM, I hope you could explain why.

I apologize if you felt that the Colmes/Hannity point was too pointed. However, I believe that by allowing one's words to be used by people such as Charles Johnson and Roger Simon to plump up people like Malkin, that is what you are doing. Given your deleted sentiment, you clearly see that there is a problem with something that sort of participation, regardless how much one argues that their intentions are pure, so it seems to me that you can understand why some might choose to support Hilzoy's position over yours.

Ahh, I see where Gary thinks I was arguing that PJM was 'endorsing' Hilzoy. However, the comment with 'dulcet blog stylings' was an attempt at a bit of levity rather than make an argument for the appearance of a Hilzoy endorsement of PJM. Apologies for the confusion.

I also wanted to address Gary's question about making PJM look more centrist, but I had to think about it because I'm not sure why the question of how Hilzoy's writings could make PJM look more centrist is so difficult to see, as it seems clear to me (and several others here). However, let me try to set it out. Given that we are about the same age, we may have the same basic memories of Playboy, and Hefner's notion of producing a girlie magazine leavened with serious articles, interviews and fiction was a way to make the erotic content acceptable to a wider audience. While I prefer pictures of nude women to paeans to the Second Amendment, that doesn't make the general process any different.

You seem to suggest that the process of linking makes it different because what they are doing is fair use. I can see your point, but the 'look and feel' of the page seems to mitigate against this. While it is not absolutely black and white, as it becomes easier to quote people, it is also easier to contact them to get their approval. There has to be some balance, and Hilzoy should be the final arbiter of how her words are used.

If someone uses some linguistic research and argumentation of mine, there's not really a problem, because academia presumes that both my goals and the goals of the researcher citing me are the same, to help increase the store of human knowledge. However, when someone cites my work and it is not altogether clear that he or she shares my goals, then it should be within my rights to say no, you can't use what I have written. That seems to be a simple question of intellectual property. I still own the words I write, even after they have been disseminated, so I think I would be within my rights to say no, you can't use it, regardless of whether everyone else is doing it or not. If I don't agree with the goals of those using my writing (and from your refusal of the PJM offer, you seem to have a similar opinion), arguing that there is some net good for PJM to use your words is beside the point. I am not required to accept an extravagant offer for something I own, and in this case, the fact that PJM is increasing the number of views of Hilzoy's piece in particular or ObWi in general doesn't give PJM the right to use Hilzoy's piece. Hilzoy is not obliged to come up with a list of blogs that she will allow to quote her as Bob Owens suggests. Given the way things have evolved on the blogosphere, PJM isn't guilty of some hanging offense this time, but if Hilzoy makes it clear (as she has) that she does not want them to use it, they will just have to live with it.

They've now fixed it so that the author is "PJM in Barcelona" and the post begins, "From Hilzoy at Obsidian Wings:"

They've done the same thing with several of my posts, even though I turned down their membership offer. I've never found it problematic, though.

Good grief. Did anyone else catch the snide and insulting undercurrent in everything Bob said to hilzoy?

Hilzoy, on your behalf, I’ll be happy to pass along to our editors and to Roger Simon that Obsidian Wings requests not to be linked again.

That wasn't her problem with what PJM did, and the fact that Bob can say this suggests that either he did not actually read her complaint in this post or are attempting to obfuscate the issue. Hilzoy and ObWi gets links from all sorts of unsavory people and places with whom she (I presume) would prefer not to be associated, like Redstate or Jeff Goldstein.

The issue is the way PJM is designed, where the UI distinctions between PJM contributors and external links is ambiguous at best. Some think it is a deliberate attempt to have PJM benefit from the reputations and content of others by misleading its readers into thinking these writers are affiliated with PJM. Others think it is merely sloppy design. Whatever the cause, the result is clear: a nontrivial amount of people find it confusing, and Hilzoy objects not to the links but to the manner in which they are presented, which misleads others into thinking she is affiliated with an organization she finds objectionable.

I’d suggest that if you don’t want this happening again somewhere else, you should compile a list of acceptable blogs that you would like to get links from, and send out a pronouncement that they have your permission to link to your content. As for the list of the other 50 million or so other blogs that aren’t on this approved list, it might take a little longer to contact them.

Notice the snide tone. Notice the continue misrepresentation of Hil's complaint, and the suggestion that she do something patently absurd that any blogger would make a laughingstock of themselves doing. This isn't a serious suggestion in good faith, this is just taking another shot at Hilzoy.

I’ll try to find out who the site design team is, and let them know that you find that labeling a link by author and blog name is too confusing.

Again, the snide tone, and again the misrepresentation of her complaint. Upon reflection, it is this line that makes it really clear that Bob did in fact read Hilzoy's post carefully--he gets that it is the misleading design she objects to, and not the link--and that he is eschewing addressing it in good faith in favor of obfuscating with snark.

The fact that they are following a standard blogosphere linking convention shouldn’t be any sort of excuse, and I’ll be sure to let them know it.

Could anyone read this link and think this clown is here to extend an olive branch, instead of pissing on the carpet?

As for removing or altering the existing link on Pajamas Media, it is typically seen as bad netiquette to do such things, but again that is not my call.

Bollocks. Bloggers alter their content all the time when they find out they're mistaken. The bad netiquette is not in changing the content, it is in doing so without making it clear in the page that this has been done. We usually call this "updating".

But then, you read the post, so you know that Hilzoy didn't actually ask you to remove the link. She asked you to change the presentation so that it is not misleading. Not only does this not violate any kind of netiquette, blogger or otherwise, but it's actually the right thing to do in this case.

Typically, the professional think to do is simply let it go.

A person coming onto another's blog and unloading a comment full of dishonest snark is hardly in a position to lecture a professor on what the "professional think[sic]" to do is.

As for legal advice in the comments, I’d advise listening to Gary Farber. He sounds like he knows what he is talking about.

Which is curious, because Gary is not a lawyer, and the primary talent that he brings to this discussion is an exceptionally keen eye for the English language and a penchant for missing the forest for the trees when arguing pedantic points on a subject. We all know and (mostly) love him for it over here, but you have apparently mistaken his for an expert opinion on what the average person might think when going to PJM.

I hope this helps.

Well, it certainly helps clarify the lack of need to take what you've written here seriously. Now if you'd like to drop the lying and the snark in favor of engaging what Hilzoy's actual complaint was, we can re-engage.

Well, they've changed my link, and I've written to thank them. I also emailed the other bloggers I could see to let them know that this was going on; if they mind, they'll presumably say so. And Baldilocks writes: "Obviously, this issue needs to be addressed among the PJM policy-makers." As far as I'm concerned, then, it's over.

The main point of this post was a combination of exasperation and the thought: maybe this will work. Apparently it did, at least if you define 'work' as 'bring the issue to their attention'. Good.

Plus, it's fun to see The Editors posting as Glenn Reynolds.

Did anyone else catch the snide and insulting undercurrent in everything Bob said to hilzoy?

That was an undercurrent?

Good work hilzoy. I hope the NSA doesn't find you too unbalanced when they get through reading the blog.

NOW this is the Law of the Blogger - as old and as true as the sky;
And the blogger that keeps it may prosper , but the blogger that breaks it must die.

Like the visits that pump up your hit count , Blogger Law runneth forward and back --
For the strength of all blogs is the Blogger that never cuts anyone slack.

Blog daily from news tip and hat-tip; blog long , but blog not too deep, ;
And remember the Pundit's for linking, and forget not that he has to sleep.

The new blog may free flame the Bozos, but, Cub, when thy archives have grown,
Remember the Big Blogs are hunters -- go forth and make Scoops of Thine Own.

Keep peace with the Lords of the Blogsphere -- the Pundit , the Malkin, The Bear;
And trouble not Lileks the Bleater , but always mock Kos in his lair.

When Pack meets with Pack in the Blogsphere , and neither will put down the flame,
Lie down till the Spewers have Blathered -- it always will save you from shame.

When ye flame on a Prince of the Pack , ye must fight him alone and afar,
Lest others take part in the Blog-Pile , and all Blogs be diminished by War .

The URL of the Blogger's his refuge, and where he has made him his home,
Not even the Pundit may post, not even the Hewitt may come.

The URL of the Blogger's his Castle , but when he has blown it too plain,
The Lileks shall send him a Fisking , and so he shall blow it again.

If ye post after midnight , be patient , and wait for the next working day.
Your readers are reading from cube farms and commenting only for play.

Ye may post for yourself , or your country, blog your cats if you must, and ye can;
But post not for the pleasure of Flaming lest you be but a flash in your pan!

If ye plunder a post from a weaker, remember to link for his pride;
Link-Right is the right of the smaller; if you're wrong it'll be him that lied.

Now these are the Laws of the Blogger, and as true and as blue as the sky;
You can link , you can wink , you can blather , but in the end you can't lie.

Gary, if you don't object to having excerpts of your posts listed among the PJM excerpts, why did you turn down their offer? It appears the only difference is that you'd be included in the blog roll at the side. The excerpts from your posts are formatted exactly the same way whether you're part of PJM or not (again, compare the presentation of the excerpts from Protein Wisdom and Doctor Horsefeathers, which are part of PJM, with those from Talking Points Memo and TPMCafe, which are not), and thus lots of people will assume you're affiliated with PJM. PJM is getting nearly the same benefit they'd get if you'd taken the deal, and they're not giving you a dime.

I can't understand how you see no difference between this situation and posting an excerpt and link as part of a blog post. What other blogs have you seen using this as SOP?

Gary, given your characteristic zeal for clarity in the use of language, I must say I'm bowled over to see you defending what PJM did to Hilzoy as "quoting and linking". Quotes are typically indicated by quotation marks, blockquote formatting, italics, or, well, anything to differentiate the quoted material from original text.

And then there's this from you:

Publishing an excerpt and a link is not publishing someone else's content. It is, instead, what bloggers do.

Publishing an excerpt is by its very definition "publishing someone else's content". And there is a right way and a wrong way to do it. Formatting an attribution to look like a by-line falls in the latter category. You might want to ease off on the "you are factually wrong" stuff here.

HEADLINE NEWS

Blogger links to other blogger.

Have they changed their policy recently? Because this post linking to Hilzoy reads more like an excerpt than anything else, which seems pretty reasonable - at least, far more reasonable and a lot less disingenuous than the kind of link they used here (which does seem to imply that Matt Yglesias is affiliated with Pajamas Media).

I don't think it is fair-use, which as I understand it depends on how it is used, and since this is a commercial site selling advertising, it ain't fair use.

Here are some comments I posted at TL.

I am not a blogger, but as I understand it, a lot of my favorite bloggers could use a buck or two, and in fact, sell advertising on their sites as best they can. Will write for money.

If I were a blogger that needed a buck or two, while I would love for another blogger to send traffic my way, I would be reasonably upset if a commercial, VC-funded competitor of mine were excerpting portions of my writings on a page of theirs that:

A) Sells advertisements
B) Includes prominent links to others that do not include me, esp., when those others compete for the same readership and also sell ads.

All of this would seem to dilute my brand value, and my added value to my advertisers.

The "payment" for this is one link that is somewhat hidden. It is not the link from the Headline/Title which goes back to PJM. It is not the next link to the blog itself which is not specific. It is not the third link which also goes back to PJM. It is in fact the last link.

And again, the "blogroll" links are present on every page.

As an excerpt but with no other context, I am not sure how this fits into the fair-use exclusion of copyright. Since they sell ads on the page, I am pretty sure it does not.

I would think that if I were the competitor working with VC funding and a hope of becoming a public company that while I would find the behavior borderline legal, I would also find it unethical. I would try to set up some sort of affiliate/republishing program that would ask for permission, and in return give some sort of monetary reward to the original author.

I would also redo the template to make it clear this was not a PJM author and make the links to the post more prominent and the links back to PJM less prominent. I would also include a quick ratings poll for the reader (did you find this interesting, and should we invite this author to PJM) as well as a prominent link for the author to click to talk back to the webmaster.

And finally, with every excerpt of such a non pjm author, I would make every attempt possible to contact that author and alert them. Like via email, or a trackback.

I would think if I were a non-PJM blogger or an ads distributor like blogads suing pjm for copyright violation and brand dilution I would ask PJM for their click through percentages. What percent of "read more" click throughs on any given day went to pjm vs. non-pjm authors; and for that day what were the percent of pjm vs. non-pjm articles.

I would also want to know similar details for the blogrolled.

Full disclosure: I am just an engineer, not a lawyer nor blogger nor marketing guy (marketeer?).

Fuller disclosure: I dislike Roger El. Simon and an proud of being banned at his site under the handle, "Moses Whine" after just a handful of comments.

Christmas, they've changed the formatting in the post you've linked to. Its currect form is fine - you can tell that hilzoy is being quoted. Originally it looked like hilzoy was writing on that site (and a casual reader would have gotten the idea that the picture of the guy on the side was a picture of hilzoy, if they didn't already know who she was.)

Gary, given your characteristic zeal for clarity in the use of language, I must say I'm bowled over to see you defending what PJM did to Hilzoy as "quoting and linking". Quotes are typically indicated by quotation marks, blockquote formatting, italics, or, well, anything to differentiate the quoted material from original text.

And then there's this from you:

Publishing an excerpt and a link is not publishing someone else's content. It is, instead, what bloggers do.

Publishing an excerpt is by its very definition "publishing someone else's content". And there is a right way and a wrong way to do it. Formatting an attribution to look like a by-line falls in the latter category. You might want to ease off on the "you are factually wrong" stuff here.

Ack! Sorry about the double post. I think something strange happened with the time stamp on the first one, so it didn't show up at the bottom of the thread.

"The Doctrine of Fair Use" does not care whether or not the use in question is for commercial or non-commercial purposes. Both Wikipedia (search "Fair Use") and Nolo.com (Nolo Law) (search "When Copying is Okay") have excellent summations of this area of copyright law.

The law, and here the Fair Use Doctrine, is what controls these matters, not what any one individual thinks the matter should be.

The Nolo article is particularly germane to this issue.

And while everyone should have a working knowledge of Fair Use if they are working in this medium, even getting one will not stop the flame wars and arguments on this subject. They always arise when ever the issue comes up and actual knowledge of the law and the current case law weighs little.

There are always those who say, as many in this culture are prone to say, Sue! This desire usually lasts until some contacted lawyer informs the aggreived that their standing before the law is slim to none but will be happy to take the case as soon as the aggreived party ponies up the $10,000 retainer. At this point, the aggrevied usually just goes back on the boards and flames some more about "how things should be" in his or her Happy World. Typically, they also send out prayers for some "Pro Bono" firm to take on the case, but alas, the ACLU is working on Fema Wiretaps and is a bit busy at present.

So, have at it. Everybody who hasn't seen this particular flame war for a decade or more seems to enjoy it.

"Fair Use" is one of the religious discussions on the net, similar to Mac vs. PC, and will never be over because there are always some who think that what they think trumps the law and are not shy about saying it. This is why we don't make them Masters of the Universe.

Just a note: Gerard Van der Leun is an infamous Intarweb crank. Starting off as EFF employee, later a Penthouse editor (which is a very nice career shift), he remains a crank.

And apparently wrong:

US Copyright Office: § 107. Limitations on exclusive rights: Fair use

§ 107. Limitations on exclusive rights: Fair use38

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Now it's really not fair for me, anonymous, to straight out say that Van der Leun is absolutely wrong, I mean, the idiots in Congress and Courts have warped and perverted this law many many times in the 30 years since 1976.

But hey, considering his other objectively pro-fascist positions these days, it's fun.

Hey van der lung, it's called a "balancing test".

"...and since this is a commercial site selling advertising, it ain't fair use."

Selling advertising has absolutely nothing whatever to do with fair use.

See here and here.

It's helpful to link when making a cite. When Copying Is Okay: The "Fair Use" Rule.

"Selling advertising has absolutely nothing whatever to do with fair use."

That was a bit over-strong. "Little directly to do with" is better.

I haven't looked at the PJM site in months but I just checked it out and I agree with Hilzoy. It's not at all clear that the bloggers are not PJM affiliates when the post is credited with a byline instead of being linked to under a post bylined by a PJM poster. I don't doublecheck the blogroll to see a poster's affiliation in a group blog. Who has time for that?

Given the format, it gives the impression that one is a posting member of the cabal when linked in the manner Hilzoy was objecting to.

However, I will give them props for linking to lefties. In a quick perusal, it would seem close to half of the links were to leftie blogs. I think that speaks volumes about how "tipping point" the right wingers have become. You know in 04 when everything was going their way, they would never have done that. Wasn't the original premise of the whole PJM thing that they were going to drown us out along with the rest of the "liberal media?"

"Wasn't the original premise of the whole PJM thing that they were going to drown us out along with the rest of the 'liberal media?'"

I don't recall ever seeing anything remotely like that, although I also paid little attention, so I certainly could have missed it.

What I recall was lots of rhetoric about challenging the "MSM" with the wonders of blogdom, and the only statements about ideology I recall were ones about how it was going to be as bi-partisan as possible.

I'm quite sure that the lefty bloggers who signed up wouldn't have done so otherwise.

IOW, this seems to be pure projection. Though if you have an official cite, I certainly have no problem with being wrong in my impression/understanding.

Don't take my introduction out of context. What I wrote was:

I don't think it is fair-use, which as I understand it depends on how it is used, and since this is a commercial site selling advertising, it ain't fair use.

So while "this is a commercial site selling advertising, it ain't fair use." is not true in all cases, in this case what I wrote was: "it depends on how it is used, and since this is a commercial site selling advertising, it ain't fair use" and here it is being used to compete with the original authors and it is being used on a commercial site, hence most likely not first use.

To quote from the 1976 Act:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(4) the effect of the use upon the potential market for or value of the copyrighted work.

A) Commercial, B) Dilutes brand thereby diminishing potential market, C) confuses users, D) prevents users from clicking on original authors thereby diminishing potential market.

Gary,
There were a number of comments about PJM's composition. Here's a clip from CSM

Although Pajamas Media has been accused of being overloaded with conservative pundits, such as blogging star Glenn Reynolds of instapundit.com, Simon says it aims to include the whole political spectrum. One contributing blogger is David Corn, Washington editor of The Nation, a liberal magazine.

and this from Wired News
Louder criticism surrounds which editors Pajamas Media is choosing, as some think the venture will be partial to blogs that reflect Pajamas' political viewpoint. Richard Silverstein has analyzed some of the bigger names in Pajamas Media to show their conservative tilt in the Israeli-Palestinian conflict, saying that their viewpoints are farther to the right than Ariel Sharon's.

In fact, David Corn even made note of the fact that he was the lonely lib at the party, kind of like the Pinto and Flounder at the Omega frat party in Animal House.

Simon is a prowar social liberal. The other cofounder is Charles Johnson, a conservative blogger. Given this provenance, some folks have been suspicious of this project, seeing it as another rightwing media entity and have questioned my participation as one of its senior contributors/bloggers (and a member of its editorial board). So far, the OSM blogroll is tilted toward the right. But Simon and Johnson claim they are committed to balance and to a free-ranging debate involving all sides (as well as hot-blooded blogging about fashion, entertainment and other lifestyles issue). My attitude is, give it a shot. It will be pretty obvious if OSM has a secret agenda. (The practice "blogjams" hosted by OSM--debates among bloggers and others--have been balanced.) But at this event, in the Rainbow Room in NYC, the bloggers milling about are, as far as I can tell, all of the right in some way. (The lefties who have been signed by OSM stayed home.) Several attendees have approached me and asked--with a chuckle--"feel outnumbered?" This is a sign that the site is perceived by many within its own circle (at least initially) as a from-the-right project. By the way, last night's informal gathering at the bar of the W Hotel had the feel of a Star Wars convention. Geekiness ran high.

Now, questions of conservative/liberal bias are hard to definitively answer. Needless to say, having Judy Miller give your keynote address at your launch does not make it seem like there was anyone going out of their way to make this look as bipartisan as possible, and the apparent refusal of so many bloggers on the left to PJM entreaties. This is why I was asking anyone who followed PJM closely if the process of posting non-PJM left leaning blogs has been ongoing, or if it has increased recently. Given that La Shawn Barber has now called for the impeachment of Bush, and that Hilzoy (along with people like Steve Gilliard and Jerelyn as well as TPM, whose bloggers apparently made an agreement to keep their political blogging content solely on TPM, or mirrored) has just noticed that she was being incorporated makes me suggest that this is a bit like a weather vane, though this is merely speculation on my part.

I have nothing to add except that I'm deeply amused and, yes, gratified at J Pierpont Flathead's handle. Even if I did have trouble finding your damn tie.

I do so admire, as do we all, statements by brave souls named "anon." It is such a large family here on the Web. They seem to post everywhere and, although they have widely differing views, they all seem to be in one dull tone so we can assume similar genetic make-up.

I was also pleased with "anon"'s brief, if truncated resume of my experience. Yes, I was employee #3 for the EFF and you can make of that what you will. Your milage will always vary.

In addition, I did work for many years for Penthouse and, if you wish to get a continuing education in copyright and free speech issues conducted in real time for real money, it is one of the places to be.

I've also been a literary agent, a publisher of magazines, a radio producer for KPFA/Pacifica, and a book editor and publisher for Houghton Mifflin with about 200 fiction and non-fiction books on my list. These are all places where you will deal with real copyright and real free speech issues in real time for real money all the time.

In addition, I've been so foolish to have written a book which touches on these issues called "Rules of the Net: Online Operating Instructions for Human Beings," (Hyperion). Out of print now it was notable enough in its day to have been translated into about six languages. From time to time I've written articles on Human Behavior and the Net for Wired, Time, and yes Penthouse -- probably long before "anon" reached his current pubescent state. I've been dunking around online since the Stone Age of the late 80s and there is much in this discussion I value because it makes me feel so nostalgic.

As far as this subject goes, I could be right or I could be wrong, but as I indicated above there is no right or wrong on this issue of Fair Use because, when you get down to the real world of real law, it is in nobody's real interest for Fair Use to be rigidly defined. So outside of what a court says, at any given time, no single issue in this realm is ever right or wrong.

Think about it outside of your own box for a moment and in the larger realm of Free Speech and how it happens and moves forward and adjusts to the ever changing and ever expanding marketplace of global ideas and opinions. Do you really, really want there to be a rigid definition of what is "Fair Use" decreed for ever and always? That's what your dealing with here once you strip away whose ox is gored or who is or is not getting a check for 25 cents and two wheaties boxtops.

A few months ago, China and Google (Big Governement and Big Business) decided, between themselves, quite a lot about what would be Fair for the people of China to find and see from the Web of the World. Asking courts to replicate that sort of thing on a large or small scale doesn't seem to me to be in the interest of anyone who fancies himself a writer, a pundit, an artist, or a citizen. Lawsuits and more laws do not advance discussion or intellectual exploration or political persuasion. We don't have a litigation shortage in this country, we've got shortage of means to get whatever your message may be out to whomever wishes to receive it. Making Fair Use less fair and more restrictive because a reader or readers fail to understand where you're coming from doesn't answer the call to an ever widening inclusion of all viewpoints, no matter how much you may loathe them.


But even when a court does speak on one issue or another that has crawled up the rocks, I'll still be right that the Copyright FlamePit will Never/Ever burn out. We are but Moths to one of the Eternal Flames of the Net.

I've wondered about their leaders and disinterest in integrity. I recall they falsely claimed that the original "open source media" had given them the name. A number of lies and tricks since then.

Yet they clain that the exposures of the new media destoy publishers who play such games and many who write for them would denigrate a liberal or moderate for lesser infractions.

I find it kinda funny how that guy made a blanket statement that "'The Doctrine of Fair Use' does not care whether or not the use in question is for commercial or non-commercial purposes," and then, upon learning that he was simply incorrect, launched into a lengthy "what is reality, anyway?" soliloquy. Dude, come on. You were just wrong. It happens to all of us. You can add it to the second edition of your book.

"Dude, come on. You were just wrong. It happens to all of us. You can add it to the second edition of your book."

Let me say this about that. I'm going to be shorter than I otherwise would be, because I've been unable to get online all weekend, and thus have a lot of other stuff more worth spending time on than more about this.

But I don't know from Gerard Van der Leun, although I think I've seen his name before; I couldn't tell you more than that. (And what his political opinions are, I have no idea, and in this context, couldn't care less, since I can't see any possible relevancy.)

But what's interesting, but 100% utterly unsurprising, and in fact, utterly predictable, is not just that about everything he said is completely correct, but we have identical reasons for saying the same things.

Anyone who has a professional publishing background, and who has been online for years will have had the same experience.

In mine, I got online extremely late, many years after almost everyone I knew, due to my have had a crappy decade from the end of the Eighties on, and didn't get online until 1995.

And since many of my friends were in publishing, those who weren't computer people or scientists, or some crossover, being that the science fiction field was my primary background, my experience was to endlessly and constantly run into the Endless Black Hole of Copyright Debate that Mr. Van der Leun alludes to.

This is the experience of anyone online in that time period with some knowledge of publishing, which, as Mr. Van der Leun correctly states (the obvious), gives you considerable working knowledge of copyright law and practicalities and case law and history.

And the fact is that 98% of the general public is infamously (in the eyes of anyone in publishing) clueless about copyright law. They can't tell a trademark from a copyright, and have no idea how either works, or what they apply to, or what they do or don't restrict, or what fair use is, or pretty much anything other than the vague idea that there are "rights" and they restrict something. (Whether they think this is a terrible conspiracy against them or insufficient, or whathaveyou, depends on what they want out of it or don't want copyright or trademark to restrict them from doing.) (See also John Scalzi's little expose over the clueless fan fiction writer selling her stuff on Amazon "just for friends and family.")

(Naturally, this doesn't apply to Hilzoy, who is an extremely clueful person in general, and pretty well up on law as a lay person. I'm just talking about the background general experience here.)

So on Usenet during the 90s, flamewars over copyright were endless. We were all endlessly explaining to clueless newbies that no, just because you're not selling your Star Wars fiction, that doesn't mean you aren't violating copyright by certain uses, and if George Lucas is okay with it, fine, but if not, not, and so on through a million examples I don't want to spend time on now, since my hamburger is getting cold.

But I could bring in hundreds of professional writers and editors and publishing pros to vouch for all this. And that's just the people I know personally.

And this is why Brad (Templeton) whom I previously cited, finally got fed up and wrote his FAQ. (Several, actually; Brad has a lot of publishing experience, and with online publishing in particular.)

And in particular we got used to shouting at people that, no, just because you're not selling something, or making a profit from it, or doing it as a commercial venture, doesn't mean that you can violate the copyright on it. That's irrelevant.

Now, that doesn't mean that when you actually go to court for a copyright suit that commercial use is completely irrelevant -- I could go on at length about the fine detail here, but the nutshell is that it can affect damages; other than that, it has no effect on the basic concept of whether the violation has taken place or not, in the overwhelming majority of situations. That there are a handful of relatively rare exceptions doesn't obviate the truth that in 99% of situations when discussing copyright, it's irrelevant.

This may make some of us a bit over-quick to make faintly over-absolutist statements, but it's either that or write five-to-twenty thousand words on the fairly rare aspects of just when commercial considerations affect copyright suits.

In any event, Mr. Van der Leun is entirely correct in everything he said, including about the ill-defined nature of fair use, and you can go find your own publishing professional, and if they've been online for long, they've had the same endless experience with The Endlessly Stupid Copyright Debate, and you'll hear the same thing. Go forth and test this. Don't take my word for it.

Which, meanwhile, makes what you wrote, Steve, fairly ill-considered, and if I were Van der Leun, I'd be pretty annoyed at your unnecessary condescension (especially since he wrote nothing whatever about "what is reality?").

I could say more, but as I said: declining temperature on hamburger, and more urgent things to do.

But Gary, it's simply incorrect to say that whether the use is commercial or non-commercial is irrelevant to the question of whether "fair use" applies. It's a false statement. The law is very clear on this.

If I can try to parse your point, you seem to be saying that the nature of the use is not outcome-determinative; that is, a commercial use may be fair use, and a non-commercial use may fail to qualify as fair use. That much is true. But it's not irrelevant; indeed, it's the very first factor enumerated in the federal statute that defines fair use.

Give it up Steve, you dont't seem to be aware of who you're dealing with here - it's the sci-fi publishers and nudiemag editors who invented the internet. Don't mistake their assertive tone as a cover for their insecurities, not having any formal eductation in law and all.

But the problem is not with 'fair use' as such. Hilzoy does not state that her words cannot be used or cited - she just wants to make sure that the "fair use" is recognizable as a cite from elsewhere.

Gary, Gerard said

"The Doctrine of Fair Use" does not care whether or not the use in question is for commercial or non-commercial purposes.

In what sense of the word "correct" is that "entirely correct"? You made a similarly absolute statement above and immediately backed off it. Why shouldn't Steve expect Gerard to do the same.

Are you really the notoriously nit-picking (not that there's anything wrong with that) Gary Farber?

Oh, my stars and garters!

About three-quarters of this thread is as embarassing as a monkey-fight at the zoo.

I came over here from Balilock's place (and Juliette is a she, BTW {g}) and agree that Hilzoy seemed to have some reason to feel aggravated, and also showed a lot of class about the resolution.

The rest of you are just reinforcing the stereotype of paranoid, conspiracist, moonbat lunacy.

Lawyers? Deception? Lies? PJM (which I've read maybe, once) tries to like to various points of view, and is accused of copyright infringement, fraud, and all sorts of foolishness.

I'm surprised no one's blamed it on a "Karl Rove plot," yet! Yikes.

I would strongly suggest that y'all recall Boneparte's old aphorism "Never ascribe to malice that which is adequately explained by stupidity."

In other words, PJM goofed on how they presented posts they thought interesting. This from the company which failed to adequately R&D their company name before the big New York opening. You don't see a pattern yet? As in "hey, this sounds like a good idea, let's run with it before we think about it at all!?"

So what's wrong with emailing them, saying, "Hi, I'm XXX, I don't feel your cite method makes it obvious that the post you linked to did NOT originate from PJM. I would appreciate it if you would fix that as soon as possible."

Thanks!"

How hard is that? No, we have go there about lawyers, "cease and desist," all sorts of crap about how evil PJM is.

Feh. Y'all remind me of Michell Malkin and Company obsessing about Air America's latest ratings, so she/they can ridicule a project most normal human beings haven't even heard of.

"The rest of you [...] Y'all remind me [...]"

Gee, thanks.

"Oh, my stars and garters!"

Nice usage of what Hank McCoy always said, prior to the movie, though. :-) (Aka "the Beast" in X3.)

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