[posted by Justin – not Patterico]–
PerezHilton.com is not only one of the best sites on the Internet, but a recent front page news article demonstrates why Perez should be considered to be a bona fide hero to bloggers everywhere.

A few choice cuts from the article:

On one side: the paparazzi who stalk celebrities in their moments of greatest vulnerability — at doctors’ offices, with their newborns, when they are falling-down drunk.

On the other: a blogger who helps himself to those photos, scrawls puerile comments on them, and posts them on his immensely popular and profitable website.

The owners of one L.A. photo agency are so frustrated with what they consider to be blatant theft by self-styled “gossip gangsta” Perez Hilton that they’ve decided to make a federal case of it.

On Nov. 30, X17 Inc., known for the aggressive pursuit of celebrity prey, filed a $7.6-million federal copyright infringement lawsuit against Hilton, alleging that he has used 51 photos without permission, payment or credit.
…
If it turns out that what he does is copyright infringement — rather than a fair use of newsworthy images, as Hilton’s attorney claims —

it would not only put a serious crimp in the photo-driven field of gossip blogs, but possibly create new case law.

“The effect would be to eliminate the ability to comment on and transform photographs under the fair-use exception to the Copyright Act,” said Hilton’s attorney, Bryan Freedman of Century City.
…
“Perez is not being targeted because he’s an affront to paparazzi everywhere,” said technology expert Matt Lum, whose company, Hoodlum Productions, provides technology expertise to both Hilton and X17. “He is being targeted because the entire industry is undergoing a shift that was arguably brought on by blogs like perezhilton.com, which took stargazers from a weekly or nightly television fix to an hour-by-hour, minute-by-minute, entertain-yourself-at-the-workplace enterprise.

“The way that Americans get their news and entertainment these days is a whole lot different from waiting for things to get printed, and that’s what’s at the crux of this whole ordeal,” Lum added. “When he says he is fighting for all bloggers, he really is.”
…
One prominent copyright attorney said it was impossible to tell who would prevail.

“Clearly, photographs are copyrighted and afforded protection; on the other hand, wide berth is given to the press to report on newsworthy events,” said Century City copyright attorney David Nimmer, author of “Nimmer on Copyright.” In this context, a photograph could be considered a newsworthy event.
…
“He’s stealing. Simple as that,” said Frank Griffin of Bauer-Griffin, which has joined forces with six other agencies. “Why doesn’t Us or People just steal the photos and not pay for them? What’s the difference?”

Hilton, for his part, is unrepentant.

“If the law says I am wrong, if a jury of my peers says they think my actions are wrong, then I will listen to them. But I don’t think they will. Especially if they see that the person who is suing me admitted she is suing me because I am arrogant. A judge would dismiss that.”

A few observations and comments of my own –

1. I need to congratulate David Nimmer for being honest enough to admit that it is impossible to tell if a court will find fair use in this instance. In fact, it is often impossible to tell in most cases. Fair use is (unfortunately) determined on a case-by-case basis, and courts will often split some very fine hairs in order to distinguish one case from the other. This ultimately creates a huge chilling effect on free speech since there is no clarity in the law here. Predicting either fair use or infringement in a copyright case is like reading tea leaves or trying to predict if a display of religious iconography on state grounds is artistic free speech or an unconstitutional establishment of religion. The legal “test” to determine one from the other is infinitely elastic and can be used simply to suit the personal preference of the judge and allow him to hide behind the jargon of the fair use “factors”. The courts have provided no objective road map in this regard. And for this, they should be ashamed.

2. Although I admire Nimmer’s statements in this instance, I continue to believe that, over all, he has actually been a detriment to copyright law. Not though any fault of his own mind you, but rather due to the laziness of our federal judges. Rather than occasionally quoting “Nimmer on Copyright” as a secondary source in copyright decisions, many judges have treated “Nimmer” as the be-all-end-all bible on copyright authority (even seemingly elevating it above case law in some instances). I have never known a legal treatise written by a single individual to wield so much influence in an area of law as “Nimmer on Copyright”. This is both bad and dangerous for our legal system. While people may agree with Nimmer on many aspects of his analysis, they can legitimately differ on others, and it is wrong to simply substitute his own analysis in place of that which has been developed by specific case law.

3. I continue to believe that people who describe instances of copyright infringement as “theft” are just being silly. There can certainly be valid public policy arguments as to why it should be unlawful to copy a creative work – but using the term “theft” to describe it is simply an abuse of the English language (even if you are trying to speak in a form of shorthand to describe your policy preferences). If copyright infringement was actually a form of “theft”, then there wouldn’t be a need for copyright laws to begin with. We should simply prosecute people criminally under traditional laws outlawing theft and larceny. The fact that most infringers are not prosecuted criminally, but are instead merely sued civilly by private parties should tell you something. The term “theft” can only be applied appropriately to resources that are both tangible and scarce. Enough said on that for now.

4. Many bloggers and readers of this site continue to criticize my stance on intellectual property (even during the times when they don’t manage to distort it). I continue to maintain that such critics are not only wrong, but they are frankly (in my humble opinion) undeserving of the blogosphere and the Internet since they fail to appreciate the legal fights that have become necessary to preserve the freedoms that this medium has to offer. They remind me of the leftist loons who use the freedoms that America has to offer in order to trash it.

Yes – I am well aware of how the tone of this last statement may come across to the readers who disagree with me, but I stand by it. I feel the need to throw down the gauntlet here. So I invite you to have your way with me in the comments section to take your best shot, and then let the public decide.
Every truly great website and advancement of this medium has come at the expense of rethinking our intellectual property laws – starting with the “forward” button on your e-mail (which naturally violates copyright law each time you use it). Think of all the truly great sites on the Internet – Google, Youtube, Drudge, Ebay, Napster (and its file-sharing progeny), etc. All of them have either pushed the boundaries of traditional intellectual property law, have been destroyed by it, or are actively fighting it for its own survival.
Some of the hard won freedoms that the Internet has secured are even now taken for granted by many in the blogosphere. People forget that there was a legal battle over the concept of simply linking to another site. Some vociferously argued at the time that unauthorized linking was its own form of “theft”. That legal outcome could have just as easily gone the other way. But now that the freedom to link has been secured, it has passed into the realm of standard blogging culture, so few people think of it as improper any more. What was once branded “theft” has now become standard etiquette for communication. The same will (hopefully) continue to happen with other outmoded aspects of intellectual property law. Remember in the early 1990’s when Garth Brooks and other artists called it “theft” when record companies started allowing you to buy used CD’s? Now that Ebay exists, you don’t hear that anymore. Garth Brooks would be rightly laughed off the planet for making those same claims today. New technologies can move and shape cultures. The Internet is the most radical new technology of our lifetimes. It therefore calls for an equally radical change in the culture. (In this case, the legal culture.) If a technology allows for incremental changes and compromises in the culture, fine. But if it doesn’t, then you have to make a clear choice as to what will be legal and what will not.
So now we are at a crucial point in the fight for blogging freedoms. Perez Hilton is indeed fighting for all of us bloggers – even for the ones who use the very freedom that blogs offer in order to call for more restrictive copyright schemes that will ultimately choke off the ultimate potential of this medium.
If you think that all bloggers should always be forced to get permission to use other’s creative works, fine. I know many of you seem to feel that way. But I ask you to please understand the full consequential scope of what that will ultimately mean to blogging and the Internet. The same people who take me to task for encouraging people to read copyrighted works of dead authors for free seem to have nothing to say when other bloggers such as Hugh Hewitt actively encourage similar forms of copyright infringement without a second thought. It is imply impossible to tap into the Internet without being confronted by the “copyright culture” challenge at some point. Something has to give.

Naturally, this same concept will apply to your use of political photos as well. Want to post a photo of Clinton, Carter or Bush without paying for it? How do you justify that in light of your beliefs? Oh wait – You think that pictures of politicians are “news”, but that pictures of Paris Hilton somehow aren’t? Who gets to make the “news” vs. “entertainment” distinction in this day and age? How is that even remotely possible? What objective criteria are you using?
Bloggers have made great strides in getting the legal culture to radically rethink defamation law in order to give our medium room to breathe. But quite tellingly, that same form of immunity from liability does not extend to copyright infringement.

5. For those who think that it should be unlawful to do what Perez is doing, do you not also think that it should be unlawful for the paparazzi to do what they do? This is no problem for me – I happen to think that both activities fall squarely under free speech. But I find it absolutely bizarre that somebody could actually hold the view that posting somebody else’s picture on their website without permission is a form of copyright infringement, but simultaneously thinking that taking the picture in the first place without permission is isn’t its own form of intellectual property infringement. For the person who is depicted in the photo – isn’t it a violation of their “publicity” rights? If not, don’t they deserve to have joint ownership of the copyright since they were responsible for the poses and other creative elements that went into shaping the photo??
If you think that both activities should be unlawful, fine. You have a frighteningly restrictive view of free speech in my opinion – but at least you are consistent. But for those who hold that Perez is infringing on people’s intellectual property, but that the paparazzi photographers somehow aren’t…What can I say? I really can’t debate a position that goes against what I consider to be common sense. So I’ll just skip the attempt at debate here and go right into the name calling: For those of you who think that what Perez is doing is wrong, but that paparazzi photographers still have a right to what they do – You are all silly and stupid people. If you wish to use the comments section of this post to call me names back, fine. It will simply confirm the depth of your silliness and stupidness in my eyes. So there! 😛 On the other hand, maybe we can just say that we will never (ever) understand each other, and leave it on a civilized note. I’ll leave it up to you.

6. Perez is being a bit naïve in one regard – copyright cases usually do not allow you to be “judged by your peers”. The courts have taken away a defendant’s right to have their fair use arguments be decided by a jury. There is a simple reason for this, and (despite what the courts say) it is not because fair use is “a mixed question of law and fact”. It is because if juries actually got to decide copyright cases based on their gut notions of what is “fair use”, there would be a revolution in copyright law that the media conglomerates would not tolerate. Most copyright infringement cases that are filed today would be laughed out of court by the average Joe on the street. (“What’s that? Your documentary cameras incidentally caught 4 seconds on ‘The Simpsons’ on a television set in the background? You didn’t bother getting ‘clearance’ on the clip? And the plaintiff now claims that it is entitled to HOW much money?? Bwahhaaahaaa!!!!”) As a result, judges are needed to take that power away from juries and decide such cases based on the carefully crafted “four factor test” of fair use (which again, can be easily twisted to justify any decision that you want).

7. “Why doesn’t Us or People just steal the photos and not pay for them? What’s the difference?”

–

“Us” or “People” shouldn’t be required to pay for photos for use in a news context. So ultimately, there is no difference. That’s the point! Fair use should be available for all. As I’ve already explained, I think the “stealing” charge is bogus. If you think otherwise, then why aren’t the celebrities in question entitled to the money as opposed to the intrusive photographers?
There only became a market for such photographs when there was a functional oligopoly on media creation and distribution. Now that the oligopoly no longer exists, the market has changed. One does not have a “right” to have such a market continue indefinitely. Horse buggy makers had no right to continue their sales with the advent of the automobile. The Internet represents an even more radical invention than that instance.
There are plenty of reasons why “Us” or “People” may still wish to pay money for photos (to ensure consistent or timely delivery, to ensure quality negatives as opposed to running compressed digital images, etc.). Fair use is an essential concept that everyone be allowed to partake in.

The Perez Hilton case represents another “Tucker” moment. Anytime somebody new and truly competitive comes on the scene in a given industry, the old guard will try and take him down through the legal system because they know they can’t compete. Perez is at the top of his game – and I’m drinking a toast to him this holiday season.
Long live Perez Hilton! Long live Internet freedoms for all!!!!!!!!!!!! (To be recited in your best “Braveheart”-style yodel.)

Ok. My rant is over. Flame away with your charges of Communism, arrogance, etc….

[posted by Justin – not Patterico]