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Just Because You Can Do A DMCA Takedown Doesn't Mean You Should...
from the think-twice dept
Many lawyers are taught (or learn from experience) to approach any legal issue by going to an extreme position, on the assumption that eventually there will be a negotiation with opposing counsel and a settlement will get worked out somewhere in the middle. That often made the most sense in many cases, but it doesn't work very well in lots of situations online today. And that's part of the reason we see, time after time, companies reach for the legal nastygram solution when an open conversation would work just fine. The latest example of that: Boing Boing alerts us to news that the site Apartment Therapy was the recipient of a DMCA takedown notice (actually, to be accurate, the NYT's lawyers went over their head and straight to their hosting company). At issue were blog posts on the AT site, which linked to the NY Times articles, but also used images from the Times' site.
There may be a fair use claim that could be made, but even if we ignore that and assume that this is, absolutely, infringement, the entire approach by the NY Times doesn't make much sense, and is representative of that "attack" line of thinking. As AT notes, if the NY Times had just approached them and asked them to stop using its photos, it would have. But, instead, the lawyers had to send a DMCA legal nastygram. Even then, it's difficult to see how this makes sense. The AT posts were designed to get people more interested in the NY Times' articles, by giving them a taste and sending them to the site. Why would anyone at the NY Times want to stop that? And that's especially true after the NY Times was just on the opposite end of a recent lawsuit. If people had just looked at this reasonably, rather than taking the default legal position, the NY Times might have realized that this site benefits rather than harms them, and even if they had felt otherwise, realized there was a much friendlier way to approach the situation.
