The Office of Erik Dahl

You could have left the posts up, and it is unlikely that MIT would have sued you. MIT might have contacted your host (all of the “swear under penalty of perjury” and “good faith belief” language is actually directed at your host, not at you), and the host might have taken down your blog without even contacting you. In other words, not only are you potentially liable here, but more importantly, the host is. But you would have been told after the fact, and you would have had the right to ask the host to put the blog back up. At that point, the ISP would be out of the picture, and MIT would have to decide whether to sue you. Section 512 of the Copyright Act is the governing statute, in case you want to look that up.

That said, my reaction is that your posts probably did cross the line between “commenting on the material” and reproducing so much of it that someone reading your blog didn’t really need to buy the book. Don’t buy the “1000 word fair use limit” in the note that you received. That’s not a line given by the law; it’s a line invented by MIT, which might just as well have invented a “click your heels three times” line instead. Section 107 of the Copyright Act gives the (highly convoluted standard) for fair use. Neither that section nor any other law anywhere limits the number of words that you can quote and still be on the “legal” side of the line. Next time you record 100% of a TV show in order to watch it later, you can thank the US Supreme Court for confirming that this is fair use, and perfectly legal.

The idea that you were helping the publisher, rather than hurting it, is a common reaction to these situations, but the courts have almost universally rejected the argument. Whether you help sales or hurt them is largely beside the point (the point, as above, is whether your work is substituting for sales). A movie critic can help ticket sales, and a movie can hurt ticket sales, but a movie critic who quotes (or shows) brief clips of the films is almost always acting legally, even if the critic isn’t getting permission from the film’s producers. Few people read (or watch) a movie critic as a substitute for watching the movie.

Mike Madison, s/k/a Blog-Lebo, but who has a day job teaching copyright law.

@Mike Madison, thanks for the comments and insights. I knew the 1000 word limit was just a MIT Press threshold and not a legal reference. I didn’t have any strong feeling about the need to keep the posts up and find it just as valuable to have conversations like this one about copyright law. Its not worth my time or energy to try to fight their request.

I’m familiar enough with some of the basics of copyright issues having worked as an assistant editor at the University of Michigan Press and during my tenure at graduate school at the School of Information, University of Michigan. I know that it’s a “highly convoluted standard,” and have no desire or cycles to get involved in any kind of wrangling, legal or otherwise.

What I do find interesting is that if they had contacted me in a different manner/tone (both in their initial email and their response to my compliance) they could have achieved the same result without the associated damage to their brand. I had been an admirer of MIT Press for a long time. I’ve known people who have worked there and have several copies of MIT Press books in my own library. However, their brand has been tainted by this experience. I will think twice about purchasing MIT Press books that I definitely would have purchased previously, and books that I am on the fence about will be acquired in ways that will not financially support MIT Press (library, friends, etc.) I also won’t recommend MIT Press books to friends and will be sure to tell this story to others. Its already had negative financial effects (albeit small) via twitter: @garrickvanburen says “@eadahl, I’ve promptly removed that book from my Amazon cart.”

As an anthropologist and Interaction/Experience Designer (IxD, UX) I know the importance, value and impact of each customer touchpoint, as well as the power of networked customers.