pacino wrote:dajafi wrote a piece on your site saying he hoped Conlin would be fired over the incident. I'd say that him being fired has everything to do with this. It won't happen, nor should it.

I would hope he gets some kind of talking to from his boss though.

Him getting fired has no baring on whether the blogger had the right to post the email or if Conlin was wrong. I hope he is fired, not for the insensitive remarks, but the fact he has no problem making them to the public he needs to read his papers. That is about as bad as you can get on the PR side.

But him getting fired is the end result and has nothing to do with the initial actions. You let O&A influence you too much.

I'm not sure how I feel about whether conlins comment was antisemitic or just insensitive, but it absolutely is public...

for one thing, conlin sent the email from his daily news address, didn't he? and for another, conlin had no intention of the exchange being private. in fact, he said "go tell your bloggers my job against theirs" or something to that effect.

Disco Stu wrote:And sending email is not a private exchange. Anyone can do anything with an email sent to them.

Not so. The privacy issue both you and the blogger raise and the question of ethics miss a larger point. Email is protected by copyright (and, no, neither registration nor a copyright notice are necessary for protection) and any reproduction on a public site (such as a blog) without the author's consent constitutes copyright infringement. Since Conlin sent the email from his business address, there might be a question as to who the owner is (Conlin or the Daily News), but, whoever the owner is, the blogger did not have permission to reprint the email. Sending an email to a blogger (as opposed to posting on his site) does not give the blogger permission to do disseminate the email publicly in any way. It's a point all you bloggers might want to keep in mind.

pacino wrote:probably the best commentary on the subject I've seen:

They're sort of right. Had Conlin acted the way he did in a public forum, he'd almost have to be fired on the spot. But that's not what he did. He sent private (and horrible) emails to somebody who then decided to copy them word for word onto a public website without Conlin's consent. Emails that absolutely would have been written differently had Conlin known that they might get posted. Showing them to his readers is completely unethical on the blogger's part, a violation of the fundamental understanding that one's permission must be sought before his words are shared with those who weren't privy to the discussion. Anyone who fancies himself a bit of a writer ought to know better than to do what the blogger did. It's just irresponsible.

All because of something the blogger had no right to post. Look, Bill Conlin is the quintessential crotchety old man, a loudmouthed, ignorant curmudgeon who hates everything that happened after the Soyuz program. He is not a good columnist, and he doesn't really deserve his job. At the same time, though, he doesn't deserve to lose his job over something like this, nor should he be severely punished. The day Conlin gets fired for being a dick in a private email is the day you get fired for telling a friend that your boss is stupid and fat. If people were penalized for making the occasional asshat remark, then no one would have a job. What matters is that you're courteous and professional when you need to be, and Conlin clearly didn't interpret this email exchange as one of those situations.

Conlin's a jerk in private life towards people he doesn't feel deserve his time or effort, but there's no reason he should be fired for anything he stated in PRIVATE messages that were made public. It's not like he said 'burn Jews burn', he made a stupid analogy that didn't work.

I don't know what a journalist or blogger should think about the expected privacy of e-mail, but I can tell you from corporate world that one has to write e-mail messages and leave voice mail with the caution required by the expectation that they may very well be shared. Some real corkers made the rounds where I worked, much to the embarrassment of their intemperate authors.

And again, this e-mail explain was most definitely not a part of Conlin's private life. It was correspondence sent to his business e-mail about a column written as Conlin's business. Responding to customer e-mail is part of his job. He may be able to avoid responses, but if he makes a response he is representing his employer as well as himself. He needs to talk to the Washington Post media critic who is now on a supposedly prearranged (may actually be true) sabbatical after a hullabaloo over an e-mail he sent to Marion Barry's aide noting that the mayor was a crack addict, etc. Howls from the reporters who actually have to cover city government.

JFLNYC wrote:

Disco Stu wrote:And sending email is not a private exchange. Anyone can do anything with an email sent to them.

Not so. The privacy issue both you and the blogger raise and the question of ethics miss a larger point. Email is protected by copyright (and, no, neither registration nor a copyright notice are necessary for protection) and any reproduction on a public site (such as a blog) without the author's consent constitutes copyright infringement. Since Conlin sent the email from his business address, there might be a question as to who the owner is (Conlin or the Daily News), but, whoever the owner is, the blogger did not have permission to reprint the email. Sending an email to a blogger (as opposed to posting on his site) does not give the blogger permission to do disseminate the email publicly in any way. It's a point all you bloggers might want to keep in mind.

I don't think this is true. News media do this all the time. It's called reporting. 'A' sends an e-mail/letter/voice-mail/telegraph/official report to 'B' and a newspaper gets hold of it, finds it juicy news, and reports it. Often verbatim. Even the Bush White House has yet to claim copyright protection of its e-mails.

allentown wrote:

JFLNYC wrote:

Disco Stu wrote:And sending email is not a private exchange. Anyone can do anything with an email sent to them.

Not so. The privacy issue both you and the blogger raise and the question of ethics miss a larger point. Email is protected by copyright (and, no, neither registration nor a copyright notice are necessary for protection) and any reproduction on a public site (such as a blog) without the author's consent constitutes copyright infringement. Since Conlin sent the email from his business address, there might be a question as to who the owner is (Conlin or the Daily News), but, whoever the owner is, the blogger did not have permission to reprint the email. Sending an email to a blogger (as opposed to posting on his site) does not give the blogger permission to do disseminate the email publicly in any way. It's a point all you bloggers might want to keep in mind.

I don't think this is true. News media do this all the time. It's called reporting. 'A' sends an e-mail/letter/voice-mail/telegraph/official report to 'B' and a newspaper gets hold of it, finds it juicy news, and reports it. Often verbatim. Even the Bush White House has yet to claim copyright protection of its e-mails.

It is true. As for the case you cite, The Copyright Law (17 U.S.C. Section 105) provides:

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

FYI, I began my career as a copyright attorney and am published multiple times, including being Co-Editor of the definitive analytical index of the Legislative History of the Copyright Act.

I look at from the viewpoint that he's sending a nasty spirited email out from his work account. He shouldn't be casting a negative light on his employer as this relates to work. Most jobs would not tolerate berating their customers through email/communciations in this manner and why should it be any different for Big Bill? Somebody is writing to him about a piece he did for his job and he's sending out a reply from his work account (I'm guessing it was from the email addresses that were provided at the newspaper from reading the thread). He seems to get away with slamming people who write to him constantly and it appeared that the origional messages weren't nasty but he chose to take a low road with his replies. I guess it fits his combative nature/schtick so they let it go.

dajafi wrote:Conlin's an ignorant, mean-spirited jerk whose knowledge declines even as his arrogance and self-satisfaction increases.

It's too bad Schilling didn't have a line like this when Conlin tossed him that "you throw 88, but your mouth still talks 100" line on DNL

JFLNYC wrote:

allentown wrote:

JFLNYC wrote:

Disco Stu wrote:And sending email is not a private exchange. Anyone can do anything with an email sent to them.

Not so. The privacy issue both you and the blogger raise and the question of ethics miss a larger point. Email is protected by copyright (and, no, neither registration nor a copyright notice are necessary for protection) and any reproduction on a public site (such as a blog) without the author's consent constitutes copyright infringement. Since Conlin sent the email from his business address, there might be a question as to who the owner is (Conlin or the Daily News), but, whoever the owner is, the blogger did not have permission to reprint the email. Sending an email to a blogger (as opposed to posting on his site) does not give the blogger permission to do disseminate the email publicly in any way. It's a point all you bloggers might want to keep in mind.

I don't think this is true. News media do this all the time. It's called reporting. 'A' sends an e-mail/letter/voice-mail/telegraph/official report to 'B' and a newspaper gets hold of it, finds it juicy news, and reports it. Often verbatim. Even the Bush White House has yet to claim copyright protection of its e-mails.

It is true. As for the case you cite, The Copyright Law (17 U.S.C. Section 105) provides:

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

FYI, I began my career as a copyright attorney and am published multiple times, including being Co-Editor of the definitive analytical index of the Legislative History of the Copyright Act.

So, the 10 billion forwards out there are illegal?

I think he's arguing that posting the contents of an email verbatin on a public forum would be a violation. Forwarding an email isn't posting it in a public forum. You're allowed to post excerpts of an email or describe contents, but the contentious part is posting it in its entirety.

But, there is really zero chance of damages being awarded in a case like this.

Does it make a difference that Conlin has his AOL email address listed at the bottom of each column rather than a phillynews.com address?

That's a good point. If this email was sent from his private AOL address I would imagine that it has the same protection as a private phone conversation. Had this happened over the phone, the blogger would not have been able to record the conversation and post it on his blog w/out Conlin's permission.

If Conlin loses his job over this I wonder if he will be able to sue the blogger?

With all due respect to JFLNYC, he is wrong. I have talked to many people involved with law or law enforcement and none of them have told me that I am in the wrong in any way. So, it's JFLNYC's word against about 10 law professionals (lawyers, cops, etc.) I've talked to. I respect JFLNYC's experience, and he knows far more about that stuff than I probably ever will, but I'm trusting the numbers on this one.

Regardless of whether or not Conlin uses his AOL E-mail address for personal purposes is moot. It is listed with his professional work on his employer's website, therefore any mail he receives coming to his AOL E-mail account as a result of his Philadelphia Daily News articles are professional and he is representing his employer.

Next, E-mails, unless the intent of privacy and the agreement are stated explicitly in the E-mails, they are assumed to be public, not private. You can debate the morality of it all you'd like, but you are neither right nor wrong, as morals are subjective. Legally, I'm in the clear.

Also, how is forwarding E-mail not publicizing? Even if it's addressed to just one person, it's still publicizing. Is there something in the letter of the law that discriminates between other methods of E-mailing and forwarding that I might be missing?

If I was vindictive, I could probably do something about the implied comments about bloggers' deaths, but I didn't go into this looking for trouble, as a couple posters here have assumed. It was simply an E-mail I sent, expecting a template response or nothing at all. I had no intentions of making an issue out of this, and I posted Conlin's words to my blog for laughs, not as a call to arms among bloggers (and, to clarify something a reader on Baseball Think Factory pointed out, my quote about Conlin's words deserving much "ire" was a poor word choice on my part, as my understanding of the definition of the word was slightly off).

So, I ask of those of you who have assumed incorrectly (Swishnicolson was one) about my motives to, in the future, contact the person and get the story instead of filling in a bunch of question marks with a guessing game. I say that with all due respect to those of you I am referring to.

I invite you all to read the rest of my clarification of Conlin's comments.

http://crashburnalley.com/?p=49

CrashburnAlley wrote:With all due respect to JFLNYC, he is wrong. I have talked to many people involved with law or law enforcement and none of them have told me that I am in the wrong in any way. So, it's JFLNYC's word against about 10 law professionals (lawyers, cops, etc.) I've talked to. I respect JFLNYC's experience, and he knows far more about that stuff than I probably ever will, but I'm trusting the numbers on this one.

Regardless of whether or not Conlin uses his AOL E-mail address for personal purposes is moot. It is listed with his professional work on his employer's website, therefore any mail he receives coming to his AOL E-mail account as a result of his Philadelphia Daily News articles are professional and he is representing his employer.

Next, E-mails, unless the intent of privacy and the agreement are stated explicitly in the E-mails, they are assumed to be public, not private. You can debate the morality of it all you'd like, but you are neither right nor wrong, as morals are subjective. Legally, I'm in the clear.

Also, how is forwarding E-mail not publicizing? Even if it's addressed to just one person, it's still publicizing. Is there something in the letter of the law that discriminates between other methods of E-mailing and forwarding that I might be missing?

Just to clarify a couple of things, I take no opinion on the privacy aspect of the email, merely on the copyright issue. I assume your law enforcement colleagues were opining on the former, not the latter. To the extent they were commenting on the copyright issue, I respectfully suggest that is not their area of expertise.

As for other experts' opinions on the copyright issue, you are free, of course, to shop for opinions but you do so at your peril. Under Title 17 of the United States Code (aka the Copyright Law), the exclusive rights of reproduction and distribution (among other rights) are reserved to the author. Reproducing the text of an email on your blog is no different (at least from a copyright perspective) than taking a letter someone has written you and publishing the letter in a book you've written. Why would the contents of your blog -- for which I note that you claim copyright -- be protected by copyright, but not Conlin's email? Why would your works of authorship be entitled to any greater protection than Conlin's? Your best defense might be implied consent, but that's only an argument. And given that Conlin was responding by email to an email you sent him (as opposed to posting on your blog), I doubt any court would infer Conlin's consent to publication.

The fact that you argue the exchange is public, not private, only underscores the infringement since electronic retransmission constitutes publication (i.e., distribution). Further, the fact that billions of emails are forwarded all the time does not make any such retransmission (or, in your case, publication on your blog) any less an infringement than un-prosecuted crimes make other crimes legal. The fact that those billions of forwarded emails are not prosecuted is more a matter of the difficulty, time and expense of prosecuting a claim (vs. the amount of damages which might be awarded), implied consent and/or the legal doctrine of de minimis non curat lex (the law is not interested in trifles). One could argue that a particular email does not rise to the level of an original work of authorship (the standard set by Section 102 of the Copyright Act), but applicable case law and legislative history have set that threshold at a very low level. In this particular case, there is no doubt that Conlin's emails would rise to the level of copyrightable subject matter. Finally, as I stated before, the issue of who constitutes the "author" (i.e., owner) of Conlin's emails sent from his business account is not relevant to whether a copyright infringement has occurred. It's only a issue of who owns the rights.

I would be very interested to see the arguments from any expert as to why the exact copying of another's email and the publication of it on a website do not violate the exclusive rights of the copyright owner. If I can take your original work of authorship (whether a song, a painting an essay or an email) and reproduce it on my website without your permission, then copyright -- and the claim of copyright on your website -- have no meaning at all.

JFLNYC wrote:Just to clarify a couple of things, I take no opinion on the privacy aspect of the email, merely on the copyright issue. I assume your law enforcement colleagues were opining on the former, not the latter. To the extent they were commenting on the copyright issue, I respectfully suggest that is not their area of expertise.

As for other experts' opinions on the copyright issue, you are free, of course, to shop for opinions but you do so at your peril. Under Title 17 of the United States Code (aka the Copyright Law), the exclusive rights of reproduction and distribution (among other rights) are reserved to the author. Reproducing the text of an email on your blog is no different (at least from a copyright perspective) than taking a letter someone has written you and publishing the letter in a book you've written. Why would the contents of your blog -- for which I note that you claim copyright -- be protected by copyright, but not Conlin's email? Why would your works of authorship be entitled to any greater protection than Conlin's? Your best defense might be implied consent, but that's only an argument. And given that Conlin was responding by email to an email you sent him (as opposed to posting on your blog), I doubt any court would infer Conlin's consent to publication.

The fact that you argue the exchange is public, not private, only underscores the infringement since electronic retransmission constitutes publication (i.e., distribution). Further, the fact that billions of emails are forwarded all the time does not make any such retransmission (or, in your case, publication on your blog) any less an infringement than un-prosecuted crimes make other crimes legal. The fact that those billions of forwarded emails are not prosecuted is more a matter of the difficulty, time and expense of prosecuting a claim (vs. the amount of damages which might be awarded), implied consent and/or the legal doctrine of de minimis non curat lex (the law is not interested in trifles). One could argue that a particular email does not rise to the level of an original work of authorship (the standard set by Section 102 of the Copyright Act), but applicable case law and legislative history have set that threshold at a very low level. In this particular case, there is no doubt that Conlin's emails would rise to the level of copyrightable subject matter. Finally, as I stated before, the issue of who constitutes the "author" (i.e., owner) of Conlin's emails sent from his business account is not relevant to whether a copyright infringement has occurred. It's only a issue of who owns the rights.

I would be very interested to see the arguments from any expert as to why the exact copying of another's email and the publication of it on a website do not violate the exclusive rights of the copyright owner. If I can take your original work of authorship (whether a song, a painting an essay or an email) and reproduce it on my website without your permission, then copyright -- and the claim of copyright on your website -- have no meaning at all.

Regarding the "billions of forwarded E-mails" thing -- I didn't say that, I think you might have me mixed up with a previous poster.

Also, I think you are missing the fact that I credited Conlin as the author of the E-mails. In your last paragraph, you talk about taking a song, painting, or an essay and putting it on a website, I assume you are taking credit for those works or are otherwise not crediting the creator.

Not that this is any kind of a justification for the aforementioned, but if you look around the blogs, you see all kinds of quoting verbatim, not just of E-mails but of other blogs -- copyrighted blogs, even -- E-mails, personal conversations (for instance, look at some of the comments on my original Conlin post and people have related some personal experiences with Conlin).

As for your assumption, you are right, copyright law is not their area of expertise. None of them have ever specifically practiced copyright law, but they have experience with it in some fashion. I'm not saying that their word is better than yours, especially since you deal specifically with it, but I'm just taking the appeal to the majority. It's certainly possible that they're all wrong.

What of "fair use"? Does that apply in this situation?

And, of course, I could be wrong, too. It's my opinion. And, although I consider it somewhat of an expert opinion, I know of no case law which is definitive on the issue. Further, I have not been engaged in the active practice of Copyright Law for a few years.

"Fair use" is one of the most misunderstood concepts in copyright law. Originally a common law doctrine, in Section 107 the Copyright Act of 1976 attempted to codify the state of the case law exiting at that time and made it one of the several limitations on the exclusive rights of the copyright owner. The section provides as follows:

§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(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 fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The illustrative lists of purposes and factors are not meant to be exclusive. Areas such as Scholarship, Research and (perhaps importantly in your case) News Reporting have generally (but not always) been given wide latitude. Unfortunately, determinations of fair use are generally made on a case-by-case basis. From the link you provided, for example:

Fair use. A biographer of Richard Wright quoted from six unpublished letters and ten unpublished journal entries by Wright. Important factors: No more than 1% of Wright's unpublished letters were copied and the purpose was informational. ( Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).)

Not a fair use. A biographer paraphrased large portions of unpublished letters written by the famed author J.D. Salinger. Although people could read these letters at a university library, Salinger had never authorized their reproduction. In other words, the first time that the general public would see these letters was in their paraphrased form in the biography. Salinger successfully sued to prevent publication. Important factors: The letters were unpublished and were the "backbone" of the biography--so much so that without the letters the resulting biography was unsuccessful. In other words, the letters may have been taken more as a means of capitalizing on the interest in Salinger than in providing a critical study of the author. ( Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987).)

Not a fair use. The Nation magazine published excerpts from ex-President Gerald Ford's unpublished memoirs. The publication in The Nation was made several weeks prior to the date of serialization of Mr. Ford's book in another magazine. Important factors: The Nation's copying seriously damaged the marketability of Mr. Ford 's serialization rights. (Harper & Row v. Nation Enters., 471 U.S. 539 (1985).)

You can see from the first two cases that it's not entirely clear how a court would view the publication of unpublished letters (or, by extension, emails). Both cases were decided by the same court (the Second Circuit Court of Appeals) within 4 years of each other yet come to arguably inconsistent conclusions. In the first case, direct quotes were used, yet the use was found to be fair while, in the second case, portions of letters were merely paraphrased, yet the court decided it was not fair use. I note the third case mostly because, as a young attorney, I was part of the team representing one of the plaintiffs (Reader's Digest).

Since you brought it up, if I were your attorney I would certainly put forth the "fair use" defense strongly, arguing that your use of Conlin's email was for New Reporting purposes and that statutory factors (1) and (4) (and arguably (2)) are in your favor. The unpublished nature of the email would work against such a defense but, as shown in Wright v. Warner Books, is by no means dispositive of the issue. Put otherwise, when you (or anyone else) takes portions of a Conlin article published in the Daily News and comments upon/critiques them, it would be a fair use in most cases (although care would have to be taken not to quote too much of the article in question). However, the fact that the email was previously unpublished often makes courts more reluctant to find fair use since the concept of controlling the first use of a copyrighted work has traditionally carried weight in American copyright jurisprudence.

Thanks for expanding on that. Lots to chew on... all this talk about courts and stuff has me a bit worried. You don't think Conlin would take me to court over this, do you? Couldn't I claim the Hitler comment as a death threat of sorts anyway? Or something along hate speech?

ixnay on the ublicpay ommentscay

CrashburnAlley wrote:
So, I ask of those of you who have assumed incorrectly (Swishnicolson was one) about my motives to, in the future, contact the person and get the story instead of filling in a bunch of question marks with a guessing game. I say that with all due respect to those of you I am referring to.

I invite you all to read the rest of my clarification of Conlin's comments.

http://crashburnalley.com/?p=49

I'm not quite sure where you get this. I assumed your motives were as follows: You read an article by Conlin in which he made a case for Jimmy Rollins as the MVP and felt it necessary to throw in a number of gratuitous and not very clever insults at statistically-minded baseball fans and researchers. You then sent him an email which said, essentially, Bill Conlin, you are an idiot.

I realize that's not what you SAID, your contact was far more polite in form than that, but what spurred the initial email was that you thought Conlin was completely off-base, was it not? You have a perfect right to do this. I've contacted sportwriters myself when I thought they were wrong. I'm not sure what other motives you think I'm ascribing to you.

My arguments were strictly that following Conlin's lame but predictable reply, the exchanges became considerably less polite, and that the farther this became removed from the initial, "reporter writes an article and reader responds", the less consequences it should have for Conlin professionally. At some point these can be regarded as personal emails, and the content contained seen as responses to private conversations, rather than anything publicly published. But I used that fact to judge Conlin's conduct, not yours.

I never had any problem with posting a columnist's email response. I did feel that once you had clearly made your point you should have let it go at that. I realize that would have been acting considerably more professionally than Conlin did, but someone has to set the standard.

CrashburnAlley wrote:Thanks for expanding on that. Lots to chew on... all this talk about courts and stuff has me a bit worried. You don't think Conlin would take me to court over this, do you? Couldn't I claim the Hitler comment as a death threat of sorts anyway? Or something along hate speech?

He could certainly try, he has the persona, as well as friends who could find him a lawyer willing to do a very good job. But as JFLNYC mentioned, there is no case law on this, and unless Conlin and the Daily News are willing to spend loads of money trying to make a precedent, you're safe.

But as any lawyer will tell you, he can sue you for ANYTHING, it's just a matter of if it will ultimately make it anywhere near a court.