Tuesday, February 5, 2013

Teri Buhl Responds To Our Story; Still Confused About The Internet And The Law

:)          hehe                                 

Teri Buhl Responds To Our Story; Still Confused About The Internet And The Law

from the let's-try-this-again dept

Yesterday, Tim Cushing wrote a post about Teri Buhl, a journalist who claimed via her Twitter profile that her tweets were "not publishable." When questioned on this, she threatened to sue if someone republished her tweets. Some knowledgeable lawyers gave their opinion on this (that it was all hogwash), and at least one had a short email exchange with Buhl. Hilarity ensued. You can read that whole thing for yourself.

This is the followup. A little over an hour after the post went live, we received an email from Teri Buhl demanding a "correction" (without explanation) and saying that we needed to call her about Tim's story:
I would like an editor to please call about the story Tim just wrote on me. Like now
We have no obligation to call her, and given her previous engagements with others, we felt that there was no reason to discuss this with her. She later posted a comment on the post itself, asking Tim to contact her. He did, and she sent over a statement, and a series of other emails, partly (declared by her) "on the record" and partly "off the record." To be 100% clear: we have zero obligation to not publish her "off the record" comments. We made no arrangements with her to honor her requests that certain comments be "off the record."

Buhl appears to be under the false impression that merely claiming something is "off the record" leads to an obligation that she not be quoted, and that it provides her some sort of legal status, even when others quote her. This applies both to the original story about her tweets and to her follow up emails. Separately, she asked Tim to provide my phone number, and she called our corporate line multiple times this morning, telling him that she "always" calls a subject for comment before publishing a story about them. That may be her decision as a reporter, but there is no such requirement. That's not how freedom of the press or freedom of expression works. Finally, Jim Romenesko picked up on our story in his "Morning Report" on his super popular media blog, leading Teri to send Jim the same basic statement she sent us ("on the record") along with a separate statement suggesting that we had some sort of obligation to contact her before running our story. Let's deal with that one first, and then we'll get into her other claims.
"Techdirt did not call me for comment about that story you followed this am [in the Morning Report]," writes Teri Buhl....

"I finally reached the reporter early this am who says he is working at his day job and can't update the story until he gets home. Then he won't give me the info to directly reach a techdirt editor."
Again, to be clear: we have no obligation to contact her before writing a story about information that was made public. For her to imply that we needed to do so is simply incorrect. Tim correctly noted to her that he was not at his computer, but that he had forwarded her emails to me. He did not, as she implies, promise to update the story. He also did send her to the contact page at Techdirt, which is the best way to reach those of us here.

Moving on to the statement. We will break this down, sentence by sentence, leaving typos and grammatical oddities in place.
On Record Comment:
Again, we made no agreement to keep certain comments on or off the record. Yes, it is a journalistic convention that journalists respect such requests when the people are sources, but it is standard that both sides first agree to that convention. It is not a unilateral thing that you can just declare. When talking to sources we generally offer to keep certain comments off the record. Sometimes sources approach us and ask us to keep certain comments off the record, and we then consider the situation and decide whether or not to accept. It is then that the source chooses whether or not to share.

In this case, none of that is happening. First off, Teri Buhl is not a "source." She is the subject of the story, and we wrote about her comments and discussions with others that made their way into the public record. We have no obligation to keep anything "off the record" nor did we ever agree to any such thing.
My tweets were protected for a long time because I always looked at twitter as a conversation with my readers, not quotes, I'm not reporting news there. I can say silly things some times and I'd like to apologized for my knee jerk reaction to Gideon.
Protecting your tweets is a good idea if you want to keep them mostly quiet, but that is no guarantee that others won't share them. It is quite common for people to retweet the "protected" tweets of others, often not realizing that the original person had protected their tweets. That said, Buhl here implies that her tweets have been protected "for a long time," implying that Gideon only saw her tweet as a follower of hers, and that you could make the argument that the tweets were not, in fact, "public." I would have been willing to concede that perhaps her tweets were for followers only... except that there's evidence that this is simply not true at all. If you look at Buhl's Muck Rack page it does not currently show her tweets. Muck Rack is a site for journalists that creates profiles for those journalists and often pulls together their social media presence. Yet, a simple Google cache search for the feed turns up that, as of at least January 23rd, Buhl's tweets were clearly public on MuckRack. Here's a screenshot:
Could it be that Muck Rack has a way to display protected tweets? No. The site directly states that it can only accept public Twitter feeds. And, even if Muck Rack was magically reposting her tweets from a "protected" feed, it would still be a case that her tweets were still being made public, thus depriving her of any claim that the tweets were ever private. In other words, despite her suggestion that her Twitter stream was protected for "a long time," there is substantial evidence that this is not true. If she would like to present evidence to the contrary, we are open to reviewing it. Update: Buhl told Poynter's Jeff Sonderman that she had unprotected her account "a few months ago," directly contradicting her suggestion to us that her tweets were protected during this whole thing.
Of course I can't sue him/her because I don't even know the person's real name.
This has nothing to do with whether or not you can sue someone. Has she honestly never heard of a John Doe lawsuit?
Not publishing my tweets is about a copyright issue for me.
For Teri Buhl, perhaps, but not for copyright law for the most part. We've actually covered some of the issues about the ability to copyright tweets in the past. There may be some elements that are copyrightable, and many that are not. Even so, whether or not someone then quotes you from your tweets is not likely to be "a copyright issue." If, as is the case, we were quoting statements made by her (and repeated by others), and adding plenty of additional commentary to it, there is no copyright issue at all. We are quoting her, not "publishing" her work. Furthermore, even if she went so far as to claim copyright over it, the fair use claims are obvious and quite strong.
I make money off my words, research, and analysis as a journalist.
That may be true, but it has no bearing on anything here.
I never print someone's tweet in a story because 1) I didn't get that comment from them directly
That is her choice, but it has no bearing on whether or not someone else can do so.
2) tweets can be changed and manipulated.
Original tweets can be deleted, but not changed. So, that's wrong. Could a third party change someone else's tweet in the process of retweeting and/or taking a screenshot? Possibly, though that would be quite a bit of effort, and no one seems to suggest that happened here. Buhl's issue here seems to be that she would not quote a tweet, and therefore, when she declares her tweets not quotable, everyone needs to respect that. That is not how things work.
I 've never had another jurno ignore that request. I think it's ironic that lawyer choose to do it.
It is surprising that she's never seen journalists ignore requests to keep her tweets private, though perhaps it's because there's never been any reason to quote her prior to this. And, of course, it's not true. A quick search on Twitter finds people retweeting Buhl's tweets publicly prior to all of this happening. Either way, as stated above, there is no obligation not to quote her just because she says so. Also, it is not, at all, "ironic" that a lawyer chose to do so. He did so because he understands the law and knows that the original claim is bogus.
Twitter says I own my tweets and I'm giving them license to use them but I simply don't think that means I am giving others license. Of course it also depends on what the tweet is to proven I own the copyright.
This is true, but if you are quoting someone and relying on fair use, then we do not need a "license" from either Buhl or Twitter. And, yes, there is also the missing step of proving that what is in the tweets is copyrightable and owned -- but also that our use is not fair use, de minimis use, or any other of a long list of defenses.
As far as Mark Bennett - I would like to sue him and see how copyright law relating to tweets and photos in tweets wuld be tested. If can afford to do it I will. There is not a lot of case law for this in the U.S. I am not fan of aggregater sites who take journalist original work, screen grab it, and don't link or credit back to the original reporting. It think that's stealing page views and intellectual content.
As a site that reports on all sorts of nutty copyright cases, including quite a few claims from people believing, incorrectly, that aggregation is "stealing," it is possible that if she did sue Bennett, it would make for an interesting story for us to cover, though the crux of that coverage would most likely concern how ridiculous the case would be and the fact that it has about as close to zero a chance of succeeding as possible. Contrary to her claims, there is an awful lot of case law in the US concerning most of the key issues here, and all of it goes against her arguments.
Tim - please publish this in the story and write at the top there is an update.
I have taken over this story, and am publishing her statement right here in this post (along with our response, obviously). I will, however, add an update to the original post pointing people to this post.

Of course, that was not the end of the exchange. She also provided an "off the record" statement, saying that the background photo on her Twitter profile is covered by copyright, and demanded that we take down the image of her Twitter profile because "as a tech blogger I hoping you will respect copyright laws." We are leaving that image up, because even if the image is covered by copyright, we are using it under fair use rules, as part of reporting on her story. As such, it is perfectly reasonable to show her profile which includes her ludicrous comment that "tweets are not publishable" (which kicked off this whole thing). Since the bio section of your Twitter profile is able to be changed, it makes extra sense to show a screenshot to prove its accuracy.

It is unclear whether or not Ms. Buhl is familiar with fair use. I would hope that she investigates the issue carefully before further commenting about it or seeking any sort of legal action.

Buhl sent another, separate, email complaining about Tim's coverage of her arrest, much of which was based on a report from Patch. Her main concern here was that she is disputing the allegations, and she demanded that he note that the charges are "alleged" and that she "denies" them. Of course, both of those things were abundantly clear in the original post. The post does mention that her actions were alleged, and that a trial is upcoming. If she weren't fighting the charges, there wouldn't be any such trial. She further claims that "I am actually not charged with invasion or privacy or theft of anyone's personal information." Nowhere did we say that she was charged with any of those things, so there is nothing to correct on that front. Either way, in this post, we will note, again, that she is going to court over these issues, and thus, clearly, denies the "alleged" charges against her.

In the end, we're not at all clear on what she thinks she is accomplishing here, other than calling more attention to her initial claim that her tweets are "not publishable," and then calling more attention to her overall actions. We continue to stand by our reporting on this matter.

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