Open Letter To Human Synergistics International In Response To Your Accusation That Techdirt Is Infringing

To Silvie van Etten: Thank you for your letter on November 23rd, 2012, (which we have reposted below in its entirety, minus your contact info) in which you mistakenly suggest that Techdirt has infringed the copyrights of your company, Human Synergistics, via its post from October 5th, 2012, entitled Copyright As Censorship: Author Removes Blog Post After Being Threatened For Quoting 4 Sentences. First of all, it is astounding that you do not appear to recognize the irony of threatening us over a blog post that goes into detail as to why someone else's use of a tiny snippet of your company's work was quite clearly fair use under US copyright law. In fact, it leads one to wonder if you even read the post in question before sending your letter. Even if we ignore the question of whether or not that original blog post by Patti O'Shea constituted fair use, I can assure you that Techdirt's use is fair use. Furthermore, your claim that a lack of permission to quote your silly exercise (solely for the purpose of explaining your overaggressive use of copyright law to censor people against your own best interests) is somehow "a direct violation of our copyright" is absolutely false. It is not just false, but an exaggeration of the rights you hold under copyright law -- a situation called "Copyfraud" by legal scholar Jason Mazzone. While you appear to be in Germany, I note that Human Synergistics International is actually based in the US. We, too, are a US company, with US servers, targeting a mostly US audience. As such, the only copyright law that would reasonably apply is US copyright law, which has clear support for "fair use," especially when used in reporting and comment/criticism. According to your LinkedIn page, your law degree is from the somewhat infamous Thomas M. Cooley law school in the US, so you must be familiar with US copyright laws, and fair use in particular. While fair use laws are, at times, open to interpretation, there are few situations as obviously and clearly fair use as ours. As such, we reject your claim that we have violated your copyrights as well as your request to remove the quoted sections from our blog. When something is fair use it neither requires permission nor is it infringement, your suggestion to the contrary notwithstanding. Our use is fair use and not infringing. While courts are free to use their discretion in determining what constitutes fair use in the US, it is common to focus mainly on the four factors prescribed in copyright law. Looking over those four factors, our use is without a doubt fair use. The first factor is the "purpose and character of the use." Section 107 of the Copyright Act notes that fair use is explicitly "for purposes such as criticism, comment, news reporting." Our use of your text was, in fact, for all three. We criticized your ridiculous abuse of copyright law to attempt to censor a website discussing your exercise. We further commented on the matter, using the text in particular to show why your original claim of copyright infringement (leaving aside this latest attempt to double down) would likely fail on fair use grounds. Finally, we clearly used the text in the course of news reporting, as we were reporting on your excessive behavior, which we believed (and still believe) was a newsworthy event. Furthermore, courts will often look at whether or not the use is "in the public interest" (see Online Policy Group v. Diebold). Once again, this supports fair use, as it is clear that a company that chooses to abuse copyright law to silence public speech needs to be exposed publicly, so that others who may choose to do business with such a company know the sort of operation they are dealing with. Given that it was in the public interest to expose your actions, we again stand by our assertion that our use was fair. In addition, considering we were providing commentary on the over-aggressive nature of your initial takedown, there is no other way to accurately explain your abuse of copyright law without also sharing the brief snippet of text. This, too, supports the fair use argument. Courts also explore whether or not the use is "transformative," (see: Cambell v. Acuff-Rose). Once again, the answer is a resounding yes. At no point were we seeking to use your content to have a bunch people sit around and actually take part in the exercise, but rather to specifically demonstrate your company's misuse of copyright law -- a purpose that is transforma