Earlier this month I wrote about a dispute between forum goons from Something Awful and cartoonist Donna Barstow. Something Awful's forum goons felt that posting her comics for the purpose of criticizing them amounted to fair use; she disagreed and felt that some of their criticisms were defamatory. The post resulted in Ms. Barstow calling me at the office, suggesting that I had no business writing about the subject because I don't list copyright law as an area of specialty, and later accusing me of having a shaky voice. Life's like that some days.
Ms. Barstow apparently took her sites down for a while, but now at least one, opedcartoons.com, is up again. I was not previously aware of this; as far as I can tell Ms. Barstow has blocked my IP address from reading it. Or perhaps I'm not good at the internet. Either is possible.
Anyway, Ms. Barstow has a new post up stating her views on fair use. It opens:
Copyright is a federal crime!
I'm almost certain Ms. Barstow has not gone all Abbie-Hoffman-via-Pirate-Bay on us and means to say that copyright violation is a federal crime. She's correct, to an extent — willful copyright infringement is a federal crime under certain circumstances, though practically speaking the wilfulness requirement would make it extremely difficult to prosecute a case involving a good faith dispute over the scope of fair use, and no U.S. Attorney's Office would bring charges in such a circumstance.
Ms. Barstow continues with comments about Something Awful:
I recently had a problem with an unenlightened, uneducated and low-class site who stole (and are stealing) a lot of my cartoons.
They are a “humor” site, and they stole many dozens of my cartoons (which explains why this site was down for the last 10 days). I will deal with them separately, when my invesigation [sic] is done, but because they were so very stupid, I wanted to try to explain Fair Use to my smart readers here!
I don't really follow the logic of the last sentence, but perhaps I belong in the stupid category.
Most people don’t understand political cartoons, as shown by the fact that over 50% of my visitors are from schools & universities.
I really don't get that either. Clearly, I'm stupid.
If you lift cartoons for any other reason than Fair Use – because you feel stupid that day, you’re lazy, you don’t have a subject to write about, you’re jealous of cartoonists, you have a big hole in your post to fill, or you have a liberal hate site – you are breaking copyright law and can be prosecuted. And you will be. Not to mention how embarrassing it is when your host tells you they are removing the copyrighted material you took!
Well, I'm not a professional cartoonist. I'm just a former federal prosecutor and 12-year federal defense attorney. But I feel pretty confident in saying that nobody is getting prosecuted over this particular fair use dispute. MegaUpload is the type of case that gets prosecuted. Also, I am quite confident that being a "liberal hate site" is not an element of criminal or civil copyright infringement.
Of course, Ms. Barstow may be using the word "prosecuted" to include "sued civilly." I suppose we'll see.
Ms. Barstow discusses her view of the law of fair use. Review it and evaluate her position. Personally I would probably rely on a resource like the Citizen Media Law Project instead, but tastes will differ.
Don’t be a doobie.
Indeed, do not be a marijuana cigarette.
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