It was but a few days ago that I  posted about scraping by those who mistakenly feel justified because we’re “on the same team.”  Then I received an email yesterday  from Turk who alerted me to a similarly troubling post over at  Volokh Conspiracy by David Post about lousy legal writing.

Post’s post (don’t blame me, I didn’t name him) included this prefatory paragraph:

So here’s some really, really lousy legal writing. It’s from today’s Legal Intelligencer, a local trade publication that covers legal developments in and around Philadelphia. I’m quoting the article in its entirety, because it is posted online behind a subscription firewall (and, lest our lawyers get worried, I’m relying upon the fair use doctrine’s protection for “criticism and commentary” in so doing).

And thereafter, the entire article appeared.  While the ensuing comments focused on whether the article was well, poorly, or differently written, I saw exactly what Turk saw.  I saw an article reposted in its entirety, without permission.

A clear distinction between the target of my post and Post’s post was that his included substantive commentary about the reprinted article, its quality of writing and structure.  Certainly, his use of the article from the Legal Intelligencer was for the purpose of criticism and commentary, rather than self-serving proclamation of purpose that would purportedly cover up flagrant infringement.

Yet, even the commentary didn’t make the issue so simple.  Post could have accomplished the same purpose by using excerpts from the article to demonstrate the basis for his commentary rather than reprint the article in its entirety.  David Post made a judgment call to let it all hang out.

And so came the letter :

Eugene Volokh then received the following (which I quote again in full — perhaps we’ll get a takedown notice for this?):

Mr. Volokh:

I am Deputy General Counsel for ALM Media Properties, LLC, which owns the copyright in the Legal Intelligencer, including the article by Mr. Shannon Duffy republished in its entirety on your site at:
http://volokh.com/2011/01/07/lousy-legal-writing/

Please consider this email a DMCA takedown notice for the article by Mr. Duffy. While the author claims that the “comment and criticism” aspect of “fair use” entitles him to intentionally copy the entire article from behind the Legal Intelligencer’s paywall and reproduce it on your site, such wholesale copying is, as you surely know, not consistent with fair use. Please remove the article from your website. If you have any questions, please contact me. And as a vocal advocate of clear and grammatical writing, if not copyright laws, Mr. Post might want to consider replacing the semicolon in his first sentence with a period. The semicolon is unnecessary.

Fabio Bertoni
Vice President, Deputy General Counsel
ALM Media, LLC

As Mr. Bertoni notes, I had noted in the original posting that my use of the full text of the article fell within the “comment and criticism” protections of the fair use doctrine, and would protect us against an infringement claim.

It’s a close call, and one about which reasonable minds may differ.  The explanation for using the entire article is a bit on the limp side; excerpts would have more than sufficed to make the point. The fact that Post was concerned that the article was behind a paywall, and thus would have been denied those who desired to read more but didn’t have a subscription, flies in the face of the article being behind a paywall in the first place. 

In the face of this takedown notice, David Post reasserts his belief that he was right to reprint the letter in its entirety.  In doing so, unfortunately, he misses a larger point.  

I’m sure that ALM doesn’t want to litigate the use of their copyrighted content against Eugene Volokh.  I’m similarly sure that Eugene doesn’t want to defend the point in court.  Hey, it was just a blawg post to make a point about lousy legal writing, not the cure for cancer.  Yet the decision to reprint a copyrighted article rather than use excerpts puts everybody in an awkward and unpleasant situation.  Was it that important to reprint the article and create this problem?

Was it right?

Returning to my beef of a few days ago, a comment was posted by Scott Henson of Grits for Breakfast, who offered what appears to be a rather authoritative analysis of my argument, and concluded that I’m wrong.  This troubled me, and others, not only because Scott isn’t a lawyer, but because his deeply flawed analysis encourages others to do wrong. 

For a layman, Scott has a surprisingly good grasp of the law and does great good at his blog.  His heart is usually in the right place.  But what purpose is served by arguing in favor of wrongdoing?  What doesn’t appear is a follow up comment by Scott, which I deleted, that was more strident in tone and offensive in content.  He has issues with admitting that his grasp of the law is sometimes simplistic, and refuses to recognize his limitations.  Sadly, this turns him from champion of good causes to troll, as he suffers from the Dunning-Kruger Effect.

Like David Post, Scott was unable to see the bigger picture, regardless of whether it’s arguable (as in Post’s post) or inarguable (as in mine) that infringement has occurred..  Reprinting someone else’s content in its entirety is the wrong thing to do.  Taking what belongs to someone else without permission is an evil to be avoided.  Supporting those who do so is both foolish and counterproductive.

David Post was wrong to reprint the Legal Intelligencer article in its entirety, despite his rationale for doing so and the legitimacy of his commentary.  Scott Henson was wrong to offer (and persist in offering) comfort to a scraper who had no justification whatsoever for stealing content. 

The bigger picture is that if we, those who create content, can’t begin to show respect for the efforts of others, then how, in this wild west of the internet, can we expect the bottom feeders to do so?