Coleweisberg Correspondence On

Cole/Weisberg Correspondence on Hitchens

With Mr. Weisberg’s permission, I am posting our correspondence on the Hitchens hatchet job on me in Slate earlier this week.

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From: Jacob Weisberg
Sent: Thu 5/4/2006 6:15 PM
To: Cole, Juan
Subject: RE: Forwarded from Weisberg

Dear Juan Cole,

Thanks for yor message. I certainly know your work and have seen it cited in Slate and elsewhere. I don’t want to commission a reponse from you, but you are welcome to write a response which we will post in the Fray and excerpt at the end of the original Hitchens piece. That is how we do letters to the editor here. I’m afraid I don’t understand your various accusations, which presume some knowledge I don’t have.

I don’t know what manuscript or piece you are talking about. And how has Hitchens stolen your email? If someone you sent a message to forwarded it to Hitchens, that is not “theft” by any definition I am familiar with — it is something that happens all the time on the web. I would suggest that you try to respond calmly on the substantive issues.

If you are making some sort of legal threat against us, I should have our lawyer
respond.

Yours sincerely,

Jacob Weisberg

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From: Cole, Juan
Sent: Friday, May 05, 2006 12:31 AM
To: Jacob Weisberg
Subject: RE: Forwarded from Weisberg

Dear Mr. Weisberg:

Thank you so much for your prompt reply.

I will consider doing as you say and writing a response for the Fray and also for the bottom of the original Hitchens piece.

I am sorry that I did not do a better job of explaining the issue of the purloined email. It is not a matter of going to the law, but it is a matter of Slate’s reputation, especially in the blogosphere . . .

The email correspondence that Mr. Hitchens published without my permission had not appeared publicly. The emails were sent to a small private list, of scholars and experts, for reaction, and I was aiming to write something journalistic or give a major address on Ahmadinejad. The list to which I sent the emails has a requirement that no material appearing there be forwarded off the list. Obviously, a list member violated his pledge and passed the messages to Hitchens.

For Hitchens then to publish early drafts of something I was working on, and to use them as a basis for a vitriolic attack on me was just wrong as a matter of law. (Again, I do not say this with litigation in mind, only as a matter of principle). It violated my copyright in my manuscript. and scooped me, reducing the value of the material. That the emails had not appeared publicly, and were not intended to be so, removes considerations of fair use. I append below, purely for your information, the reaction I got to all this from a friendly attorney.

But I think that the Hitchens article was much worse as a matter of unethical journalistic practice than it was as an infringement of the law. Hitchens, having come into this material, could have called me and interviewed me. Journalists interview me all the time. I could have been given the opportunity to set them in context and to respond to his points. How could he possibly even understand what I was getting at from a couple of disconnected emails someone handed to him? How could he do his job that way? He could have sought my permission to publish my private email. In essence, he rushed off blind to do a hatchet job on me, one he has clearly been put up to by unsavory individuals. That’s not journalism, and I don’t have to tell you that.

So I sppose the thing that would most sadden me would be a failure among the Slate editors to understand that what Hitchens did really was wrong and unethical and bad journalism.

cheers

Juan Cole

Appendix:

In a case where the Defendant magazine sought to use the “fair use” defense when they published previously unpublished portions of (you’re going to love this) President Ford’s memoirs, (you’re going to love this) in The Nation magazine in an effort to scoop a sanctioned article about to appear in Time Magazine. Ginsberg wrote for the majority in shooting down fair use. Most cases have moved from the “public figure” viewpoint to “public discourse” but it’s the same thing. The case also holds that unpublished material the author never intends to see the light of day is protected and that’s still good law. Actually it’s great law. The right of first publication looms large against the defense of fair use. The question is whether the unauthorized publication intends to supersede the as yet unpublished material. Cite: Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, U.S.N.Y.,1985.

Clearly, Hitchens intended to pre-empt you and supersede your eventual publication when he printed material he expects you to eventually publish and changed its meaning to fit his own goals. There are many other factors, but that one is key. Some other things that I think factor in your favor is that the limited dissemination of this material to peers for their review in order to help you refine your eventual publication is exactly the type of pre publication work the copyright act intended to protect when it incorporated common law protections into the act. Scooping, when getting the material from another’s work and not on your own, is never fair use . . .

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From: Jacob Weisberg
Sent: Fri 5/5/2006 10:22 AM
To: Cole, Juan
Subject: RE: Forwarded from Weisberg

Dear Mr Cole,

I have read your message and also your blog post today. In my judgment, there is no ethical issue here. Commentators are under no obligation to call people they write about. And Hitchens correctly described the email he quoted from as being from your Gulf discussion group. Your substantive disagreement about the translation and the issues around it are a fit matter for public debate, which appears to be taking place.

Yours sincerely,

Jacob Weisberg