New York Internet Gambling Law

Open letter to The New York Times

New York Times Dear Legal Department:

I write several blogs for commercial clients with various business interests. I write and manage blogs on real estate, Internet marketing, security, art and literature, software and technology, media and advertising online gambling. Recently, I received an e-mail from a writer who creates content on a commercial subsidiary of your sites. The letter was very threatening.

Read in part, is a paraphrase, that my use of the materials on any of my blogs constituted plagiarism and that I should remove it or be subject to his lawyers - you - hungry ambitions. I was amazed that a fellow author did not understand the fair use clause of copyright in the United States.

According to a congressional report on fair dealing on the Internet, written by Christopher Alan Jennings of the American Law Division, courts weigh four factors with regard to fair use, whether online or offline:

1. Purpose and character of work in question
2. Nature of the copyrighted work
3. "Amount and substantiality of the portion used in relation to the copyrighted work as a whole"
4. Effect of the use of the work "market potential"

Now I am no lawyer, but I think that copying a paragraph or two and comment on a blog falls in the guidelines as fair use. Although there is no line dividing black and white with regard to fair use, I think the first point (purpose and nature) has much to do with the environment. In other words, the media used in the communication of a copyrighted work is essentially and intrinsically linked to the purpose and character.

This distinction is important because, while blogs are relatively new in the historic landscape of copyright material, it is very common and accepted practice enough - not to mention encouraged - for bloggers to copy and paste a few sentences or paragraphs site and add their own comments to it. Of course, it is generally recognized that, in so doing, bloggers link to the source cited as an act of attribution. This is considered fair use of the majority of bloggers who engage in this practice. It is also what I did when I "plagiarized" the authors subordinate copyrighted material.

In its report, Jennings continues to elaborate on each of the above, noting that purpose and character has to do with two factors - primarily commercial use and the use of transformation. Jennings cites the Supreme Court regarding the first factor: "The bulk of the profit / nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user is benefit from the exploitation of copyrighted material without paying the usual price. "Again, I am not a lawyer, but I think the key question to ask in determining the critical distinction is whether or not commercial use of copyrighted material can stand on its own without the hardware issue. Since I removed the "borrowed" the subject of my post immediately after receiving this e-mail, I think any judge would see that there is no doubt that my blog can not survive without your material.

Which brings me to the next item Jennings. He said in his report that the use of "transformation" usually means that the new use of copyrighted material, "adds something new, with another purpose or different character, altering the first with new expression, meaning or message. "Well, since I added my own comments to" borrow "material to highlight certain points that I agreed with, simply by using the material as evidence to prove my point Most importantly, I think it would be considered a valid use of processing copyright.