Colli Real Estate

An Open Letter to the New York Times

An Open Letter To The New York Times

Dear New York Times Legal Department:

I write several commercial blogs for clients with diverse business interests. I write and manage blogs on real estate, Internet marketing, security, art and literature, software and technology, advertising media and online gambling. Recently, I received an e-mail from a commercial writer who creates content on one of your subsidiary websites. It was a very threatening letter.

In read in part, and this is a paraphrase, that my use of her material on one of my blogs constituted plagiarism and that I should remove it or be subject to her attorneys’ – you – hungry ambitions. I was aghast that a fellow author didn’t understand the fair use clause of U.S. copyright law.

According to a report for Congress on fair use on the Internet, written by Christopher Alan Jennings of the American Law Division, courts weigh four factors with regard to fair use, whether online or off line:

1. Purpose and character of work in question

2. Nature of copyrighted work

3. “Amount and substantiality of the portion used in relation to the copyrighted work as a whole”

4. Effect of use of the work “upon the potential market”

Now, I’m no legal scholar, but it seems to me that copying a paragraph or two and commenting on it on a blog falls into these guidelines as fair use. While there is no black and white dividing line with regard to fair use, I believe the first point (purpose and character) has a lot to do with medium. In other words, the media used in communicating a copyrighted work is essentially and inherently tied to purpose and character.

This is an important distinction because, while blogs are fairly new on the historical landscape of copyrighted material, it is very common and a fairly accepted practice – not to mention encouraged – for bloggers to copy and paste a few sentences or paragraphs from a website and add their own comments to it. Of course, it is generally recognizable that, when doing so, bloggers will link back to the quoted source as an act of attribution. This is considered fair use by the majority of bloggers who engage in this practice. It is also what I did when I “plagiarized” your subordinate author’s copyrighted material.

In his report, Jennings goes on to elaborate on each of the points above, noting that purpose and character has to do with two factors – primarily commercial use and transformative use. Jennings quotes the Supreme Court with regard to the first factor: “The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain, but whether the user stands to profit from the exploitation of the copyrighted material without paying the customary price.” Again, I’m no legal scholar, but it seems to me that a vital question to ask in determining this crucial distinction is whether or not the commercial use of the copyrighted material could stand on its own without the material in question. Since I removed the “borrowed” material from my posts immediately upon receiving this e-mail, I think any judge would see that there is no question that my blog posts could survive without your material.

This brings me to Jennings’ next point. He says in his report that “transformative use” means generally that the new use of the copyrighted material “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Well, since I added my own comments to the “borrowed” material in order to highlight certain points that I agreed with, simply using the material as a testimonial to prove my larger point, I believe that would qualify as a valid transformative use of copyrighted material. Again, since I did link back to the original source, which constitutes attribution, I do not understand why a fellow author would consider that plagiarism.

In light of your own issues regarding plagiarism – i.e. Jayson Blair, which led to the resignation of Howell Raines and Gerald Boyd – I can understand why this might be a sensitive issue for you. Perhaps your newspaper would like to change its public image or take any attention off of yourselves due to these very serious issues that have resulted in a negative image of your company. But that’s no reason to toss around false accusations. I’d encourage – indeed, I implore you – to please take the time to educate your employees on what constitutes plagiarism and fair use for bloggers and other Internet authors. I’d hate to see your company involved in other embarrassing and unnecessary legal wrangles.

About the Author

Allen Taylor writes the News and Media Blog at http:newsandmediablog.com.

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