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Once about a month or so ago, and again this past week, I've gotten into discussions with people about the copyright implications of the use of photos on DKos.  (The discussion with Alice in Florida is the most useful part of the above link.)  Both times, I had neither planned nor especially wanted to get into the discussion, but comments on the site activated the antennae I'm supposed to have as a lawyer that there was danger -- that people were not following the law and there could be trouble.

Today, Kos finally extended the concerns he's had about the use of text to apply to photos.  He will apparently implement this policy in a way that both provides him protection and gives people as much latitude as possible.  And yet, it has already had one casualty that no one wanted to see.

This diary is about why, unhappily, this is the right move.


No one wants to be the bearer of bad news.  No one wants to be a downer.  No one wants to spoil the party, rain on the parade, choose your metaphor.

But that's part of what lawyers do.  They look at the law not as we would like it to be, but as it is, and ask whether current or prospective behavior poses a threat, and whether that threat is bearable (or, in some politically critical cases, even worth embracing.)

I'm sad to see RubDMC's diaries go to his own web site, MLW, and BooTrib.  But that's the right decision too.  There's a big difference between those websites and DKos:

No one on the Right has much motivation to close those sites down -- and they do have a motivation to use any tools, any pretext, to shut down DKos.

Why?  Because while MLW and BooTrib are fine sites for community and energetic discussion and presentation of ideas that can catch on and help shape a movement, they don't do what DKos does.  They are not primarily aimed at getting information out to activists, fundraising from activists, and coordinating efforts among activists to win elections.

That's what the Right really can't stand.  That's what makes DKos a threat.  That's what makes it a target.  Because we're effective.  They take pains to say that we aren't, because that's their wish fulfillment fantasy.  But from Montana and Virginia to all over the country, we are a threat to their racket, and they may use any means available to bring us down.

The widespread violation of copyright of photos has been handing our enemies a sword.  I didn't know until reading it today that Kos has been getting lots of cease-and-desist letters, but that's a sign of potential worse news to come.

As fugitive put in a brilliant comment earlier today:

Copyright is a weird business

I'm an IP (intellectual property) wonk who is not a lawyer. I just want to chime in that there is a difference in being RIGHT and being EXPOSED. Kos is EXPOSED and potentially liable for our screwups. He doesn't have to worry about being RIGHT, he has to worry about being ATTACKED. It's a fine line, and I think he's approaching things prudently (and prudence can be annoying, but there you have it).

Intellectual property is civil, not criminal, law. It is potential litigation that is the problem. You don't know if you're in the wrong until litigation is complete.

Tricky, tricky, tricky.

Part of Kos's mission is not simply to be in the right, but not to get sued.  Getting sued would take up his time, effort, and resources that we all know could go -- and are going -- to more important ends.  So this policy, unhappy as everyone (apparently including Kos) is to see it have to come into being, is important.  It's part of the price of success.  Like Democrats generally, we have to keep our noses more clean because the law will be enforced disproportionately against us.  But remember: this is happening because we're winning.  DKos is worth killing.  That's why it must be protected.

Originally posted to Major Danby on Thu Jan 18, 2007 at 04:35 PM PST.

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