Saturday, July 24, 2010

John Smithson References Copyright Office Disproving His Claims Against This Site!

How would you feel if you made an argument and despite being told that you were wrong you stuck by that argument, and then to prove you were right, you referenced material that proves you wrong?  You'd probably feel pretty stupid, right?  Well, John Smithson has done it again.

If you haven't been following this "story," John Smithson is a little known conservative activist for a blog called Midknight Review.  A couple months ago he attacked this site claiming that I had plagiarized the name of his website going as far as to "issue" a cease and desist and insisting that he had the legal rights over every variation of the title Midknight Review, including entirely different spellings.  In response to Smithson's accusations, this website has posted numerous articles pointing out numerous instances in which Smithson had plagiarized other peoples works by copying entire articles from the original source onto his website - the most prominent display being his post copying an article from The Financial Times.

He also copied the majority of the content from a Daniel Klein Article from The Wall Street Journal, a George Will article for RealClearPolitics, a study by The Pew Research Center for the People & the Press, a Joshua Rhett Miller article for Fox News, and a Cat Corben article form The American Thinker.  I guess Smithson believes that these past incidents of plagiarism fall under "fair use."

On Friday, July 23rd, Smithson posted an article offering a "review" of federal copyright law, in which he cites Section 107, commonly referred to as the "fair use exception" - presumably Smithson references this section to try and absolve himself of his past plagiarism sins.  According to the section, there are some exceptions allowing someone to copy a protected source.  They are as follows:
    1. The purpose and character of the use, including whether such use is of 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
    4. The effect of the use upon the potential market for, or value of, the copyrighted work 
Smithson claims to fall under the "fair use" exceptions because, as he puts it, his site functions "for the obvious purpose of educating the reading audience of the facts and their consequences in the political domain" - this is the same argument he used for copying The Financial Times article in its entirety, circumventing a membership requirement to view the article and ignoring a disclaimer requesting readers do not copy entire articles (Smithson also copied the site's disclaimer).

Smithson has got it all wrong.

Smithson believes that "fair use" is easily defined" - he believes his conservative blog is protected because in his opinion he is educating his readers.  As I had pointed out before, I had taken a class in which a professor wanted to use industry publications as a teaching tool but the school had to get permission from the publishers, and even then "fair use" didn't come into play - the selected works to be used for educational purposes required a purchase from the students.  According to the government website Smithson cites, "the distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission."

From my understanding of the law, this allows a particular author to cite another's work, but it does not allow free reign, which Smithson has claimed.  Just look at his new "copyright policy" posted on his website where he claims distribution rights over anything on his site, despite if it is his original work, requiring permission for anything "reproduced or referenced" from his site.

Smithson had also made a veiled reference to this site in his post, in which he explains the process for reporting violations.
If your individual site is in violation of copyright infringement and reported, you will receive a "cease and desist" order from the DMCA before further action (as in "shut down") is taken. It is understood that "fair use" laws allowing one to quote the work of another without permission are ambiguous in scope. How do we know ? The Feds admit to this problematic issue. Because of this ambiguity, notice is given and opportunity for compliance offered before action is taken...

Example: let's say that you use a particular photo or piece of artwork in your blog's header. DMCA does not busy itself with checking out sites and looking for such "violations." If there was a complaint filed against you, by some sophomoric do-gooder or an angry liberal tattler, you would first receive notice and given opportunity to comply.
Recently, John Smithson had copied the header of this website.  To emphasize his hypocrisy, I had filed a DMCA against Smithson after he had admitted to plagiarizing this site.

This leads me to my next point - Smithson's assertion that he owns the name of his website is wrong, and he provided links in his post that proves he is wrong.  Smithson linked to a Frequently Asked Questions page for the U.S. Copyright Office.  Here is what they have to say regarding names, titles, slogans, or logos:
Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office, 800-786-9199, for further information. However, copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark. 
You would think that this little revelation would put Smithson's claim of ownership to rest.  Here is a screen shot of Smithson's blog post attacking this article (I had recently tried to visit the page but it was nowhere to be found):

I wonder if Smithson will issue an apology to this website and its authors for his baseless accusations that amount to nothing more then libel.

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