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. Continue reading