Baby, it's cold outside. Time for Cleveland Plain Dealer Deputy Editorial Page Editor Kevin O'Brien's annual "It's snowing in Cleveland again this winter so Global Warming's a Hoax" editorial...

In compiling my list of "The 17 Worst 'Climate Killers' in Northeast Ohio", I've started with O'Brien, who everyone in real NEO well knows is one of the most outspoken critics of "Global Warming" in the world, reaching millions. As I was trying to determine if O'Brien was The Profiteer, The Disinformer, or The Drudge of Denial, in misinforming our community about the environment, I did not refer to the Cleveland Plain Dealer's portal Cleveland.com for source information on Mr. O'Brien's past writing on the environment, as I knew that it would not be at Cleveland.com.

I turned to REALNEO.

For many years, I've been editorializing on REALNEO about what I consider to be Kevin O'Brien's Profiteering, Disinforming, Drudgerous editorializing on the environment in The Plain Dealer. In two of my postings about O'Brien's work, I included in my posting an entire editorial O'Brien wrote - "For global warming worry-warts, an inconvenient cold spell" (don't bother looking... it's not there) - as well as an entire editorial on the same subject written by an editorialist in Canada.

In a January 10, 2010, editorial I posted to REALNEO - "A Troll Named Kroll - Time For The PD To Be Real About The New Media and REALNEO" - I wrote about an email I received from The Cleveland Plain Dealer's Director of Training and Digital Development, John Kroll, criticizing a REALNEO member for doing something similar to my posting of an entire O'Brien editorial:

This item: "http://realneo.us/content/nice-work-mr-puente" reproduces entirely a Plain Dealer story. You're welcome to quote parts of it and link to the rest, of course.

That has led to valuable discussion on REALNEO about proper practices and laws regarding the copyright of content posted on REALNEO, which has included new REALNEO member John Kroll.... welcome again.

As I've found myself at times following the same practice highlighted as dubious, by Mr. Kroll, now being debated in our REALNEO discussions, without resolution, here are my justifications for copying O'Brien's entire editorial, and posting it as part of my editorials on REALNEO, in consideration of the four-factor balancing test of Fair Use, included in the US Copyright Act of 1976.

In my March 13, 2008, posting about Kevin O'Brien's work - "Are Kevin O'Brien and the PD correct... there is no global warming!?!?" - I am not just editorializing on one editorial by Kevin O'Brien, but on his editorial and many others as a representation of the entire Cleveland Plain Dealer, over time, as one evolving body of intellectual property material, which has not traditionally existed in any permanent, public, electronic state. My interest in O'Brien and the PD is not in one work by O'Brien, but in the entire PD body of work over time, in print and electronic, as that influences this community over time. I am making the case that the Plain Dealer is misinforming the people of Northeast Ohio about the environment, broadly, over time, and I use the work of Kevin O'Brien as evidence of my position at points in time.

I make my position on this subject more clear in a follow-up editorial I published October 8, 2009, on REALNEO - "? of the Day: Does PD Columnist Kevin O'Brien Cause Northeast Ohioans Economic And Environmental Harm" - where I conclude:

It is time for the people of real NEO to call for a complete investigation of the Crisis at FirstEnergy, and for a new age of enlightenment about the real pollution and energy crises in Northeast Ohio, largely due to poor and corrupt leadership right here in our community, as they are really killing our people and economy.

? of the Day: Does PD Columnist Kevin O'Brien Cause Northeast Ohioans Economic And Environmental Harm for his misinforming coverage of environmental issues, like this?

My concern here is not the writings of Kevin O'Brien, on his subject matters.  I am concerned with the "real pollution and energy crises in Northeast Ohio, largely due to poor and corrupt leadership right here in our community, as they are really killing our people and economy", and I am placing responsibility on the leadership at The Cleveland Plain Dealer, for at least aiding and abetting Kevin O'Brien, and so for cause. The cause is detailed in my writing on REALNEO, and includes the writing of O'Brien, originally posted on Cleveland.com, as evidence.

Knowing the Plain Dealer makes inconsistent use of the Internet, in sharing content with the public over time, and will post an editorial or article one day, and then change or remove it later, I felt it was essential to my point and work to include in my posting the entire editorial by Kevin O'Brien that I was using as evidence of my claims, to retain a copy and make certain it is available to the public. I believe educating the community on this issue is of great social, economic and environmental value, forever.

In my March 13, 2008, editorial on REALNEO about O'Brien's anti-environmentalism, I included an entire O'Brien editorial as it was evidence of a larger claim against the Plain Dealer. In my October 8, 2009, editorial on REALNEO about O'Brien's anti-environmentalism, I only quote excerpts of O'Brien's writing about FirstEnergy, as the subject of FirstEnergy and O'Brien's personal anti-environmentalism have become trivial, at this point - FirstEnergy is universally know as anti-environmental and O'Brien is now recognized as anti-environmental, as I previously documented on REALNEO for eternity.

A third posting on REALNEO that I made about Kevin O'Brien's writing, March 19, 2008 - where I again copied the same entire O'Brien editorial referenced above - brings up a different but valuable point of citizens as watchdogs and record-keepers over the commercial, "mainstream" media, as I wrote about a situation where I believed O'Brien largely rewrote the work of another writer, demonstrating poor journalism and expanding poor global environmental misinformation spin. The editorials I referenced, and my commentary on the subject, are included on REALNEO here - "Kevin O'Brien's column "Forget Global Warming" made more sense in Canadian". The Canadian post I referenced and copied is still available on-line, at The National Post - I did not need to copy that - the O'Brien post I referenced and copied is no longer available on Cleveland.com - I did need to copy that, to retain evidence supporting my claim.

In addressing the issue of whether it is "fair use" to include an entire Cleveland Plain Dealer editorial or article in a posting on REALNEO, REALNEO members have discussed the four-factor balancing test of Fair Use, included in the US Copyright Act of 1976.

From Wikipedia: "Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test."

The four factor balancing test considers the following:

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

In my opinion, in my use of an entire O'Brien editorial, under the balancing test, "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." I come to this conclusion as follows:

1. As REALNEO is a non-profit, cooperative-owned, educational organization, "the purpose and character of the use" is of NON-commercial nature and is for nonprofit educational purposes.

2. As I copied the O'Brien editorial as an example of one work within a large body of work - The Cleveland Plain Dealer - and I am in fact criticizing and commenting, news reporting, teaching, and being scholarly and researching on the larger body of work - The Cleveland Plain Dealer, en mass, over time - "the nature of the work" is a small piece of evidence from a massive body of work, that I do not reproduce in whole.

3. Considering the above, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" represented by one PD editorial or article would best be referred to as a trivial snippet.

4. Concluding on "the effect of the use upon the potential market for or value of the copyrighted work", it is my opinion O'Brien's work harms the value of The Cleveland Plain Dealer and anything I or REALNEO may do to help the Cleveland Plain Dealer rise above association with the ideologies of O'Brien, and the harm he causes the region, offers great positive value for the Plain Dealer ownership, and so even O'Brien.

Therefore, I believe the Plain Dealer, Kevin O'Brien and the world all benefit from the fair use of his copyrighted material on REALNEO in this instance.

I welcome feedback on my interpretation of this situation, and encourage all REALNEO members to take their use of the intellectual property of others very seriously.

Disrupt IT