An Open Letter to the New York Times

An Open Letter To The New York TimesIn his report, Jennings goes on to elaborate on each of
Dear New York Times Legal Department:the points above, noting that purpose and character
I write several commercial blogs for clients withhas to do with two factors - primarily commercial use
diverse business interests. I write and manage blogs onand transformative use. Jennings quotes the Supreme
real estate, Internet marketing, security, art andCourt with regard to the first factor: "The crux of the
literature, software and technology, advertising mediaprofit/nonprofit distinction is not whether the sole
and online gambling. Recently, I received an e-mail frommotive of the use is monetary gain, but whether the
a commercial writer who creates content on one ofuser stands to profit from the exploitation of the
your subsidiary websites. It was a very threateningcopyrighted material without paying the customary
letter.price." Again, I'm no legal scholar, but it seems to me
In read in part, and this is a paraphrase, that my use ofthat a vital question to ask in determining this crucial
her material on one of my blogs constituted plagiarismdistinction is whether or not the commercial use of the
and that I should remove it or be subject to hercopyrighted material could stand on its own without the
attorneys' - you - hungry ambitions. I was aghast that amaterial in question. Since I removed the "borrowed"
fellow author didn't understand the fair use clause ofmaterial from my posts immediately upon receiving this
U.S. copyright law.e-mail, I think any judge would see that there is no
According to a report for Congress on fair use on thequestion that my blog posts could survive without your
Internet, written by Christopher Alan Jennings of thematerial.
American Law Division, courts weigh four factors withThis brings me to Jennings' next point. He says in his
regard to fair use, whether online or off line:report that "transformative use" means generally that
1. Purpose and character of work in questionthe new use of the copyrighted material "adds
2. Nature of copyrighted worksomething new, with a further purpose or different
3. "Amount and substantiality of the portion used incharacter, altering the first with new expression,
relation to the copyrighted work as a whole"meaning or message." Well, since I added my own
4. Effect of use of the work "upon the potentialcomments to the "borrowed" material in order to
market"highlight certain points that I agreed with, simply using
Now, I'm no legal scholar, but it seems to me thatthe material as a testimonial to prove my larger point, I
copying a paragraph or two and commenting on it onbelieve that would qualify as a valid transformative use
a blog falls into these guidelines as fair use. While thereof copyrighted material. Again, since I did link back to
is no black and white dividing line with regard to fairthe original source, which constitutes attribution, I do not
use, I believe the first point (purpose and character)understand why a fellow author would consider that
has a lot to do with medium. In other words, the mediaplagiarism.
used in communicating a copyrighted work isIn light of your own issues regarding plagiarism - i.e.
essentially and inherently tied to purpose andJayson Blair, which led to the resignation of Howell
character.Raines and Gerald Boyd - I can understand why this
This is an important distinction because, while blogs aremight be a sensitive issue for you. Perhaps your
fairly new on the historical landscape of copyrightednewspaper would like to change its public image or
material, it is very common and a fairly acceptedtake any attention off of yourselves due to these very
practice - not to mention encouraged - for bloggers toserious issues that have resulted in a negative image
copy and paste a few sentences or paragraphs fromof your company. But that's no reason to toss around
a website and add their own comments to it. Offalse accusations. I'd encourage - indeed, I implore you
course, it is generally recognizable that, when doing so,- to please take the time to educate your employees
bloggers will link back to the quoted source as an acton what constitutes plagiarism and fair use for
of attribution. This is considered fair use by the majoritybloggers and other Internet authors. I'd hate to see
of bloggers who engage in this practice. It is also whatyour company involved in other embarrassing and
I did when I "plagiarized" your subordinate author'sunnecessary legal wrangles.
copyrighted material.