How Journalists Talk to One Another (NY Times Edition)

Occasional Reason contributor Cathy Seipp has an absolutely fascinating blog post up about a testy exchange she had with NY Times staffer David Cay Johnston, who is by turns aggrandizing and peevish.

The background of the post is complicated but it involves Johnston descending from the clouds to call Seipp dishonorable and lacking in integrity for publishing a story at National Review Online about lobbyist Jack Abramoff and journalists who accepted third-party payments from undisclosed sources. But it's a must-read anytime you see journalists divulging correspondence like this note from Seipp to Johnston:

And I'll tell you something else you can forward to any interested parties awaiting your opinion before you roll it up and stick it up your ass: When journalists go from keeping secrets about their sources to expecting sources to keep secrets about THEM -- as you, and [New York Times reporter] Sharon Waxman, for some reason are now doing, which in her case involves threats and bullying -- then something in the press has begun to stink with self-importance. Or, as you'd put it, is "a public bad." You might consider spending some time pondering that.

Whole thing here.

Comments

[amazingdrx]

http://www.washingtonian.com/people/dowd.html

NRO's version of a "journalist" commenting on Maureen Dowd. Kind of illuminates this blog topic, doesn't it? Hehehey.

[Alan Vanneman]

Yeah, those Timespeople can be full of themselves. But it does sound like Seipp was trying to protect Abramoff et al. by not giving up the name of the flack who tried to hire her. Because, according to Seipp, it's not wrong for P.R. firms to offer to hire journalists. It's only wrong for journalists to accept.

[Matt Welch]

Alan -- As I point out in the comments string of that Seipp post, the flak in question is a friend of hers, or at least a friendly acquaintance, and his himself no kind of public figure or power broker.

[moonbiter]

From Cathy's piece:

Johnston responded with another email, titled "Gosh, Catherine Part 2" that is too long and tedious to include in full here.

Which is all well and good, except that she goes on to claim several things that he wrote without giving us a link to the source. Not that I think she is lying or anything, but, I mean, come on. This is the web -- too long and tedious to just cut and paste it on the end of her post so that we could see for ourselves what he wrote?

Maybe it's a habit from doing a lot of writing for print magazines. Maybe she didn't want to include it in the main part of her text in fear of disrupting the flow. But I have to say that I trust her a little less than I otherwise would because we don't have all the information available to look at ourselves.

[Aflac Jack]

Can't help it, pet peeve: FLAK is anti-aircraft fire (from German -- probably something like fleigel-aero-kaka). FLACK is a PR hack.

[moonbiter]

FLieger Abwehr Kanone (anti-aircraft gun).

[Cathy Seipp]

David Cay Johnston's first email to me is reprinted on my site in toto. The second was indeed too long and tedious to reprint (and yes, my business is indeed reporting and writing, not posting and linking) besides which there are issues of copyright infringement when you publish private unpublished correspondence without permission. (Not that DCJ's is worth anything, so I'm not worried about him suing because of the first one.) Also, frankly, my site doesn't have pages for seperate documents. But anyone who's interested in his entire argument, if you can call it that, in his email can easily see it in my comments section, where he restates it in various versions, and at great length, ad nauseum. So go to town.

The notion that I'm trying to "protect Jack Abramoff et al" is too idiotic to even address.

[Dave W.]

besides which there are issues of copyright infringement when you publish private unpublished correspondence without permission

This is an interesting legal issue. I wonder what the US law really is on this, especially since Seipp was the recipient. I can understand why she would be risk averse under the circumstances, though.

I am less sympathetic to this 'tude Seipp has about her job not being posting and linking. Like MoonBiter, I see posting and linking as part and parcel with good modern reporting, traditional practices notwithstanding. It doesn't mean that Seipp should post the letter. It just means that Seipp, like many jouranalists, needs an attitude adjustment when it comes to linking to primary source materials.

[ChicagoTom]

Although I agree overall with Cathy Seipp's take on the behavior / attitude of the Times people, I find one particular statme she made quite troubling:

My quarrel isn't with the spin shops that pay for op-ed space, but the journalists who accept it

Why is the quarrel only the journos who accept it? Why is peddling not just as bad as accepting? To me its like bribery. Yes you are bad if you take a bribe, but you are just as bad for offering a bribe. Any honest journalist should have a quarrel with the spin shops peddling the bribes that is equal to the quarrel with the journos that accept it. Trying to buy favorable op-ed's and op-ed space is still bad even if no one takes you up on your offer.

If firms are trying to buy op-ed space, then a journalist with real integrity would want to shine the light on said firms especially when that type of arrangement is something the journalist would "never consider ... for even a second, and was shocked at the notion that anyone might". If this arrangement is so deplorable, why such a strong stance to protect whoever it was that offered such a dispicable "arrangement" ?
Why isn't Seipp willing to reveal (or even look into) which firms are pushing these types of arrangements?

[moonbiter]

Thank you for addressing this Cathy. In general my comment was not really about your reporting in this matter, but the fact that it is simply very easy to provide the original for purposes of verification. Given the fact that you didn't seem too concerned about copyright issues when you published the first email, I saw little reason why a link to the second couldn't also have been published.

[Alan Vanneman]

Dear Matt Welch,

I am soooooooooooooooo glad that Aflac Jack put you in your place re "flack" and "flak." As for Seipp's swipe, somehow I remain strangely unconvinced. If I were a conservative, I'm sure I wouldn't want to help the g*****n NYT expose right-wing hustlers. (Sorry, "friendly acquaintances" who are NOT, REPEAT NOT, big-shot power brokers.)

[A copyright lawyer]

Dave W--

Ms. Seipp is correct--the author of the letter retains ownership of the copyright in the letter and, therefore, retains the exclusive right to publish it. The recipient of a letter owns the physical copy of the letter she receives, but not the right to make additional copies or publish it.

[Dave W.]

Copyright Lawyer:

I agree with what you say as far as it goes, but I think you fail to grasp some of the subtle questions here. For example, here is what the 2d Cir. said about recipient rights in Salinger:

"Prior to 1978, unpublished letters, like other unpublished works, were protected by common law copyright, but the 1976 Copyright Act preempted the common law of copyright, 17 U.S.C. ? 301(a), and brought unpublished works under the protection of federal copyright law, which includes the right of first publication among the rights accorded to the copyright owner, id. ? 106(3). The copyright owner owns the literary property rights, including the right to complain of infringing copying, while the recipient of the letter retains ownership of "the tangible physical property of the letter itself." 1 Nimmer, supra, ? 5.04 at 5-32 (footnote omitted). Having ownership of the physical document, the recipient (or his representative) is entitled to deposit it with a library and contract for the terms of access to it."

For example, what if the recipient provides streaming video access to the letter to the public over the Net? Also, in Seipp's case, she didn't get a piece of paper, she got electronic data. Does that expand or change her acceptable prerogatives in providing access to the "original?" In more concrete terms, can she provide access to her "original" in a way similar to that in which she was granted her access? Does the above quote by the Salinger court make good policy sense in the Internet age? Does that matter under proper fair use analysis?

I think these are unanswered questions. Even if the 2d Cir in Salinger represents mainstream legal thinking, there are some modern questions that old precedents don't answer. This is what I meant when I said that Seipp's situation raises interesting copyright issues. I still think that, although I continue to fully respect Seipp's decision not to be the one making the new law in this new area.

[A copyright lawyer]

Dave W.--

I agree with you that there are some interesting copyright issues, and they all have to do with the fact that this letter isn't a physical copy, just a bunch of ones and zeros that her computer has to translate into text for her to read. The Salinger case turns on what is actually a pretty easy and noncontroversial concept, in my view: owning a copy of something doesn't give you the copyright in that thing. So if someone gives you a letter you can do whatever you want so long as you don't infringe on one of the rights set forth in the Copyright Act as belonging exclusively to the author. "Providing access" to a work isn't one of those rights, so the recipient is free to do that and the copyright owner has nothing to say about it.

But of course the recipient of an email is in a different position than the recipient of a physical copy, because he has to exercise copyright rights in order to do anything with the email. Just to view and read it on his screen, the recipient must cause his computer to translate it from ones and zeroes into text (arguably a derivative work). The computer will probably automatically make a copy that resides in an email folder. And certainly if he hits the print button he makes another copy, and arguably another derivative work. (And of course this ignores the many ephemeral copies made as it zipped around the Internet, the recipient's lan, and inside the computer itself.)

I'm not aware of any cases that address this yet (and I've done zero research to check, so I could very easily be wrong). But my guess is a court would say either that the sender grants to the recipient an implied license to do the activities necessary to read the email and print out one physical copy, or that there is a fair use right to do so. I don't think a court would find an implied license/fair use right for posting the email on a web page. And I think a court would say that letting folks have "access" to a physical copy of a letter via a streaming video link is really a public performance, and would find no implied license/fair use right for that either.

Anything else would probably turn on the specific facts of the case. What can we learn from the text of the email, prior correspondence between the parties, or typical practice in a given industry that informs the issue? It may be that something in the facts makes it more or less reasonable to post the email on a web site.