William Thomas
Proposition One Committee
P.O. Box 27217
Washington, D.C. 20038

October 4, 1991

James Imbriaco
Times Mirror
Two Park Avenue
New York, NY 10016

Dear Mr. Imbriaco:

This is in response to your letter of September 21, 1999 regarding my reproduction and distribution of two news stories originally published in the Baltimore Sun, one on January 18, 1989 by Sun reporter Susan Bayer with the headline, "The Inauguration: A Grand Old Party," and the other, on January 13, 1993, by Sun reporter Robert Ruby under the headline "On This Statute Flecked Patch, Homeless And Protestors May Rest Their Heads But Not Sleep." It is true that my reproduction and distribution of these articles has been done without the written permission or authorization of the Sun. I am most anxious to avoid litigation of this matter, unfortunately your letter has not been helpful in that regard.

Apparently you are aware of my correspondence with Ms. Milligan, in case you are not, a copy is enclosed. I went a couple of steps beyond merely "assert(ing) my belief" that my reproduction and distribution of these articles constitutes a fair use by reproducing 17 U.S.C. § 107 in its' entirety, and detailing, point by point, my reasons for believing that my use of the articles was consistent with each of the four fair use factors set out in § 107. September 8, 1999 letter to Milligan, page 2, para. 1.

I specifically requested that Ms. Milligan have the Sun "attorneys contact us with respect to legal precedents which support your position (concerning fair use). If your attorneys can provide the legal grounds for contesting 'fair use,' we will be in a better position to resolve this matter while saving the time and expense of litigation." However your comment -- that "(my) belief is seriously misplaced, if not completely misguided" -- seems more like name-calling than reference to any legal precedent. Please bear in mind that I am a layman, who can't afford legal representation in this matter. If would be more likely to help resolve our misunderstanding if you would be kind enough to direct me toward some case law in support of your contention.

Similarly, you assert, "No court has ever held that actions such as yours constitute fair use, nor is it likely any court ever will. The fair use defense was never intended to protect the conduct in which you and your organization have engaged." Again, for the reasons detailed in my letter to Ms. Milligan, from my layman's reading of 17 U.S.C. § 107 it seems that Congress did indeed intend that "actions such as (mine) constitute fair use." Again, your bald insistence to the contrary does not rise to the level of a legal precedent where some court actually held that "actions such as (mine)" contravene the intent of 17 U.S.C. § 107.

Although I am very anxious to avoid litigation, nonetheless I am equally determined to protect my own rights. You wrote:

"(L)et me assure you the SUN was not required to pay you money or obtain your written consent to publish photographs of you and others acting in concert with you in connection with events described in news stories published in the SUN, as you appear to suggest in your letter of September 8, 1999 to Robin Milligan of SunSource. The First Amendment simply would not tolerate it."

It seems I failed to communicate clearly. I had no intention of suggesting that the SUN pay money for publishing photographs. My intention was to imply that, with regard to Mr. Ruby's article, if the SUN can publish and distribute a story based on my life and using my words, without obtaining my written permission, I think both the First Amendment and 17 U.S.C. § 107 simply would not tolerate the SUN demanding that I cease and desist from using that story as a footnote to a much broader work, i.e., our web site.

"Our web site is a compilation of personal photographs and related news articles about First Amendment activities outside the White House. We have personally witnessed or been the subject of all of the stories. We include articles by reporters from the Baltimore Sun because we were specifically named or involved in the events described. We have never asked for or been offered any money for providing an archive of this little-explored, but historically significant, subject." First letter to Robin L. Milligan.

"(O)ur web site is intended as a vehicle of criticism, comment, news reporting, teaching, scholarship, and research concerning the history of Lafayette Park, and the changing legal perimeters of freedom of expression in the nation's preeminent public forum; as such, the two articles to which you refer are merely footnotes to the substance of our web site..." Second letter to Robin L. Milligan.

With respect to the article by Ms. Baer, which was not as obviously related to Ellen Thomas and myself as was Mr. Ruby's article, we have excerpted it in a matter which, we hope, will no longer offend your sense of fair use.

THIS LETTER IS NOT INTENDED TO BE, NOR SHOULD IT BE CONSTRUED AS A COMPLETE STATEMENT OF THE FACTS AND CLAIMS RELEVANT TO THE MATTERS SET FORTH HEREIN, OR OF MY POSITION WITH RESPECT TO SUCH MATTERS.

Very truly yours,

W. Thomas