Apologist much? The NYT posted the PDF on their own servers, not merely a link. The quality of the scan is immaterial. An entire article, without commentary or any other contribution, is exactly what fair use isn't. While _we_ may take an enlightened approach to republishing out-of-print materials, the thrust of the Phoenix's response is that the NYT hypocritically opposes reasonable approaches to copyright.

Apologist much?

  Apologist: a person who makes a defense in speech or writing of a belief, idea, etc.

Yes, I guess so.

I think rprasad said it best:

http://news.ycombinator.com/item?id=3569201

To quote:

  This is the textbook definition of "fair use": 
  providing a copy of an out-of-print, otherwise 
  unavailable news article, for the purposes of 
  supplementing a published news article. (Fair 
  use is a multi-factor test with no fixed 
  requirements...it's basically whatever use 
  is "fair" in the context of the actual use.)

> The only offense so far is: the PDF was hosted on Times servers

This is the entire offence. We're not talking about lifting a few paragraphs here, it's a pixel-perfect reproduction of a document with multiple overlapping copyrights, none of which the Times had permission to use.

My point was that the one thing you can take issue with is very likely "fair use".

I also believe that if the author has a legitimate claim it doesn't take 30 paragraphs to make a case.

Did you read it through? It took me a few reads to figure out the specifics of what he was talking about.

I'm guessing that the view by people here is that the NYTimes took an the Article and published it standalone, by itself, as they would one of their owns, without attribution.

That wasn't the case.

The NYT wrote an article, referenced the one in the PDF, and provided a copy of the PDF (of an old black/white scan) as context/background.

I am not a copyright lawyer, but I suspect very strongly that copying and distributing an entire copyrighted document doesn't constitute fair use.

If they'd name checked it and used a quote or two, fine.

Is it okay if I write an article in 40 years time about wizards, then scan in my Harry Potter hardback as context/background?

I understand the point you are trying to make - but the devil is in the details.

I don't think a Article and a Book can be properly compared. I also suspect that Harry Potter won't be out of print (digitally or otherwise), and as of now has a clear copyright holder to which you could ask (likes like original Times article includes interview with original author and may have their consent for what thats worth).

Each case is on its merits, and this is far from clear-cut. It is my opinion that this is very well fair use but there are plenty of opposing view-points here.

>5. The only offense so far is: the PDF was hosted on Times servers

The only offense by the pirate bay is hosting hash values of indexes of servers hosting content (magnet links).

The analogy would be more accurate if hosting PDFs was the only thing that the NYTimes did. ThePirateBay's only purpose is hosting those hash values.