Nearly a week before the Sept. 18 issue of Newsweek hit the newsstands one of my colleagues, a highly respected clinical social worker and an published author in his own right, posted to a popular discussion group of psychotherapists an article by Anna Quindlen, “Frightening—And Fantastic”. The ENTIRE ARTICLE! Of course anyone not a subscriber to Newsweek who normally might have purchased a newsstand copy saved himself or herself the price. However I somehow think that Anna Quindlin, Newsweek or anyone else who makes their living from writing and publishing may not be pleased.
Of course this was anything but fair use. However my colleague tends to have a bit of Robin Hood in him. He sees nothing wrong in robbing from the rich and keeping it for himself and his friends. Notice I did not say poor because the people who do this regularly are not poor but professionals who charge $100 an hour and more for their services. You would think they could afford the price of a magazine or newspaper once in a wile.
So how can you do commentary on a story or situation without quoting something?
Well you can quote something but not just the whole thing. You cite it and give the URL.
My colleague who I sometimes call the Robin Hood of Clinical Social Work knows that very well. I’m willing to bet if anyone took any of his published writing without permissions he would do all in his power to stop them. And he knows how to make commentary without the necessity of a copyright infringement if he chooses.
Ironically, a couple of days later on the same discussion group he did a masterful job of commentary on Anna Quindlen piece, “Frightening—And Fantastic” without ever actually quoting her. It just took a little effort. He, quite properly, I think lamented the fact that today our fear of kidnapping, child molestation and all the dangers we often associate with the present times, we fail to let kids our kids be kids and monitor and structure then too much denying them the independence many of us enjoyed growing up. I tend to agree with him on that score. His closing analogy left me just a bit cold however. I’ll quote here and I can without his permission because I am making a commentary. He says, “And frankly, I've seen a lot of this within our profession. The surest way to wake up a professional gathering is to mention some way that you can get sued. (An example here was the notion that the Dept of Justice would file antitrust charges if therapists discussed their fees on a listserve.)”
Well I am not sure what risking running afoul of the Justice Department or The Federal Trade Commission has to do with kidnapping or child molestation. He is making some commentary I suppose that many of us including his own professional association caution against engaging in antitrust activity To me I think that comment in that context is like a “Smoking Rorschach” if you believe the validity of such things as the Rorschach Ink Blot Test. It tells us a lot about a person.
You see my colleague that I refer to as Robin Hood is not alone. He and others of my profession like him seem to think that whether we are talking about copyright laws or antitrust laws it’s only a problem if the chances of getting caught and in trouble are high. I must concede that they have a point. The chances of getting away with things like that are pretty good. But what about what Ed Colburn of the Publications Division of Harvard Medical School said,” it comes down to personal ethics and reputation to a large extent…”
This leads me to my closing commentary. The reality is that most of the things that mental health professionals do are behind closed doors with our patients. This coupled with a power imbalance in that they usually come to us in a vulnerable state; the fact we usually have knowledge and appear as authority figures, we could if we wished exploit them in many ways and the chances of getting caught would be small. We could financially exploit them or sexually abuse them or mistreat them in many ways. It’s often our word against theirs and as in most professions it not easy to find a professional who will testify on the clients behalf against a colleague.
So often, it comes down to ethics and reputation. But if our ethics consists of “ Can I get caught” with regard to some laws how is the consumer to be sure that we have any different ethics when it comes to dealing with patients behind the closed doors of our offices?
They really can’t be sure. Can they?
Joseph Miller, the Assistant Chief of the Litigation I section of the Antitrust Division, US Department of Justice takes a lightly different view of the matter than the Robin Hood of Clinical Social Work. Who had more credibility on this matter? He said “I would like your readers to understand that it’s in their interest to avoid a government investigation, even one where we decline to bring a lawsuit. Investigations require the production of a lot of records, all of which need to be reviewed by counsel, and tend to be very expensive and time consuming. Moreover, you don’t know if all your conduct is completely clean even if you think it is. This is a fairly technical area of law and it’s just the thing that you don’t want to happen if you don’t need it to happen. So you should really comport yourself in a way that is not going to draw scrutiny.” See my interview with Mr. Miller.
