[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.

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.

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.

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.

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.

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.