Monday, January 10, 2011

Why I took down the Bardach transcripts

Over the weekend, California writer Ann Louise Bardach asked me to remove a court document from Along the Malecón.
She said she believed I was violating her copyright to the document, which was a partial transcript of her conversations with anti-Castro militant Luis Posada Carriles in 1998.
I decided earlier this evening to voluntarily take down that transcript and another one, for now, and I want to explain why, particularly since I've been a critic of secrecy in the Posada Carriles case.
For starters, here is the initial email that Bardach sent me at 10:46 p.m. on Jan. 8:
DNS Admin
Google Inc.
1600 Amphitheatre Parkway
Mountain View CA 94043 +1.6502530000 Fax: +1.6506188571

The text of the notice should be as follows:

My name is Ann Louse Bardach. A website that your company hosts,, is infringing on a copyright owned by me.

A transcript of my interview of Luis Posada Carriles that I conducted for The New York Times was copied onto your servers without permission. The original transcript for which I own the exclusive copyright is unpublished. The unauthorized and infringing copy can be found at:

This letter is official notification under Section 512(c) of the Digital Millennium Copyright Act (”DMCA”), and I seek the removal of the aforementioned infringing material from your servers. I request that you immediately notify the infringer of this notice and inform them of their duty to remove the infringing material immediately, and notify them to cease any further posting of infringing material to your server in the future.

Please also be advised that law requires you, as a service provider, to remove or disable access to the infringing materials upon receiving this notice. Under US law a service provider, such as yourself, enjoys immunity from a copyright lawsuit provided that you act with deliberate speed to investigate and rectify ongoing copyright infringement. If service providers do not investigate and remove or disable the infringing material this immunity is lost. Therefore, in order for you to remain immune from a copyright infringement action you will need to investigate and ultimately remove or otherwise disable the infringing material from your servers with all due speed should the direct infringer, your client, not comply immediately.

I am providing this notice in good faith and with the reasonable belief that rights my company owns are being infringed. Under penalty of perjury I certify that the information contained in the notification is both true and accurate, and I am the owner of the copyright involved.

Should you wish to discuss this with me please contact me directly.

Thank you.

/s/ Ann Louise Bardach

Without Fidel: A Death Foretold in Miami, Havana and Washington
After I received the email, I consulted with a journalism professor, a law professor, a veteran investigative reporter and the operator of a website on copyright issues. I also called the Legal Defense Hotline of the Reporters Committee for Freedom of the Press.
No one I talked to felt that it was clear case of copyright infringement. Several people pointed out that the transcripts, after all, had been filed in court; it wasn't as if I were publishing a leaked document.

I also read about the Digital Millennium Copyright Act, and studied Google's policies on handling accusations of copyright infringement.
I read several legal cases posted on the Open Jurist website, which contains a huge collection of legal opinions.
I took part in an interactive exercise known as the Fair Use Visualizer, which produces a numerical score showing whether someone may be violating a copyright based on the information you provide - and my use of the transcripts passed that test.
I also spent some time digging into the files of the Chilling Effects Clearinghouse. It gives advice on how to handle cease-and-desist orders. The website says:
Anecdotal evidence suggests that some individuals and corporations are using intellectual property and other laws to silence other online users. Chilling Effects encourages respect for intellectual property law, while frowning on its misuse to "chill" legitimate activity.
Bardach, an award-winning author who has written for Vanity Fair, the New Yorker and other national publications, was on a New York Times contract when she interviewed Posada Carriles. Her interview is now an important piece of evidence in the trial.
Prosecutors accuse Posada Carriles of perjury, among other things, and plan to try to prove that the defendant lied about his involvement in a string of bombings in Havana.
Posada Carriles admitted to Bardach he had a role in the bombings.
The transcripts were taken from tape recordings. The defense and the prosecution disagree over some of the content of the transcripts, whether they are accurate, whether certain words and phrases were translated and interpreted correctly. So they each have their own transcripts.
That means there are three different versions: that of the New York Times, the prosecution and the defense.
On Aug. 25, 2009, U.S. District Court Judge Kathleen Cardone said sensitive, but non-classified documents filed in the case should be sealed. The result is that documents are filed and the public never sees them, giving people no chance to evaluate the fairness of our sprawling taxpayer-financed legal process.
On Jan. 2, the prosecution team led by Timothy J. Reardon III apparently broke the judge's secrecy order by making public one of the Bardach interview transcripts. The defense filed its version of the transcript on Jan. 5.
I retrieved the documents and posted them before Cardone convened the lawyers and read them the riot act, or whatever it is that federal judges do.
Cardone ordered the documents sealed - again - on Jan. 7. The next day, I received Bardach's request to remove one of the transcripts. I considered her complaint carefully.
Today she wrote me, saying:
Dear Tracey,
As I told you I remain conflicted about this, but have been strongly advised by counsel to do so to protect my copyright - of the Posada transcripts in their entirety, chronology and integrity - from those who would seek to use them (or selected bits) - for their own purposes.
Ann Louise
I believe that readers win - Americans win - when these kinds of documents are made public. The trial of a former CIA operative should not be conducted in secret. That gives the impression that the government is hiding something. Is that the message you want to send when you already have critics saying that authorities should be charging Posada Carriles with much more serious crimes than perjury?
Our legal system should be as open and transparent as possible, not the reverse.
The different versions of the transcripts are important because they give clues as to what Posada Carriles said. Studying a defendant's words and meaning is vital to a perjury trial.
My intent in posting the transcripts was give readers information and analysis and criticism, not to somehow make a profit. I mean, no one pays me to write a blog.
In fact, writing about this darned trial costs money. In December, I spent $131.60 to download 1,645 federal court documents, most of them related to this case. And this month, I've already racked up $123.36 in fees to download 1,542 documents. I'm not complaining, mind you. I am grateful that America's legal system allows ordinary people to at least take a peek at what's going on. And I am a big supporter of Pacer, U.S. government website that offers remote access to federal court filings.
I felt I had some justification for posting the Bardach interview transcripts. One could argue, for instance, that the different versions of transcripts at this point do not entirely represent Bardach's original work. They are now a collaboration, with lawyers and translators adding their bits of information and interpretation to the mix, and they lose at least some of their copyright protection because of that.
I decided to remove the documents anyway. I took them down from Google Sites, where I kept them, even though Google has not sent me a cease-and-desist letter.
I respect Ann Louise Bardach and her work. Her books - including "Cuba Confidential" and "Without Fidel" - have provided great insight into the bitter half-century-long fight over Cuba.
I don't want her to feel that I am violating her rights as a journalist. I'm a journalist, too, and I don't begrudge her for trying to protect her work.
I chose civility and restraint in the age of Wikileaks.
Did I do the right thing? Or did I jump the gun?

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