The Hypocrisy of the New York Times

The New York Times is making quite a meal of the WikiLeaks documents.

As others have observed, they refused to print Climategate emails involving senior IPCC Lead Authors, Coordinating Lead Authors. While their hypocrisy on this score was rightly criticized last year, it is being revisited this year in light of WikiLeaks. And rightly so.

While criticism has focused on Andy Revkin – for whom, as CA readers know, I have considerable personal respect, attention should really be directed to the policies of the New York Times itself, as articulated by editor Clarke Hoyt on Dec 6, 2009 last year.

Andrew Revkin of the New York Times was one of the first reporters to cover Climategate, with his first story on the matter only a few hours after realclimate’s blog post (both on Nov 20.) His story entitled Private climate conversations on display, in which he stated:

The documents appear to have been acquired illegally and contain all manner of private information and statements that were never intended for the public eye, so they won’t be posted here.

Given the New York Times’ past history, Revkin was sharply criticized in many quarters for this position. [Update 5.50 pm : Revkin observes that, notwithstanding this statement, he did include a link to the emails in his post and did subsequently discuss the contents of some emails.]

My more serious concern is with the position taken by the New York Times itself on December 6, 2009, over two weeks later after some initial questions had been cleared up, as stated by Clarke Hoyt, the “public” editor of the New York Times, who considered the apparent hypocrisy distinguishing between “leaked government information” and “email between private individuals”:

Others wondered why The Times did not make the e-mail available on its Web site, and scoffed at an explanation by Revkin in a blog post that they contain “private information and statements that were never intended for the public eye.” What about the Pentagon Papers? they asked.

As for not posting the e-mail, Revkin said he should have used better language in his blog, Dot Earth, to explain the decision, which was driven by advice from a Times attorney. The lawyer, George Freeman, told me that there is a large legal distinction between government documents like the Pentagon Papers, which The Times published over the objections of the Nixon administration, and e-mail between private individuals, even if they may receive some government money for their work. He said the Constitution protects the publication of leaked government information, as long as it is newsworthy and the media did not obtain it illegally. But the purloined e-mail, he said, was covered by copyright law in the United States and Britain.

The policy was thus one taken by the New York Times, rather than Revkin personally, though there’s no evidence that Revkin contested the advice.

Now let’s dial forward to arguments by the University of East Anglia in refusing FOI requests – recently reiterated but originally set out in 2008. The position of the university was that the emails in question were emails from IPCC authors and were thus emails from IPCC as an organization (thus qualifying for the international organization exemption):

given the nature of the IPCC structure, information received from convening authors and authors of the Working Group, in effect, is communication received from the IPCC as an organisation.

Or again:

In our letter of 18 July 2008 to you, we relied upon section 27(2) and 27(3) of the FOIA insofar that we felt that the correspondence from either other IPCC authors or from any arm of the IPCC mentioned in the original request was confidential information obtained from an international organisation as defined by subsection (3).

Interest arose in the Climategate emails precisely because they involved senior members of an international organization (IPCC). Jones, Briffa and Osborn were Coordinating Lead Author or Lead Authors of AR4 and Mann a Lead Author of AR3 and reviewer of AR4. The New York Times said that “the Constitution protects the publication of leaked government information, as long as it is newsworthy and the media did not obtain it illegally.” While the IPCC is not an international organization rather than a “government”, I do not believe for a minute that this distinction would stand up.

That the New York Times should characterize Climategate correspondents as “private individuals” rather than senior IPCC authors is the type of wilful obtuseness that has characterized far too much disinformation on Climategate, not just by the New York Times, but by Nature, Science and institutions that far too often seem to confuse the narrowest interest of climate scientists with the interest of the public.

Update (5 minutes after posting): Bishop Hill draws attention here to Andy Revkin’s justification earlier this afternoon of his comments last year in the light of WikiLeaks:

[Nov. 29, 3:41 p.m. In the last couple of days, some conservative commentators have compared the treatment of the East Anglia climate files in this post with the dissemination of Wikileaks files by The Times and charged that a gross double standard exists.

I'll note two things about my coverage of the unauthorized distribution of the climate files:

First, while I initially did not publish the contents of the climate files and e-mails (at the request of Times lawyers, considering the uncertain provenance and authenticity of the materials at the time), I did (from the start) provide links to the caches of material set up elsewhere on the Web.

Secon, in the rush on the day the files were distributed across the Web, I called them "private" when, in fact, I should have said their senders had presumed they were private. As I've said off and on since then, given that much of the research discussed in the exchanges was done using taxpayers' money, any expectation of privacy wasn't justified.]

Andy Revkin also observed in his own defence that he linked to the site with the emails and did in fact discuss the emails. The position of the New York Times and of Revkin personally are not necessarily the same.

50 Comments

  1. Posted Nov 29, 2010 at 4:50 PM | Permalink

    snip – venting

  2. Posted Nov 29, 2010 at 5:28 PM | Permalink

    My reply to those seeing double standard in @dotearth treatment of CRU emails & NYT treatment of #Wikileaks http://j.mp/CruWik

    (Again, I only speak for myself.)

    • suyts
      Posted Nov 29, 2010 at 5:39 PM | Permalink

      Andy, is it your personal position that only conservatives see the double standard?

      Personally, I’m outraged by both actions. They smack of partisanship over citizenship. I’ve never once considered the NYT too afraid to print questionable material, but I’ll take your word for it.(/sarc off) Yet, when possibly compromising the U.S. or its allies, or put this nation in a bad light,….. no problem.

      While, I’m proudly a conservative, I don’t see this as a partisan issue. Believe it or not, there are liberal skeptics in the climate community, as there are also perfectly patriotic liberals in this nation.

      I’ll defend the NYT’s right to print this garbage in deference over the climate-gate e-mails, but I’ll call it as I see it. Partisanship over citizenship. And its despicable.

    • Pops
      Posted Nov 29, 2010 at 5:50 PM | Permalink

      It seems to me that Mr Revkin is just a little too keen to get his defence in. A guilty conscience perhaps?

      (I only speak for myself, of course.)

    • Posted Nov 29, 2010 at 10:53 PM | Permalink

      Andy,

      You have done fine on this point IMO. NYT is shrinking for a reason though.

    • sHx
      Posted Nov 30, 2010 at 4:11 AM | Permalink

      Dear Andrew,

      Don’t you think the charges of hypocrisy warrants a a fresh blog post instead of a couple of paragraphs updating one that was posted last year? Are you interested in keeping your regular readers up to date, or only the archivists and historians?

    • Posted Nov 30, 2010 at 9:01 AM | Permalink

      Re: Andy Revkin (Nov 29 17:28),
      I don’t think that Revkin’s reply answers the question of the New York Times’s double standards and hypocrisy at all, in particular the “contain all manner of private information and statements that were never intended for the public eye, so they won’t be posted here” remark.
      Obviously the diplomatic dipatches were not intended for the public eye either.

      “some conservative commentators” – is Steve McIntyre a conservative commentator?
      “uncertain provenance and authenticity of the materials at the time” – there was never much doubt about their authenticity, and if there was any, surely it’s much the same with the current leaks.

      I have just looked at todays NYT and it is full of quotes from the leaks, and there is also a section “A Selection From the Cache of Diplomatic Dispatches” which publishes many of them in full. In contrast, the climategate coverage only included a few small snippets of the emails.

      Why can’t the NYT just be honest and come clean and acknowledge that they prefer publishing things that support their own agenda and suppressing things that don’t?

      • Steve McIntyre
        Posted Nov 30, 2010 at 10:52 AM | Permalink

        I’ve reviewed Andy’s posts on Climategate. There are surprisingly few references to actual emails. For the most past, Andy covered reactions to Climategate – virtually nothing on the content of the emails themselves. Andy called me on Nov 20 when I was still assimilating the materials but (somewhat surprisingly) didn’t have a follow up interview after I’d had a chance to assimilate the materials (or didn’t report on it if I’ve misremembered.)

    • Will Kernkamp
      Posted Nov 30, 2010 at 12:34 PM | Permalink

      Andy,

      The link is good enough for me. The well-meaning editorializing of journalists on the news they present is overvalued anyway. Thanks for doing it right.

      Will

    • Jeremy
      Posted Nov 30, 2010 at 3:28 PM | Permalink

      Mr Revkin,

      I have sympathy for the position you’re in, but that’s as far as I can go. Please take more care that you don’t insult the intelligence of those who want to respect you.

      Kind regards.

    • Kenneth Fritsch
      Posted Dec 1, 2010 at 3:21 PM | Permalink

      That prestigious news outlets like the NYT and the WaPost do not spin or select what leaks to report because they are prestigious is a hard sell to anyone who is not on their partisan wagon. Of course, what is printed is different than there editorial page, but what is printed and how it is treated is with much discretion from the journalists and editors that these news outlets hire.

      Almost all news outlets are partisan and the product that they produce is influenced by that partisanship to one degree or another, either purposefully or from being unaware of the other side of the arguments. I do think that anyone with a least bit analytical mind can read/hear what a news outlet says and draw a conclusion that might be much different than the one the writing/speaking is implying.

      I do think that too many investigative reports start with a theme and even a conclusion and then build their report around it like a good lawyer would do with the evidence for his client. Sixty Minutes does that in spades. You sometimes get the other side of the story from what appears as a minor sidelight to the main story.

  3. Mailman
    Posted Nov 29, 2010 at 5:36 PM | Permalink

    Ok, I can accept that they might want to hold back on publishing anything about the climate gate emails because they MIGHT have been stolen. However what I dont accept is their rush to publish ANYTHING about wikileaks, given there is no doubt that those files WERE stolen.

    Mailman

  4. theduke
    Posted Nov 29, 2010 at 5:37 PM | Permalink

    I tried to make the same point Steve is making at the NYT today in a comment on a Ross Douthat column on hyper-partisanship amongst politicians and pundits. My point was that partisan bias was behind the NYT decision to not publish the emails of lead authors of IPCC reports, which are among the most important, newsworthy, and politically controversial documents of our time.

    The comment was in moderation for an hour and then disappeared. Scores of comments were posted after mine.

    It appears the mods at the NYT have been taking lessons from the mods at RealClimate.

  5. Noblesse Oblige
    Posted Nov 29, 2010 at 5:46 PM | Permalink

    Do you suppose Private Manning is also the ClimateGate “hacker?”

    • Steve McIntyre
      Posted Nov 29, 2010 at 5:49 PM | Permalink

      Hmmm… it’s interesting that the New York Times gave a lot of oxygen to climate science theories that Climategate was a sophisticated international hack, while WikiLeaks seems mostly to be attributed to disgruntled techies.

  6. Tom Ganley
    Posted Nov 29, 2010 at 5:50 PM | Permalink

    So if I’m reading this correctly, the only thing the US Federal government has to do to stop the NY Times from publishing Wikileaks is this: Convert all Federal Employees to Independent contractors. Then as individual business people, all their communtications will be ‘private’.

    OK it’s silly. But no sillier than what the ‘public’ editor said.

  7. DeWitt Payne
    Posted Nov 29, 2010 at 6:00 PM | Permalink

    Possession of stolen goods is a crime. It doesn’t matter if you personally didn’t steal them. If you know they were stolen, then you have committed a crime. But that’s not an valid reason for the NYT after their publication of the stolen Pentagon Papers. Claiming the Climategate emails were stolen was an excuse, not a reason for not publishing them. It was clearly a decision informed by the politics of the Times’ owner and staff, i.e. bias.

    The really sad part is the apparent total ignorance of any form of computer security by the State Department. You can understand that sort of thing from a University, but not the US government. It makes me believe that the TV show, Alias, wasn’t that far off when they depicted the CIA as running an internal unencrypted Wi-Fi network.

  8. AusieDan
    Posted Nov 29, 2010 at 6:39 PM | Permalink

    We need to establish some new terminology here.

    You can steal real items such as letters and other documents.
    After they have been stolen, the legitimate owner can no longer read or otherwise use them.

    You cannot steal an electronic copy of a document.

    You can illegially or at least without permission, copy the document, but you leave the original where it was, which can continue to be read and otherwise used by the legitimate owner.

    A third party, knowing that an electronc copy was obtained without permission, may or not may not be liable to prosicution for reading it or for diseminating it further.

    However, once the “without permission” electronic copy has been widely diseminated, as has the climategate files, it then surely becomes public property and public knowledge.

    It’s very hard to see the NYT’s defence for not discussing the climagate tapes on legal or moral grounds.

    But then, I’m not a lawyer.

  9. Posted Nov 29, 2010 at 6:47 PM | Permalink

    Some leaks are more equal than others.

  10. Posted Nov 29, 2010 at 8:47 PM | Permalink

    Bernie Goldberg read the Revkin quote on the O’Reilly Factor tonight. Why is anyone surprised about this NY Times hypocrisy.

    The simplest phrase to explain Revkin’s actions over the past couple years is “intellectual dishonesty”. He is not expected to be balanced at the NY Times, yet, he like other liberals still perpetuates the myth of self-effacing “journalistic balance” in the media.

    It is this type of reporting which has turned off more than 50% of the US electorate, and killed climate change legislation chances until at least January 2013, if not much later.

    • theduke
      Posted Nov 29, 2010 at 10:17 PM | Permalink

      I disagree, Ryan. I think Revkin, while being a warmist, has been very fair to both sides at his blog. The problem is the powers that be at the NYT. Their handling of this issue and the AGW issue in general has been transparently biased and an affront to responsible journalism.

      The same goes for the Washington Post.

  11. justbeau
    Posted Nov 29, 2010 at 9:32 PM | Permalink

    In the long run, Mr. Revkin is likely not to be well treated by fair-minded historians. He was privileged to be the environmental reporter at a elite newspaper covering a story of great importance. He was privileged to be covering a story in which the truly big story was not the threat of AGW, but of scientific malfeasance and/or follies.
    Either he is unthinking, which would be too bad for him. Or he should have realized the real story was a blend of politics and epic folly.
    The most important mission for a reporter, as with a scientist or statistican, is an unswerving quest for truth. If you cover a story and your newspaper is unwilling to seek the truth, then resign and work for one that will. By this test, Mr. Revkin seems to fall far short, in my opinion. Its generous of Steve to give him more credit.

  12. Tom C
    Posted Nov 29, 2010 at 9:50 PM | Permalink

    Let’s remember here that diplomatic communications are, by their nature, meant to be secret. Scientific communications are, by their nature, meant to be open. Moreover, while the WikiLeaks documents are embarrasing, they don’t point to wrongdoing. The Climategate docs do. There is no equivalency here and the hypocrisy is staggering.

  13. Posted Nov 29, 2010 at 9:59 PM | Permalink

    Steve, the connection between the NYT Wikileaks rationalization and the UEA slalom around its various mutually contradictory positions regarding IER and FOIA obligations is a good catch. One of the most constant elements in common across the emails going back to the late 1990s is that they are discussions connected with the contents of upcoming IPCC reports, or of papers that the authors intend either to see reflected in or excluded from an upcoming IPCC report.

    Although it’s a bit after the fact, I wonder if the UEA would like to allay the NYT’s concerns about publishing the emails by conveying their reassurance that the correspondence of the authors in question should actually be viewed as documents connected to an international governmental organization.

    • Steve McIntyre
      Posted Nov 29, 2010 at 10:17 PM | Permalink

      Yep, organizations disseminating disinformation about Climategate (e.g. Nature, Science etc.), and in this case, the New York Times, intentionally or obtusely ignore the elephant in the room: nearly all the Climategate correspondence involves IPCC cadres i.e. an intergovernmental organization. That’s why the emails had so much resonance.

  14. Geoff Sherrington
    Posted Nov 29, 2010 at 10:05 PM | Permalink

    Tom C, Do remember that we have Government of the people, for the people, by the people. Unless is it specifically excluded by clear and necessary legislation, there is no reason to keep information from the public because, fundamentally, it is their property anyhow.

    There are a few cases where a temporary security arrangement is sensible, as in some military and foreign relations work and for a short while in some commercial-in-confidence negotiations like tenders. However, in the long term, it all becomes public in any case.

    The WikiLeaks I have read need not have been secret and they are in the category of gossip to excite the bored. Their category of “diplomatic” does not lead to an immediate assumption that their secrecy is vital.

    A government obsessed with secrecy and non-disclosure is more likely to have sins it wants to hide. It seems to have become similar in publication of scientific documents. The non-disclosure of these was the main factor that led to Steve setting up CA. Many would say that life would have been more comfortable if open disclosure was the norm from the beginning.

    Steve: non-disclosure was not the “main” reason for CA. I was defending myself against preemptive strikes by realclimate. CA became a venue for publicizing obstruction though.

    • Geoff Sherrington
      Posted Nov 30, 2010 at 10:24 PM | Permalink

      Steve – My apologies for an unintended revision of your history. Thank you for the clarification.

  15. Steve McIntyre
    Posted Nov 29, 2010 at 10:20 PM | Permalink

    Folks, I understand that this sort of thread prompts a number of angry comments. But please avoid venting. If your post is too angry, please understand that I’ll probably remove it as offending blog policies against angriness, venting and piling on. So please tread lightly.

  16. Gerald Machnee
    Posted Nov 29, 2010 at 11:05 PM | Permalink

    Maybe WikiLeaks can get some unseen Climategate material?

  17. DeNihilist
    Posted Nov 29, 2010 at 11:51 PM | Permalink

    Andy, I believe that you tried. I just think that you didn’t try hard enough.

  18. theduke
    Posted Nov 30, 2010 at 12:06 AM | Permalink

    Hypothetical question to the New York Times and the UEA: if US Congressional (or UK Parliamentary) staffers and researchers decided that their work product upon which legislation is or will be based was not to be made available to investigators and/or opposition politicians, what would be the NYT and the UEA position on that refusal to openly provide information/data/research that was publicly funded?

    Would they say that the information and data these public employees collected needed to be made available to the public? Yes, I think they would.

    And yet, we now have the UEA arguing in effect that public employees conducting research, collating data and writing position papers for a non-representative, un-elected international body (that seems answerable to no one) have the right to withhold documents and data from the public and investigative bodies who might have an interest in examining how these public employees conducted themselves in discharging their duties.

    Public employees working for an ad hoc international body should have an obligation to be even more open and transparent with their work product than their counterparts working for elected representatives of national governments who write legislation.

  19. Tom Fuller
    Posted Nov 30, 2010 at 12:24 AM | Permalink

    I consider what the Gray Lady did a bit cheesy, but I’ll try and defend her.

    Publishing the Pentagon Papers and Wikileaks was considered by NY Times as a public good as it was not safe, let alone practical, for private citizens or smaller publications to do so.

    Those considerations were not in play for the Climategaate emails–they were freely available to the public.

    Plus, they didn’t have a chance at a scoop.

    • MarkB
      Posted Nov 30, 2010 at 12:55 PM | Permalink

      The NYT would have had a scoop if they actually examined the contents of the emails. Those contents have been essentially unreported in the American mainstream media. The best you get out of them is the flat denials of the Team, reported as settled fact.

      • Tom Fuller
        Posted Nov 30, 2010 at 11:58 PM | Permalink

        Beg to differ, actually. I was getting over 3,000 hits a day at Examiner.com while I covered it–and I was far from alone. I’ll bet the non-consensus blogosphere has a bigger audience than the NY Times, actually.

      • Tom Fuller
        Posted Dec 1, 2010 at 12:00 AM | Permalink

        Oh. Just saw the word ‘mainstream.’ Never mind.

  20. EdeF
    Posted Nov 30, 2010 at 12:53 AM | Permalink

    Yeah, if Wikileaks publishes the ClimateGate emails plus comments, will the
    Gray Lady cover that? Is the NY Times going to cover the apparent concerted action of the big media last fall to not cover CG? ( The
    Telegraph being the one sterling exception.)

  21. Roddy Campbell
    Posted Nov 30, 2010 at 4:16 AM | Permalink

    Steve, typo ….. remove ‘not’?

    ‘While the IPCC is not an international organization rather than a “government”, I do not believe for a minute that this distinction would stand up.’

  22. DaveB
    Posted Nov 30, 2010 at 7:10 AM | Permalink

    “some conservative commentators have compared the treatment of the East Anglia climate files . . . with the dissemination of Wikileaks files.”

    Steve McIntyre is right to go for the organ grinder and to divert the charge of hypocrisy from Andrew Revkin. Nevertheless, I’m unwilling to let the above go.

    May I assure Revkin that I (and, I suspect, many others) who are anything but conservative in our political outlook have also and independently made the same comparison. NYT editorial and quasi-legal casuistry is, to put it mildly, unconvincing.

    The suggestion that the charge of double-standards is made only to support a conservative political agenda is as offensive to me as I dare say it is to those of different political stripe.

    Incidentally, my hunch is that history will show that the Wikileaks rumpus is a storm in a teacup and that Climategate is by far the bigger story.

    That diplomats write naughty letters home and that embassies spy on each other is hardly news. In contrast, Climategate was the first major political undermining of the hegemony of a reactionary, misanthropic and quasi-protectionist ideology which has hijacked an important scientific endeavour and threatens to dominate the politics of the western world for years to come.

    Remind me. Which story was it that the mainstream media – including the NYT – played down (if not downright covered up)?

    • MarkB
      Posted Nov 30, 2010 at 1:05 PM | Permalink

      Thank you for pointing this out. It is a standard rhetorical device to label one’s opponents to dismiss the need to even examine their criticisms. Revkin takes a similar, unfortunate tack when following the “stolen emails” meme. Suggesting that if the emails were stolen, then there’s no reason to examine them. A third example would be when Revkin wrote, to paraphrase: “denier, which, while criticized, is used by some people.” In other words, he knows the usage is wrong, but he still fits it in by applying the usage to others.

      Revkin affects a rhetorical voice of reason, but he can’t seem to resist the conscious decision to spin very carefully to one side. I can’t imagine such efforts getting past a journalism professor without much red ink.

      Delete if necessary.

  23. Demesure
    Posted Nov 30, 2010 at 7:43 AM | Permalink

    The hypocrisy pattern is even worse here in France.
    Le Monde, one of the leading (and predictably leftist) French daily didn’t say a word about Climategate for weeks only to dismiss it as a conspiracy to derail Copenhagen by Russian or whatever hackers paid by big oil to steal private correspondance between honnest and hard-working climate scientists (translation, nothing to see here).
    But “respect” for legality hasn’t prevented it from being one of the official partners (translation funders) of Wikileaks in making public confidential documents. Sauce for the goose… and we French know how to make sauce.
    The mainstream media is definitely hopeless.

  24. mbabbitt
    Posted Nov 30, 2010 at 10:41 AM | Permalink

    The only reason the CRU crew had a presumption of privacy in their emails is simply due to their closed circuitry: they were such a tightly knit, intra-reinforcing clique, despite the fact they were actually operating in the service of the tax paying public. They were no more private citizens as any public servant exposed in the Wikileaks documents. However, many of the documents in the WikiLeaks dump were written in an atmosphere that did presume privacy as evidenced by them being place behind a government authorized security shield that was more than merely an IT security function. One can easily take the NYT’s reason for not publishing Climategate letters and apply it much more forcibly to the WikiLeaks material. Hypocrisy is too light a term to describe this double standard.

  25. Steve McIntyre
    Posted Nov 30, 2010 at 9:57 PM | Permalink

    This issue seems to be garnering a fair amount of attention. If you google Wikileaks Climategate, lots of commentary in the blogosphere – I haven’t seen any NYT explanation or rationalization of their hypocrisy. But I expect that it’s going to be thrown in their face. If Andy is tired of this issue already (and I expect that he is), I suspect that it’s barely begun.

  26. QBeamus
    Posted Dec 1, 2010 at 10:21 AM | Permalink

    Not to pile on, but I have serious doubt about the truthfulness of the claim that a NYT attorney told Mr. Revkin that he shouldn’t publish the Climategate emails for fear of copyright liability. I know we’ve gone around this mulberry bush a couple of times on this blog, but there were no copyright notices on those emails. I can understand that an NYT IP attorney might have a strong copyright holder bias (though they might well also have the opposite bias), but I can’t imagine a competent IP attorney telling a journalist that they couldn’t publish such documents for fear of copyright liability.

    • RickA
      Posted Dec 1, 2010 at 12:25 PM | Permalink

      QBeamus:

      You don’t need a copyright notice to create copyright liability. Under the Berne convention, placing a copyright notice on a document (or email) is optional. It may impact damages, but not liability.

      In the USA, if you have infringement of a copyright without a notice, you are merely limited to actual damages, rather than having the option of trying for statutory damages.

      I don’t know what the law is in the UK (but I believe they are a signatory to the Berne convention).

      I am not saying that there is necessarily a copyright infringement claim – just that the lack of notice does not impact on whether or not such as claim exists.

      • QBeamus
        Posted Dec 1, 2010 at 1:26 PM | Permalink

        RickA

        Like I said, we’ve been over this ground on this blog before–and I know Steve has anxiety about the way debates about copyright law seem to spiral out of control, so I’ll try to be brief.

        The assertion that you don’t need a copyright notice to create liability is technically correct, but as a practical matter, it’s incorrect. In addition to the harsh limitations on damages that you mention, another consequence of the absence of notice that you overlook is that it permits any defendant to assert an innocent infringer defense–a defense that would very clearly prevail, on the facts of this case.

        In fact, the absence of a copyright notice is probably immaterial. No court is going to permit the stifling of the press by creating copyright liability for private emails, even if there were copyright notices attached to them. Just consider, for example, what damages you believe the Supreme Court might have permitted against the NYT for publishing the Pentagon Papers, assuming a copyright notice had been affixed.

        Recall what the Supreme Court did to libel law in NYT v. Sullivan, to protect the ability of a national newspaper to cover politically contentious issues without fear of liability. No court has ever had to deal with the issue (that I know of), but the result will be exactly the same if and when someone tries to chill the press with copyright law.


        Steve: No more on copyright.

  27. JCM
    Posted Dec 1, 2010 at 12:20 PM | Permalink

    NYT laughingly refers to itself as ‘the newspaper of record’. In the UEA email issue they decided that they did not wish to record the issue for posterity in the printed form and appear to hope if it was not in the NYT then it never happened.Privacy had nothing to do with the decision. All the UEA emails should be issued in book form and lodged in the major libraries of the world.

  28. Posted Dec 1, 2010 at 1:46 PM | Permalink

    I’m disliking the political nature of this post and the one where comments are made about hilary clinton. Stay with the Science Steve, there are many rocks that can be thrown both ways and it dilutes messages to that of Steven Goddard when you diverge into the political realm.

    Steve: I dislike comments about politicians, ask readers not to make them. That one slipped through and has been deleted. I asked readers to tread carefully on this post. I think that the hypocrisy on Climategate deserves coverage.

  29. oneuniverse
    Posted Dec 1, 2010 at 7:44 PM | Permalink

    Hope this is not too OT, but Andy Revkin seems to have made a mistaken statement about Steve [Mc] at DotEarth:

    Andy Revkin was engaged in an “an e-mail discussion involving a variegated array of scientists and science communicators exploring a provocative question posed by one of them” , in which he wrote :

    As for Steve McIntyre and others challenging those tribes, in the long run I see their influence as positive, particularly in prompting more statistical rigor and transparency. But I also still await the entry of many of the critics into the peer-reviewed literature (with all its flaws). If Richard Lindzen can publish readily, why not McIntyre? Steve told me, in essence, that he simply can’t be bothered.

    He wrote the above in 2010, and later published it at DotEarth. Yet Revkin should have known this was false. He’d already acknowledged M&M’s work in the peer-reviewed literature, writing on 23 Jun 2006 at DotEarth :

    Senator James M. Inhofe, Republican of Oklahoma, and Representative Joe L. Barton, Republican of Texas, have repeatedly criticized the Mann study, citing several peer-reviewed papers challenging its methods.

    The main critiques were done by Stephen McIntyre, a statistician and part-time consultant in Toronto to minerals industries, and Ross McKitrick, an economist at the University of Guelph in Ontario.

    Contrary to what Andy Revkin wrote, Steve had already made his debut into the literature (GRL 2005). Andy should ideally correct his mistake. I assume he will not want his accidental slur to persist, and will also let the array of scientists and science communicators know of his error.

    • oneuniverse
      Posted Dec 1, 2010 at 7:57 PM | Permalink

      But I also still await the entry of many of the critics into the peer-reviewed literature (with all its flaws). If Richard Lindzen can publish readily, why not McIntyre? Steve told me, in essence, that he simply can’t be bothered.

      Technically, it cannot be said with absolute certainty that Revkin is implying that Steve hasn’t published, since the word “readily” permits an interpretation that Revkin is saying (my crude paraphrase) “Many critics have not published, for which I criticise them and choose McIntyre as an example who, although he has actually published, has not published readily”. This would be a somewhat silly and weak position to take, and I assumed that this was not what Revkin meant.

  30. oneuniverse
    Posted Dec 1, 2010 at 8:28 PM | Permalink

    According to Clarke Hoyt on Dec. 6th 2009:

    [The lawyer, George Freeman] said the Constitution protects the publication of leaked government information, as long as it is newsworthy and the media did not obtain it illegally. But the purloined e-mail, he said, was covered by copyright law in the United States and Britain.

    However by 1st Feb. 2009, Fred Pearce at the Guardian in the UK was quoting from and linking to the full emails. Clearly by then the New York Times could investigate the communications, if it wished.

    As far as I’m aware, the NYT has yet to investigate the areas of concern arising from the Climategate documents. Unless they changed their mind, the NYT may never have intended to pursue Climategate, and Freeman’s advice was just a plausible excuse.

5 Trackbacks

  1. By Top Posts — WordPress.com on Nov 30, 2010 at 7:05 PM

    [...] The Hypocrisy of the New York Times The New York Times is making quite a meal of the WikiLeaks documents. As others have observed, they refused to [...] [...]

  2. [...] sift for meaning from the get-go.As has been written about extensively (see Steve McIntyre’s post on the hypocrisy of The Times), the decision on publishing the e-mails directly in the paper was not made by me, but by Times [...]

  3. [...] has been written about extensively (see Steve McIntyre’s post on the hypocrisy of the Times), the decision on publishing the emails directly in the paper was not made by me, but by Times [...]

  4. By Weary Wednesday « Witch's Will on Nov 30, 2011 at 6:48 AM

    [...] has been written about extensively (see Steve McIntyre’s post on the hypocrisy of the Times), the decision on publishing the emails directly in the paper was not made by me, but by Times [...]

  5. [...] has been created about extensively (see Steve McIntyre’s post on a pomposity of The Times), a preference on edition a e-mails directly in a paper was not done by me, though by Times [...]

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