I've enclosed my comments on Rick's piece below the fold. I will also say a word about Mr. Y. I believe Mr. Y acted improperly in revealing the existence of Klingman's unpublished AHR piece to reporter Patricia Cohen. Doing so put the AHR in an awful position and threatened to tarnish the reputation of the historical profession's most respected journal. I also believe that the identity of Mr. Y
Here's what I said to Rick at HNN:
Rick, you've done an excellent job tracking this down -- we're all indebted to you. Here are three questions I still have:
1) Why did Kutler have the right to refuse access to his published transcripts? Many historians have quoted from those transcripts without even talking to Kutler, including, apparently, Mr. Y. Most quotations from Kutler's book would fall under fair use provisions in copyright law. Was Mr. X attempting to quote more of the transcripts than would be allowed under fair use (several pages, perhaps)?
2) I'm fairly certain you have good reasons for not disclosing the identities of Mr. X and Mr. Y, even though both are apparently known to you. Can you give us any information regarding those reasons? Have you been enjoined by Mr. X and Mr. Y not to tell us who they are? Has someone else asked you not to disclose that information? I'm particularly baffled in the case of Mr. X, who seems pretty blameless in your story and who apparently is already known to Kutler.
3) Finally, according to your story, it appears that the real malefactor in the tipoff controversy (not the transcription controversy) is Mr. Y. Mr. Y is the one who told Patricia Cohen about the unpublished AHR article, violating the spirit of the submission agreement between Klingman and the AHR. He put the AHR in particular in an awful position, making it look as if they had tipped off the Times and violated their own secrecy agreement (and again, Cohen participated in this by not calling the AHR for comment). Additionally, it doesn't appear the AHR submission was even the root of the story -- what gave the story legs was the material provided to Cohen by Colodny, not the unpublished Klingman article. Again, Cohen misrepresented this in her article, if your story is accurate -- but the fault still originates with Mr. Y, both for bringing up the AHR piece on the record in the first place, and for then going deep background, leaving the AHR unfairly exposed.
I do want to apologize to Klingman and Hoff for the imputations in my original post -- it appears their actions were above board. Scrutiny should now shift to Mr. Y and reporter Cohen -- and, of course, to Kutler.
Labels: Jeremy Young
I have a slightly different take on your excellent first question on whether Mr. Y needed Kutler's permission to quote. See http://blog.librarylaw.com/librarylaw/2009/02/watergate-historians-and-intellectual-property.html.
Ahistoricality on 2/06/2009 1:00 PM:
Peter, I don't think (in answer to the question you ask on your blog) that the AHR's guidelines prevent a researcher from talking about or publishing research before it's submitted to AHR, but it does impose a fairly clear obligation not to simultaneously try to publish or present the work submitted while it's under review. And the restriction on commenting on the review process? I think that's just good manners, aka professional ethics.
I do appreciate your comments on fair use, though: it hadn't occurred to me that the written transcript might be too close to the original to be copywriteable in the print form. I'm used to materials in translation, where the act of translation creates new copyrightable materials even if it's a very literal one.
Rick Shenkman has replied to my questions. Here's what he says:
Three answers:
1. Mr. X felt that he needed to get Kutler's permission. I did not address the question of whether he did or didn't in the article. Clearly, "fair use" would allow him to quote a few paragraphs from the tape transcripts Kutler compiled without obtaining permission. Only poetry and song lyrics are not subject to the fair use guidelines adopted by courts. As far as I know, no one has ever suggested that the Nixon transcripts fall into either category.
2. I cannot give you the reasons why Mr. X and Mr. Y declined to be quoted on the record without giving away their identities. Information about both of them came from another source, who felt bound to keep their identities from being known publicly.
3. Mr. Y is not a historian. He is a journalist. Therefore, he, like the NYT reporter, had no obligation to keep Klingman's article secret.
Journalists normally do not report on scientific studies that have been submitted to scholarly journals before they have been peer reviewed. Whether the same restraint should be shown in regard to articles written by historians is an interesting subject historians might choose to debate.
Rick
Hi, Jeremy,
I saw the comment you posted under Dr. Kutler's own essay. I added some observations in which I noted you and Rick as among the best in handling this story and explained why others disappointed me. See
http://hnn.us/readcomment.php?id=131849&bheaders=1#131849
which expands on some of the issues I discussed earlier in the week at
http://hnn.us/readcomment.php?id=131769&bheaders=1#131769
I think the actual handling of this story will make an interesting subject for study one day! Hmm, maybe after I retire (which may not be for several more years.)
Best,
Maarja
The answer to the first one is fairly clear, if you pay attention to "fair use" guidelines: they're actually pretty restrictive in how much of a work you can use without violating copyright and I imagine that any serious work on the Watergate issue would overrun that pretty damn quickly. That said, it's extremely rare, in my experience, for permission to be denied; usually permissions are handled by the publisher, not by authors, and it's pretty routine.
I'm not an Americanist, so the identity of Mr. Y will remain fairly opaque to me. That said, I'm not an Americanist, so I really don't need that information for anything. If you're right, though, (and if Mr. Y can be identified by the AHR staff as easily) Mr. Y should be barred from AHR -- articles, reviews, being reviewed -- in perpetuity.