In a nutshell: I quoted, in its entirety, a one-paragraph story that Ms Le Guin sent to the fanzine Ansible, in which she made fun of a book review in Slate that said that Michael Chabon "has spent considerable energy trying to drag the decaying corpse of genre fiction out of the shallow grave where writers of serious literature abandoned it." Le Guin's paragraph was a long one, about 500 words, and I pasted the whole thing in, because I thought it was delightful.
I did this with the understanding that reproducing, for the purposes of commentary, a single paragraph originally published in a noncommercial venue, was fair use under 17USC, the American copyright statute.
Ms Le Guin disagrees, and though I haven't heard from her personally, my understanding is that she disagrees on the basis that taking the whole story can't be fair use. I have taken the piece down. The last thing I wanted to do was quote Ms Le Guin against her wishes, and had I known sooner that she objected to being quoted, I would have removed it sooner.
However, I still believe that my quotation was fair use. I have discussed it with copyright scholars, and my understanding is that the proportion of the work in quotation is one factor in determining fair use, but not the only one (imagine if "taking the whole thing isn't fair use" was a hard and fast rule -- how would one quote a double-dactyl or a haiku?). I also believe this to be consistent with jurisprudence on the subject. However, fair use is judge-made law, and this is an area where people of good will can have legitimate disagreements. I say this not because I wish to slough off responsibility for a mistake, but because I think fair use is an important concept in the free flow of information.
It was never my intention to post Ms Le Guin's work against her will. I apologize to her for causing her distress.
The situation with Ms Le Guin was made more complicated by an accident of circumstances. Andrew Burt, the person whom Ms Le Guin chose to communicate the matter to me, is someone with whom I had put in a killfile following an altercation. I delete all emails from him unread, and if he sent me a message, I did not see it. So I didn't find out that Ms Le Guin objected to the quote until someone sent me a link to a page that Jerry Pournelle had put up about it, in which he quotes a letter from Andrew Burt. Burt is the Science Fiction Writers of America VP who had previously sent a fraudulent takedown notice that resulted in my novel being removed from an Internet document server.
I assumed on reading this that Ms Le Guin's primary concern was the length of the quote, so I trimmed the quote and added a note about it. Subsequently, I heard from SFWA President Michael Capobianco, who informed me that Ms Le Guin had contacted him asking to have the whole work removed -- I did so immediately, also removing all other quotes and references to Ms Le Guin from Boing Boing's archives.
Subsequently, I heard from Ms Le Guin's agent, who enumerated a number of Ms Le Guin's grievances regarding the post. In addition to objecting to the length of the quote, they included objecting to removing the copyright notice from Ms Le Guin's original article, misstating her intention in writing the response to the Slate review, and publishing the quotation on a page with a Creative Commons badge.
I replied to Ms Le Guin's agent, explaining my reasoning in the matters she mentioned:
- * I believe that blogging such a short work in toto, for the purposes of commentary, when the work had initially been published as a letter to the editor of a noncommercial fanzine, was fair use (but that I was happy to remove the quote if Ms Le Guin didn't want it on Boing Boing)
- * Quoting a work on a page bearing a Creative Commons license does not put the work into the Creative Commons -- commonsense and norms apply here, and tens of millions of CC-licensed blog-posts quote material without putting it into the Commons.
- * Though I didn't quote the copyright notice that appeared in Ansible, I did clearly state the author and time of publication in the post. The copyright notice isn't necessary in this context, since it creates no further statutory rights for the author being quoted, and identifying the author and date of publication is all that is required here to affirm the copyright in the work.
- * Finally, I am indeed sorry that I misunderstood Ms Le Guin's intention in writing the letter to the editor of Ansible. I believed that she was criticizing Slate, and apparently she intended this to be critical of Slate's book reviewer. I certainly didn't mean to misrepresent Ms Le Guin's intention, and I'm sorry to have done so. I'm glad to correct the record here.