The Legal Intelligencer Fights Back:

Earlier today, I tried to illustrate “lousy legal writing” by quoting (in full) an article from The Legal Intelligencer. I did so because (a) the Intelligencer’s text is place behind a subscription firewall and therefore unavailable to many of our readers, and because (b) I didn’t think that readers would be able to understand the import of my criticisms (or why the article was so badly written) without the full text of the article. Eugene Volokh then received the following (which I quote again in full — perhaps we’ll get a takedown notice for this?):

Mr. Volokh:

I am Deputy General Counsel for ALM Media Properties, LLC, which owns the copyright in the Legal Intelligencer, including the article by Mr. Shannon Duffy republished in its entirety on your site at:
http://volokh.com/2011/01/07/lousy-legal-writing/

Please consider this email a DMCA takedown notice for the article by Mr. Duffy. While the author claims that the “comment and criticism” aspect of “fair use” entitles him to intentionally copy the entire article from behind the Legal Intelligencer’s paywall and reproduce it on your site, such wholesale copying is, as you surely know, not consistent with fair use. Please remove the article from your website. If you have any questions, please contact me. And as a vocal advocate of clear and grammatical writing, if not copyright laws, Mr. Post might want to consider replacing the semicolon in his first sentence with a period. The semicolon is unnecessary.

Fabio Bertoni
Vice President, Deputy General Counsel
ALM Media, LLC

As Mr. Bertoni notes, I had noted in the original posting that my use of the full text of the article fell within the “comment and criticism” protections of the fair use doctrine, and would protect us against an infringement claim.

I still think — actually, I’m reasonably certain — that I’m correct about that. Mr. Bertoni’s suggestion that “such wholesale copying” isn’t consistent with fair use is simply incorrect – there are dozens and dozens of examples of fair uses involving use of an entire work (where such use is necessary to the user’s critical purposes, as it was here). (And his use of the “as you surely know” trick is as persuasive as such conclusory, pound-on-the-table tactics usually are). But I’m not sure it’s worth getting hauled into court over —

And I can’t help but wonder if ALM would have been so protective of its copyrights had my blog posting been entitled “Must Read This,” of “Brilliant Prose Appears, Yet Again, at the Legal Intelligencer.”

[But I’ll give him one point for his suggestion about the semi-colon … He’s probably right; a period would have worked better there. Mea culpa, ma non ho violato le legge.]