disemvoweling and the law: copyright, fair use, and defamation

Disemvowelment is the removal of all the vowels from a post by a moderator. I never gave it much thought until I saw people being disemvoweled for political rather than rhetorical reasons. That led to my disemvoweling at Tibet and human rights: New Amnesty ads, when Boing Boing was promoting a hoax about Amnesty International. Here’s the re-emvoweled version of what offended the moderator:

"Xeni owes BB's readers a new post so the readers who fell for this hoax will know the truth."

“If you have any respect for AI, please make a new post to let all BB readers know the truth.”

Avram Grumer explained at #257, "Will, I've partially disemvoweled your cts #246 and 248. Do not presume to tell Xeni (or the other Boingers) what to post about."

I protested in Boing Boing's moderation thread at #608: “Hmm. The heavy hand of the moderators strikes again: For suggesting that Xeni should put a correction on the front page, I was disemvowelled. It smells unethical to me: Print the lie on the front page, then print the correction somewhere in the back pages.”

For saying that, I was banned.

I hate seeing political speech censored, so I decided to look into the legal implications of disemvoweling.

How does copyright apply to blogging?

The Electronic Frontier Foundation’s If a reader comments on my blog, does she license the rights to me? says, “When a person enters comments on a blog for the purpose of public display, he is probably giving an implied license at least for that display and the incidental copying that goes along with it.”

A commenter is only giving permission to reproduce the comment faithfully. Newspapers and journals understand this. When they wish to mock a letter of comment, they print it with all errors intact. If a letter’s meaning is distorted or lost due to editorial changes, journalistic ethics call for printing a correction in the next edition. Even when a contract exists between writer and publisher, the current custom in US book publishing is for editors to give writers final approval of the edited manuscript.

Is disemvowling justified under “fair use”?

From Stanford University Library’s What Is Fair Use?: “In its most general sense, a fair use is any copying of copyrighted material done for a limited and "transformative" purpose such as to comment upon, criticize or parody a copyrighted work.”

From Chilling Effect’s Frequently Asked Questions (and Answers) about Copyright and Fair Use :

..if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair. See Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986), and in New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988).

And, from the Fair Use Network’s Fair Use of Copyrighted Works:

Unpublished letters, or other writings that the author chose to keep private, have a stronger claim against unauthorized uses than works the creator has released to the public.

The recurring theme in defining “fair use” is that it lets us comment on the original work of others. “Fair use” assumes people will recognize what’s being used, and if they do not, they can go to the source–even if that means going to a private library and looking at the original manuscript.

When a blog owner disemvowels comments, the blog owner is not commenting on the original work; the blog owner is altering it. Blog comments are expected to be the original expression of the work, not copies of work that exist elsewhere. Commenters who leave comments copied from other sites are traditionally considered spammers.

Is disemvoweling defamation?

From the Electronic Frontier Foundation’s Bloggers' FAQ - Online Defamation Law: “Generally, defamation is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice.”

Is disemvoweling meant to be “harmful to someone’s reputation”? Teresa Nielsen Hayden, who invented the technique, explains, "It deprecates but does not delete the remark.” Xeni Jardin adds, “The dialogue stays, but the misanthrope looks ridiculous.”

Can disemvoweling, though negligence or malice, create false statements of fact? In this thread at my livejournal, I wrote, 'I would challenge anyone to decipher: "f y hv ny rspct fr , pls mk nw pst t lt ll BB rdrs knw th trth."' Nelc, who took part in the original discussion on Boing Boing as Nelson_C, answered, 'I think you've dropped a word: "If you have any respect for [me], please make a new post to let all BB readers know the truth."' Because the abbreviation for Amnesty International, “AI,” was lost through disemvowelling, my request for respect for Amnesty International was interpreted as a plea for respect for me.

A conclusion

I say “a conclusion” rather than “the conclusion” because the law is decided by people with different philosophies—that’s why cases are appealed. Here’s what I think is clear:

Disemvoweling is an abuse of copyright. In the absence of a contract, a writer’s words belong the writer.

Disemvoweling is not justified by “fair use.” To use something fairly, it must exist in a form that can be found by those who wish to compare the use with the original.

Disemvoweling, through negligence or malice, can create false statements of fact. Disemvoweling could result in a defamation suit, depending on the degree of falseness and the litigiousness of the disemvoweled.

That said, this isn’t a legal issue for me. It’s a moral one. If someone says something on your web site that you don’t like, remove it or rebut it. Don’t mangle it in the hope that mockery will win where reason failed.