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RE: Copyright article / reply
From: karen@tabberone.com
Sent: Fri 3/06/09 5:42 PM
To: Maria Elkins (maria@lostquilt.com)

People often search for something based upon a set of parameters that fit what they feel will produce the results they seek. Many times they do not go beyond the initial page. The page in question presents what we feel to be false information. Many viewers would consider this page to be authoritative and might believe the information to which we took exception.

"Facts are either correct or incorrect, regardless of who provides the information." What? If the Pope had written that article we would have told him that we was wrong and "inherently dishonest and a very untrustworthy source of information". It has been our experience that persons with ties to selling patterns and designs often misrepresent the facts in their favor regarding what is protected by a copyright.

As for your claim, 'I find your reference to me as "inherently dishonest and a very untrustworthy source of information" to be both false and defamatory" ', you conveniently omit the fact that it is preceded by the words, "In our mind". These three words make it very plain we are stating our opinion which no court would find to be "false" or "defamatory" under the laws covering defamation. We are stating our opinion which is still protected under the First Amendment the last time we checked.

When we first discovered the page we did a WhoIs check on the web site at Network Solutions which yielded no results as the site is registered anonymously. We then assumed the article was a piece written by you and published by the web site owner. We did not investigate the web site beyond that because we saw no reason to. Doing a search on "Maria Elkins" resulted in another web site, www.mariaelkins.com, which we assumed to be yours. That is why we made the comment and we still feel it is relevant to the piece.

As far as "limited portions" are concerned, the courts have held that the amount used is flexible based upon what is needed to make the point. To avoid being accused of making false statements, or of taking things out of context, we use the entire piece citing the source (which can result in traffic to that web site) and usually the date obtained. This becomes important because we are criticizing a very large group of people and our web site is being read by a large number of people. And we are not taking an article from a newsletter or other publication and reproducing it on the internet; we are taking publicly disseminated articles that were posted on the internet for all to read. Your piece is 548 words; eight very short paragraphs. Readers want context to compare to criticism. Chopping the piece into pieces would have destroyed that context.

Your taking out of context of the phrase is why we usually reproduce entire pieces so we cannot be accused of taking something out of context when we criticize it. Linking to a page we criticize presents three major problems. One, many web sites do not want other sites to link to them because of bandwidth problems. Two, web sites disappear or pages are moved thus no longer being available. Three, someone who didn't like what we were saying could move the page and replace it with something obscene which would affect our credibility. And our credibility is important to us. A Google search for "Maria Elkins" produces 2,310 results and many of them do not refer to you. A Google search for Tabberone produces 17,400 results with over 95% of them being of Tabberone.com.

Under the four "Fair Use" factors, we are not reproducing the article for profit, the nature of the work is that it freely available to any and all as a very short commentary, substantially the work is small so using all of it is necessary for context, and since the article has been disseminated to a world-wide market for free our reproduction has no economic impact on the work at all. Your reference to copying for educational purposes (Circular 21, page 4) omits the note, "The copyright law also contains various provisions dealing with importations, performances, and displays of copyrighted works for educational and other noncommercial purposes, but they are outside the scope of this booklet." Circular 21, page 4 makes no absolute claim that we must be "must be teaching in an educational institution" to be using the article for educational purposes. A web site must be taken in its entirety when claims of defamation or infringement are alleged. Circular 21, page 4 does refer to "educational institutions at all levels", with "institutions" not being limited to schools of higher learning.

We will post your email as a protest by you to what we have said about your article and about you. However, we will not be altering or removing anything. Our opinions are not defamatory per se and will remain.

Karen Dudnikov
Michael Meadors

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