By Dan Kennedy • The press, politics, technology, culture and other passions

Unfair use

Not only is hospital executive Paul Levy’s blog raising hackles among his colleagues, but he apparently doesn’t understand copyright law, either.

The Boston Globe’s Liz Kowalczyk reports that Levy’s blog, Running a Hospital, has put some noses out of joint not just at the institution he heads, Beth Israel Deaconess Medical Center, but at some rival institutions, too. (The Globe doesn’t bother to link to Running a Hospital, but it’s not hard to find.)

This morning, Levy begins thusly: “Story in the Boston Globe today. I reprint it in its entirety.” And he does.

Under the fair use exception to copyright, Levy can quote a brief passage or two from the story for the purpose of commenting on it. In no way, however, can he reproduce the entire article, even if it is about him, and even if he does link back to the original.

Levy deserves credit for his outspokenness, which is rare among health-care executives. But he’s got a few things to learn about copyright.

Update: Well, that didn’t take long.

Update II: I don’t want to turn into a full-time copyright cop, but here’s another one, from Health Care for All.


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10 Comments

  1. Paul Levy

    Golly, Dan, thanks. I did not know that. Does it apply to the web version of their stories, too? That’s the one I copied.

  2. Citizen Charles Foster Kane

    Dan:You’re just noticing the problem blogs have with copyrighted material?There are entire blogs which depend on the wholesale appropriation of copyrighted material beyond any concept of fair use, such as Pundit Review. For example, a recent post “Democrats: Fully Invested In Our Defeat In Iraq” contains 122 words by Gregg Jackson, 424 from the Wall Street Journal. Another about Nancy Pelosi is 187 words from the Washington Post, 103 from Gregg Jackson. Pretty much any post on Pundit Review which isn’t about a guest on their radio show shows the same imbalance. I thought conservatives were supposed to protect property rights–I guess stealing is okay if it serves dear leader. The real question to my mind is why haven’t copyright holders been more adamant about protecting their rights from these thieves?

  3. Dan Kennedy

    Paul: Thanks for checking in! And a fine blog you’ve got there. The answer is yes, copyright applies regardless of the medium in which something is published. A few years ago the Free Republic lost a big case over this.Charles: I hold adults to a higher standard.

  4. Paul Levy

    Thanks, Dan. At your suggestion, I have modified the posting considerably. I tried to leave enough in the posting to give the flavor of the story. I hope this encourages readers to go to the Globe site to get the full version.

  5. Anonymous

    This happens all the time. Look at Common Dreams which reposts virtually any liberal/left article from the Globe op-ed page. I can’t recall a Derrick Jackson piece that doesn’t do this.My hunch is that the newspapers figure it is worth the extra traffic created by the link, otherwise they would have tried to stop it by now.

  6. Anonymous

    Dan, how come you can link to the article in its entirety? Is there a “journalistic” exeption to the fair use law?

  7. John Howard

    Posting excerpts or the whole thing doesn’t make a difference, it’s fair use if it is for educational purposes, and usually with bloggers, it is. They aren’t trying to steal traffic away from the globe. They are trying to educate their readers about something that was written somewhere. You can’t just steal content in order to make your website better, but that’s true if your taking just a paragraph. But if someone writes an article about YOU, you can damn well reprint the whole thing on your blog. Especially if the article is on a website that you want to protect your readers from having to go to, like the globe.

  8. Anonymous

    It seems we have a disagreement between Media Nation and Josh Howard.I am curious on this ecause as a frelance writer, I would like to be able to post article by me on a personal blog. Not to steal traffice — my blog, to my knowledge has no readers — but simply to have y articles in one convenient place. This was, if I wanted ot e-mail a friend and say “here are all of my articles from March” I can just refer them to y blog. Anyway, interested in hearing other views on this.

  9. Dan Kennedy

    Sorry, folks, but there’s a lot of misinformation here. I’m not a lawyer, and I’m not going to claim to be a copyright expert. But I do teach media law, and I know something about this.First of all, this Wikipedia discussion of fair use, to which I pointed the other day, is quite good. So if you’re interested in the subject, I recommend that you read the article.Now, a few points, if I may.1. Educational and/or nonprofit use is one of the four factors that is taken into consideration in any sort of fair-use balancing test. However, that doesn’t let you reproduce the whole thing. It’s simply something that the courts will weigh in your favor if you get sued for copyright violation.Here’s something you’ll see at the bottom of every article at TruthOut.org: “In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. t r u t h o u t has no affiliation whatsoever with the originator of this article nor is t r u t h o u t endorsed or sponsored by the originator.” There is, in fact, no legal basis for what TruthOut is doing. I suspect the site’s owners are getting away with it only because those whose copyright is being violated don’t care.2. John Howard writes, “But if someone writes an article about YOU, you can damn well reprint the whole thing on your blog.” I’m not sure what to say except, uh, “no.” Your being the subject of an article has zero impact on copyright and fair use. For a pretty good analogy, consider what photographers do. Let’s say a photog for the Salem News takes a picture of a candidate for mayor. The candidate comes in and buys a reprint for $25. So far, so good. But then the candidate makes copies of the photo and starts using it as his official picture, puts it on his Web site, and distributes it to other papers. Now he’s violating the News’ copyright — no question about it. (And if the News used a freelance photographer, the candidate is violating his or her copyright.)3. Anon 3:11 asks, “Dan, how come you can link to the article in its entirety? Is there a ‘journalistic’ exeption to the fair use law?” A: Quoting a few snippets and then linking to the whole thing is fair use. By requiring Media Nation readers to follow the link in order to read an entire article, I am helping to preserve the original publication’s intellectual property rights. Internet copyright law is evolving, and sometimes publications sue over “deep linking” in such a way that avoids advertising. That’s why I will almost never link to a print view, since the ads are sometimes left out. But the general rule is linking is OK, copying isn’t.4. Anon 5:52 wants to know whether, as a freelance writer, he can post his articles on a personal blog. The answer: Yes, absolutely, unless he signed away his copyright. Increasingly, publications like the Globe require freelancers to let them repackage their work for various electronic uses. However, the freelancers still retain copyright and have the right to resell their work and post it online (sometimes after a certain period of time has passed).

  10. Anonymous

    I am a lawyer, and I can assure you that Dan’s characterization of copyright law and the the fair use exemption is entirely correct. Under the fair use doctrine, people can post short passages from a copyrighted work for the purpose of commenting, etc., on those passages. It usually does not include the right to reproduce an entire work–unless, possibly, the entire work is merely brief passages.When I am on a message board or comment thread and want to notify others there of a work that will probably be of interest to them, I’ll reproduce the title, maybe a few brief passages that give the gist of what may be of interest, and a link to the work. That’s how it should be done. And that’s the reason for linkability. And the reproduction of the title and maybe a paragraph or two is intended to provide a basis for their interest in actually following the link.Regarding Dan’s #2 “ For a pretty good analogy, consider what photographers do.” I’ll just point out that it has recently been reported that the proprietor of the Perez Hilton web site has been sued by (I don’t recall the name of the organization, but it is the analog of ASCAP and BMI for photographers) for using copyrighted photos, merely adding a bit of photoshopped comments over them, and posting them on his web site. Fair use? Definitely not.–raj

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