| An Open Letter To The New York Times | | | | In 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 with | | | | has to do with two factors - primarily commercial use |
| diverse business interests. I write and manage blogs on | | | | and transformative use. Jennings quotes the Supreme |
| real estate, Internet marketing, security, art and | | | | Court with regard to the first factor: "The crux of the |
| literature, software and technology, advertising media | | | | profit/nonprofit distinction is not whether the sole |
| and online gambling. Recently, I received an e-mail from | | | | motive of the use is monetary gain, but whether the |
| a commercial writer who creates content on one of | | | | user stands to profit from the exploitation of the |
| your subsidiary websites. It was a very threatening | | | | copyrighted 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 of | | | | that a vital question to ask in determining this crucial |
| her material on one of my blogs constituted plagiarism | | | | distinction is whether or not the commercial use of the |
| and that I should remove it or be subject to her | | | | copyrighted material could stand on its own without the |
| attorneys' - you - hungry ambitions. I was aghast that a | | | | material in question. Since I removed the "borrowed" |
| fellow author didn't understand the fair use clause of | | | | material 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 the | | | | question that my blog posts could survive without your |
| Internet, written by Christopher Alan Jennings of the | | | | material. |
| American Law Division, courts weigh four factors with | | | | This 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 question | | | | the new use of the copyrighted material "adds |
| 2. Nature of copyrighted work | | | | something new, with a further purpose or different |
| 3. "Amount and substantiality of the portion used in | | | | character, 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 potential | | | | comments 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 that | | | | the material as a testimonial to prove my larger point, I |
| copying a paragraph or two and commenting on it on | | | | believe that would qualify as a valid transformative use |
| a blog falls into these guidelines as fair use. While there | | | | of copyrighted material. Again, since I did link back to |
| is no black and white dividing line with regard to fair | | | | the 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 media | | | | plagiarism. |
| used in communicating a copyrighted work is | | | | In light of your own issues regarding plagiarism - i.e. |
| essentially and inherently tied to purpose and | | | | Jayson 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 are | | | | might be a sensitive issue for you. Perhaps your |
| fairly new on the historical landscape of copyrighted | | | | newspaper would like to change its public image or |
| material, it is very common and a fairly accepted | | | | take any attention off of yourselves due to these very |
| practice - not to mention encouraged - for bloggers to | | | | serious issues that have resulted in a negative image |
| copy and paste a few sentences or paragraphs from | | | | of your company. But that's no reason to toss around |
| a website and add their own comments to it. Of | | | | false 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 act | | | | on what constitutes plagiarism and fair use for |
| of attribution. This is considered fair use by the majority | | | | bloggers and other Internet authors. I'd hate to see |
| of bloggers who engage in this practice. It is also what | | | | your company involved in other embarrassing and |
| I did when I "plagiarized" your subordinate author's | | | | unnecessary legal wrangles. |
| copyrighted material. | | | | |