A lawyer asks: Will Google Cars put me out of business? The Wall Street Journal asks: Why shouldn’t we make money off your answer?

I always do a double-take when I see that someone has “re-blogged” a piece from Ethics Alarms. Unless there is something in my WordPress agreement that allows other bloggers to lift my work and publish it as their content without my permission—oh, who knows, there probably is—this is a copyright violation, but worse than that, it’s wrong. Apparently they think that if they give attribution, that makes everything fine. Why would they think that? I’m writing for my blog, not anyone else’s. If a blogger wants to reprint all, most or some of my commentary in order to critique it, that’s fine ( WindyPundit is doing this right now). But lifting all or most of my work to fill space on your website, without my permission? Not fair, and not ethical.

This just happened to personal injury lawyer and estimable blogger Eric Turkewitz, but the culprit wasn’t a blogger, it was the Wall Street Journal. It took his post about Google Cars and just slapped it into the print and online editions of the paper. “Lawyer Eric Turkewitz writes that self-driving cars will hurt the business of many personal-injury attorneys,” said the sub-head under “Notable and Quotable.” Hmmm. Usually a writer gets paid to write features for a newspaper. I guess just lifting copy without permission is “Fair Use.”

No, First Amendment expert Marc Randazza points out in his typically irreverent way, it isn’t:

In this case, the Wall Street Journal used 44% of Turkewitz’ post, with no additional commentary, criticism, or discussion.  The WSJ could have called Turkewitz a moron for his views, and quoted the whole thing (theoretically).  Or, the WSJ could have given approval, more discussion, or turned the article into piece of art, with spray painted Che Guevaras and stencils of Paris Hilton, as a commentary on Turkewitz, tomato soup, and golf, or whatever.  But, they didn’t do any of that.  

So lets look at the §107 [Fair Use]factors

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The purpose and character of the use is certainly commercial and for profit. The WSJ sold its newspaper with Turkewitz’ work in it, and even put it behind its paywall online. Same exact use, except WSJ took what Turkewitz distributes for free, gathered it, and sold it.

The nature of the copyrighted work was Turkewitz’ original opinions and thoughts.

The amount and substantiality of the portion used? 44%. Pretty substantial. Remember, this is not dispositive, but if you used almost half of an original work, you better have a good reason.

The effect of the use on the potential market for the value of the copyrighted work? That’s sorta iffy. It isn’t as if Turkewitz sells his work. But, that is not a requirement. Turkewitz’ blog currency is readership. If you do some quick online searches for some of the content, sometimes the WSJ version comes up above Turkewtiz’ version. Not cool. Ultimately, the WSJ blew it here because they didn’t add anything to the original — they just lifted it and reposted it….

So the verdict? The Wall Street Journal is definitely guilty of copyright infringement for lifting a bloggers’ work without any justification.

It’s worse than that, however. The Journal not only lifted the post, but did so in a way that distorted it to the author’s detriment. Turkewitz had written that while the futuristic self-driving, pedestrian and potential accident-avoiding cars might put him and his colleagues out of business, this would be a good thing for society and he welcomes it:

“Has anyone ever cheered being put out of business? I am. Because I drive, too. I’ve been hit in the rear at least four times in the last few years. Every one no doubt the result of an inattentive driver. Thankfully, all of those were minor and they never resulted in an injury. But my lack of injury is simply my good luck…. from a raw safety standpoint, I am left with no other choice than to cheer the company on. Go ahead, Google, make my day by bringing on safety and putting us personal injury attorneys out of business….”

The Journal, however, cut off the article in the act of stealing it, prompting comments from readers like…

“Crocodile tears.  Boo, hoo. I feel for you, really, if what you say had any basis in reality. So long as people are allowed to drive their own cars, or the technology of computer driven cars is perfected, or the Feds oversee and force the use of the latter, which it will never be, there will be plenty of false and true claims you and your ilk can batten upon.”

This would be a despicable way to treat any writer, but Eric, in addition to having a reputation as a terrific, ethical and trustworthy lawyer, is also a nice guy. I can testify to that personally. In his own post about the Journal’s crummy conduct, an open letter, he offers this as a remedy:

“…You write me a nice note that says, “Oops! I can’t believe we just took so much of your property and reprinted it without asking! We really shouldn’t have done that.” And you also say that you shouldn’t have made it look, on your index page, as if I submitted it to you … since I played no part in its appearance there. And that if you were going to edit my piece to imply something different, then a link should have been provided so that your readers could see full context.

Then you say, “What can we do to make this up to you!?”

And I say, because I’m a nice guy and willing to give you the answer in advance in case you are worried about lawsuits, “You owe me a beer and we’ll call it even.”

Why would I let you off the hook so easily? Because I have bigger concerns than the 12 rupees you might owe me for swiping my stuff without permission, that concern being your implicit endorsement of such practices. Because that endorsement hurts all writers, both you and me together. (I know, it’s gotta suck for some at the WSJ to be in agreement with a personal injury attorney.)

And you say to me, “Wow, we’ve never received such a nice lawyer letter before! And your suggestion that we admit an error sounds perfectly reasonable, because if we don’t admit it was an error, others that copy our stuff might possibly throw this little theft back at us one day as a defense, ‘Hey, if youse guys at da Journal can steal 44% of that idiot-lawyer-blogger’s content, why can’t we just take 44% from youse, huh?’ ”

You’ve probably never been offered such a good deal, that being the actual, real-world benefits of saying “oops.”

I’m not sure I would be so nice. The next blogger the Journal steals from shouldn’t be, either.

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Sources: Eric Turkewitz, Legal Satyricon