The Wall Street Journal Rips Off Turkewitz – WSJ Needs to Learn What Fair Use Is

As someone who blogs, it bugs me when other people steal my work and re-post it on their own blogs. It bothers me even if they provide a link back. Why? Because fuck you. This is my work. If you want to quote part of it, you’re most welcome. You feel like you need to do a large block quote? Go ahead. You hate it and want to ridicule it? Go ahead. You think I’m awesome? You must be sick.

What I’m getting at is fair use is fine, but just ripping off my shit is douchetastic.

When I find someone doing this to me, I send a friendly DMCA takedown notice, or sometimes a friendly “don’t be an asshole” email. I’ve not, as of yet, ever bothered to sue someone for copyright infringement. I don’t do this for the money. I write because I like putting wares into the marketplace of ideas. I like the feedback I get – the criticism especially, since it allows me to try out my ideas, and see what comes back after they’ve spent a little time in the marketplace.

The bottom line is that I don’t do this for the money. I sure as shit don’t do it to make other people money. And, that is a pretty common thread among most law bloggers. The ones who do it because it is part of some marketing scheme? You can spot them a mile away, because they just suck to read.

Eric Turkewitz is not one of those who suck. He writes about a subject that is of absolutely zero interest to me — personal injury law. Not just that, but personal injury in New York. I have no professional reason to read his work, so it is a testament to its quality that I actually do read it. I enjoy it. I learn from it. I’m often a little bit smarter after I read it.

No blogger could ask for more.

Recently, Eric wrote a piece that was sort of interesting, about how Google cars might cut down on personal injury suits, because they would make the world a safer place. Eric’s view is that this is a good thing, since he would rather live in a safer world than profit from more accidents. (source) Pretty nifty perspective, but one that I understand. As a First Amendment lawyer, I would love it if I could be obsolete. Imagine if the censorious asshats of the world just stopped being censorious asshats.

Yes, like Turkewitz, I would love to live in a world where my services were no longer required. I think a lot of lawyers feel that way.

From that perspective, Turkewitz’ work was interesting, but not something that would likely give me enough of a jolt to write another piece about it.

But then I saw this. The Wall Street Journal ripped off about half of the article, and slapped it right up next to some ads.

The theme of Eric’s article is that self-driving cars may cut down on accidents, insurance rates, deaths, etc., and he actually states that he cheers the thought that he might be put out of business.

Interestingly enough, the Wall Street Journal cuts off its plagiarism right before Eric makes that point. Instead, the WSJ dishonestly makes it look like Eric is whining that he won’t have as much work.

Ok, being quoted out of context? That’s all part of speaking in public. Some douchebag will always do that.

But what really bothered me about this is how the WSJ simply stole Eric’s work, and couldn’t be bothered to actually do any of its own — except putting the plagiarized portion next to some ads. They put it in the print version too.

And that is not fair use. It is even more ironic and douchey when you know that Eric’s work is on the WSJ, but behind a paywall.

I know that the WSJ must have lawyers on staff. I can’t imagine why they never learned anything about fair use. Because this is not fair use.

Reproduced from the Wall Street Journal without permission.  Come at me, bro.

Reproduced from the Wall Street Journal without permission. Come at me, bro.

Admittedly, fair use is a somewhat difficult thing to wrap your head around — even for some lawyers, much less laypeople.  My wife was a schoolteacher, and at their “fair use seminar,” they told the teachers “if you use 10% or less of the original, it is fair use.”  Well, that’s really not the case.  Fair use is not a mathematical formula.

In Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), The Nation used 300 to 400 words out of a 500 page book.  Nevertheless, this was not considered to be fair use, since that small excerpt was deemed to be the very heart of the infringed upon work.  

On the other hand, sometimes you can use the entirety of a work, and it still is fair use.  I discuss that in detail here.  

The fact is, there is no bright line rule of “how much is too much?”  The answer requires a pretty involved analysis of the four factors laid out in 17 USC §107.  

Nevertheless, fair use is not all that hard in most cases.  When I explain this to students, I tell them that while not 100% dispositive, the key to look for is whether the later use is transformative.  The original author is like many mythologies’ views of God, he breathed life into dust, transforming the dust into something new and alive.  The creation of the dust was an original work.  The creation of life was fair use of the dust.  The offspring from that life is further fair use.  They each build upon, and use, the original, but each subsequent use adds something of value to it.  Has the later use “breathed new life” into the components gathered from the original?  If so, you might have fair use.  

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 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.

Of course, there is the argument that by selectively stealing Eric’s work, they were doing something “transformative.” They “transformed” the work from one hailing the advent of a safer future into one where a personal injury attorney was whining about losing business.

Meh.

That’s not going to cut it in front of any qualified judge, and if it does, no court of appeal would uphold it.

So the verdict? The Wall Street Journal is definitely guilty of copyright infringement for lifting a bloggers’ work without any justification. They are further guilty of being complete douchebags for doing so ever-so-selectively to make their corporate masters’ point that lawsuits that benefit people are bad, as are the people who handle them.

_______
Disclaimer: I previously represented Turkewitz and co-counseled with him in Rakofsky v. The Internet.

7 Responses to The Wall Street Journal Rips Off Turkewitz – WSJ Needs to Learn What Fair Use Is

  1. CPlatt says:

    Reminds me of the instance (which I once mentioned to you, Marc) where Rush Limbaugh spent 20 minutes on his show reading from an article of mine that was published in the New York Post. Word-for-word, with only very brief pauses to rephrase a sentence or two in his own words (not what I would call “transformative”). Did Limbaugh ask permission? Of course not! He does this kind of thing relatively often. Would I have given permission? Now we get to the heart of the matter: like many old-school newspapers, the Post bought the copyright when it bought my text. It did not just acquire a license to use the text. It was work-for-hire,

    So I contacted my editor at the Post. Would he go to Limbaugh and demand a fee? No, he would not, because he was just happy that Limbaugh had provided so much free exposure to The New York Post (and me, of course). My editor said most writers would be very excited to be quoted at such length on the most widely heard talk show in radio.

    Yes, I was excited (a bit). But excitement doesn’t pay the rent, and I was fairly sure that it wouldn’t benefit me in any other tangible way. (I was right. It did not.)

    So I let it drop. But it was an object lesson regarding old-school media. Their outrage about copyright infringement is quite selective and seems to depend largely on whether they think they benefit from it. Their journalistic principles likewise may be waived depending on circumstances.

  2. dan says:

    I’m following this just to see what happens next

  3. Josh C says:

    I don’t understand – surely, any newspaper’s unbiased reporting of something newsworthy is fair use? There doesn’t seem to be an underlying story which WSJ failed to report on.

  4. You’re too stupid to read here. Leave.

  5. Jay Wolman says:

    Looks like they probably started with this: http://blogs.wsj.com/law/2014/12/26/personal-injury-lawyer-says-googles-driverless-car-bad-for-business/?KEYWORDS=turkewitz and went whole hog.

    Waiting for them to argue that labeling a piece as “notable & quotable” is transformative. I’m now curious if this is the norm for the notable/quotable section.

  6. fixpeg says:

    Why don’t you give some cases, Marc, to support your assertion that taking 100% is OK? How about 2 Live Crew taking 100% of Pretty Woman and trsnsformatively mangling it into Big Hairy Woman? Or Google transformatively taking 100% of Perfect 10’s pictures to turn them into thumbnails for Google Images?

  7. dan says:

    transformatively – is a question of fact, not law. and apparently its not a word because my browser is putting a red line under it but I dont care about that.

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