As readers know, grumblings continue on the Monckton-Smith copying kerfuffle. Monckton has posted a revised version of his response to Arthur’s submission to the APS newsletter. Eli Rabett has thrown in his legal analysis, and posted an entire history (from Arthur’s point of view) here. Meanwhile, conversation continues on my post where Tilo Reber lamented:
I still don’t understand why we are wasting our time talking about copyright of a nitpick piece that has no value.
Ahhh… Tilo. The words “copyright violation” always result in huge amounts of discussion anywhere and anywhere they rear their ugly head. It’s some sort of blog/forum law.
Debate can go on endlessly, because there is often sufficient ambiguity relative to the facts of the case that non-specialists and even specialists can’t predict the outcome of a court battle before it occurs. Moreover, the real experts on copyright law generally don’t weigh in on copyright spats (unless a legal action is taken.)
So, we leave debating to the amateurs!
Let me first state: I’m not an attorney. That said, I enjoy reading about copyright. It can be pretty interesting to read the various twists in the law (particularly US law.) Interested readers will find a particularly enjoyable series on copyright and the First Amendment here.
Based on what little I understand about copyright, and what I know about blog discussions of copyright, the Monckton copyright kerfuffle is about to tread into the most contentious of amateur copyright experts debating areas: What is permitted under Fair Use?
Monckton didn’t use those “Fair Use”, the specific justification Monckton now provides is found on page 2 of this pdf:
…Database Manager for the American Physical Society, Arthur Smith, drafted and circulated a critique of Monckton’s paper. Smith’s critique and Monckton’s refutation of it are provided here for educational purposes.
See the “for educational purposes”? Some could (and, I predict, will) argue precisely what “educational purposes” entails. I read the word as suggesting Monckton’s believes his copying falls under the the fair use umbrella.
What is fair use?
Fair use is a doctrine that permits copying of copyrighted material. Wikepedia quotes Joseph Story in Folsom v. Marsh, 9 F.Cas. 342 (1841), writing on fair use as follows:
A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy…
In short, we must often… look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.
Here’s what Eugene Volokh has to say of Fair Use in context of the copyright exception to freedom of speech.
(2) The copyright exception immunizes only those laws that provide enough protection for at least certain kinds of uses of expression. This is visible in Eldred’s defending copyright law both by pointing out that “[t]he fair use defense affords considerable latitude for scholarship and comment, even for parody,” because the defense “allows the public to use not only facts and ideas contained in copyrighted work, but also expression itself under certain circumstances,” and in Harper and Row’s describing “the latitude for schlarship and comment traditionally afforded by fair use”, as a “First Amendment protection[]”
Note the words “considerable latitude”? “scholarship and comment?” “considerable latitude? and finally, “First Amendment protection?”
Many people are aware that some copying is permitted for scholarship. Scholarship is one use of “educational”– the word Monckton now uses to justify his copying Arthur’s article. However, some copying is also permitted for comment. And, since “education” can also mean simply “acquiring general knowledge”, Monckton may be suggesting that he is copying to provide readers the knowledge necessary to put Monckton’s own response in context.
Does this seem like a stretch? Well, when you see “First Amendment” sprinkled in there, you know that interpreting what is fair use is going to involve detailed analysis of everything surrounding the copying. In particularly, we know that scientific debates over climate change now have political overtones. So, if this gets to court, every single detail surrounding this kerfuffle could become important in ways that would not occur if you posted a video of a football game on YouTube.
Now, here’s what the US copyright office has to say of “fair use”:
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,†such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
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. 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 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. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
Now that you’ve read that, do you know whether Monckton’s copying of the full 8 pages of Arthur’s article legal under fair use? I sure don’t!
I’m guessing, but it seems to me these points are in Monckton’s for and against this being fair use seem to be:
- In favor: Monckton was commenting on Arthur’s paper.
- In favor: Monckton’s use appears to be non-commercial. He isn’t making money selling the document. His supporters will describe the use as scientific, educational or scholarship; his detractor will describe it as political. Either way, it’s non-commercial.
- In favor: I suspect there is no fee paying market for rebuttals to Monckton’s article. The copying probably had no impact on the monetary value of Arthur’s article.
- In favor: The nature of Arthur’s work was precisely a rebuttal to Monckton’s original article. This should permit some copying during response.
- Against: Monckton posted Arthur’s article in its entirety I suspect in court an attorney would suggest that if Monckton is to rebutt the article, the public needs to have access to the full 8 page document. As the article was circulated (at least a little) but not publicly available, the attorney might claim copying was permissible. (Maybe the attorney would be laughed out of court, but I’m assuming this is the case that would be made.)
Are there other points in contention?
There seems to be some dispute regarding permission.
It seems Arthur granted some permissions after the Monckton’s initial copying, but he included caveats. The wording of the permission appears to be posted at Rabett Run; it is as follows:
Since your posting it is in violation of my copyright, I demand you either:
(A) immediately take it down, or
(B) post a modified copy removing any mention of “The American Physical Society”and
(C) Publicly issue a correction on the above web page including the statement I made above, that “I was in no way representing the society, and my work was in no way authorized, suggested, sponsored, or even approved by any other employee or official of the society beyond myself. “
Should Arthur sue Monckton, I’ll follow the case avidly– and comment. I can’t begin to guess who will win. Though many facts have been revealed by Monckton and Arthur, I don’t know all the facts of the case. But even under the facts that appear to be agreed on by both parties, I think the case may be murky! Should the defense come down to fair use, the burden of proving the use was “fair”, will fall on Monckton.
Anyone want to bet brownies that no suit will be filed on or before August 1, 2009?
Hi lucia – no suit will be filed. While I received no apology, Monckton’s revised version barely meets the later criteria I specified of not misrepresenting my relationship with APS, under which I gave him license to post in full.
So now that my response is legally out there, perhaps we can discuss it? In particular the naive graph I provided of CO2 vs temperature is I think pretty strong evidence of sensitivity at least 2K – assuming non-CO2 changes roughly cancel.
By the way, I think Tilo was talking about my webpage listing errors (which I do hope to get back to) and not this actual response article that Monckton has been mucking around with.
Litigation would be pointless. Monckton has a good argument with respect to a belief that his exchange with Smith was part and parcel of the public debate the APS had presumably invited and thus not an infringement. While intent is neither a required element of copyright infringement nor a defense, intent does matter with respect to the judge’s equitable powers to fashion a remedy. In other words, the liklihood of an award or other remedy that would justify the legal fees to pursue this is near zero.
Fair use analysis is more applicable in situations in which there is an alleged injury related to the commercial value of the copyrighted work (fewer copies of a text sold if somebody gives away all the good parts). If there were a commercial allegory to this dispute, it would be as if a reviewer published the draft of an unpublished novel he received just so he could write a review. But Smith’s comments had no such commercial aspect. Therefore, this case is perhaps more like a reader sending detailed criticism to a columnist who then publishes the letter and his response to it not knowing that the reader was planning to fashion the letter into a separate piece. Lots or room for legal spinning with damn little actually at stake…
The claim that Smith was injured by a representation that he spoke for the APS does not seem like a big winner. If instead of a highly respected organization like the APS his affiliation was alleged to be with Al Qaeda or the Man Boy Love Association, then there would be a claim. This is simply an issue of correcting the record which I think has been done.
In sum, comments that were to have been made public in a different form at a later time most likely expressing the same ideas were published without consent by the person whose work was the subject of the comments. That’s annoying and good manners requires that Smith’s wishes with respect to the disposition of his correspondence be respected. However, we are not realistically on the verge of major intellectual property litigation with a side order of defamation. No judge would be pleased to see this on his calendar and his displeasure would be directed at whomever was the least willing to make it go away quickly.
So, do you consider the current version Moncton posted legal? I didn’t particularly want to discuss your points until they were clear and the posted document was likely to remain available for people to read!
I had read your web page (as you know), and was only skimming the response to Monckton.
By your CO2 graph in the article sent to Monckton, I assume you mean page 3? It’s a decent argument. However, it appears you assume at the outset the graph created is based on the assumption that the only factor driving variations in GMST is CO2. You don’t consider aerosols, volcanic eruptions, methane, ozen etc. So, that’s a bit of a problem. (You should at least discuss these factors and suggest the order of magnitude of their effect over the 150 years.
Obviously, on that graph, no matter how you slice it, the correlation between CO2 and Temperature anomaly at any time is, shall we say, less than spectacular? For this reason, you really do need to at least discuss those other factors.
Until you do that, that graph doesn’t exactly put a nail in the coffin of Monckton’s idea that sensitivity might be lower than 1K. You need to say more.
My closest attempt at getting sensitivity out of the temperature values is “Lumpy”. At one point I got about 1.6K. I tried a few other things, and got the sensitivity a bit higher. I never got it any higher than that. (Of course, this could be because a simple lumped parameter model is no good– but it’s still, in principle, a step above just plotting CO2 vs time and Temperature vs time on the same graph.)
But, basically, if I wanted to “rebutt” your graphs claim of “at least 2K” any further than I have, I’d pull out Lumpy, which has 1 time constant– and is thus in arguably better than the zero time constant model underlying your graph. (I’ll be curious to see what Lumpy says after they fix the jet inlet/ bucket transition. That period of time fits badly. Maybe after it’s fixed, Lumpy will predict higher sensitivities. Or lower. Who knows? I’m guessing higher.)
That said: Is feedback 0.6K as Monckton claims? I doubt it. Lumpy says the sensitivity is higher than 0.6K.
I’m not going to touch the “fingerprint” stuff, because I’m not at all sure what is or is not considered a fingerprint.
I see Dr. Smith has posted his quite sensible take on the matter while I was preparing my legal pontifications…
With respect the the 2 K sensitivity, can somebody clear up these questions:
1) Why do we assume a zero anomaly as the norm when temperatures have been steadily rising since the last ice age or at least the Little Ice Age? Isn’t there (contra hockey stick) some warming bias that has to be discounted when we are curve-fitting our way to a sensitivity figure?
2) If (a) CO2 doubling causes a logarithmic increase in temp, (b) 280 ppm is the baseline and (c) there has been a 0.6 degree rise after we are 1/3 of the way to doubling (100 ppm over the base) then we should thus be more than half way to the increase due to doubling and so a net increase of about 1.2 degrees (the base figure for CO2 doubling with no water involvement) is right on course. Why is that wrong?
If the only answer is the models are right but mysterious things like largely unquantifiable aerosol effects keep getting in the way of the actual warming, I will be profoundly disappointed.
Oh brother, is this post serious? The intention of copyright law is to protect something of value that the creator intends to profit from. Arthur never intended to profit from this piece; it was intended for the public debate where anyone can access it for free. The only recourse Arthur would have at this point is if Monkton profited from this piece, which does not appear to be the case. If Arthur filed a case under these circumstances then he would end up paying Monkton’s legal costs as the case would clearly be frivolous.
George Tobin,
But maybe it could appear at “The People’s Court?” Or judge Judy? Those TV judges like flashy cases, but Judy is mean. There’ used to be a court show called Moral Court. This would have made a good episode! I’d get out popcorn for that.
MikeC— Eli Rabett’s post reads like he thinks there is a case. He’s mentioning things like $1,500 penalties etc. You have to read it.
So, yes, in context of blogviating, my post is serious. But I write it only because the bunny is seeming to want to egg Arthur on to making a federal case out of this. Arthur seems to have wisely decided against that.
Lucia, I read it and it reads like the usual E-Lie… what is really funny is that he actually quoted Texas law in part of it… in Texas the judges have more power than in most places so they are extra pushy in keeping their calendars clear. Last year a friend of mine is San Antonio Texas was sued by a man who was bitten by my friend’s dog. The man had jumped my friend’s fence (after dark) and was on his way back to the street carrying a lawn mower when the dog got him… tore a little flesh off the man’s leg. Well, in Texas, you can shoot trespassers after dark; it’s just the Texas way.
To make a long story short, the Judge told the man that he was lucky, “I would have shot you.” Then the judge held the man’s lawyer in contempt, fined him 500 bucks and gave him a weekend in jail, then ordered the man to pay my friend legal costs including travel to and from court and time off work preparing his case. File a frivolous claim in Texas and you’ll get bit.
On the other hand, if Arthur copyrighted his work and intended to profit from it and Monkton used it and was profiting from it or caused a reduction in Arthur’s profit, then the Texas law would apply and Monkton would get bit (assuming he could show standing in Texas).
I guess I should correct that the E-Lie link was from the UT site to federal copywrite law but the effect would be the same. Frivelous suit, Arthur pays legal fees to Monkton.
Lucia. If you are going to discuss the merits of each scientific argument, and rely on “Lumpy”, could you itemise the assumptions used by “Lumpy”?
Lucia, I’m a lawyer myself, but hate the quibbling it gives us – and the fact that law is used to distract us from the point that it is NORMS and MORES that are most important to a well-functioning society.
You are absolutely right that Monckton deserves criticism, and should apologize, for his presumptuous misuse of Smith’s manuscript. Smith has been wronged, and Monckton should (and presumably does) know better. As George Tobin says: “That’s annoying and good manners requires that Smith’s wishes with respect to the disposition of his correspondence be respected.” Monckton’s further refusal to acknowledge his wrong-doing adds insult to injury, and rightly besmirches Mockton’s reputation.
One vote for a series of posts on climate sensitivity. We’d profit greatly from a similar kind of ‘graduate seminar’ of the sort you’ve done previously on temperature trends. Climate sensitivity is THE key issue. And the way this site has worked through the stats on recent temperature trends and falsifiability of the IPCC forecast has been uniquely valuable. There is no place else where one can follow the twists and turns of the argument as it develops in the mind of an clear well informed investigator and her audience. Even if you don’t follow all the detail, you gain enormously in understanding.
So go to it!
MarkR–
I think I’ll revive “Lumpy”, and explain her. But basically, the assumptions are:
1) The earth’s climate is a simple, lumped parameter model with a time constant. Conservation of energy is applied, and linearized. Radiation losses from the surface are linearized, and “forcings”, F, are applied. Using this, the equation for the temperature anomaly as a function of time is:
dT/dt = -α T + β F
where α and β are parameters, and t is time.
The sensitivity is found by setting dT/dt=0.
We get
T= β/α F
So, using the definition of sensitivity we get.
sensitivity = β/α
The question then is: How do we estiamte beta (β) and alpha (α)?
I did this by taking a forcing file from GISS, and temperatures from some measurement groups, and finding the values that minimized the square of the errors between the two.
I don’t know if this is a good way or a bad way– it’s just the way I thought of last November.
The difference between this and what Arthur did is that he doesn’t use the dT/dt term at all. He uses T= β/α F right away, finds the forcing for CO2, and drew curves for the prediction of T as a function of sensitiviy. Then compared those to CO2.
His method is actually not necessarily any worse than mine, but his method has two simplificaitons relative to mine:
1) He only used CO2. My method included volcanos, solar etc because that was in the file.
2) Arthur doesn’t have the time derivative term dT/dt.
Arthur could easily add the other factors using the forcing file (I think.) So, it would be interesting to do. I think if he wants to answer questions by those who doubt his proof, he needs to do that. (And, after all, it’s answering questions of those who doubt that matters here. You may not convince them, but those questions are important.)
If Arthur added that, then the two of us just have the difference associated with the time derivative term.
Both Arthur and I have discussed Lumpy, and we both agree that Lumpy has problems. One time constant is probably not enough! If you read Arthur’s manuscript, you’ll see he mentions that all he’s trying to do is get a transient sensitivity. I think all Lumpy gets is transient sensitivity also. The difference is, the Lumpy model has a transient term!
To get a better time estimate, I’ve sort of been waiting until the Argos data is available; then I wanted to make a “2 lump” version of lumpy. That way, I’d ascribe ocean temperatures to one of the lumps, and air temperatures to the other lump!
I’m a copyleft kinda guy. So this amuses the ever livin hell out me.
Still I think the Lord, or whatever his title is (Hey I’m a country boy)
stepped on his pecker.
Dr. Art Smith. I generally agreed with the vast majority of your points. But your reliance on Parker’s UHI’s study is seriously misguided. I suspect you may not have read the paper or dug into the details.
Steve– If your “copyleft” I’m copymiddle. I think copyright laws have value. But, at the same time, I think there are an awful lot of people who want to insist breaches in etiquette are the same as breaches of law.
In this case, Monckton should have checked to figure out who Arthur was, waited for formal publication (or to see if the thing was being widely circulated). In that case, he could just have provided a link to Arthur’s manuscript. But I don’t think the reasons Monckton should have done so have much to do with the law.
The APS as an organization acted badly. Once they’d invited Monckton’s paper, they should never have placed the silly banner over it.
Arthur acted fairly well. His only slip up was using is APS email, which possibly contributed to Monckton’s over reaction. But, that’s a natural mistake.
Lucia, I entirely agree with you that we don`t need to know the law to know that Monckton has behaved badly. So should he, and shame on him for trying to hide behind it.
BTW, you should note that more and more libertarians oppose copyright law in general, as commented here: http://blog.mises.org/archives/008374.asp. It`s clear today that much of IP law is running out of control, and commercial copyright is a good case. The Constitution itself only provides a limited grant, but big corporation like Disney keep purchasing extensions from our Congresscritters/pork spigot handlers.
Tom–
I’m not against copyright per se. But, some of the recent changes are just nuts. The Disney extension in particular is idiotic.
I realize much of Disney’s business revolves around those characters. But the idea for copyright is they are supposed continue to be creative and make money from new original stuff. Walt Disney died long ago. The mouse was created before my mother was born. She’s a grandmother now. She’ll be dead before the mouse is in public domain.
There is something odd about that.
Lucia, the Disney/copyright case is just another example of how business insiders (big business, not small business) have captured government, and use politicians and bureaucrats to put money in their pocket. That`s why $1+ trillion wars happen and continue – they`re very profitable for the insiders and for the politicians who pick our pockets.
Interesting to watch how an original pure scientific debate is severely side-tracked by legal kerfuffle
I agree that climate sensitivity is the key parameter to nail down. One approach I favor is to calculate (T(June)-T(January))/((TSI(June) – TSI(January)). This data is available in many locations throughout the US, as well as other locations throughout the world. The differences are large, so there is less chance of temperature or TSI measurement errors causing problems. You wind up with a remarkably similar result throughout the US, of about 0.1 K/W/m^2. Assuming the 3.7 W/m^2 forcing for a 280 – 560 ppm CO2 change is correct, that implies an overall warming of no more than 0.4 C for a doubling of CO2.
Paminator– I don’t think the annual cycle data is definitive. It might if the earth really was a “one lump” system as far as time constant went. But, it’s not.
If we were using engineering language, the problem has to do with something called a “Biot number”.
Lucia,
I don’t dispute the value of copyright, I just choose to copyleft.
http://en.wikipedia.org/wiki/Copyleft
Copyright violation?!
That’s absurd. I’m a lawyer (but not in this field). Two scientists have a disagreement and one makes a point by point rebuttal of the other’s article. Better to post the entire article than to use only parts and be accused of cherrypicking out of context.
What a silly claim.
Lucia,
I quite agree that a single time constant model is a big simplification but it is very much better than a model that assumes instantaneous equilibrium to any change in forcing.
I think that the annual variation in global solar forcing caused by the elliptical orbit is worthy of some study. It is one of the few forcings that are of exactly known frequency and strength. This should make it much easier to extract a temperature signature. If your Lumpy time constant is in the right ball park, the temperature swings will be mostly reflecting the effect of the ocean/land heat capacity rather than the equilibrium sensitivity.
The point about a model like Lumpy is that it does not have a single sensitivity, as it varies with the frequency of the forcing, unless the frequency is very low. The other point is that the forcing and the temperature response will have a frequency dependent phase lag. With a single time constant model like Lumpy this can never be more than 90º however much the forcing frequency is increased.
If we have a black box and wish to find something about the input/output function we will be silly to ignore the one input signal that is almost perfectly specified. The intriguing part is that this signal has completely vanished from view at the output as all the temperatures are expressed by the climate community as anomalies.
I don’t think this method will nail down climate sensitivity but it may yield further clues.
Remind me again what Monckton’s business is? I think that blows your number 2 out of the water, his response had a definite commercial purpose which was defending his position as a consultant on this and that.
You may also have noticed how prim and proper Monckton is wrt what he considers his rights and wrongs. Also, just because Arthur is being nice does not mean that Monckton met the original conditions which were set. Clearly Monckton is still attempting to associate Arthur;s work with the APS.
Finally, part of the disjunction here arises from the asynchronity of the happenings, but to answer Stan, and I think this really was lucia’s main argument, publically completely printing for the purpose of rebutal a manuscritpt submitted for publication before it appears is extremely bad form, something that can get your teeth kicked in.
Eli–
If you think Monckton has a specific commercial purpose for publishing Arthur’s document in particular, you are going to have to state it directly. Your attempt to prove some point by asking questions isn’t getting anywhere, because the answer is: Seems to me Monckton is discussing this mostly as a hobby, just as you or I are.
As far as I can tell, Monckton is not making money by posting that specific article– and I suspect that would be the important point should a suit arise. (Fortunately, Arthur isn’t nuts, and he’s not pursuing any such court case. Trying to make a persuade a judge that Monckton published this particular draft to buttress his position as a consultant on heaven knows what would likely be difficult! )
Associating Arthur with APS may have some rhetorical/ political motive. However, that is entirely irrelevant to any issue of copyright violation!
But, yes. I think Monckton’s posting Arthur’s document was very bad form. He shouldn’t have done it — he should have waited. That doesn’t mean anyone gets to kick his teeth in. Watch a few episodes of “The People’s Court”. You’ll learn that no one is permitted to kick anyone’s teeth in for breeches of etiquette.
Me thinks that the rabbett is eating the wrong carrots.
Like nearly every other legal question, the devil is in the the details and we need to know all the facts. It appears that no-one on this blog is a reader of the Wall Street Journal or someone would have mentioned the recent Bratz case which has been all over the financial press (Bryant v. Mattel 04-9049, U.S. District Court, Central District of California (Riverside).
Mr. Smith is an employee of the APS and submitted an article to an APS newsletter. If Mr. Smith is subject to a quite standard employment contract / terms of employment, then the copyright on this article belongs to the APS, notwithstanding whether it was accepted for publication or whether Mr. Smith prepared it in his spare time.
The Barbie vs Bratz “smackdown” mentioned by JK is an interesting story – see http://mindwobbles.blogspot.com/search/label/Mattel for some progress reports. These definitely suggest that, if there were any property value to Arthur Smith’s article, it would belong to the APS, rather than Arthur personally, as JK says.
Arthur’s concern, as I understand it, seems to be more along the lines of a breach of confidentiality tort, which Smith forced into a copyright framework because that’s what academics are used to. His main concern seems to be that the breach of confidentiality caused him embarrassment with his employers, the APS (as evidenced not least by the terms of his settlement offer asking Monckton to remove the connection between him and APS in the document.)
To place this as a confidentiality tort, consider the following. Monckton was already in a dispute with APS over their handling of his article. Most organizations would not want or knowingly permit an employee with no relationship in the dispute to intermeddle, and certainly not without clearance from the employer, which in this case would probably have been refused on the basis that there were plenty of people in the world capable of responding to Monckton. An APS employee with unrelated duties and a purely amateur interest in the area didn’t need to. Instead of obtaining permission in the midst of an already acrimonious dispute, Smith forged ahead without clearance, and, to add to the problems, sent the article out on company email. As long as there was some lingering dispute with Monckton, APS would probably not want an intermeddling employee stirring the pot. Smith showed poor judgment in sending his letter to Monckton on company email. At this point, he probably should have just left well enough alone as opposed to further stirring the pot at Eli Rabett’s.
From Monckton’s point of view, considering that his own controversy with APS was hot and heavy at the time, if Smith’s email did not include explicit language in the cover email that the correspondence was personal and unrelated to his employment at APS, how was Monckton to know that this communication from APS was merely from a freelancing employee? If the email did include such language, then I’m surprised that Smith has not produced it, since he is free to do so as the originator.
Lucia, you’ve also said that the article was sent as a “draft”, but the document available here http://www.webcommentary.com/docs/warm-smith-ans.pdf states:
This language (and the version linked here originates with Monckton so we don’t know whether it has been edited) suggests that this was the final version and not a “draft”. If it was not a “draft” or if there was no way for Monckton to know that it was a “draft”, would this affect your own attitude to this amusing little incident?
Aside from the curiosity interest, there is an intriguing issue within climate science as to when people are acting in a “personal” capacity.
SteveMc
Oh, this whole thing is definitely a mess!
I agree that Arthur contributed to the confusion by using his APS email That was unwise– particularly in context.
I also would like to see the contents of the email that went with this “letter/ article” to Monckton. That might clarify a lot. Otherwise, we can’t tell whether Monckton’s mistaking Arthur for “an official” was something everyone receiving the letter would do or whether Arthur made it clear this was sent in a personal capacity.
But, I have the impression Monckton knew Arthur intended this to be ultimately published by the APS. So, that makes it a draft in my book, even if the “draft” itself thanks Joel Shore for reviewing an even earlier draft.
It’s possible everyone owes everyone an apology on this front:
* APS definitely owes Monckton an apology. (That ain’t going to happen, but they own him one big time.)
* Monckton owes Arthur an apology. This is true even though some of Monckton’s misteps could arise out of natural misunderstanding.
* Arthur owes Monckton and his bosses an apology for using his APS email and contributing to the confusion. (And possibly for talking to Eli causing Eli to go into pop in a second set of batteries resulting in full energizer climate bunny mode.)
* I owe Monckton an apology for not mentioning that he is also owed apologies in the body of this article.
Yes, there is an intriguing issue as to when people are acting in “personal” capacities. In particular, it is intriguing vis a vis. . . Well, I think I’ll not end that sentence!
JK, not everything is a “legal” question, especially among gentlemen and others who have hereditary titles. Societies have their norms and healthy societies rely on them more than they rely on laws. Monckton’s bald breach of a rather clear norm – copying wholesale the work of another and posting it without permission – is the reason for Lucia’s insistence that he behaved badly and should apologize.
If Mr. Smith is subject to a quite standard employment contract / terms of employment, then the copyright on this article belongs to the APS,
Since we’re speculating here, I imagine that it is extremely unlikely that the APS’ employment agreements with scientists such as Arthur contain any kind of copyright assignment clause that would say that the APS owns their work. The APS simply isn’t a commercial institution seeking to profit from all of its employees’ labors.
Steve, for the same reason I just cited to JK, the Barbie v. Bratz case just isn’t relevant. Moreover, Smith’s piece is couched as a letter from him as an individual that Smith hoped to publish in the APS FTP newsletter, as Smith pointed out to Monckton. Moreover, Monckton has explicitly recognized that the letter was Smith’s and not APS’s: “a database manager for the American Physical Society, Arthur Smith, drafted and circulated a critique of Monckton’s paper. Smith’s critique and Monckton’s refutation of it are provided here for educational purposes.”
Try as one might, it is exremely difficult to craft a justification for Monckton, especially as he displays a clear understanding both that Smith was NOT writing for the APS and that the critique was a draft that Smith had provided to Monckton out of courtesy to put him on notice that it might appear in the APS newsletter.
Accordingly, Lucia is absolutely correct to conclude that:
“Yikes! Monckton posted a draft article sent to him by the author, Arthur. This is just not done. Period. … Finally, what Monckton did was utterly stupid. There is never any need for quickly rebutt an unpublished draft paper. It would have been far wiser to read the draft, write a draft rebuttal, set the rebuttal aside and review it later on.”
TT, again, I’m repeating myself – Smith’s issue seemed to arise not out of anything to do with copyright, but out of a perceived breach of confidentiality, resulting in him being identified as an APS employee, intermeddling in a matter of concern to his employer, rather than out of any concern over valuable property.
As I understand it, the comment that you quote was not contemporary with the original Monckton rebuttal, but was added in a response to a request from Smith. In the absence of Smith providing the original cover email, there is no way of knowing.
Steve, why the focus on “Smith’s issue”, which is beside the point?
Regardless of Smith’s reasons for being concerned, the fact is that, as Lucia has noted, especially in the academic and science world, one simply just doesn’t post the works of others whole without seeking permission, so that Monckton did so is very surprising. That he has continued to brazen through when Smith objected – and despite explicitly acknowledging that the letter was Smith’s and not APS’(which makes clear Monckton’s mens rea) – compounds an already serious breach of courtesy.
Your guesses as to what has been going on between the APS and Smith are intriguing and astute, and perhaps explain why Smith has not objected even more strenuously. In any case, what the APS might think about the matter does not bear on Monckton’s responsibility for what is obviously abysmal behavior. Monckton should have sought advance clearance for posting Smith’s letter, and his acknowledgement that the letter was indeed Smith’s and not the APS’s shows this even more starkly.
TT,
Perhaps you missed the title of the thread: “Copyright Kerfuffle”. This is of course a legal question and Lucia specifically asks for a legal analysis. Maybe there was a breach of social mores, but this point is not really relevant to the current discussion. There were some earlier threads where your comment would be more on topic. It is rather strange that you would fault me for providing a legal analysis.
Your comment:
“…Since we’re speculating here, I imagine that it is extremely unlikely that the APS’ employment agreements with scientists such as Arthur contain any kind of copyright assignment clause that would say that the APS owns their work. The APS simply isn’t a commercial institution seeking to profit from all of its employees’ labors…”
is rather dated. Tech transfer is a hot topic in the non-profit space. In my experience, non-profit organizations are today as protective of their IP rights as their commercial brethren. I have been involved in a number of lawsuits in which non-profits have exerted their IP rights. I would be somewhat surprised if the APS doesn’t have standard terms of employment, particularly given they act as a publisher. And if they don’t, they should!
Steve & Tom–
Yes, on this thread, the focus is the speculating on the legality. My previous one was more focused on social mores. The two are related because they touch on a specific incident.
But, yes, on this thread Steve is correct: I am interested in what might be the legal issues. That subject was broached over at Eli’s blog– along with allusions to big fines that might be levied against Monckton. So, Eli’s blog has caused me to be curious about whether or not Monckton might also be liable for fines or subject to any torts.
It seems to me he’d have a plausible defense for copyright– under fair use. I could be wrong, but the circumstances we know suggest what he did may be entirely legal. (It would still be poor manners — but that’s got little to do with copyright law.)
I think Steve may be correct that Arthur’s main difficulty is with his employers. Much of what Arthur wrote over at Eli’s, and the remedy he demanded from Monckton suggest that the embarrassment with his employers caused Arthur some difficulties.
Lucia, as you may know, I’m a lawyer, so I think it ironic that you and others want to pick legal nits based on little more speculation, especially after Arthur Smith has made it clear he’s not going to pursue things further, when it’s perfectly clear that Monckton is wrong simply as a matter of common practice and courtesy. This is especially so as it’s becoming increasingly clear that law is being used to justify all matter of bad behavior, not least in the area of copyright (which is one of the reasons there is a growing chorus of libertarians and copyright practitioners advocating drastic reforms, as I noted earlier).
I stand by my remarks that Smith’s possible embarrassment as to his employer and his insistence that Monckton at least make that clear that the review was his own have little relevance as whether Monckton has any legal justification for his behavior. I would also be very surprised if the APS is at all interested in claiming copyright in Smith’s climate change commentaries.
Regards,
Tom
Tom–
I’m not sure why you should be surprised that people want to figure out whether Eli’s threatening views of copyright, discussed over numerous posts is plausible. I wrote this post on the 7th, mostly motivated by Eli’s ‘legal analysis”.
The fact that I keep comments remain open or that I welcome anyone discussing various possible legal issues is hardly a symptom of “picking-nits”. Whether we are lawyers or not, people do need to discuss which actions which we ourselves might someday be tempted to do, which might eventually result in a tort.
We also discuss etiquette. They are separate topics. But, one does not preclude the other.
As far as I can understand what you are saying is you are suggesting that it’s quite likely legally Monckton did nothing wrong. He neither violated copyright nor committed a breach of confidentiality? Or, are you saying we don’t have enough evidence to tell one way or the other.
If you have a legal insight to contribute, that would be welcome. If you don’t, that’s fine too.
Since TokyoTom in 4949 brings up all the gentleman and hereditary titles stuff, and since I have far too much time on my hands, maybe the Lord Monkton and Arthur should settle this the way that gentlemen did back in the day…
I propose… A DUEL!
It would go something like this: Twenty paces, turn and you get one shot.
Since I think Art’s claim is frivolous, I’m on the Lord’s side, which means you know who is on Art’s side.
So the first thing we do is leak a rumor that the Lord can shoot a flea off a rabbet’s azz at 200 yards. That way when Art turns, his mouth gets real dry… his hand sweats and shakes… BOOM… oops, jerked the trigger… round misses by so much that we don’t even hear it wiz by.
Now the Lord’s turn… breathe, relax, aim, stop…
Lord, stop aiming so low… certain disfigurements of a man are worse than death!
To which the Lord replies in a whisper… “Shut Up.â€
BOOM
OWE! Nailed the hare!
Well, at least Art gets a consolation; lunch and a new pair of ol’ crusty slippers.
Arthur seems to be mostly satisfied at this point. I think it’s Eli who was ready for the duel. Anyway, wouldn’t rapiers be more fun?
Nah, wouldn’t be able to get a good pair of slippers outta the hyde after it got all scraped up by one of them things.
Lucia, thanks for clarifying what your interest is, anyway, but I have the feeling that for others this is more a question of trying to find justification rather than really explore US coyyright law.
FWIW, I really haven`t even looked at what Eli had to say about this, but in the US at least my view is that Monckton doesn`t really have a leg to stand on, in that copyright attaches upon the creation of an original work of authorship, Smith didn`t grant Monkton rights to publish and copying the draft letter wholesale is hardly a “fair use” (as opposed to posting excerpts), especially as in doing so it essentially eliminated any basis on which any independent third party, such as the APS newsletter, would publish it. It was Smith`s writing, and he had the right to determine its disposition, not Monckton.
The possible facts that the draft letter may have only had limited prospective commercial value, might not ultimately have been published anywhere else, that Smith might at the end of the day very well have given Monckton approval to publish, and that Monckton was arguably not acting commercially , in my view, have very limited bearing on Smith`s rights, and if he had wanted to pursue this I believe he would be vindicated.
Tom–
I agree there are plenty of people trying to use copyright law in the great battle to vanquish those with different views on climate change.
In the US, Arthur’s draft is definitely covered by copyright. I said that several times in comments somewhere. 🙂
Ordinarily, Monckton has no right to copy. But, there is the “comment” exception, and people are often permitted to copy quite large amounts of stuff. Can fair use stretch to copying an 8 page letter in its entirety under some circumstances? I don’t know. But if it can stretch that far, and Monckton’s case falls in that area, I suspect Monckton would be permitted to copy.
So, with regard to copyright, the question really is: Is this fair use.
You may have the view that the factors determining fair use as published by the US copyright office, as as outlined in US case law have limited bearing on the legal question “Does Monckton’s copying fall under fair use”. But, I tend to believe that if the US copyright office says those are the factors affecting the legal judgment, then those are probably the factors that affect a legal judgment.
Lucia, Monckton could clearly post the relevant portions of Smith’s paper, if accompanied by criticism and commentary, without violating copyright. But he clearly just can’t post the whole thing as is, without Smith’s approval; after all “copyright” means Smith’s right to control the making of all copies. By doing so, Monckton not only directly violated the copyright; he enabled everyone else with access to the intertubes to do so as well (that Smith has thrown in the towel of course changes that).
I would say that even if Monckton had posted a heavily annotated version of the paper, full of comments, footnotes and hyperlinks by Monckton (and obviously much more “educational” than simply posting a naked version), this would still violate Smith’s copyright, since anyone else would still be able to see the entire Smith paper.
As to the “comment†and other “fair use” exceptions, you’re forgetting that Smith hadn’t yet published this work ANYWHERE himself. Commenting on a work that his been published elsewhere is clearly entirely different from appropriating and publishing a copyrighted but otherwise unpublished work.
TokyoTom,
I agree with most of what you have to say on the subject. But as much as I hate to disagree with you, I do feel the need to point out that fair use is “of a copyrighted work.” Though at one time a copyrighted work was a work that was published, that is no longer the case. Publishing an unpublished work, would be considered. (effect on market value) But is not in and of itself something which would deny fair use.
Lucia,
There is no easy answer for the question, “Is this fair use?” As I said in the other thread, fair use is rather subjective. We can all have our opinions, but the only opinion that would matter is the opinion of the court(s) that heard the case. But since Arthur will not be filing suit, that is an opinion we won’t be hearing.
Raphael, thanks for your agreement and disagreement.
I humbly submit that a court would be extremely unlikely to consider it to be a “fair use” of a copyrighted work to take the whole thing and publish it before the author himself had.
TT
Tom–
The document was circulated. Circulated documents that are never published by a publishing house are copied when they are uncovered by others. Often, these are politically embarrasing documents. Sometimes, the whole thing is published.
So, “unpublished” documents have been copied in their entirety under fair use. (Now, I have to remember the names of some of these. They are generally GOP documents published by Democrats or vice-versa.)
Lucia, there is NO copyright on government works.
There may be copyright on some political documents, but whether anyone has sufficient possible to gain justify the cost/time of seeking to defend their rights in front of a judge is a little different from whether they have rights – which is why you wanted to pursue this, right?
As for this case, who was the draft letter circulated to before Monckton published it? Not very widely, I`d guess. Sending drafts around isn`t a copyright waiver.
Tom–
Why remind me there is no copyright on government works? I have made no such suggestion. I discussed GOP and the Democratic political documents. Political parties are not “the government”.
Why do you say there “may be” copyright on political documents? There is copyright on those documents. This isn’t even a quibble. It exists, period.
Do you think an embarrassed political party has no incentive to pursue a copyright violation against another party? Or newspaper? I should think they would have great incentive to do so. Winning would help prevent embarrassment in the future– something any political party would greatly desire.
The political parties (who are manifestly not “the government”) don’t pursue these things because they can’t win. They can’t win because fair use applies even to unpublished documents in some circumstances.
The document was circulated to at least a) the APS, b) Joel Shore and c) Monckton. I didn’t say circulation was wide. But you made much of the idea that it’s “unpublished”, stressing formal publication. In fact, there are many instances were documents that are circulated may be copied under fair use.
I have never suggested sending drafts is a copyright waiver. Fair use means one doesn’t need a copy right waiver. That’s what “fair use” is!
Do we know what the outcome would be in this case? No. Would narrow circulation cut against Monckton? Probably. But the document was circulated, and that may very well be “enough” to permit copying under fair use. It isn’t as if Monckton broke into Arthur’s computer, found a diary entry and published half formed thoughts Arthur hadn’t disseminated to anyone anywhere!
Formal publication in a newsletter is not on the list of factors in the US copyright office’s list of considerations for fair use. (Even
TokyoTom,
I arrogantly submit (not really. 🙂 ) that “the whole thing” and “first publish” are just two of many factors which would be considered and weighed.
I simply don’t understand scientific publishing well enough to form an opinion.
When I consider a parallel I do understand, (say if I sent Lucia a chapter of a “to be published” work of fiction, and she posts it on her blog) I have no doubt which way the court case would go. But, there are substantial difference in the factors which would be weighed. Enough so that the parallel would not be accurate.
I believe there are enough factors to be considered which would allow the case to go either way. My gut instinct says it favors Monckton. But, I really don’t know.
If you would like to discuss those factors, I am more than willing. If you haven’t looked at specific cases, I’d start here. While that case is not a clear parallel (nor precedent in all cases), the opinion does describe how the factors involved are interpretted.
Raphael–
That’s a very interesting article.
Lucia,
Yep. That it is.
But it should also show that there is no easy answer to your question.
Lucia, I suppose that copyright in political documents is much more complicated than you make it out to be. I referred to a lack of copyright in government works because much of what is “political” actually relates to government documents. It’s a different story if you’re talking about works created by the parties, but I would suppose that this is complicated by the fact that some such documents are created by politicians, who are actually public servants. To the extent that there is copyright, as the contents involve matters of public concern, including government employees and politicians, the fair use exception is going to be very big.
But regardless of what copyright principles are in political documents, I don’t think I’ve EVER heard of anyone seek to bring a copyright claim with respect to an alleged violation – against a news organization or another political party. I think this reflects a calculation that there is very little upside to pursuing a copyright remedy. Why? Probably not only that the case may be relatively weak (and the defense strong), but also because the cost is high, the damage is already done – and can’t be put back in the box – and it may be very difficult to actually recover anything substantial from the defendants anyway.
Because there is no copyright on government work, the administration seeks to lock it down in other ways (making it all secret and finding other ways to punish leakers and recipients who disclose). Likewise, because copyright provides only a limited political remedy, the parties also focus on controlling information flow.
For similar reasons – expense and efficacy – many individuals simply don’t bother to pursue copyright claims, and the wary who hope to publish a work will be careful about whom they distribute drafts to.
But there are other ways that individuals can get vindication and influence the behavior of those who are tempted to violate copyright – the market in reputation and public opinion. For example, publishers are pretty good at not violating the copyright of those who submit manuscripts, not simply because they may be sued, but also because they want to create a reputation that will encourage writers to submit works for their review. As you noted in your previous post, what Monckton did just isn’t done in academic circles, and it should rightfully blacken his reputation. It may also disadvantage him by encouraging others to use his standards against him, and by making it more difficult to prepare for potential criticism (as critics will be less likely to be as open as Arthur Smith.
Raphael, I don’t think the differences between your example and Monckton’s posting of Smith’s piece are that large. Monckton has published what someone else has created but was not otherwise published. In either case the degreee of possible interest by readers is speculative. I think that the defendant in either case would have a very difficult time arguing that his “use” – publishing the whole thing – with or without comments appearing on different webpages, is “fair”.
But as others have noted, it would be up to a court, and we are largely engaging in idle speculation, as we are not privy to all facts.
BTW, did you note, Raphael, that the district and appeals court in the case strongly supported the copyright holder, giving the Seinfeld owners summary judgment (which means that the defendants – whose factual arguments were deemed correct – didn’t even get a chance to make an argument to a jury)?
Tom-
You have novel ideas of what is a government work for the purpose of copyright.
Yep. And guess what? Climate change is currently a hot political topic! And Monckton’s detractors complain this whole thing is politically motivated. But, we don’t need to claim Monckton’s stuff is political to have a wide umbrella for fair use– scholarship and comment are expressly caled out.
Well, evidently, you didn’t read the link I posted. Here’s an example of someone using copyright against a politically motivated group violating copyright:
When the case against copyright is good copyright is used.
What Monckton did is not done in academic circles. But, it seems it may be perfectly legal. And your fuzzy attempts to suggests works that happen to be written by politicians “government works”, or suggest somehow political groups would never use copyright only seems to suggest that you don’t really know what copyright covers, why and/or what the fair use exception is, or understand what its purpose!
On the Seinfeld case: Of coures he courts supported Seinfeld in that case. Raphaels purpose was to suggest your read the narrative to understand the reasoning. Monckton’s copying is different in character, and if you notices many of the points in the narrative, you’ll see why.
TokyoTom,
To paraphrase what I told Lucia, “My opinion, your opinion, their opinion, only one opinion matters.” We will each have our opinion on how different factors should be weighed. But in the end, they don’t mater.
While I concede that “the whole thing,” is a substantial factor to be overcome, I think there is enough argument to be made concerning “purpose of use” and “nature of copyrighted work” to overcome that factor. But, I simply don’t understand scientific publication enough to form an opinion on “value of work”.
In my “(say if I sent Lucia a chapter of a “to be published†work of fiction, and she posts it on her blog)” example, the differences are in the “nature” and “value” factors. That is if we allow the benefit of the doubt to the “purpose of use” and assume Lucia critiqued my work in her posting. Otherwise we could toss that one into the mix as well. 🙂
No, I didn’t notice the lower court was a summary judgment. Appeal courts like that, so I didn’t even consider it. 🙂
Lucia: “Well, evidently, you didn’t read the link I posted.”
Not sure what link you`re referring to. Anyway, all you`ve shown is that people with copyright try to enforce it when there`s enough at stake – which is the point I`ve been trying to make.
But as a matter of principle, if the copyright of Kerry and his co-editor were sufficiently clear that 33 years after a book was published (openly circulated) they were able to stop someone from giving away free copies online in the midst of a Kerry presidential campaign (fair use of obviously hot political topic? Kerry NOT engaged in commercial activities), it`s puzzle to me that you think that this cuts against Smith (who had not openly published his draft but circulated it very narrowly – and unwisely to Monckton as a courtesy) and in favor of Monckton (who similarly published the whole thing)
But it`s an interesting case; thanks for pointing it out. I looks like using the DCMA, rather than filing a copyright action in court, is the right avenue for someone to try to use in a case such as Smith/Monckton.
“What Monckton did is not done in academic circles. But, it seems it may be perfectly legal.”
I really don`t see how you get there, especially with Monckton putting the whole thing up.
Further you misconstrue my “fuzzy attempts” in the context of politics. My point is that copyright is used not simply when the case is good, but when there cost of action is sufficiently low (DCMA was set up to lower enforcement costs) and the perceived benefits of troubling oneself to defend one`s rights sufficiently high.
It seems pretty clear to me that Monckton`s use is not fair (my judgment), but that Arthur Smith didn`t find it worth the trouble and expense to defend his rights (facts). It sounds like he should have considered using the DCMA if he was really interested in pursuing the matter, but I suppose it might be possible that Smith decided that having Monckton put it up on the web might be the best way for it to get wide circulation.
Tom–
The link has an example of the thing you said you had never read of happening. 🙂
I didn’t say cuts against smith. I said it is an example where politicians pursue copyright, which you said does not occur.
Your “fuzzy attempts” were trying to suggest that the reason politicians don’t use copyright is because their works are government and so not covered.
Had Arthur wished to try DCMA, he could have. I don’t know what Monckton would have done. There is a full process, and Monckton could have then advanced his argument for fair use.
I suspect if this had gone to court, Monckton would have prevailed under fair use. However, both men would have to be idiots to go to court because the result would be uncertain and going to court is both time consuming and expensive. Worse still, I’d bet dollars to donuts, Monckton’s server is in England. If so, Arthur would need to file in England, and hire a UK lawyer!
While I do think that Monckton was somewhat out of bounds with publishing the entire paper, IF he knew it was going to be subsequently published, I think it is entirely resonable for him to comment on it, and even reproduce parts.
After all the paper was a rebuttal of Monckton’s own paper, giving him more than a casual interest. Add to that the fact that Smith was evidently already circulating the letter.
Part of the purpose of seconds
Was to referee.
Why blind ’em?
=================
lol full energizer climate bunny mode