Legal chill

1. Introduction

[1.1] I write for a hobby, I can honestly say it never occurred to me when I took an excerpt of audio, broadcast on the airwaves into kitchens and cars, and made a brief blog post about it, that this could be considered “theft.”

—Ben Goldacre

[1.2] A few days ago, Stephen Fry twittered about a vaccination-scare blog post about MMR (that is, the measels, mumps, and rubella vaccine), written by Ben Goldacre, that hit the British blogosphere hard. Thanks to my day job (copyediting medical documents), I am a big fan of vaccination campaigns, and I’ve edited entire special issues of journals dedicated to why you should immunize children, why you shouldn’t rely on herd immunity, and why all the media scares about vaccinations causing autism are just that: media scares, with no basis in fact. I therefore clicked the link with interest.

[1.3] To sum up the controversy: a British media personality, Jeni Barnett, hosted a call-in radio show on LBC Radio on January 7, 2009, in which she said some stunningly, amazingly, scarily stupid things about the MMR vaccine. This was of interest to Goldacre, because he tracks stupid science stuff and debunks it in his blog, which is called Bad Science. Barnett, who has no medical background, nattered on about why it might be okay to not vaccinate your kids. And it might have ended there, had not Goldacre blogged all about it, first in Bad Science Bingo, with Jeni Barnett…NOW with added legal chill, then in its sequel, Er, “help”. Legal Chill from LBC 97.3 and “Global Radio” over Jeni Barnett’s MMR scaremongering, and had not Fry, with his massive Twitter following, written a tweet about it. Wikipedia already has a summary of the debacle up on Barnett’s page. Barnett blogged an apology. And the debacle has gotten so darn big that it’s kinda scary. Goldacre provides a bit more info in LBC, MMR, Jeni Barnett, an Early Day Motion, the Times, and, er, a bit of Stephen Fry…, including graphs! showing steep declines in children’s vaccination in the UK.

[1.4] There are a couple of things that interest me about this controversy, aside from the irresponsible dissemination of false information about the safety of vaccinations, which I’m not going to talk about here. First is the insistence from the copyright holder of Barnett’s radio show that Goldacre remove the clip he made of Barnett from his site, which he did, and Goldacre’s feelings and thoughts about this request. Second is the responsive nature of the blogosphere, which leapt in to provide backup. I love examples of Web 2.0 mimicking fannish behavior, and this is a fabulous example of it.

2. “It was like communicating with someone from another universe”

[2.1] Goldacre originally posted a 44-minute clip of the MMR scaremongering, which was created not by Goldacre but by a reader who sent it in. The entire show was 3 hours long. Goldacre perceives this sort of media expression as actually dangerous from a public health point of view, and he included the clip in his blog because he was providing an example of media irresponsibility (all extracted quotes are from here):

[2.2] [T]here is a question of the basic tools you need to illustrate a point. The clip I posted was, to my mind, hideous and unremitting: it went on for so long.

[2.3] In fact it was so long, so unrelenting, and so misinformed that I really couldn’t express to you how hideous it was. If I tried, without the audio, you might think I was exaggerating. You might think that I was biased, that I was misrepresenting Jeni’s demeanour and views in this broadcast, that LBC and their parent company Global Audio are living up to the standards of basic responsibility which we might reasonably hold them to, as they shepherd Jeni’s views and explanations into our cars and kitchens. You might think that I was quoting Jeni out of context, cherrypicking only the ridiculous moments from an otherwise sensible, proportionate and responsible piece of public rhetoric.

[2.4] His point is, of course, that he was not doing any of these things. The clip was meant to illustrate the lengthy, awful, unremitting nature of the broadcast. It was a quotation from a much longer work meant to showcase media irresponsibility.

[2.5] And it succeeded only too well: Goldacre received a note from LBC’s lawyers telling him take down the clip. His response: “They are a large corporation worth around a billion pounds (genuinely), I am some bloke, they have a legal team, I have no money, they are making threats using technical terminology and I actually don’t understand what those words [‘we reserve our rights’] mean.” But more importantly,

[2.6] It is my view that individuals like Jeni Barnett – but more importantly, organisations like LBC and Global Radio who give them a mouthpiece and a platform – pose a serious danger to public health, with their ignorant outbursts, disseminated to the nation. This clip was extremely instructive as an example of that recurring theme, and it deserves to be freely accessible and widely discussed.

[2.7] He took down the clip, but not without taking a shot at LBC: “[E]pisodes like this, and discussions around them, are important for the wider questions of the responsibility of the media, the misrepresentations and misunderstandings of evidence in science and health that they promote, and the impact that has on public health.” Goldacre also calls for everybody involved to “simply give permission for this clip to be made freely available, in the public domain, in full, as it was broadcast, so that it can be widely heard, understood, and discussed. The debate here is not about the dangers of MMR, but the dangers of the media.”

[2.8] Nice wish, Goldacre, and one I share. Too bad it will never happen. It’s a classic case of huge companies with a deep bench of lawyers making threats so they get what they want. But this case interests me because it touches on public health, rather than (as most of the work I’ve done on intellectual property) fan-created artworks. There are many parallels: a scholar-critic posts an illustrative clip and receives a threatening letter asserting copyright, and thus obediently takes it down. The big corporation has shut down useful discourse, even though posting the clip might be entirely legal. It may lie within fair use. But we’ll never know, because it’s never going to go to court. The average person will always capitulate because of the massive costs involved, and the corporation need only weather the tempest in the teapot before it’s back to business as usual. I’m willing to admit that media complicity in shutting down important discourse about public health concerns that potentially affect the children of an entire nation is more important than a fan getting busted for ripping a DVD so she could make a Stargate SG-1 vid. But not by much.

[2.9] Goldacre’s off-the-record conversation with the LBC guy really hit home for me:

[2.10] I’m not allowed to tell you what we talked about (ricockulously…) but the bottom line is, I made the arguments, and they are adamant they will not allow this audio to be posted freely. Without details, I’m a nice guy, I wanted to like him, I wanted him to like me, I couldn’t believe we could disagree, but it was like communicating with someone from another universe.

[2.11] It was like communicating with someone from another universe. Yes. It’s exactly like that. This particular controversy further drives home my point: the disconnect between regular people and media powerhouses is so vast that we have no common ground. How can that even be? Don’t they want us to buy their stuff? Or do they know we will buy it anyway, so they can do what they want? Or do they know that they have us over a barrel, and so they can do whatever they like for piddling gain that can in no way be anything more than a token? Just to say they can make us do it? (I’m thinking here of Jason Mittel’s recent blog post about how ABC-Disney held his new book hostage by insisting on payment for internal images that traditionally are thought to fall within fair use, or they wouldn’t grant permission for cover images. The book was in press. They paid the fee rather than pull the images—or, presumably, sue. Read about it in Fair Use Held Hostage by ABC-Disney: “They made the decision to hijack fair use in exchange for a fee of less than $1,000, petty cash for a corporation like ABC-Disney.”)

[2.12] The most troubling thing about Big Media’s stance here is that shutting down discourse might well affect public health and public health policy, and yet Big Media declines to release its interest, even in the interest of a larger public good.

3. The blogosphere responds

[3.1] This particular tempest, however, really hit a nerve. Goldacre has a URL listing of all the posts related to this debacle here. I’m pleased to say that people really rallied around. Although Goldacre had to take down the audio clip, it has promptly reappeared on a number of sites. (And of course you can buy the whole show, legally, for £4, which presumably why the lawyers threatened Goldacre so mightily: so all would rush out and buy it, rather than, as they did instead, getting annoyed and promptly spamming the world with it.) Several people worked tirelessly on transcripts, then blogged their results. They cleverly spread out the work so that the transcripts appeared on several blogs, all hotlinked to each other so interested readers could easily move through the broadcast.

[3.2] I am tremendously relieved, even heartened, by the blogosphere’s immediate response. Watching some innocent blogger get crucified by Big Media when he so clearly has the moral high ground is indeed sport. This became a much, much bigger issue than it might have been, thanks to lots of people jumping in with their support, Stephen Fry among them. Soupy twist, Stephen!

[3.3] I’m also pleased to see that the blogosphere is responding by providing memory for us. I’ve always been intrigued by the ways the Internet helps us remember. That blog post you took down before you had to have your FBI check so you could get that job? (:: coughs ::) Someone, somewhere, still has it, even if you manage to evade the Wayback Machine. Likewise, Jeni Barnett. She blogged about the issue (“As a responsible broadcaster I should have been better prepared as a parent, however, I can fight my corner. I don’t know everything that goes into cigarettes but I do know they are harmful”), and people commented, some of them not very nicely (“Whenever a child dies of measles it will remind me of you”—man, that one’s harsh), so she (or her handlers) took down the posts because of the hurtful personal remarks. Or…was that the reason? Did Barnett perhaps wish to backpedal? To erase certain things that might cast her in a bad light?

[3.4] Luckily, the Internet never forgets: Jeni Barnett: Have you lost something? reproduces the blog post and all those darned comments, some of which include useful links to scientific documentation that refutes Barnett’s stance. Thank you, blogosphere!

[3.5] At the center of the blogosphere’s response is just how…well, irrelevant the copyright holder’s concerns are. The controversy has become its own thing, something larger than an annoyed Goldacre taking Big Media to task for their irresponsible behavior. It’s now gotten so big that there’s no point in LBC running around trying to quash all the illegal copies of the 44-minute rip that Goldacre originally posted that have spawned on the Internet. But the clip is still not up at Goldacre’s site, and I assume they’re still watching him, just to make sure. The long arm of Powerhouse Media somehow seems all the more threatening for being so clearly arbitrary.

[3.6] I add my voice to all those out there blogging in support of Goldacre: there’s an exhaustive list at Holford Watch, although of course most are about medicine. All too many are about legal chill. But I am heartened that the edge has been taken off legal chill by sheer force of numbers.

[3.7] Because those guys in Big Media? Those lawyer guys? They are seriously from another universe. They haven’t figured out yet what to do about the sea change hitting old-guard copyright, and they don’t have a new model in place. So they bully the little guys out of $1,000 here and £4 there, pretending that all those old rules still make sense, when they simply don’t. And not only that, but they decline to engage in any kind of dialogue about it that might be, you know, culturally meaningful. Screwing over some academic here, and shutting down some concerned doctor-blogger there? Seriously, what is that about?

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One thought on “Legal chill

  1. 3.1 illustrates the biggest problem that old media and traditional PR people have: once something hits the net somewhere sometime you lose control of it. I’m reminded of the drama around Operation Clambake and Anonymous versus Scientology.

    What most disturbs me is that copyright was never about controlling the flow distribution of information. There’s a reason that facts and ideas cannot be protected by copyright, but unintended consequences are clubbing us painfully. It was never intended to be perpetual either, but we see how that’s worked out.

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