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Long story short: The original story was actually written by a freelancer that sold the story to a newspaper which The Phoenix gobbled up. The freelancer may have retained the copyrights to the story, except for the serial publication rights actually exercised by the original newspaper (but in either case, not the Phoenix). The Phoenix did not keep records or archives of its stories, and did not even know this story still existed...until the NY Times posted a copy of it.

The NY Times had no ability to get permission from the original copyright holder because no one knew who that was. They republished the original article as an appendix/supplementary item to another article published in the physical paper (available online at http://www.nytimes.com/2012/02/04/opinion/nocera-the-cost-of...).

This is the textbook definition of "fair use": providing a copy of an out-of-print, otherwise unavailable news article, for the purposes of supplementing a published news article. (Fair use is a multi-factor test with no fixed requirements...it's basically whatever use is "fair" in the context of the actual use.)




On what basis is it the textbook case? I'm not a copyright lawyer (or a lawyer of any kind), but here's the relevant section of the USC:

    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.
Note in particular item 3.

Mind you, the list is not exhaustive and judges are able to give their own interpretation on questions of substantiality. But very small units of copyrighted material (a few hundred words from a book, a 1 second sample from a 4 minute song) can break fair use. So I don't see how copying the entire work passes the substantiality test.

Furthermore, the NYT could have tracked down the source. They got the copy from Booth, Booth wrote it for the Real Paper, and a bit of legwork of the kind journalists are meant to be good at would have revealed that the Real News had been subsumed by the Phoenix.

Even if it's not a slam dunk, it's still a blinding act of inconsistency.

(Again: IANAL, TINLA).


The points in consideration of fair use are just that.

Fair use is an affirmative defense. That is: it's not a right to copy, but a defense against copyright infringement.

There are four points to be considered. Generally a successful defense will hinge on at least one, but it may very well fail at others.

And there are other defenses which will also succeed. In Sega v. Accolade, copyright infringement was not supported, because the role of the work in which infringement was alleged was functional: Accolade were copying a verbatim string from Sega in order to provide game-cartridge / player compatibility. Copyright protection does not apply to facts ... or to functional aspects of a work.


Fair use IS a right to copy. Or more accurately, fair use is a limitation of the copyright holder's exclusive rights.

The term "affirmative defense" simply means the defendant "affirms" or acknowledges the action, but defends it on specific grounds (in this case, that the copying was a fair use and thus not a violation of copyright).

http://www.law.cornell.edu/uscode/17/107.shtml 107. LIMITATIONS ON EXCLUSIVE RIGHTS: FAIR USE

"...the fair use of a copyrighted work...is not an infringement of copyright."

The devil (or the lawyer's profits or the danger to user attempting to make fair use of a copyrighted work) is in the details of considering and balancing those four points, and that is done at the discretion of the judge(s) hearing the case.

Other limitations to the scope of copyright:

§ 102. SUBJECT MATTER OF COPYRIGHT: IN GENERAL (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.


The distinction that I'm making is this:

- Fair use isn't granted by some license-issuing or -exempting authority. It's determined in court. Meaning: you get sued for copyright infringement, you get lawyered up, you get a court date, you defend yourself. You're still out the costs and time, provided your accuser wishes to follow through. Law is very often a battle of attrition and wills. And often stupidity or arrogance among one or more of the parties involved.

- It's a defense. You're still making an unauthorized copy. That is, limiting a copyright holder's "exclusive rights to do and to authorize" reproductions, derivative works, etc. In order to assert the defense, you've got to be challenged at it.

Simply asserting "fair use" is not sufficient, though a reasonable copyright holder (or her legal counsel) might look at this and say "hrm, he's probably got a point".


I'm not a lawyer either, but from what I've read, the courts seem to evaluate all four of these bullet points when fair use is invoked. It's quite possible to be in complete violation of one or even two points and still qualify for fair use.


Ah, so it's not a compound test.

"More like ... guidelines".


I have a hard time seeing how it doesn't fail all the fair use tests. Calling it a "textbook" case is huge overstatement, IMO.

1. The purpose and character of your use.

Verbatim republication, including original layout, etc. in a commercial publication - NYT.com is a paywall and ad-supported site.

2 The nature of the copyrighted work.

Originally published at some not-immaterial effort and expense in a reputable independent journal. Well known in the industry.

3. The amount and substantiality of the portion taken.

All of it, and the kitchen sink.

4. The effect of the use upon the potential market.

Destroys any chance the owner had of charging for this material.

You make assumptions about what the NY Times knew and didn't know that you yourself can't possibly know. My opinion is that it would have been easy for the Times (a crack news organization) to find the owner.

Also, you say that the Phoenix didn't know the story existed, despite the fact that the author clearly indicated that the story is legendary.

Long story short: spurious analysis of a complex issue.


This is far from textbook. If this is textbook anything, it is textbook "taking a calculated risk that no copyright holder is going to come after you for infringement". It's a variation on the risk calculation an individual does when downloading copyrighted material. In the case of an individual downloading an MP3, they may (unconsciously) decide that saving $0.99 is net positive versus a $5000 settlement (no better than 1 in 5000 chance that they're going to be discovered and lose). For the NYT, they must figure that whatever ad revenue they gain from the story isn't going to be offset by the expected value of a judgment should some unknown copyright holder emerge and actually assert their rights.

The only difference is the scale.

It didn't seem clear to me that the original newspaper was even going to be able to clearly prove it held the copyright to the material.

But this is not fair use. I'd categorize it as the same kind of benign and beneficial piracy that we all know promotes culture and the arts (just as sampling an MP3 illegally doesn't in fact harm the artist or even the label since it often increases the likelihood of future economic activity benefiting the actual copyright holders.)


Do you really believe if the shoe was on the other foot, the MYT would be ok with "it's fair use"?

I actually think the article's author would completely agree with you. Sane copyright would allow for this use, but I haven't seen anything resembling sanity WRT copyright as long as I can remember. and if NYT is pushing for that insanity, they absolutely should be held to that same standard.


Don't confuse Keller's opinion piece with an editorial viewpoint. The two are polar opposites.


IANAJ, but can you elaborate? I would have said they were the same, given that the editorial section seems to contain explicit opinions from the newspaper staff vs. other sections which are, at least theoretically, unvarnished fact.


I can try...

From Wikipdiea: Op-Ed http://en.wikipedia.org/wiki/Op-ed

  "An op-ed, abbreviated from opposite the editorial
  page (though often mistaken for opinion-editorial),
  is a newspaper article that expresses the opinions
  of a named writer who is usually unaffiliated with
  the newspaper's editorial board. These are
  different from editorials, which are usually 
  unsigned and written by editorial board members."
Now onto Bill Keller: http://topics.nytimes.com/top/opinion/editorialsandoped/oped...

  "Bill Keller is an Op-Ed columnist for The New 
  York Times and writes for The New York Times 
  Magazine. His column appears on alternate 
  Mondays."
Now look at NYTimes Editorials:

http://topics.nytimes.com/top/opinion/editorialsandoped/edit...

These usually have no bylines, or attributable to one person. They don't deal with topics covered by Mr. Keller, the most recent one being titled "The House’s Less Persuasive Ban on Insider Trading".

Essentially the Times has News, Opinion, Editorial. All of these are separate and the Editorial is the only one where the Times offers its "own" public opinions.

Hope that helps.


I think that's a good illustration of the quandaries of SOPA: the problem of figuring out these nuances of ownership without disrupting the flow of information. It's easy for a publication to determine whether they themselves are complying with fair use. Not so much with Google and it's automated high scale systems




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