Riolo: Mr. Colburn, is this a problem that should concern the mental health professional community? Or is this considered Fair Use?
Coburn: Dr. Riolo, Our response at Harvard Medical School Publications to the situation you describe is fairly unambiguous – it’s copyright infringement and illegal. Fair use would entail summarizing and using excerpts. Cutting an entire article from the Harvard Mental Health Letter and pasting into a widespread discussion board would most certainly fail to pass the courts well-established criteria for “fair use.”
Riolo: One would think that your general comment should cover the situation fully. However I have discovered that when it comes to many mental health professionals and the internet it seems the overriding factor seems to be not whether something is professionally acceptable or even legal but whether the chances of getting caught are high or low. This viewpoint was apparent in my investigation of antitrust activity by mental health providers on discussion groups and with online discussions of patents on these same groups. The changes of getting caught or so it is believed seems small so concerns are dismissed. And it seems to be a factor with intellectual property infringements as well. So let me break it down into the following questions. To be clear we are not referring to summarizing and using excerpts but cutting and pasting entire articles or virtually an entire article, which leads to my first question.
Excerpt- how much is too much? From researching the case of President Gerald Ford’s copyright suit we know that sometimes even a small excerpt can be a copyright infringement under certain circumstances. I have seen however cases where there are 100%, 80%, 50% without any summarizing. So is there any guideline that can help our readers?
Coburn: I’m not an intellectual property attorney but as a veteran publisher and vice president of the Specialized Information Publishers Association I am certainly familiar with this issue. What’s permitted under fair use is not clearly defined. A half page from an 800-page book is very different from a half page from a 4-page bulletin but as you point out in the Gerald Ford case, even a very small portion of a long book can be considered infringement. Using a small portion of a work is generally safer although what constitutes a “work” varies. If a scientific journal includes 30 articles, one article would be a small portion, but including an entire article would probably still not be considered fair use. Avoiding impact on the commercial market for the work is important.
Posting a summary of the main points, even with some excerpts is fine. Adding a link to the publisher’s web page so readers can get the full article is great. But, simply copying and pasting or scanning and posting is not ok in most case.
Some publishers take a hard line on this, but many are flexible and ready to try to find a way to work with you to meet your needs.
Riolo: What’s the harm? Those who do this on a regular basis argue that they are only passing along important information to colleagues. It’s not stealing or fraud really? In fact they might claim that by letting others know they are doing the author and publisher a favor. What would your response be to those who make that claim?
Coburn: I realize you’re being provocative here but this “what’s the harm” response is either remarkably naïve or disingenuous and intellectual laziness. It is stealing intellectual property rights. If I go to see my doctor and talk with him for an hour and leave without paying – what’s the harm? He likes to talk and I’m helping him by giving him someone to talk to. I have a car that works fine, so I don’t need (or value) a second car all that much. But, that doesn’t entitle me to drive the new BMW off the lot without making any arrangement with the dealer. It’s stealing.
Publishers spend time and money creating editorial content. If it has no value, why do people want to post it? If it has value, then it should be paid for. And, that payment may be in the form of money, or it may be in the form of awareness-building or otherwise. But the decision on what value is acceptable to the publisher is made by the publisher, not unilaterally by the reader.
Riolo: Back to the chances of getting caught, some involved in this practice including listserv owners have claimed that the chances of getting caught or facing any sanctions are minimal to non existent. One told me frankly that since they don’t do this for profit if someone makes a stink they will get a lawyer at that time. Another of these discussion groups has roughly 25% of all posts articles cut and pasted from news sources or journals. What would you say to these list owners who regard copyright infringements as little more than a jaywalking ticket with a similar penalty and chances of getting caught?
Coburn: For individuals it comes down to personal ethics and reputation to a large extent, although the recording industry has made a habit of going after individual copyright abusers. I wouldn’t want to post to a bulletin board a note saying I cheat on my taxes. As for the operators of the discussion group itself, they also have real liability and a much greater risk of getting caught.
Riolo: Since many of these situations occur on discussion groups sponsored by Yahoo, MSN and other servers do these servers or hosts for these discussion groups have any responsibility to enforce their Terms of use?
Coburn: Again, I’m not a substitute for an IP attorney but there have been cases where the hosts have been held accountable. Simply posting policies, without putting any teeth into them, is not absolute protection. Does anyone remember Napster?
I think the “wild west” days are drawing to a close and there will be more and more enforcement. The record and movie businesses already spend a lot of money on awareness-building and enforcement. Technology is making it possible to track sources of postings and track pass-along readers.
Riolo: Mr. Coburn, thank you for your candid and succinct response.
Colburn: Thanks for doing this.
Note: Obtaining permissions from authors and publishers is quite often a simple, painless and often costs not a cent. All that is needed is the send the author and publisher an email. See http://www.youradvocateonline.com/psuedoscience_in_psychology.html . This is an article by Dr. Scott Lilienfeld originally published by the Association for Psychological Science Both Dr. Lilienfeld and the Association for Psychological gave permission to reprint with no difficulty. There is really no excuse for not asking. J. Riolo
