Harrassing fans for being fans

If you spend any time online at all, you’ll probably read lots of opinion and speculation on the web this week regarding Jason Kottke’s legal tangle with Sony. On his widely-read website, Jason posted some leaked information about the eventual end of Jeopardy! contestant Ken Jenning’s record-setting winning streak, including an MP3 of the final minutes of the show. Sony wasn’t pleased, and asked for the material to be removed. Jason complied, but apparently the legal troubles are not over yet.

There’s already an awful lot of punditry, so I’ll just say this: anyone who reads Jason’s site with any regularity (and I do) knows that he’s a big fan of the Jeopardy!/KenJen phenomenon. I find it hard to believe that Jason posted the leaked info to damage Sony. More likely he posted it because it was exciting and fun, and wanted to share it with other KenJen obsessives. This happens all the time in every form of media. Word gets out, secrets are leaked, and yet: millions of dollars still manage to exchange hands.

What it basically boils down to is entertainment companies harrassing fans for being fans. And that is no way to win fans. Sound familiar?

16 thoughts on “Harrassing fans for being fans”

  1. We used to have that problem with Warner Bros. at The Leaky Cauldron. After a while they realized we were one of their biggest forms of publicity for the Harry Potter franchise and they started respecting us – as a result we began to respect their wishes and now get exclusives every so often.

  2. You know, I have a hard time getting behind the well of blogger support for Jason on this one. If I understand things correctly (and I came late to this game) Jason got a hold of audio of the Ken Jennings loss, uploaded it to his website, and then posted a link to the uploaded file.

    That’s not file sharing, that’s not fan enthusiasm, that’s publishing. Publishing comes with responsibilities, and you do not publish something that you don’t own the copyright for unless you have express written permission from the owner to do so.

    Was Sony out of line when they (assumedly) demanded Jason remove the text transcript and description of the event? Yeah, but Jason brought that attention and ire on the when he published Sony’s product before they did. If the Washington Post website had published the MP3, or they’d inserted a CD with the audio into every newspaper, they’d be hearing the same things from Sony’s lawyers and end up paying damages.

  3. the stupid thing is that after kottke took down the MP3, he was asked to take down the transcript of that audio too and he complied.

  4. Alan, I’d agree with you if Jason was some sort of mercenary muckraker out to scoop everyone and getting paid to do it. But he isn’t. Not even close.

    Yeah, Sony was within its rights to demand the MP3 be removed. Jason complied. Then they wanted the transcript removed. That’s a bit much, don’t you think? I mean, I could go onto any number of film/TV message boards and find “spoilers ahead!” threads. Does Sony patrol the boards at Rotten Tomatoes and demand that spoiler threads be removed with the same vigor?

    But Jason complied *again.* And now we hear that his legal problems aren’t over. I don’t know the real story but my guess is that Sony might want to know who supplied the leaked info.

    My larger point is: I’m getting really fed up with this zero-tolerance, scorched-earth approach that some entertainment companies are taking with people who are acting out of fan enthusiasm. Like it or not, fans are *empowered* now. We have wider access to information and we can spread that infor more quickly than traditional media. That’s sure gotta scare entertainment companies who are used to controlling every aspect and perception of their products.

    The question I have is: do they *deserve* that control anymore?

  5. Does anybody have the Nielsen ratings for Jeopardy over the last few weeks? I’m going to go out on a limb and predict a big spike for Tuesday. And with Sony not pimping Tuesday as a big show, who would be responsible for that? How much money did they make because of Jason’s posts (and the ensuing press coverage)?

  6. Do corporations “deserve” control over their property?

    Given that they prepare and produce the product and spend a lot of cash and effort to do so, I think the answer is yes.

    Fan or not, he knew he was posting IP that he had no rights to. Obviously the value of this information to the owners of the show is its controled distribution at a time of its choosing. As with most information control = value.

    Like all adults, Jason knew this but chose to post the information anyway. Then, after the mea culpas are done, he evokes the persecuted fan defense.

    I think there is a growing double standard out there with regard to artists vs. corporations. If someone takes an artists’ work and posts it without permission, he’s a criminal. But someone takes a corporation’s work and posts it, he’s some sort of 21st century freedom fighter.

    Just being a fan does not give you the right to take someone else’s property. And I think Sony is completely justified in wanting to find out who stole its product and distributed it to Jason without permission.

  7. ” I think Sony is completely justified in wanting to find out who stole its product and distributed it to Jason without permission.”

    I think they should probably start looking in their own publicity and marketing department, because Kottke has been the de facto KenJen equivalent of a Judy Miller or Robert Novak for a while. Without the whole being wrong and evil thing, of course.

    Expect a degree of embarrassment from Sony’s lawyers soon enough when they work out it was not just an inside job, but an officially-sanctioned one. That’s my prediction, and I’ll stick to it. Just as I’ll predict that the bashers on this thread really do need to get the heck over themselves.

  8. Obviously the persecuted fan defense wouldn’t stand as a legal defense. I wonder if intent plays any role. Did he knowingly post copyrighted material? Sure. Did he do it with the intent of damaging Sony? I’m guessing not. But I don’t know how that intent is determined once the law is involved.

    Sony may have 100% authority to act as it has in this situation, but I feel that as fans gain the ability to influence marketing outcomes, the that intent — to publicize, not to willfully damage — should be taken into account.

    I’m not suggesting that we do away with copyright or IP laws. I’m saying that it’d be awfully swell if the first contact between an infringing fan and the maker of his obsession wasn’t a C & D smackdown.

  9. Sony’s attorneys should have taken a closer look at the motivation behind Jason’s “spoilers” as well as their reasoning for protecting Sony’s rights. Like the other comments, I completely agree that Jason was unfairly targeted because of his high profile and easy accessibililty. Furthermore, the attorneys should have thought about what Jason’s readers would likely think as a result of their C&D actions.

    Basically, for someone who read one or all of Jason’s KJ posts, there are three possible reactions. Either that person is: (1) more likely to watch Jeopardy as a result; (2) less likely to watch Jeopardy as a result; or (3) equally likely to watch Jeopardy as a result. I’d like to see someone advance an argument for (3) as the predominant reaction that passes the laugh test, because I can’t think of one. Otherwise, Jason’s posts did nothing but *help* Sony, and shutting that down was a mistake.

    Sony should have taken a better look at things and realized that gossip like this, especially online, generates nothing but positive support. Going way back to the beginning of KJ’s run, I hadn’t even heard of him or his streak, mainly because I would have had to sprint home from work just to catch Jeopardy on any given day. Jason’s coverage opened my eyes to the KJ phenomenon, and I can’t imagine that my reaction was at all unique.

    Furthermore, as with any repetitive event, the streak had started to lose its appeal, simply because KJ’s dominance was just too much. Sure, it was still entertaining, but the newness had worn off a bit. However, by building up publicity for KJ’s final send-off, that increased awareness and thus viewership for his last episodes, something for which Sony and its advertisers should have been thankful. Viewed another way: would anyone have tuned in the day after KJ lost after the news of his demise became nationwide news?

    Simply, Sony betrayed its fanbase and annoyed readers of Kottke.org like me. Instead of strictly and harshly seeking to protect Sony’s property, the attorneys it failed to act in Sony’s best interest by actively curtailing fan interest in the show. Shame on Sony for coming down hard on Jason’s one-man, non-profit site. Shame on Sony for turning its back to one of the big reasons that a game show contestant was a news story in the first place. I hope Jason receives all the legal assistance he needs to get Sony off his back.

  10. “Just as ‘ll predict that the bashers on this thread really do need to get the heck over themselves”

    Not really a prediction so much as opinion/advice.

    What does that mean exactly? If I don’t side with Jason I’m being self-important?

    Look, if Sony did sanction the release of the information, then Jason is fine. Most like has a complete defense. But if they didn’t then don’t they have a right to find out who gave him the information/sound bites?

    And to answer Scott’s question: there is no intent requirement for a violation of a copyright. Additionally, there are both statutory and actual damages available to the copyright holder, depnding upon whether the copyrighted material was register prior to the violation. So Jason’s lack of intent to profit via his posting is immaterial to an award of statutory damages. However, if may impact a fair use or similar defense.

  11. There’s no Jason-bashers on this thread. If Jason posted copyrighted material without permission, then he broke the law. Saying that is not self-important, it’s the way it is. (And if I were Sony, I’d be *far* more interested in finding out who tipped Jason than in Jason himself.)

    Whether or not he should be punished in the same way that, say, the people who stole and released the Half-Life 2 demo earlier this year is questionable. (I’d hesitate to call the latter “fans.”)

    Maybe I’m just being naive in thinking that it’s worth overlooking some moderate IP infringement in exchange for some points in the court of public opinion.

  12. Excerpts are permitted under fair use. Sony would have lost a court case had they pursued one against Jason. The reason he took it down is because he doesn’t have the money/time to even enter court, which is what Sony was counting on.

    If there were no such thing as copyright, Sony probably would have threatened to file a lawsuit for “frammin’ in the jim-jam and frippin’ in the krotz”, and hoped that Kottke didn’t have the money or inclination to hire a lawyer to get that crap thrown so far out of court it’d hit the moon.

  13. Wow, a B.C. reference! :)

    Seriously, I don’t believe this situation would qualify as Fair Use. Had Jason posted the info *after* the telecast of the show, I’d guess it might qualify. You don’t need permission to publish an excerpt from an officially *released* work by way of review. But that’s not what happened here.

    Like I said before, Sony’s bigger problem is they have a mole. Who know what else this person is leaking, and to whom? In other words: I think Jason was inadvertently set up. He probably thought the insider who provided the tips had permission to do so. Maybe he should have been more suspicious, but that’s a moot point now.

  14. Would Sony have been quite so irked if Kottke had posted the audio and transcript *after* the show had been aired? I will venture a guess that Sony would not have cared. But by leaking the audio prior to the airing of the event, any element of suspense that was left was ruined. Imagine posting the final 5 climactic minutes of a yet-to-be-released movie, or posting the last chapter of a suspenseful book before it is published. Not very nice. It ruins it for the fans and for whoever owns the rights to the media.

    I can certainly appreciate Koettke’s enthusiasm and passion, and I hate when corporations slam the hammer down on fan sites. But, there are times when a bit of self-restraint is in order when you have this sort of information. From a free-speech point of view, Jason had a hot entertainment news item along with supporting material, which he published. From a viewpoint of simple courtesy, respect, and responsibilty, however, posting the audio and transcript was a dreadful move.

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