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Article #461: An Open Letter to the New York Times

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






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