For the second time in less than one week, we have received a legal threat for our republication of a “confidential” document that was, in fact, already publicly available. However, this threat, made by legal representatives of the defense contractor Allen-Vanguard, goes much further than the previous threat made by Visa International Service Association to claim that we may be subject to imprisonment for the reproduction of a four-page public document. The document in question is part of a series of “TRITON Intelligence Reports” produced by the Hazard Management Solutions Company, Ltd., a British company that claims to be the “world’s premier supplier of integrated counter improvised explosive device (C-IED) training, analysis and consulting services”. HMS Ltd. is owned by a Canadian company named Allen-Vanguard Corporation and it is the Trademark Agent and Intellectual Property Specialist for this company that issued the threat.
The threat argues that through our publication of the document “Public Intelligence is attempting to pass itself off as being associated with HMS. Public Intelligence is not in any way associated with HMS, and in fact your attempt to associate with HMS is detrimental to HMS and may, indeed, have irreparably harmed HMS.”
The threat goes on to describe how we have “made the document public” in violation of their rights and “in direct violation of the Copyright Act and the applicable US copyright laws”. This extraordinary list of claims concludes with the statement that we should:
“Be advised that Public Intelligence’s unauthorized use of this report does not fall under any exceptions under any applicable copyright laws. Your actions therefore can result in liability for civil remedies by way of injunction, damages, accounts, or otherwise; or, criminal remedies for which you may be liable, on conviction, to a substantial fine or to imprisonment.”
The threat also demands that we remove all references to Allen Vanguard Corporation or HMS Ltd. or any of their affiliates and refrain from ever linking to or even referencing any reports from these companies in the future. Thus, the threat demands we impose an extra-judicial gag upon ourselves, effectively eliminating our free speech rights now and in any future situations relating to these companies, and that we agree to undertake this gag in writing.
We feel that these claims are without merit and abusive in nature, most notably the claim of criminal copyright infringement resulting in imprisonment, of which we can find no relevant examples. Moreover, we feel that there are ample grounds for the publication of such a document under the principles of Fair Use, as delineated in § 107 of the U.S. Code. However, we have always felt that our strongest justification for such republication is found in § 108 which provides exemptions for the distribution of copyrighted works by libraries and public archives. Excerpts from this section follow:
§ 108. Limitations on exclusive rights: Reproduction by libraries and archives
(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if—
(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are
(i) open to the public, or
(ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.
(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if—
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
Public Intelligence intends to be in compliance with these requirements. At the bottom of every page, we have a statement that explicitly states:
The material on this site is provided for educational and informational purposes. It may contain copyrighted material the use of which has not always been specifically authorized by the copyright owner. It is being made available in an effort to advance the public understanding of political, social, and economic issues. It is believed that this constitutes a ‘fair use’ of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have an interest in using the included information for research and educational purposes. If you wish to use copyrighted material from this site for purposes of your own that go beyond ‘fair use’, you must obtain permission from the copyright owner. The information on this site does not constitute legal or technical advice.
Moreover, any document entered into this archive which is believed to be copyrighted is carefully attributed to the original copyright-holder and a statement to this effect is placed in the document’s description. We do not aim to infringe the rights of any copyright-holder. Despite the protections that we feel are afforded us under the aforementioned sections, we distribute copyrighted works only in situations where we feel there to be a substantial reason for public disclosure. In this case, the document in question concerns Iranian support for the Afghan Taliban, something that has been recently reported on in a number of publications, and which may have implications for the future of U.S. military strategy in the region. Such information is particularly important to the U.S. public for understanding the nature of our conflict with Iran, a conflict that that many commentators say is nearing open war. In addition to this, the “TRITON Intelligence Report” series is distributed among U.S. government, military, and law enforcement personnel. One source even states that the Department of Homeland Security “sponsors” TRITON reports. However, there are no publicly available examples of these reports. This presents a justifiable need for U.S. citizens to have access to at least a representative example, if only for the historical record, of a work which they are subsidizing.
Works that are produced by U.S. government agencies are not capable of being copyrighted and are automatically entered into the public domain. There are very obvious reasons for this: we as a people have to be able to freely disseminate and reproduce the works of our elected officials conducting our official business. Where our collective interests have intersected with private business, this precedence does not simply dissolve. The right to inform oneself is a universal human right, as declared in Article 19 of the U.N. Declaration on Human Rights, which states that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” In fact, U.S. copyright law makes clear that its purpose is not to limit research and scientific advancement, nor the right of people to be informed of relevant events by inhibiting the free flow of information with restrictive provisions. The definition of Fair Use in § 107 makes this explicitly clear, stating that dissemination and reproduction “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”.
Public Intelligence does not profit from the reproduction of any of the works on this site, nor does it seek commercial advantage. Any donations that are received are used, along with very small revenue from advertisements, to maintain the site’s operations. These costs are substantially higher than any form of revenue. We have posted a notice above the document making clear that we are not, in any way, affiliated with the companies that produced it, nor do we have any desire of being associated with them. We have no interest other than to provide the public with relevant information.