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Comment by tinco | Hacker News Reader

Catchy title, but:

" I used their images/video to make a point. I can see how the video could fall under Fair Use"

Frankly I don't see at all how that would fall under Fair Use, and The Times is absolutely right to C&D him.

Also, "A statement of fact about a company is not a copyright infringement."

No, but a statement of fact about a company that is not backed by public data is slander. NYT doesn't even claim that the reference is copyright infringement, the author just assumes that.

edit: ok, I actually thought he had put a demo website online in which he used the images, so it would look like the NYT's page (but with lorem ipsum for text or something) but he just made an educational video of it, I can see that could be fair use. So I retract my absolute statement. (as should be done with absolute statements in general! (absolutely)) I still think the 'hundreds of hours' remark isn't cool, but perhaps the law is on his side there too.

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The use of copyrighted material for criticism or comment (e.g. "to make a point") is, in fact, considered fair use:

http://www.law.cornell.edu/uscode/text/17/107

Additionally, the video was educational (it demonstrated how to create something), further bolstering the claim of fair use. The NYT is entirely out of line with the C&D, and it is particularly troubling that a newspaper -- which frequently engages in fair use, frequently reproducing material as part of their journalism and their criticism -- would send such a letter.

I disagree, this video was educational about his product, so there was a commercial interest behind it.

As such, this isn't a fair use case; there have been cases in the past where copy-shops copied parts of books for educational purposes, but because there was a commercial intent behind it US courts ruled that not to be fair use.

See: Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996).

http://copyright.columbia.edu/copyright/fair-use/case-summar...

Of course, that one sentence they told him later to take down is a different thing I can't understand.

The difference is that his product does not compete in with the New York Times; it may be valuable to the Times' competitors, but nobody will watch his video and then not read the Times article as a result. The criteria for judging fair use include the potential impact on the market value of the copyrighted work; in this case, it seems that the impact is basically nil, because there are two separate markets. It is not about commercial intent, but rather about the effect in a particular market (and even that is not cut-and-dry).

The case of textbook publishing is different, because the copies compete with the original in the same market.

Really though, my point was not about the educational nature. Even if we assume there is no educational value to the video, it is still a case of criticism/commentary, which is still fair use. The author is not in any way reducing the value of the Times article. The article was not copied in full. These are all things that support the claim that this is fair use.

While commercial interest is a factor in the determination of fair use, it is not an automatic disqualification of the defense. Negative reviews, for example, are generally protected by fair use, including when there's a commercial interest behind them.

IANAL, but scrollkit appears to actually be a startup (judging from their about page), meaning that the video was more along the lines of a demonstration video of a product or even a advertisement than an educational video.

My understanding of the rational for "fair use" is use for the benefit of the public good and explicitly not for the commercial purposes, this seems to me to be very commercial.

Look at the actual definition of fair use. There is no requirement that the use be non-commercial, only criteria that include whether or not the use was commercial.

https://en.wikipedia.org/wiki/Fair_use

No, but a statement of fact about a company that is not by public data is slander.

No it is not.

Oh ok

slander is spoken, the term you are looking for is libel.

Here in the US, it's very difficult to prevail on a claim of either slander or libel (vis-a-vis many European countries), thanks to the First Amendment. While NYT Co may (may) be in the right regarding their first C&D, I would be shocked if they were to prevail on the second.

Very true. For libel or slander to make it to court, the plaintiff needs to show that the defendant knew his/her statement to be false. I got a hard lesson in this back in the 90s when I got sued for $2.5m.

In-house counsel is such a pain is butt. I'm dealing with John Deere's law-talkers right now and I feel for you... I'm willing to bet anyone associated with creative at the Times could give a rat's ass about your site... but the lawyers... they have to justify their existence.

Pick your battles.

It's harder in the US than many European companies, because it's not slander/libel if the information is true. However, if the information is false, than the Times could have a case.

Only if the defendant knew it was false when they wrote it. It's not too easy to prove that in a lot of cases.

That is pretty much what I thought too. To me the first seemed like over reach but understandable, the second is just silly.

> No, but a statement of fact about a company that is not backed by public data is slander.

That is not enough. It also needs to be untrue and it needs to harm the reputation of the company.

No, but a statement of fact about a company that is not by public data is slander.

That doesn't sound right. Sounds more like divulging a trade secret. Slander is telling an untruth about someone.

How can it be divulging a trade secret when he isn't in on NYT's trade secrets?

I think it's slander because he does not know how many hours NYT spent on making it, he could be totally wrong yet he is stating it as fact.

Anyhow it's an unfair comparison because NYT actually had to come up with this idea, he just had to replicate it.

I think it's slander because he does not know how many hours NYT spent on making it

You're confusing the legal concept of "slander" with the concept of "perhaps being wrong". For extra irony, by your definition of slander, you're guilty of it simply by accusing this guy of being guilty of it.

edit: Whoops, by posting this I too am guilty of slander by your definition.

Actually, slander is spoken.

When dealing with print, the term is libel.

I was going to point that out but it seems like such a trifling point to make when there's not even any defamation at hand.

Why is the difference meaningful?

I presume because the relative permanence of the printed word relative to the spoken, leading to its potentially greater exposure.

Haha thanks for the explanation :)

  | Anyhow it's an unfair comparison because
  | NYT actually had to come up with this idea,
  | he just had to replicate it.

No it's not. It could be worded better, but the gist is:

  The NYT spend a bunch of time and money to create
  Snow Fall. Using this product (scrollkit), you can
  create the same thing in about an hour. Call now!
  Operators are standing by.

The takedown was for a video of the making of a technical reconstruction of a news feature. It was not a takedown of the reconstruction of the news feature. It's a little bit like a takedown of a paper airplane made of the new york times.

Could you elaborate on how or why it doesn't fall under fair use, or is this just an angrily expressed opinion on the matter?

Fair Use under US copyright isn't cut and dry, to say the least. Columbia University has released a checklist to determine if a use is 'fair' or not.

http://copyright.columbia.edu/copyright/fair-use/fair-use-ch...

Note: I don't think it's been challenged legally yet, but it's certainly a fair piece of policy and a strong guideline, from a professor who is very respected in the copyright law field.

I'm not a lawyer and my understanding of fair use seems to be about as poor as everyone's.

What Scrollkit did, though, was tacky, plain and simple. They built an impressive product but are using someone else's work to try to promote it[1]. Is that illegal? I doubt it. But it's tasteless. And the smarmy "we did this in an hour" attitude is not only off-putting, it stretches the truth to the point of breaking. Anyone who's followed a "build a blog in five minutes" demo knows there's more to building something than just scaffolding -- Andre Torrez probably [said it best](http://notes.torrez.org/2010/12/learn-to-program-in-24-hours...).

There are plenty of ways they could have demonstrated their product without resorting to this kind of shallow mimicry. "Have you been blown away by the incredible work like the New York Times' 'Snowfall' or Pitchfork's cover stories? Want to build something similar yourself? We'd like to show you scrollkit." And then do a demo video with your own photography and reporting. Tells the same story without the shiteating grin.

As it stands right now, though, they just look like they're jumping on a trend using someone else's work.

[1] Disclaimer: I have friends who work at the Times, including ones that worked on Snowfall.

> No, but a statement of fact about a company that is not backed by public data is slander.

whether slander or libel or whatever, this article states how much time NYT spent on it:

http://source.mozillaopennews.org/en-US/articles/how-we-made...

so much for backing it up. the author stating he did it in an hour, might be true or a boast, that's a claim about himself not the NYT, doesn't matter if it's true or not.

i can see how they can ask him to remove the video (and the author complied), but I really don't get on what grounds they can ask him to remove all mentions of NYT from his site.

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