Had I but world enough and time.... I'd write a LOT about the Google Books Settlement! Especially since it's all over the news (well, the kind of news feeds and newsletters I subscribe to), so there's a lot to think about and comment about. But I do find this piece especially interesting, which was in the most recent New York Times Book Review. It discusses the Google Books issue in the context of orphan works, a copyright-related topic that fascinates me.
One of the most fascinating parts of this article is just how many orphan works are out there. And even more fascinating is just how many of the works Google has scanned happen to also be orphans. Read the essay through to the end and you'll see just how cunning Google really is in terms of establishing a monopoly, especially in regards to these orphan works.
To this day, I still don't know how I feel about Google digitizing all these books. I love the idea of a universal library, but I want authors to be fairly compensated. I've listened to Google reps talk about Google Book Search and how much positive outcome it has for authors, but I'm still wary. I still feel uneasy. As someone who writes (granted, not currently for an income, but perhaps someday!), I just don't know how I feel about my words being out there on the internet, in perpetuity, accessible and usable by anyone in any way. I know that there are restrictions to what people can see and use in the Google Book Search for copyrighted works, but still. Just can't shake the uneasy feeling, just can't feel 100% right about it all. We'll see what other interesting tangents develop in this sordid tale!
Showing posts with label lawsuits. Show all posts
Showing posts with label lawsuits. Show all posts
Tuesday, October 6, 2009
Tuesday, October 23, 2007
Napster All Over Again
A recent story in the local Boston paper Boston Now about students at MIT illegally downloading and sharing music caught my interest, partly because of the copyright infringement aspect and partly because of the fact that this behavior seems to be so widespread because people just don't think it's wrong.
The story says how students at Boston college and universities (MIT is the main focus of the story) are being sued by the Recording Industry Association of America (RIAA) for copyright infringement. The students are downloading music files using peer-to-peer file sharing networks like LimeWire. I'm not talking about things like iTunes, where you have to pay to download tracks; in the eyes of the RIAA, those sites are totally legit. I'm talking about the types of sites that are the children and grandchildren of the original downloading site, Napster. Some students who have been sued are settling with the RIAA and paying about $3,000 in settlement, while others are paying a lot more in attorney's fees to fight these lawsuits.
You can see the pre-lawsuit letter from the RIAA to targeted college campuses here.
The way in which the RIAA is going after the students, however, is considered suspect. Their method for gathering evidence against the students consists of an investigator downloading a user's song at random from one of the peer-to-peer networks and listening to it. And apparently by listening to it, the investigator can determine if it was illegally downloaded or not.
Huh?
Okay, so I'm not sold on this methodology; how would just listening to a song determine if it's illegally downloaded or not? Do these songs sound different in some way? It seems suspect to me. But I feel like the real issue here is the copyright infringement issue.
Yes, it's legally wrong for a person to download, use, and share copyright-protected music without paying for it. Despite its creative, somewhat intangible nature, a song is a consumer product, and thus by its very nature it needs to be paid for. Unless an artist or band decides to make its songs available for free download and distribution (which some upstart bands do in order to promote awareness about their music), it is illegal to distribute and acquire their music without paying for it. Obviously people who make their livelihoods from producing these creative products find it grossly unfair for others to, in essence, steal their work (stealing is, by definition, "to take (the property of another or others) without permission or right, esp. secretly or by force" [dictionary.com]). But the people doing the stealing (in this case, downloading and sharing music files) don't usually consider what they're doing illegal or wrong.
I think this is because of the very nature of the internet. On the internet, millions of users worldwide exchange and access such a breadth of information for free already that it almost seems logical for these people to do the same thing with music files, or with things like the texts of books or copies of digital images for instance. The internet's very nature makes it difficult, though not impossible, to police its millions of users as well as what they're using and how they're using it.
And the fact that the RIAA is going after people, many of them college students who don't fully understand the nature or repercussions of their actions, makes a lot of people really angry. It pits these people against the RIAA. And because of this, it actually makes people more prone to engaging in the very behaviors (illegal file sharing) that the RIAA is trying to discourage and put an end to.
The problem isn't going to go away, especially as increasingly more parts of our lives become digitized: cell phones, laptops, MP3 players, and more. A quick look around the RIAA website shows that they're continuing to go about this in a dissuade people from downloading illegally and going after those who do kind of way. I'm not sure that this is necessarily a good solution, or a solution at all, but I can't really think of any other solution, to be perfectly honest. How can you stop all people everywhere from doing what they're doing? I acknowledge that illegally downloading and sharing music is wrong, but I also admit that I myself used to do so many years ago in college (and by "many" I mean "five," back in the days when Napster was still a newborn and still free). I can see both sides of the coin here.
What do people think? Is there a better way to police the use of music? Is there really anything the RIAA can or should do after a CD is off the store shelves and in a consumer's hands? Technically a person can make a copy of a CD onto a personal computer or MP3 player for personal use, but they can't distribute it--such as making it available on the internet for others to download or giving the copied CD to a friend. But is this preventing people from hearing new music? For instance, I've just asked a friend to copy an album for me that I already own but have lost the disc of and which I didn't have any other copy of. I already paid the band, many moons ago, for the disc; I already know the songs. I miss them. I want to listen to them again. But I am annoyed at the thought of repurchasing the CD because as soon as I do so I'm sure I'll find it somewhere. So I asked my friend to make a copy of her copy of the CD for me. Is that a horrible thing? Does that make me a criminal? I admit that I no longer use peer-to-peer networks to download music; in fact, I haven't downloaded music using a peer-to-peer network since I graduated college in 2002, just as the Napster issue was starting to come to a head. The only music I've downloaded since then are songs written by a friend of mine who allowed me to download them for my own use and songs that were available for free download as part of some sort of band promotion. While this keeps me from discovering new music (my musical tastes and collection halt abruptly in 2002), it just doesn't seem worth the risk to engage in peer-to-peer file sharing, because I don't want to get sued.
Should the RIAA just leave people alone? Is downloading really hurting the music industry? What do people think? Are downloaders criminals or just doing what comes naturally when you use the internet? Leave me your thoughts.
Check out the RIAA website here.
The story says how students at Boston college and universities (MIT is the main focus of the story) are being sued by the Recording Industry Association of America (RIAA) for copyright infringement. The students are downloading music files using peer-to-peer file sharing networks like LimeWire. I'm not talking about things like iTunes, where you have to pay to download tracks; in the eyes of the RIAA, those sites are totally legit. I'm talking about the types of sites that are the children and grandchildren of the original downloading site, Napster. Some students who have been sued are settling with the RIAA and paying about $3,000 in settlement, while others are paying a lot more in attorney's fees to fight these lawsuits.
You can see the pre-lawsuit letter from the RIAA to targeted college campuses here.
The way in which the RIAA is going after the students, however, is considered suspect. Their method for gathering evidence against the students consists of an investigator downloading a user's song at random from one of the peer-to-peer networks and listening to it. And apparently by listening to it, the investigator can determine if it was illegally downloaded or not.
Huh?
Okay, so I'm not sold on this methodology; how would just listening to a song determine if it's illegally downloaded or not? Do these songs sound different in some way? It seems suspect to me. But I feel like the real issue here is the copyright infringement issue.
Yes, it's legally wrong for a person to download, use, and share copyright-protected music without paying for it. Despite its creative, somewhat intangible nature, a song is a consumer product, and thus by its very nature it needs to be paid for. Unless an artist or band decides to make its songs available for free download and distribution (which some upstart bands do in order to promote awareness about their music), it is illegal to distribute and acquire their music without paying for it. Obviously people who make their livelihoods from producing these creative products find it grossly unfair for others to, in essence, steal their work (stealing is, by definition, "to take (the property of another or others) without permission or right, esp. secretly or by force" [dictionary.com]). But the people doing the stealing (in this case, downloading and sharing music files) don't usually consider what they're doing illegal or wrong.
I think this is because of the very nature of the internet. On the internet, millions of users worldwide exchange and access such a breadth of information for free already that it almost seems logical for these people to do the same thing with music files, or with things like the texts of books or copies of digital images for instance. The internet's very nature makes it difficult, though not impossible, to police its millions of users as well as what they're using and how they're using it.
And the fact that the RIAA is going after people, many of them college students who don't fully understand the nature or repercussions of their actions, makes a lot of people really angry. It pits these people against the RIAA. And because of this, it actually makes people more prone to engaging in the very behaviors (illegal file sharing) that the RIAA is trying to discourage and put an end to.
The problem isn't going to go away, especially as increasingly more parts of our lives become digitized: cell phones, laptops, MP3 players, and more. A quick look around the RIAA website shows that they're continuing to go about this in a dissuade people from downloading illegally and going after those who do kind of way. I'm not sure that this is necessarily a good solution, or a solution at all, but I can't really think of any other solution, to be perfectly honest. How can you stop all people everywhere from doing what they're doing? I acknowledge that illegally downloading and sharing music is wrong, but I also admit that I myself used to do so many years ago in college (and by "many" I mean "five," back in the days when Napster was still a newborn and still free). I can see both sides of the coin here.
What do people think? Is there a better way to police the use of music? Is there really anything the RIAA can or should do after a CD is off the store shelves and in a consumer's hands? Technically a person can make a copy of a CD onto a personal computer or MP3 player for personal use, but they can't distribute it--such as making it available on the internet for others to download or giving the copied CD to a friend. But is this preventing people from hearing new music? For instance, I've just asked a friend to copy an album for me that I already own but have lost the disc of and which I didn't have any other copy of. I already paid the band, many moons ago, for the disc; I already know the songs. I miss them. I want to listen to them again. But I am annoyed at the thought of repurchasing the CD because as soon as I do so I'm sure I'll find it somewhere. So I asked my friend to make a copy of her copy of the CD for me. Is that a horrible thing? Does that make me a criminal? I admit that I no longer use peer-to-peer networks to download music; in fact, I haven't downloaded music using a peer-to-peer network since I graduated college in 2002, just as the Napster issue was starting to come to a head. The only music I've downloaded since then are songs written by a friend of mine who allowed me to download them for my own use and songs that were available for free download as part of some sort of band promotion. While this keeps me from discovering new music (my musical tastes and collection halt abruptly in 2002), it just doesn't seem worth the risk to engage in peer-to-peer file sharing, because I don't want to get sued.
Should the RIAA just leave people alone? Is downloading really hurting the music industry? What do people think? Are downloaders criminals or just doing what comes naturally when you use the internet? Leave me your thoughts.
Check out the RIAA website here.
Monday, September 10, 2007
Running with Scissors
Never take candy from strangers. Never swim a half hour after eating. Never run with scissors. All good advice from Mom. And, in the case of the last, advice author Augusten Burroughs should have taken to heart.
Burroughs, the author of several nonfiction books including Dry and Magical Thinking, just settled a lawsuit brought against him and his publisher over what he wrote in Running with Scissors: A Memoir.
Running with Scissors, which was also made into a movie, recounts the story of Burroughs's life with the Turcotte family when he was younger. The head of the Turcotte family was Burroughs's mother's therapist, and the therapist was made Burroughs's legal guardian so that the teen could stay with them and attend schools in Northampton.
In the book, Burroughs calls the family the Finches and alleges them of outrageous behavior (electroshock therapy, deviant sexual behaviors, and so on). I use the word "alleges" because the family felt otherwise. They sued Burroughs and his publisher, St. Martin's, for defamation, invasion of privacy, and emotional distress. (Hey, remember all those?) The Turcottes demanded $2 million because they claimed the book was mostly fiction laden with sensationalism to drive sales and also that their family was easily recognized as the fictionally named Finch family, despite the fact that the book begins with an author's note claiming that the names and identifying details of characters have been changed.
The author and his publisher settled with the family and now have to start calling Running with Scissors a "book" rather than a "memoir" in the author's note and also have to include a disclaimer in future editions that the book is based on Burroughs's memories and not those of the Turcotte/Finch family. But St. Martin's seems pretty triumphant that they were able to settle and claim that this is evidence that the book is accurate.
So Burroughs and St. Martin's defended the book as "entirely accurate." However, in a statement released earlier, Burroughs said that the book was "loosely based" on his experiences. So which is it? Accurate or not? Truth or a memoirist's interpretation of his memories?
Memoirs are an increasingly popular genre, and since very few people spend their entire lives in total isolation, by necessity memoirs also include accounts of experiences with other people. But the very nature of memoir is open to a lot of error: unlike biographies and even autobiographies, memoirs are based for the most part entirely upon the author's memories and recollections as opposed to being based on research, interviews, and other facts. The human memory is a highly fallible and changeable thing. As years pass, our recollections of incidents and people become fuzzy. We may blend incidents together, forget what happened, reinvent the truth--all in all, it's definitely not a black and white world. So a degree of relativity enters the truth-telling in the world of memoir, which is all degrees of gray. Students of literature understand this, and while some memoirists strive to be as accurate as possible, others are okay with bending the truth a little to suit creative literary conventions and devices. But the thing is, do readers understand the nuances and varying degrees of accuracy involved in memoir? Or do they believe that everything they read is substantiated fact as opposed to author memory? I think this is where the problems begin.
And in the case of the Turcottes, the problem is that their memories and the memories of the memoirist not only contradict each other but also that the memoirist has painted them in such a negative light and made them so easily identifiable that it could ruin their reputations. According to an interview with the Turcottes in Vanity Fair, several of the Turcottes have suffered emotional, mental, or in some cases physical distress over what Burroughs wrote. While the Turcottes do admit that their father was eccentric and that their family did have some unconventional experiences while growing up, they deny a lot of the experiences that Burroughs claims they experienced together. They also claim that he distorted and exaggerated the amount of time he lived with them. Burroughs claims now that what he wrote is true and that he kept extensive journals during his childhood and teenage years about his experiences. But some of the other stuff he says seems shady and he seemingly implies that not everything is as it seems. I recommend that you read the Vanity Fair article I linked to above. It's illuminating if nothing else.
So when it comes to writing, especially something with a creative bent that's so highly personal, where do we draw the line? Or are there any lines that need to be drawn? Wouldn't a simple disclaimer saying that the experiences within are the recollections of the author that aren't necessarily supported by anyone else, or does the author have a greater responsibility to his subjects and his publisher to do more? Some memoirists send the manuscript pages involving other people to those people, to make them aware that they're being written about. In the case of the Turcottes, they claim that they didn't even know Burroughs was writing about them until after the book was published and achieved bestseller status.
The memoir issue affects me rather personally as I sometimes write memoir pieces. For my senior honors thesis, I wrote a memoir about my mother and myself and how my mother's Cuban background influenced me, etc. Several other family members figured into the memoir. While my mother was very pleased with the project, her sister, who also read it, made a comment to me about how her behavior wasn't the way I'd described it in a certain section of the manuscript. My defense was that the way I described her behavior was the way I perceived things to be true. I'm sure that if I saw myself described by another writer I'd potentially find what I believed to be an inaccuracy in his description. But to the writer, his description probably rings true with the way he sees me.
But this is different than making up substantial portions of a book that purports to be based on real-life experiences. That's where I feel that the issues arise, especially when many general readers aren't aware of the gray area surrounding memoir. What do you think? Should there be rules surrounding memoirs? Should they all carry disclaimers? Should the publisher be held responsible in instances like Burroughs's? Is the publisher responsible for fact-checking something like a memoir, or does that rest solely upon the author? I'd love to hear your thoughts, so please do share.
UPDATE: MORE LINKS ON THE STORY
I've found some more links for further reading about the story.
From the Boston Globe
From Publishers Weekly
From the LA Times
From USA Today
NPR's interview with Burroughs's mother including a comment written by someone who allegedly knew her
From the Milwaukee Journal Sentinel
The Book Standard interview with Augusten Burroughs
Bookslut interview with Augusten Burroughs where he describes how a person can research the identity of the Finch family
Washington Post article
Entertainment Weekly
Burroughs, the author of several nonfiction books including Dry and Magical Thinking, just settled a lawsuit brought against him and his publisher over what he wrote in Running with Scissors: A Memoir.
Running with Scissors, which was also made into a movie, recounts the story of Burroughs's life with the Turcotte family when he was younger. The head of the Turcotte family was Burroughs's mother's therapist, and the therapist was made Burroughs's legal guardian so that the teen could stay with them and attend schools in Northampton.
In the book, Burroughs calls the family the Finches and alleges them of outrageous behavior (electroshock therapy, deviant sexual behaviors, and so on). I use the word "alleges" because the family felt otherwise. They sued Burroughs and his publisher, St. Martin's, for defamation, invasion of privacy, and emotional distress. (Hey, remember all those?) The Turcottes demanded $2 million because they claimed the book was mostly fiction laden with sensationalism to drive sales and also that their family was easily recognized as the fictionally named Finch family, despite the fact that the book begins with an author's note claiming that the names and identifying details of characters have been changed.
The author and his publisher settled with the family and now have to start calling Running with Scissors a "book" rather than a "memoir" in the author's note and also have to include a disclaimer in future editions that the book is based on Burroughs's memories and not those of the Turcotte/Finch family. But St. Martin's seems pretty triumphant that they were able to settle and claim that this is evidence that the book is accurate.
So Burroughs and St. Martin's defended the book as "entirely accurate." However, in a statement released earlier, Burroughs said that the book was "loosely based" on his experiences. So which is it? Accurate or not? Truth or a memoirist's interpretation of his memories?
Memoirs are an increasingly popular genre, and since very few people spend their entire lives in total isolation, by necessity memoirs also include accounts of experiences with other people. But the very nature of memoir is open to a lot of error: unlike biographies and even autobiographies, memoirs are based for the most part entirely upon the author's memories and recollections as opposed to being based on research, interviews, and other facts. The human memory is a highly fallible and changeable thing. As years pass, our recollections of incidents and people become fuzzy. We may blend incidents together, forget what happened, reinvent the truth--all in all, it's definitely not a black and white world. So a degree of relativity enters the truth-telling in the world of memoir, which is all degrees of gray. Students of literature understand this, and while some memoirists strive to be as accurate as possible, others are okay with bending the truth a little to suit creative literary conventions and devices. But the thing is, do readers understand the nuances and varying degrees of accuracy involved in memoir? Or do they believe that everything they read is substantiated fact as opposed to author memory? I think this is where the problems begin.
And in the case of the Turcottes, the problem is that their memories and the memories of the memoirist not only contradict each other but also that the memoirist has painted them in such a negative light and made them so easily identifiable that it could ruin their reputations. According to an interview with the Turcottes in Vanity Fair, several of the Turcottes have suffered emotional, mental, or in some cases physical distress over what Burroughs wrote. While the Turcottes do admit that their father was eccentric and that their family did have some unconventional experiences while growing up, they deny a lot of the experiences that Burroughs claims they experienced together. They also claim that he distorted and exaggerated the amount of time he lived with them. Burroughs claims now that what he wrote is true and that he kept extensive journals during his childhood and teenage years about his experiences. But some of the other stuff he says seems shady and he seemingly implies that not everything is as it seems. I recommend that you read the Vanity Fair article I linked to above. It's illuminating if nothing else.
So when it comes to writing, especially something with a creative bent that's so highly personal, where do we draw the line? Or are there any lines that need to be drawn? Wouldn't a simple disclaimer saying that the experiences within are the recollections of the author that aren't necessarily supported by anyone else, or does the author have a greater responsibility to his subjects and his publisher to do more? Some memoirists send the manuscript pages involving other people to those people, to make them aware that they're being written about. In the case of the Turcottes, they claim that they didn't even know Burroughs was writing about them until after the book was published and achieved bestseller status.
The memoir issue affects me rather personally as I sometimes write memoir pieces. For my senior honors thesis, I wrote a memoir about my mother and myself and how my mother's Cuban background influenced me, etc. Several other family members figured into the memoir. While my mother was very pleased with the project, her sister, who also read it, made a comment to me about how her behavior wasn't the way I'd described it in a certain section of the manuscript. My defense was that the way I described her behavior was the way I perceived things to be true. I'm sure that if I saw myself described by another writer I'd potentially find what I believed to be an inaccuracy in his description. But to the writer, his description probably rings true with the way he sees me.
But this is different than making up substantial portions of a book that purports to be based on real-life experiences. That's where I feel that the issues arise, especially when many general readers aren't aware of the gray area surrounding memoir. What do you think? Should there be rules surrounding memoirs? Should they all carry disclaimers? Should the publisher be held responsible in instances like Burroughs's? Is the publisher responsible for fact-checking something like a memoir, or does that rest solely upon the author? I'd love to hear your thoughts, so please do share.
UPDATE: MORE LINKS ON THE STORY
I've found some more links for further reading about the story.
From the Boston Globe
From Publishers Weekly
From the LA Times
From USA Today
NPR's interview with Burroughs's mother including a comment written by someone who allegedly knew her
From the Milwaukee Journal Sentinel
The Book Standard interview with Augusten Burroughs
Bookslut interview with Augusten Burroughs where he describes how a person can research the identity of the Finch family
Washington Post article
Entertainment Weekly
Thursday, August 9, 2007
Lawsuit-Free Writing in Lawsuit-Happy Land: Is It Possible?
I’ve covered the contracts you need to know about once you’re done with the writing process—the publishing contract, the agency contract. But what about legal issues pertaining to the actual writing itself? Remember those warranty and indemnity clauses in the contracts? What exactly do they mean? How do laws surrounding copyright and related issues affect you and your writing?
We’re lucky to live in the United States; we have a more lenient policy when it comes to free expression. The right to express ourselves is protected by the First Amendment to the Constitution, which prohibits, amongst other things, laws that prohibit freedom of speech and freedom of the press. But, like anything else, there can be some exceptions to this rule.
The way copyright law is structured is such that it works in tandem with the First Amendment to create a balance: ideas can be freely exchanged amongst U.S. citizens while the creator/expresser of these ideas is simultaneously protected from having his or her ideas used illegally (infringement, plagiarism, and such). So you, as a writer, can say pretty much anything you want (thanks to the First Amendment) and you, as a writer, also have the ability to protect and exploit what you’ve said (thanks to the Copyright Act).
But writers can face some issues when they’re writing about real-life people, whether the book is considered fiction or nonfiction. Although the First Amendment protects a writer’s right to freedom of expression, writers must be careful if they’re writing factually about other people—even if they’re just basing a fictional character on a real person’s personality traits or experiences.
Here are some things writers should be aware of when they’re using real people in their writing. (Once again, I disclaimer myself by saying that I’m just making you aware of legal issues and I am offering some basic suggestions, but in no way am I offering you legal advice; contact a lawyer for that!)
Using real people in writing, especially in nonfiction, is unavoidable. Newspapers, reference books, biographies--all would be impossible if writers weren't permitted to write about real people. The whole point of nonfiction is that the reader assumes the truthfulness of what is being written. What happens if a writer doesn't write the truth? What is it okay to reveal and what isn't okay? These questions regard defamation.
Defamation is the act of hurting a person's reputation by making information about that person known to the public. When referring to defamation done through the written word or through broadcast, it is termed libel. (Slander defines spoken defamation.) There's actually no federal law governing libel, so each state has its own variation on how it handles libel suits.
What constitutes libel? Like everything else regarding intellectual property, there are no clear-cut answers to this question either, but here are some questions to consider in determining whether something is libelous.
Is the statement true? If so, it's not considered defamatory. Lies, however, are defamatory. George W. Bush is an unpopular president is true; numerous polls support this fact. George W. Bush is really a woman in disguise is false, unless anyone out there is willing to get really adventurous to prove it true.
Is the statement conveyed as a fact? Something conveyed as a fact is more likely to be ruled as defamatory. Opinions, however, are protected under the First Amendment. A restaurant reviewer can thus say that she believes the chef at Joe's Diner doesn't make very good food, because that's her opinion. However, she can't say that the chef at Joe's Diner obviously intends to poison every customer at the restaurant with the horrible food. She may believe it, but that wanders into defamatory territory.
Is the statement published? If the statement hasn't been seen by any third party, it's not libel. For instance, the food reviewer may write a private note to the chef saying, "You're trying to poison me!" But unless that food reviewer makes that statement known to the public, in a newspaper or magazine, the statement isn't libelous.
Is the person in the statement identifiable? Just omitting a name won't get a writer off the hook. Identifying details, such as gender, physical traits, personality characteristics, occupation, and so on are often enough to clue people in on the subject. A reporter standing outside a school on the same day that salary cuts have been made sees a teacher storming angrily out of the school. The reporter doesn't ask the teacher the cause for his anger, instead assuming that it's because he'll now be paid less. When considering the reporter's article, the potentially untrue statement "A teacher at the school was unhappy with the pay cuts" is a lot harder to prove as libelous than "A music teacher at the school was unhappy with the pay cuts, especially after he'd worked at the school for seven years." Those details in the second sentence make it much easier to deduce who the person is.
Has the statement caused real harm to the subject? Perhaps the person was fired from his job, was served a divorce by his wife, or just had his reputation damaged. Perhaps none of these things happened but the publisher had enough reason to believe the statements were defamatory--and published them anyway. That's also grounds enough to be considered as causing injury to the person. But what if all that happened was that the person got extremely pissed off? They may not win the injury card, but they can win by accusing the writer of mental anguish.
Of course these are rather general and sweeping guidelines here and there are exceptions to everything, but they're a good basis for understanding what sorts of things constitute libel.
Another important factor in determining libel cases is a person's status as a public figure. An interesting equation governing libel suits is that the more famous you are, the less you're protected. This is because it is assumed that a person understands that by becoming a more public figure, he or she will thus be more regularly covered in the media and exposed to the public. The public has more of a right to know what's happening in a public figure's life and thus the press has a right to report on it. And a a person's fame increases, so too does the right of the press to criticize that person's behavior and character. The law even oftentimes becomes more lenient towards those who may inaccurately report information about a public figure. So in order for a public figure to prove libel, he or she must prove that there was "actual malice" involved in the defamation--meaning that damaging falsehoods were intentionally printed as fact.
What if someone's dead? Can you happily blast away at them? While it's true that you can't be sued for libel by a dead person, that person's surviving family members, for instance, can sue you for the mental anguish you're causing them.
Ah, you say, but I'm a novelist. I write fiction. None of this pertains to me.
To which I reply: Ah, but it does!
What drives a great novel? Great characters. And where do great characters come from? The depths of the author's imagination. Okay, I'll buy that, but how did the author's imagination come up with them? Real life. Authors use elements of real people--quirky habits, personality traits, physical characteristics, likes and dislikes, experiences--to build characters and their storylines. These novels are known as roman à clef, meaning that fictional characters and storylines are based on real ones. Doing something like using one or very few details from real life doesn't count. Your friend always wears knee socks with Birkenstocks, say, or always says, "You can dig that, right?" after every question and you attribute this to one of your characters--that's not really problematic. Where the problem does come in is when you heavily base a character in your book on a real person and have that character doing negative things--or even have that character exposing negative things the real person did. Just changing the name and a detail or two won't always protect you. In the case Bindrim vs. Davis, the novelist and defendant, Davis, visited a psychologist named Bindrim during one of his therapeutic bath sessions. She basically changed a few details around, but ended up making the doctor and his practice easily identifiable, even reproducing exact lines of his speech that she had recorded. Things ended pretty poorly for Davis, especially when her publisher turned on her by enacting the warranties and indemnities clause to recoup some of the money it lost during the lawsuit. Read the article; it's interesting stuff, though I sadly can't get into the ethics of publishers turning on their authors in this particular entry. It just goes to show that you can't be too careful, even if the story you're writing has the word "FICTION" emblazoned on the front.
But even the most private individuals can sue you if they're identifiable as characters in your novel, and this is because of their right to privacy. What if a friend confides a particularly embarrassing or painful secret to you, and you think, wow, this would make a great dramatic twist in my new novel. So you insert a character with a painful secret into your novel. You changed the character's name and the fact that she lives in Brooklyn (your character now lives in Queens), but other than that, you couldn't change much else or the painful secret part wouldn't work. That's an invasion of privacy. The secret your friend told you was previously unknown, but now all your mutual friends have bought your novel and figured out who the character was. The secret also wasn't of general interest to the public, since it concerned a private, relatively unknown individual whose personal business was important to no one else. Just because your book carries that "This is a work of fiction... resemblance is purely coincidental" clause at the beginning (you know the one I'm talking about; pick up any novel and take a look at the copyright page) doesn't mean you're protected. The publisher puts that there to cover his bum on the assumption that by signing your contract, which included the warranties and indemnity clause, you verified that the material in the book wasn't going to, among other things, expose your friend's secrets under the guise of a "fictional" character. In this situation, looks like you're in a heap of cow dung.
Okay, then, you say. I'll just stick to writing about public figures in my novels since I can have a little more leniency with those. But just when you thought you were off the hook, here comes something else to worry about: the right of publicity. This is a person's exclusive right to use, or to prevent the use of, his or her name, likeness, or aspects of his/her persona for commercial gain (with "persona" here meaning aspects of a person's character perceived by others). It's sort of like the right of privacy but for better-known people. By using another person's persona or an aspect of it without authorization, you could be leaving yourself open for a right of publicity claim. Once again, there's no federal law governing this, so the way it's handled tends to change from state to state. A person can't sue for an invasion of right of publicity if the use of their name or likeness is cursory or if there's something newsworthy going on attached to this person that's of general interest. (There goes that First Amendment again.) But if the person's name or image is being used for commercial gain, like to sell a product or service, and the person didn't authorize it, then the trouble begins.
Like all other areas in publishing, this one's laden with gray. Use of a persona is allowed editorially: for use in the news, in a scholarly way, or for reasons of historical, cultural, educational, and/or public interest. Don't worry, fiction writers, you haven't been forgotten either: it's okay to an extent to use names or likenesses in fiction that incorporates real people. Basically, as long as the goal of a work is artistic or to inform the public of something that would interest them, rather than being solely for economic gain, it's generally permissible.
Oy vey, you say, and throw up your pen (hopefully not word processor) in despair. What can I write then, if I'm constantly afraid someone's going to sue me for something? The publishing scene may look even more discouraging now, or downright bleak, but take heart. There are things you can do to protect yourself. No method's foolproof, but here are some ways to reduce the risk.
Fact checking is invaluable. Get proof for everything you possibly can. You might think that New Yorker-style fact checking is extreme (Harold Ross had his fact checkers verifying the location of the Empire State Building), but in this lawsuit-happy era, it seems like you can never go too far to verify a fact. Also be aware that in libel cases, the amount of time a writer had before publication counts. The more time a writer had to fact check something, the more accountable he is. A newspaper writer is up against a daily deadline; a biographer often has months or even years to complete a project. The newspaper writer has far less time to fact check; thus, he would more likely get off the hook than would a book author.
To reiterate the importance of never assuming, here are some assumptions that can get writers into trouble: accusing someone of a crime without proof of conviction; associating someone with a group (especially an unsavory group like a cult) without proof of association; describing someone's incompetence instead of describing the situation; accusing someone of unchaste or sexually unscrupulous acts.
If you're in doubt about whether you should publish a particular story, consider it from an ethical standpoint. Is the subject a public figure or a private one? If the person is a private figure, consider whether his or her activities are of general interest to the public. If it's an older news story involving private figures, like a decades-old unsolved murder case, consider whether the story is still of interest to the public. If the story has been forgotten by the general public and is particularly scandalous, dredging it up again could be grounds for a suit. Make sure you fact check everything you can. Knowing that public records about the person and/or events you're describing are readily available, and using them, may make you less liable for libel.
If you're writing fiction and are basing a character on a real person, try to keep that character minor and use as few identifying details as possible so that the character can't be recognized as a real person. Change identifying details or mix up several real people's identifying characteristics. Or try sticking to using public figures, although they can claim that their right of publicity has been invaded. You can also stick to writing about a dead person, private or public, but be aware that if that person can be identified, you can be sued for mental distress. And also be aware that suits are on the rise involving similar names. So if you're going to write about a concierge who works at the Four Seasons named Larry who is a serial killer by night, you should check with the Four Seasons to be sure that such a person doesn't work there. Again, it's always best to cover your bum by checking your facts and being overly careful than to leave your bum exposed and ready for a good, swift kick.
Also know that many larger publishers have a legal department that will assist them in determining if any parts of your book could pose future problems. If you're working with a smaller publisher or are self-publishing, it might be worth your while to invest in the services of a lawyer to read your manuscript and identify any potential problem spots. For instance, a local publisher is planning to publish a fictional book by "Fake Steve Jobs" that is a spoof on the real Steve Jobs (Apple CEO) and his life. The book is so obviously a parody, and the material is fictionalized and marketed as such, so it got the legal okay. But if the book tried to pass itself off as nonfiction--say, if the cover said "Steve Jobs" instead of "Fake Steve Jobs" or if the book didn't brand itself as being fiction--well. Things would hit that proverbial fan.
Chances are, if you're writing about other people, you're going to say something that's going to offend somebody (which isn't always a bad thing). Make sure you're aware of the problems you could potentially be up against and use a little common sense to guide you during the writing process. If something feels like it might cause a problem, seek help from a professional (like a lawyer) before someone else decides to turn it into a problem. Yes, we live in a lawsuit-happy society, but we also happen to live in a country that values its free speech (though post-9/11 some may contest this) so proceed with caution but don't let the fear of a lawsuit keep you from proceeding at all.
BOOKS THAT ARE USEFUL:
How to Be Your Own Literary Agent, by Richard Curtis (again).
The Writer's Legal Companion, by Brad Bunnin and Peter Beren. One's a lawyer and the other works in the publishing biz. A dream team.
Literary Law Guide for Authors, by Tonya Marie Evans and Susan Borden Evans. A pair of attorneys spell everything out rather clearly. They even include a handy CD-ROM with copies of all the appropriate copyright forms and etc. that they refer to within the book that you can print out.
We’re lucky to live in the United States; we have a more lenient policy when it comes to free expression. The right to express ourselves is protected by the First Amendment to the Constitution, which prohibits, amongst other things, laws that prohibit freedom of speech and freedom of the press. But, like anything else, there can be some exceptions to this rule.
The way copyright law is structured is such that it works in tandem with the First Amendment to create a balance: ideas can be freely exchanged amongst U.S. citizens while the creator/expresser of these ideas is simultaneously protected from having his or her ideas used illegally (infringement, plagiarism, and such). So you, as a writer, can say pretty much anything you want (thanks to the First Amendment) and you, as a writer, also have the ability to protect and exploit what you’ve said (thanks to the Copyright Act).
But writers can face some issues when they’re writing about real-life people, whether the book is considered fiction or nonfiction. Although the First Amendment protects a writer’s right to freedom of expression, writers must be careful if they’re writing factually about other people—even if they’re just basing a fictional character on a real person’s personality traits or experiences.
Here are some things writers should be aware of when they’re using real people in their writing. (Once again, I disclaimer myself by saying that I’m just making you aware of legal issues and I am offering some basic suggestions, but in no way am I offering you legal advice; contact a lawyer for that!)
Using real people in writing, especially in nonfiction, is unavoidable. Newspapers, reference books, biographies--all would be impossible if writers weren't permitted to write about real people. The whole point of nonfiction is that the reader assumes the truthfulness of what is being written. What happens if a writer doesn't write the truth? What is it okay to reveal and what isn't okay? These questions regard defamation.
Defamation is the act of hurting a person's reputation by making information about that person known to the public. When referring to defamation done through the written word or through broadcast, it is termed libel. (Slander defines spoken defamation.) There's actually no federal law governing libel, so each state has its own variation on how it handles libel suits.
What constitutes libel? Like everything else regarding intellectual property, there are no clear-cut answers to this question either, but here are some questions to consider in determining whether something is libelous.
Is the statement true? If so, it's not considered defamatory. Lies, however, are defamatory. George W. Bush is an unpopular president is true; numerous polls support this fact. George W. Bush is really a woman in disguise is false, unless anyone out there is willing to get really adventurous to prove it true.
Is the statement conveyed as a fact? Something conveyed as a fact is more likely to be ruled as defamatory. Opinions, however, are protected under the First Amendment. A restaurant reviewer can thus say that she believes the chef at Joe's Diner doesn't make very good food, because that's her opinion. However, she can't say that the chef at Joe's Diner obviously intends to poison every customer at the restaurant with the horrible food. She may believe it, but that wanders into defamatory territory.
Is the statement published? If the statement hasn't been seen by any third party, it's not libel. For instance, the food reviewer may write a private note to the chef saying, "You're trying to poison me!" But unless that food reviewer makes that statement known to the public, in a newspaper or magazine, the statement isn't libelous.
Is the person in the statement identifiable? Just omitting a name won't get a writer off the hook. Identifying details, such as gender, physical traits, personality characteristics, occupation, and so on are often enough to clue people in on the subject. A reporter standing outside a school on the same day that salary cuts have been made sees a teacher storming angrily out of the school. The reporter doesn't ask the teacher the cause for his anger, instead assuming that it's because he'll now be paid less. When considering the reporter's article, the potentially untrue statement "A teacher at the school was unhappy with the pay cuts" is a lot harder to prove as libelous than "A music teacher at the school was unhappy with the pay cuts, especially after he'd worked at the school for seven years." Those details in the second sentence make it much easier to deduce who the person is.
Has the statement caused real harm to the subject? Perhaps the person was fired from his job, was served a divorce by his wife, or just had his reputation damaged. Perhaps none of these things happened but the publisher had enough reason to believe the statements were defamatory--and published them anyway. That's also grounds enough to be considered as causing injury to the person. But what if all that happened was that the person got extremely pissed off? They may not win the injury card, but they can win by accusing the writer of mental anguish.
Of course these are rather general and sweeping guidelines here and there are exceptions to everything, but they're a good basis for understanding what sorts of things constitute libel.
Another important factor in determining libel cases is a person's status as a public figure. An interesting equation governing libel suits is that the more famous you are, the less you're protected. This is because it is assumed that a person understands that by becoming a more public figure, he or she will thus be more regularly covered in the media and exposed to the public. The public has more of a right to know what's happening in a public figure's life and thus the press has a right to report on it. And a a person's fame increases, so too does the right of the press to criticize that person's behavior and character. The law even oftentimes becomes more lenient towards those who may inaccurately report information about a public figure. So in order for a public figure to prove libel, he or she must prove that there was "actual malice" involved in the defamation--meaning that damaging falsehoods were intentionally printed as fact.
What if someone's dead? Can you happily blast away at them? While it's true that you can't be sued for libel by a dead person, that person's surviving family members, for instance, can sue you for the mental anguish you're causing them.
Ah, you say, but I'm a novelist. I write fiction. None of this pertains to me.
To which I reply: Ah, but it does!
What drives a great novel? Great characters. And where do great characters come from? The depths of the author's imagination. Okay, I'll buy that, but how did the author's imagination come up with them? Real life. Authors use elements of real people--quirky habits, personality traits, physical characteristics, likes and dislikes, experiences--to build characters and their storylines. These novels are known as roman à clef, meaning that fictional characters and storylines are based on real ones. Doing something like using one or very few details from real life doesn't count. Your friend always wears knee socks with Birkenstocks, say, or always says, "You can dig that, right?" after every question and you attribute this to one of your characters--that's not really problematic. Where the problem does come in is when you heavily base a character in your book on a real person and have that character doing negative things--or even have that character exposing negative things the real person did. Just changing the name and a detail or two won't always protect you. In the case Bindrim vs. Davis, the novelist and defendant, Davis, visited a psychologist named Bindrim during one of his therapeutic bath sessions. She basically changed a few details around, but ended up making the doctor and his practice easily identifiable, even reproducing exact lines of his speech that she had recorded. Things ended pretty poorly for Davis, especially when her publisher turned on her by enacting the warranties and indemnities clause to recoup some of the money it lost during the lawsuit. Read the article; it's interesting stuff, though I sadly can't get into the ethics of publishers turning on their authors in this particular entry. It just goes to show that you can't be too careful, even if the story you're writing has the word "FICTION" emblazoned on the front.
But even the most private individuals can sue you if they're identifiable as characters in your novel, and this is because of their right to privacy. What if a friend confides a particularly embarrassing or painful secret to you, and you think, wow, this would make a great dramatic twist in my new novel. So you insert a character with a painful secret into your novel. You changed the character's name and the fact that she lives in Brooklyn (your character now lives in Queens), but other than that, you couldn't change much else or the painful secret part wouldn't work. That's an invasion of privacy. The secret your friend told you was previously unknown, but now all your mutual friends have bought your novel and figured out who the character was. The secret also wasn't of general interest to the public, since it concerned a private, relatively unknown individual whose personal business was important to no one else. Just because your book carries that "This is a work of fiction... resemblance is purely coincidental" clause at the beginning (you know the one I'm talking about; pick up any novel and take a look at the copyright page) doesn't mean you're protected. The publisher puts that there to cover his bum on the assumption that by signing your contract, which included the warranties and indemnity clause, you verified that the material in the book wasn't going to, among other things, expose your friend's secrets under the guise of a "fictional" character. In this situation, looks like you're in a heap of cow dung.
Okay, then, you say. I'll just stick to writing about public figures in my novels since I can have a little more leniency with those. But just when you thought you were off the hook, here comes something else to worry about: the right of publicity. This is a person's exclusive right to use, or to prevent the use of, his or her name, likeness, or aspects of his/her persona for commercial gain (with "persona" here meaning aspects of a person's character perceived by others). It's sort of like the right of privacy but for better-known people. By using another person's persona or an aspect of it without authorization, you could be leaving yourself open for a right of publicity claim. Once again, there's no federal law governing this, so the way it's handled tends to change from state to state. A person can't sue for an invasion of right of publicity if the use of their name or likeness is cursory or if there's something newsworthy going on attached to this person that's of general interest. (There goes that First Amendment again.) But if the person's name or image is being used for commercial gain, like to sell a product or service, and the person didn't authorize it, then the trouble begins.
Like all other areas in publishing, this one's laden with gray. Use of a persona is allowed editorially: for use in the news, in a scholarly way, or for reasons of historical, cultural, educational, and/or public interest. Don't worry, fiction writers, you haven't been forgotten either: it's okay to an extent to use names or likenesses in fiction that incorporates real people. Basically, as long as the goal of a work is artistic or to inform the public of something that would interest them, rather than being solely for economic gain, it's generally permissible.
Oy vey, you say, and throw up your pen (hopefully not word processor) in despair. What can I write then, if I'm constantly afraid someone's going to sue me for something? The publishing scene may look even more discouraging now, or downright bleak, but take heart. There are things you can do to protect yourself. No method's foolproof, but here are some ways to reduce the risk.
Fact checking is invaluable. Get proof for everything you possibly can. You might think that New Yorker-style fact checking is extreme (Harold Ross had his fact checkers verifying the location of the Empire State Building), but in this lawsuit-happy era, it seems like you can never go too far to verify a fact. Also be aware that in libel cases, the amount of time a writer had before publication counts. The more time a writer had to fact check something, the more accountable he is. A newspaper writer is up against a daily deadline; a biographer often has months or even years to complete a project. The newspaper writer has far less time to fact check; thus, he would more likely get off the hook than would a book author.
To reiterate the importance of never assuming, here are some assumptions that can get writers into trouble: accusing someone of a crime without proof of conviction; associating someone with a group (especially an unsavory group like a cult) without proof of association; describing someone's incompetence instead of describing the situation; accusing someone of unchaste or sexually unscrupulous acts.
If you're in doubt about whether you should publish a particular story, consider it from an ethical standpoint. Is the subject a public figure or a private one? If the person is a private figure, consider whether his or her activities are of general interest to the public. If it's an older news story involving private figures, like a decades-old unsolved murder case, consider whether the story is still of interest to the public. If the story has been forgotten by the general public and is particularly scandalous, dredging it up again could be grounds for a suit. Make sure you fact check everything you can. Knowing that public records about the person and/or events you're describing are readily available, and using them, may make you less liable for libel.
If you're writing fiction and are basing a character on a real person, try to keep that character minor and use as few identifying details as possible so that the character can't be recognized as a real person. Change identifying details or mix up several real people's identifying characteristics. Or try sticking to using public figures, although they can claim that their right of publicity has been invaded. You can also stick to writing about a dead person, private or public, but be aware that if that person can be identified, you can be sued for mental distress. And also be aware that suits are on the rise involving similar names. So if you're going to write about a concierge who works at the Four Seasons named Larry who is a serial killer by night, you should check with the Four Seasons to be sure that such a person doesn't work there. Again, it's always best to cover your bum by checking your facts and being overly careful than to leave your bum exposed and ready for a good, swift kick.
Also know that many larger publishers have a legal department that will assist them in determining if any parts of your book could pose future problems. If you're working with a smaller publisher or are self-publishing, it might be worth your while to invest in the services of a lawyer to read your manuscript and identify any potential problem spots. For instance, a local publisher is planning to publish a fictional book by "Fake Steve Jobs" that is a spoof on the real Steve Jobs (Apple CEO) and his life. The book is so obviously a parody, and the material is fictionalized and marketed as such, so it got the legal okay. But if the book tried to pass itself off as nonfiction--say, if the cover said "Steve Jobs" instead of "Fake Steve Jobs" or if the book didn't brand itself as being fiction--well. Things would hit that proverbial fan.
Chances are, if you're writing about other people, you're going to say something that's going to offend somebody (which isn't always a bad thing). Make sure you're aware of the problems you could potentially be up against and use a little common sense to guide you during the writing process. If something feels like it might cause a problem, seek help from a professional (like a lawyer) before someone else decides to turn it into a problem. Yes, we live in a lawsuit-happy society, but we also happen to live in a country that values its free speech (though post-9/11 some may contest this) so proceed with caution but don't let the fear of a lawsuit keep you from proceeding at all.
BOOKS THAT ARE USEFUL:
How to Be Your Own Literary Agent, by Richard Curtis (again).
The Writer's Legal Companion, by Brad Bunnin and Peter Beren. One's a lawyer and the other works in the publishing biz. A dream team.
Literary Law Guide for Authors, by Tonya Marie Evans and Susan Borden Evans. A pair of attorneys spell everything out rather clearly. They even include a handy CD-ROM with copies of all the appropriate copyright forms and etc. that they refer to within the book that you can print out.
Monday, July 16, 2007
Proponents and Opponents to the CTEA, and Changes to CopyRighteous
As with any worthwhile cause/fight, the CTEA has those who support it and those who oppose it. And when it comes to public domain, people who are somehow invested in intellectual property get pretty passionate.
Supporters of the CTEA were, unsurprisingly, copyright holders, especially entertainment corporations like Disney and artist estates. (Some people even called the CTEA the "Mickey Mouse Act" because Disney wanted to prevent old Mickey Mouse cartoons from becoming public domain works.) Opponents to the CTEA included libraries, scholars, researchers, and educators.
In the previous entry, I went over some of the reasons why Congress passed the CTEA. These were all reasons the proponents of the CTEA agreed with. If their creations (or their parents' or grandparents' creations or their corporations creations) were permitted to go into the public domain, the proponents would no longer benefit financially from them. Some proponents also argued that if these works were allowed to go into the public domain that they'd be converted from their original purpose into something perverse or unrecognizable. So in addition to the benefits of exploitation, the proponents wanted to maintain creative control over these copyrighted works.
Opponents argued that the continual lengthening of copyright terms meant that there was no limit to the time frame Congress could grant to copyright holders and their estates. The longer these terms became, opponents argued, the closer the U.S. slipped to perpetual copyright--something that would eliminate the addition of new works to the public domain entirely. Opponents also argued that the majority of copyrighted works were only profitable the first few years after they were created, and then either went out of print or otherwise became unprofitable. By extending the terms of copyright, these works were being kept out of the public domain--where they could potentially be discovered by others--for a longer period of time. Due to this limited period of profitability for most copyrighted works, opponents argued, there was little economic incentive for most people to have such a long copyright term. It only really made sense for corporations and franchises and for those wildly successful artistic works that are few and far between.
But the public domain doesn't encourage the creation of new works, argued CTEA proponents. The incentive to create new works lay in the fact that copyright protected the author's work (and paid off for the author's descendants) in the event that the work did become financially successful.
Opponents countered by saying that the public domain needed to be constantly replenished in order for artistic creation to continually flourish. Artists needed to be able to draw on previous works without fear of infringement. Besides, said opponents to CTEA, preventing works from going into the public domain is harmful because it prevents access to the many intellectual property works that are not famous or commercially exploited and that are not available for the public to access and use due to the extended copyright. Sometimes the copyright holders of these works die without an estate, or forget they even own a copyright, or just disappear. And many of these people's works become what is known as orphan works--works that are no longer in print or easily accessible to the public but that, due to copyright terms and extensions, aren't due to be in the public domain for who knows how long because no one knows if the holder is alive or dead. Orphan books are a fascinating chapter of copyright that I do hope I can explore more deeply in the future.
Another reason CTEA opponents clamored against it is that evolving technologies like the Internet and other forms of digital media mean that there are many more avenues for people to access intellectual property. Having a bigger public domain means that more material would be available to more people. But proponents of CTEA want to exploit these new media as new revenue streams.
Constitutional scholar Lawrence Lessig and electronic publisher Eric Eldred took the case that copyright extension was unconstitutional to the Supreme Court in Eldred v. Ashcroft. You can read more about the case here and an article by Lawrence Lessig here that explain more about it. Also good to read is the following article debunking the "myth" of public domain. (Be forwarned: it's long. Really long. And it has many footnotes. I wish I could share my humorous comments that I made on it throughout, but I have no idea how I'd upload a PDF on here.)
I honestly have much more to say about public domain and my thoughts on it. I believe that the public domain is a good thing, and I believe that having access to works such as orphan works is vitally important. I believe that evolving technologies are making the sharing of information so easy that to deprive people of works they should be able to access but can't is a detriment to society. But I also believe that the creators of intellectual property should have a right to benefit from their creations, and to allow their next of kin to benefit from them as well. So I hope that copyright terms are not extended again, because with people's longer life spans, that means that it will take even longer for works to reach the public domain. I am also glad for things like Creative Commons, which allows people to choose how much copyright they want to keep and to what degree they want to protect their work.
Clearly, there's much more to say, and I do hope to carry on this discussion about Creative Commons, orphan books, and online publishing and cataloging projects like Google Books. But I've actually decided to take this project in a different direction for the duration of the semester, and I hope you'll all join me for the ride.
For the remainder of my project, I've chosen to focus on how copyright affects authors. It's all fine and good to talk about all of this stuff theoretically (which I've been doing for the most part until now), but now I'd like to apply it in a very real context that is relevant to my career choice of publishing and that also applies to many of my readers and colleagues, who are authors or involved with authors themselves. I'll be examining some cases in publishing involving writers' rights issues and I'll be looking at copyright issues in the context of author contracts. I'll also take a look at subsidiary rights. Basically it'll be a look at the legal process that goes into making a book and the ecconomics of copyright. So my hope is that this will serve as a sort of go-to guide for people who want to know more about their rights as writers.
Once the project ends and I've completed this leg of it, I'll probably continue to read and post about some of the other issues I mentioned above, because they really do interest me, so I hope you'll all stay tuned...
Supporters of the CTEA were, unsurprisingly, copyright holders, especially entertainment corporations like Disney and artist estates. (Some people even called the CTEA the "Mickey Mouse Act" because Disney wanted to prevent old Mickey Mouse cartoons from becoming public domain works.) Opponents to the CTEA included libraries, scholars, researchers, and educators.
In the previous entry, I went over some of the reasons why Congress passed the CTEA. These were all reasons the proponents of the CTEA agreed with. If their creations (or their parents' or grandparents' creations or their corporations creations) were permitted to go into the public domain, the proponents would no longer benefit financially from them. Some proponents also argued that if these works were allowed to go into the public domain that they'd be converted from their original purpose into something perverse or unrecognizable. So in addition to the benefits of exploitation, the proponents wanted to maintain creative control over these copyrighted works.
Opponents argued that the continual lengthening of copyright terms meant that there was no limit to the time frame Congress could grant to copyright holders and their estates. The longer these terms became, opponents argued, the closer the U.S. slipped to perpetual copyright--something that would eliminate the addition of new works to the public domain entirely. Opponents also argued that the majority of copyrighted works were only profitable the first few years after they were created, and then either went out of print or otherwise became unprofitable. By extending the terms of copyright, these works were being kept out of the public domain--where they could potentially be discovered by others--for a longer period of time. Due to this limited period of profitability for most copyrighted works, opponents argued, there was little economic incentive for most people to have such a long copyright term. It only really made sense for corporations and franchises and for those wildly successful artistic works that are few and far between.
But the public domain doesn't encourage the creation of new works, argued CTEA proponents. The incentive to create new works lay in the fact that copyright protected the author's work (and paid off for the author's descendants) in the event that the work did become financially successful.
Opponents countered by saying that the public domain needed to be constantly replenished in order for artistic creation to continually flourish. Artists needed to be able to draw on previous works without fear of infringement. Besides, said opponents to CTEA, preventing works from going into the public domain is harmful because it prevents access to the many intellectual property works that are not famous or commercially exploited and that are not available for the public to access and use due to the extended copyright. Sometimes the copyright holders of these works die without an estate, or forget they even own a copyright, or just disappear. And many of these people's works become what is known as orphan works--works that are no longer in print or easily accessible to the public but that, due to copyright terms and extensions, aren't due to be in the public domain for who knows how long because no one knows if the holder is alive or dead. Orphan books are a fascinating chapter of copyright that I do hope I can explore more deeply in the future.
Another reason CTEA opponents clamored against it is that evolving technologies like the Internet and other forms of digital media mean that there are many more avenues for people to access intellectual property. Having a bigger public domain means that more material would be available to more people. But proponents of CTEA want to exploit these new media as new revenue streams.
Constitutional scholar Lawrence Lessig and electronic publisher Eric Eldred took the case that copyright extension was unconstitutional to the Supreme Court in Eldred v. Ashcroft. You can read more about the case here and an article by Lawrence Lessig here that explain more about it. Also good to read is the following article debunking the "myth" of public domain. (Be forwarned: it's long. Really long. And it has many footnotes. I wish I could share my humorous comments that I made on it throughout, but I have no idea how I'd upload a PDF on here.)
I honestly have much more to say about public domain and my thoughts on it. I believe that the public domain is a good thing, and I believe that having access to works such as orphan works is vitally important. I believe that evolving technologies are making the sharing of information so easy that to deprive people of works they should be able to access but can't is a detriment to society. But I also believe that the creators of intellectual property should have a right to benefit from their creations, and to allow their next of kin to benefit from them as well. So I hope that copyright terms are not extended again, because with people's longer life spans, that means that it will take even longer for works to reach the public domain. I am also glad for things like Creative Commons, which allows people to choose how much copyright they want to keep and to what degree they want to protect their work.
Clearly, there's much more to say, and I do hope to carry on this discussion about Creative Commons, orphan books, and online publishing and cataloging projects like Google Books. But I've actually decided to take this project in a different direction for the duration of the semester, and I hope you'll all join me for the ride.
For the remainder of my project, I've chosen to focus on how copyright affects authors. It's all fine and good to talk about all of this stuff theoretically (which I've been doing for the most part until now), but now I'd like to apply it in a very real context that is relevant to my career choice of publishing and that also applies to many of my readers and colleagues, who are authors or involved with authors themselves. I'll be examining some cases in publishing involving writers' rights issues and I'll be looking at copyright issues in the context of author contracts. I'll also take a look at subsidiary rights. Basically it'll be a look at the legal process that goes into making a book and the ecconomics of copyright. So my hope is that this will serve as a sort of go-to guide for people who want to know more about their rights as writers.
Once the project ends and I've completed this leg of it, I'll probably continue to read and post about some of the other issues I mentioned above, because they really do interest me, so I hope you'll all stay tuned...
Tuesday, June 26, 2007
Five to Ten and 100K: Copyright Infringement
My friend Chris asked in an earlier entry’s comments section what sorts of punishments are doled out for copyright infringers. Like all other things copyright-related, charges of infringement are tinged with gray.
In the easiest cases, it’s nearly black and white: a creator who holds a copyright can point to another person who has clearly stolen his work, line for line, and who has passed it off as his own or used it for personal or financial gain. When copyright was in its infancy, this was the only way that a case for infringement could be brought to court: if an exact replica had been made. This overly simplified take was soon outgrown by the burgeoning creative marketplace, and rulings in infringement suits began to lean more heavily on intuition and subjectivity rather than only the letter of the law (which was already somewhat clouded with gray). These cases fall under the term “substantial similarity”—legalese for copying that is not verbatim. Herein begins the mass of swirling gray, because “substantial similarity” is highly subjective.
The majority of copyright infringement cases today regard substantial similarity rather than literal word-for-word copying. Whereas previously Plaintiff Polly could only have a case against Defendant Danny if he reproduced her short story verbatim (or very close to verbatim), Polly may now have a case if she thinks Danny has stolen the plot line or characters from her story.
Wait a minute, you’re saying. I remember that you explained to us from the start that only the expression of ideas is copyrightable, not the ideas themselves. So how can Danny get sued for using the same plot as Polly? Isn’t the plot just an idea? And come to think of it, aren’t there supposed to be only a few dozen plot lines existent in literature anyway? (Meaning that pretty much every writer everywhere ever has infringed.) To all this I say—a perfect example of the glorious ambiguity that is copyright!
Determining someone’s guilt or innocence in an infringement case takes into consideration several factors.
1. KNOWLEDGE. If a defendant had no prior knowledge of the work he infringed (so if Danny never read any of Polly’s stories), then he’s off the hook. Sort of. Of course there’s a loophole: If the plaintiff (Polly) can prove that the defendant (Danny) was exposed to her work, even if he has forgotten it—so, in essence, subconscious knowledge—then she may be able to win her case. So let’s say that one day in the waiting room of his doctor’s office, Danny skimmed through an old issue of the New Yorker looking at snippets of stories without paying much attention to the fact that they were written by Polly. This means that he has subconscious knowledge of Polly’s writing. This loophole strikes me as particularly ridiculous, because how much of what we do, say, and create comes from our subconscious? A hell of a lot, I tend to think. How can someone even prove something like this, I wonder? I’m imagining mind probes or something similarly sinister. Moving on.
2. ORIGINALITY. In other words, is the plaintiff’s work itself validly copyrighted, or did the plaintiff herself infringe on another’s work, knowingly or not? Is Polly a conscious or unconscious/subconscious infringer herself? If the plaintiff herself is found to have infringed in any way, her claim to the copyright of those elements becomes invalid, which means the defendant could possibly be off the hook.
3. PROTECTABILITY. The court must also examine whether the material can be copyrighted or if it cannot—like an idea, a historical fact, and so on. This can often prove to be no easy task. For instance, in Polly’s case, the court would have to determine just how closely Danny’s alleged infringement encroaches on Polly’s work. Are both story plots something commonly found in literature, like a love triangle, or does Polly’s contain a unique twist (say, one of the members of said love triangle is a cockatiel) that Danny’s also contains? Are both main characters the typically tragically flawed hero, or does something unique set them apart? (For instance, both Polly’s and Danny’s protagonists have a speech impediment and a fondness for Gouda, both are orphans, and both solve crimes with the aid of a Pekinese.) If the similarities seem to be more than mere coincidences, then a case for infringement can be made. But if the similarities seem more general and coincidental (both protagonists are named Charles and wear glasses, for instance), then there tends to be less of a case for infringement.
4. SUBJECT. This piggybacks on number 3. The subject matter affects how similar the two works in question are, so courts must examine the intent of each work. When looked at individually, Polly and Danny may have characters or plot lines that are similar when looked at in isolation, but when looked at in the context of the whole piece, differences may be found. (Polly’s story is a serious literary work whereas Danny’s story is a very funny piece poking fun at society.) Courts examine these cases not in an analytical, dissect-every-detail fashion but rather as observers—as consumers of the product. Of course this method works better for creative works than for more technical works such as computer software. But just because only one element of another’s work appear in an otherwise original work doesn’t mean that infringement hasn’t occurred. Danny’s story may only have copied Polly’s bizarre love triangle and nothing else, but the court may still rule it as an infringement. As with everything copyright related, nothing is set in stone.
So let’s say defendant Danny is finally found guilty of copyright infringement. What are the damages? Let’s back up one step first. In order for someone in the U.S. to even sue for copyright infringement, the copyright must be registered, and that registration must be done within three months of first publication or prior to the infringement if the work is unpublished if the person wants to collect statutory damages and legal fees. Even though registration of copyright is no longer required in the U.S., it’s still a good way to cover your bum legally.
The conditions for suing a copyright infringer are:
• the case must be brought in federal court within three years of the infringement;
• the copyright must be registered;
• only the copyright owner(s) can sue.
What does the plaintiff get if the infringer loses the case?
• The actual damages (such as compensation for lost profits, tarnished reputation, and lost business opportunities)
• Any profits the infringer made from the infringed work, if these profits exceed the plaintiff’s lost profits
• Possible reimbursement of court costs and attorney’s fees
If a plaintiff can’t prove the actual damages inflicted by the infringer, statutory damages may be in order. These can be no lower than $200 and no higher than $20,000 for unwillful infringement; willful infringement can fetch as much as $100,000 or higher. Willful infringers can be sent to jail and/or fined in the six-figure range if they are criminally prosecuted, but these tend to occur primarily in cases against pirates, smugglers, and software “Robin Hoods” (arrrgh, walk the plank, ye scurvy knave!). Plaintiffs, whether they receive damages or not, may be able to get injunctive relief that forbids the infringer from infringing further.
I’m sure that some of the infringement cases brought to court are really ludicrous, and I’m actually pretty rattled by the subconscious stipulation. I’m sure that if someone were willing to take things far enough if could be argued that just about everything we create stems from some prior subconscious exposure to it. It seems difficult or even impossible to prove that another person who unknowingly infringed on your work had subconscious prior knowledge of it.
Consider a situation from my own life: my freshman year of college, I wrote a one-act play for a class about a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work. And a few months after my play was written and graded (I got an A, thankyouverymuch), the movie Office Space was released, a movie where the main character is a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work.
I’ve pointed out the similarity between the two to my friends, and I was actually quite proud that I’d managed to beat the curve and write something trendy. But whereas Office Space went on to become a huge cult classic, my play has been seen by perhaps a grand total of twenty-three people (I’m being generous here). So does this mean that if one day my play does happen to become a huge off-Broadway hit that Mike Judge can sue me for infringement, even though I wrote my play and staged it before I was even consciously aware of the existence of Office Space and before it had been released in theaters? Am I an infringer? Did I subconsciously feed off of Mike Judge’s creative vibe and channel it into my own play?
So there you have it. The muddled messes of fair use and copyright infringement. Seems like you’re damned if you do and you’re damned if you don’t. It almost makes me wonder how anyone is brave enough to pick up a pen at all anymore to create anything new. I’ve had similar feelings of apprehension; I had started plotting out a novel and adding in elements when I realized that some of the elements were similar to another novel that I had read about a year prior. I hadn’t been thinking about that particular novel at the time I was writing my own plot line, but as I wrote the plot I was shocked to realize the similarities. Was it my subconscious dredging up the memory of the novel I’d read the previous year? Or was it just such a common plot element that a lot of novelists like to throw it into their plot lines? I was so stunned that I’d seemingly recreated another novelist’s book without even thinking about it that I stopped working on the novel, putting it aside to work on some other time. I haven’t touched it since.
COMING SOON
I’ll be examining some famous infringement cases and offering my insights in a future entry. And I’ll be talking about the tangled web of public domain.
FURTHER READING
The Copyright Book: A Practical Guide (Fifth Edition) by William S. Strong
This book provides excellent advice to all creative types out there in easy-to-understand, legalese-free language.
In the easiest cases, it’s nearly black and white: a creator who holds a copyright can point to another person who has clearly stolen his work, line for line, and who has passed it off as his own or used it for personal or financial gain. When copyright was in its infancy, this was the only way that a case for infringement could be brought to court: if an exact replica had been made. This overly simplified take was soon outgrown by the burgeoning creative marketplace, and rulings in infringement suits began to lean more heavily on intuition and subjectivity rather than only the letter of the law (which was already somewhat clouded with gray). These cases fall under the term “substantial similarity”—legalese for copying that is not verbatim. Herein begins the mass of swirling gray, because “substantial similarity” is highly subjective.
The majority of copyright infringement cases today regard substantial similarity rather than literal word-for-word copying. Whereas previously Plaintiff Polly could only have a case against Defendant Danny if he reproduced her short story verbatim (or very close to verbatim), Polly may now have a case if she thinks Danny has stolen the plot line or characters from her story.
Wait a minute, you’re saying. I remember that you explained to us from the start that only the expression of ideas is copyrightable, not the ideas themselves. So how can Danny get sued for using the same plot as Polly? Isn’t the plot just an idea? And come to think of it, aren’t there supposed to be only a few dozen plot lines existent in literature anyway? (Meaning that pretty much every writer everywhere ever has infringed.) To all this I say—a perfect example of the glorious ambiguity that is copyright!
Determining someone’s guilt or innocence in an infringement case takes into consideration several factors.
1. KNOWLEDGE. If a defendant had no prior knowledge of the work he infringed (so if Danny never read any of Polly’s stories), then he’s off the hook. Sort of. Of course there’s a loophole: If the plaintiff (Polly) can prove that the defendant (Danny) was exposed to her work, even if he has forgotten it—so, in essence, subconscious knowledge—then she may be able to win her case. So let’s say that one day in the waiting room of his doctor’s office, Danny skimmed through an old issue of the New Yorker looking at snippets of stories without paying much attention to the fact that they were written by Polly. This means that he has subconscious knowledge of Polly’s writing. This loophole strikes me as particularly ridiculous, because how much of what we do, say, and create comes from our subconscious? A hell of a lot, I tend to think. How can someone even prove something like this, I wonder? I’m imagining mind probes or something similarly sinister. Moving on.
2. ORIGINALITY. In other words, is the plaintiff’s work itself validly copyrighted, or did the plaintiff herself infringe on another’s work, knowingly or not? Is Polly a conscious or unconscious/subconscious infringer herself? If the plaintiff herself is found to have infringed in any way, her claim to the copyright of those elements becomes invalid, which means the defendant could possibly be off the hook.
3. PROTECTABILITY. The court must also examine whether the material can be copyrighted or if it cannot—like an idea, a historical fact, and so on. This can often prove to be no easy task. For instance, in Polly’s case, the court would have to determine just how closely Danny’s alleged infringement encroaches on Polly’s work. Are both story plots something commonly found in literature, like a love triangle, or does Polly’s contain a unique twist (say, one of the members of said love triangle is a cockatiel) that Danny’s also contains? Are both main characters the typically tragically flawed hero, or does something unique set them apart? (For instance, both Polly’s and Danny’s protagonists have a speech impediment and a fondness for Gouda, both are orphans, and both solve crimes with the aid of a Pekinese.) If the similarities seem to be more than mere coincidences, then a case for infringement can be made. But if the similarities seem more general and coincidental (both protagonists are named Charles and wear glasses, for instance), then there tends to be less of a case for infringement.
4. SUBJECT. This piggybacks on number 3. The subject matter affects how similar the two works in question are, so courts must examine the intent of each work. When looked at individually, Polly and Danny may have characters or plot lines that are similar when looked at in isolation, but when looked at in the context of the whole piece, differences may be found. (Polly’s story is a serious literary work whereas Danny’s story is a very funny piece poking fun at society.) Courts examine these cases not in an analytical, dissect-every-detail fashion but rather as observers—as consumers of the product. Of course this method works better for creative works than for more technical works such as computer software. But just because only one element of another’s work appear in an otherwise original work doesn’t mean that infringement hasn’t occurred. Danny’s story may only have copied Polly’s bizarre love triangle and nothing else, but the court may still rule it as an infringement. As with everything copyright related, nothing is set in stone.
So let’s say defendant Danny is finally found guilty of copyright infringement. What are the damages? Let’s back up one step first. In order for someone in the U.S. to even sue for copyright infringement, the copyright must be registered, and that registration must be done within three months of first publication or prior to the infringement if the work is unpublished if the person wants to collect statutory damages and legal fees. Even though registration of copyright is no longer required in the U.S., it’s still a good way to cover your bum legally.
The conditions for suing a copyright infringer are:
• the case must be brought in federal court within three years of the infringement;
• the copyright must be registered;
• only the copyright owner(s) can sue.
What does the plaintiff get if the infringer loses the case?
• The actual damages (such as compensation for lost profits, tarnished reputation, and lost business opportunities)
• Any profits the infringer made from the infringed work, if these profits exceed the plaintiff’s lost profits
• Possible reimbursement of court costs and attorney’s fees
If a plaintiff can’t prove the actual damages inflicted by the infringer, statutory damages may be in order. These can be no lower than $200 and no higher than $20,000 for unwillful infringement; willful infringement can fetch as much as $100,000 or higher. Willful infringers can be sent to jail and/or fined in the six-figure range if they are criminally prosecuted, but these tend to occur primarily in cases against pirates, smugglers, and software “Robin Hoods” (arrrgh, walk the plank, ye scurvy knave!). Plaintiffs, whether they receive damages or not, may be able to get injunctive relief that forbids the infringer from infringing further.
I’m sure that some of the infringement cases brought to court are really ludicrous, and I’m actually pretty rattled by the subconscious stipulation. I’m sure that if someone were willing to take things far enough if could be argued that just about everything we create stems from some prior subconscious exposure to it. It seems difficult or even impossible to prove that another person who unknowingly infringed on your work had subconscious prior knowledge of it.
Consider a situation from my own life: my freshman year of college, I wrote a one-act play for a class about a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work. And a few months after my play was written and graded (I got an A, thankyouverymuch), the movie Office Space was released, a movie where the main character is a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work.
I’ve pointed out the similarity between the two to my friends, and I was actually quite proud that I’d managed to beat the curve and write something trendy. But whereas Office Space went on to become a huge cult classic, my play has been seen by perhaps a grand total of twenty-three people (I’m being generous here). So does this mean that if one day my play does happen to become a huge off-Broadway hit that Mike Judge can sue me for infringement, even though I wrote my play and staged it before I was even consciously aware of the existence of Office Space and before it had been released in theaters? Am I an infringer? Did I subconsciously feed off of Mike Judge’s creative vibe and channel it into my own play?
So there you have it. The muddled messes of fair use and copyright infringement. Seems like you’re damned if you do and you’re damned if you don’t. It almost makes me wonder how anyone is brave enough to pick up a pen at all anymore to create anything new. I’ve had similar feelings of apprehension; I had started plotting out a novel and adding in elements when I realized that some of the elements were similar to another novel that I had read about a year prior. I hadn’t been thinking about that particular novel at the time I was writing my own plot line, but as I wrote the plot I was shocked to realize the similarities. Was it my subconscious dredging up the memory of the novel I’d read the previous year? Or was it just such a common plot element that a lot of novelists like to throw it into their plot lines? I was so stunned that I’d seemingly recreated another novelist’s book without even thinking about it that I stopped working on the novel, putting it aside to work on some other time. I haven’t touched it since.
COMING SOON
I’ll be examining some famous infringement cases and offering my insights in a future entry. And I’ll be talking about the tangled web of public domain.
FURTHER READING
The Copyright Book: A Practical Guide (Fifth Edition) by William S. Strong
This book provides excellent advice to all creative types out there in easy-to-understand, legalese-free language.
Monday, June 18, 2007
Fair Use, or, How Xerox Changed Everything
So. Up until this point, what I've been learning has pretty much emphasized the fact that material protected by copyright is just that--protected from unauthorized copying. But what happens as technologies evolve and make the copying of protected materials increasingly easier?
Photocopying was like the shot heard 'round the copyrighted world. The rise of the Xerox photocopier in prominence as an office must-have (starting in the 1960s) made it extremely easy for anyone to create copies of documents and other photocopiables at whim, due to the fact that now entirely new plates didn't have to be made any time someone wanted to print something. Office workers must have thrown crumpled balls of carbon paper jubilantly in celebration, but publishers were probably more uneasy. Didn't this rise in new technology mean bad times on the horizon?
Not really. What it did mean was a reexamination of copyright law and the kinds of instances where it was permissable for an entity to create copies without asking permission or compensating the owner--fair use.
Let's pause here and say that the whole concept of copyright has some nebulous qualities about it. If you really think about it, the fact that you are protecting the expression of an idea can make your brain start to warp a little. But add fair use into the mix and you've got a fairly twisted mind implosion. There are no brightly drawn dilineating lines when it comes to fair use. It is the grayest of gray areas.
What is it, exactly? Fair use is a tenet of copyright law that allows for copies to be sans permission or compensation while following a set of guidelines. Fair use is allowed in certain contexts--for instance, educational purposes, research purposes, business, personal use, and such. There are certain criteria which must be met and followed for the use of copyrighted materials to be considered fair use and not copyright infringement (which is illegal).
An interesting case that brought the issue of fair use in libraries to the forefront (with "forefront" here meaning, "Hey, Congress, you should probably maybe eventually take a look at this and mull it over and perhaps make some changes, eh?") was the case in the late 1960s of Williams and Wilkins (a publisher) versus the National Library of Medicine and the National Institutes of Health. To summarize: The NIH had subscriptions to a great quantity of research journals and made photocopies of these available to researchers and doctors, but they didn't get permissions before making and sending off these copies. Most of the journals, published by nonprofits, didn't seem to give a hoot that this was happening. But Williams and Wilkins, a for-profit publisher whose journal articles were being copied without seeking permission, gave many hoots. They argued that the NIH's free distribution of these articles would undercut their already relatively limited subscriber base. The NIH countered that it was essential that the articles contained within all their journals, including the Williams and Wilkins journals they subscribed to, be made available upon request by researchers. Giving the information when it was requested, they said, was part of fulfilling their mission. "We get that," said Williams and Wilkins. "We just want a little compensation. How about a paltry fee paid to us for using our articles?" The NIH said: NO. Other libraries backed them up
The case ended in the NIH's favor, which made libraries everywhere happy. When the Copyright Act was up for revision in 1976, libraries lobbied for exemptions to allow photocopying sans exemptions. What they got instead was section 108 of the Copyright Act of 1976. This somewhat garbled section allowed libraries some fair use photocopying. This included making copies to replace or preserve documents or copies made for researchers when the original can't be provided, as in the case of interlibrary loans. Photocopiers in libraries also had to display signs warning patrons about copyright law. (Come to think of it, the photocopier at my office also has such a warning on it, which I suppose is the college covering its bum in case anything were ever to happen bordering on infringement, but considering that we just use the machine to copy office documents, the sign seems like overkill.)
I could get much more in-depth with this, but I want to focus now on another case that raised some red flags in my head: photocopies made for the classroom. Surely you've received photocopied articles or literary passages from your professors (or have made them), or you may even have received one of those "course packets"--you know, the stack of photocopies bound with a plastic spiral binding that inevitably gets snagged in the sleeve of your sweater. Anyway. These all constitute photocopies made for the classroom, for educational purposes. And all these photocopies have presumably been made because the teacher or professor first secured permission from the copyright holders and compensated them fairly. Right?
In theory, that's what's supposed to happen. But who exactly should be responsible for making sure that these permissions have been secured: should it be the responsibility of the individual professor to ensure that this happens, or does the responsibility ultimately fall upon the school? Guidelines were drawn up for fair use in the classroom (with the classroom being a nonprofit setting), which were, as all government guidelines tend to be, muddled. These copies had to meet a brevity requirement (word count), a spontaneity requirement (a piece not being used over and over), and a cumulative effect requirement, which is so muddled I'm not sure if I understand it. (According to Samuels in "Illustrated History" [see reading list below]: "generally no more than nine instances of multiple copying per course per term, with further limits on the number of works by any particular author" [26]. To which I say, HUH?) Seriously, you need an additional Ph.D. just to understand all these guidelines. What's a professor to do? Hem and haw and try to figure out in which instances he needs permissions, or just photocopy the passages from his portable Nietzche and hope that no one catches him and cares?
In a case brought against NYU in the early 1980s regarding fair use in educational settings, the very matter came up as to whose responsibility it was to ensure that educational fair use guidelines were being followed: professors or the professors' institution of employ. And in a blow to educators, it was decided that the university had to tell professors to either follow the guidelines or get the necessary permissions. The university would provide the professors with legal guidance as to whether the copying they wanted to do was kosher or not. But basically, the university played Pontius Pilate, washing its hands, ultimately, of responsibility and thrusting it instead upon individual professors.
Upon learning about this case, I felt this telltale surging in my gut that happens whenever I have uncovered a case of "that's so not fair." As someone who fervently loves education and who deeply respects and admires educators (mostly because I'd never want their jobs myself), I couldn't believe that an institution that is made upon the labors of these educators was willing to throw them to the wolves in terms of fair use. An educational institution is only as good as its faculty, but if the institution isn't willing to get behind its faculty and support them, how are we supposed to interpret that?
Not to mention the fact that this laissez faire on the part of the universities could seriously impact the quality of education of their students. I can remember many times receiving some sort of photocopied document from teachers and professors that contained knowledge I wouldn't have gotten otherwise--the book was out of print, there were too many different short story collections we would have had to buy to get such variety, the magazine was difficult to procure. These professors shared these materials with us in order to better us, to teach us and give us knowledge. They had no deviant ulterior motive. They had no desire to fleece the publisher and author. They just wanted to share ideas with us. And to know that these people could have been punished and potentially not supported by the institution that hired them just makes me really upset. It seems truly unethical. With all the other things professors have to worry about, obtaining permissions is yet another burden to add to overloaded plates. Not to mention the fact that many times the materials professors hand out copies of are timely. Were the professor to wait and obtain permission to photocopy and give us students this article on a news item, it would hardly be newsworthy by the time we got the copies.
So while I've only very briefly gone over the nebulous fair use guidelines, the most important thing to know is that they tend to raise as many questions as they try to answer. And I feel that all the nit-picky worrying over potential copyright infringement could make the sharing of information more difficult, thus putting a clamp on learning. What do you all think? Is it a good idea to allow educational institutions and libraries fair use guidelines? Should they not be exempt at all and have to pay for permission to use works? Or should fair use be even more generous so that ideas and knowledge can be exchanged even more easily? What about the NYU case? Have any educators had to worry about fair use violation? Has it stopped any of you from using materials in the classroom that would have been of great benefit to your students? Any thoughts you have on fair use are welcome.
FOR FURTHER READING:
All things copyright, plus fun pictures and anecdotes: The Illustrated Story of Copyright by Edward Samuels
More sordid details on the Williams and Wilkins case: Copyright's Highway by Paul Goldstein
Legalese on fair use: http://www.title17.com/contentLegMat/legmat.html
Association of Research Libraries' copyright timeline, with lots of interesting links throughout: http://www.arl.org/pp/ppcopyright/copyresources/copytimeline.shtml
NEXT TIME: So we've covered some instances of fair use of copyrighted materials in places like libraries and schools. But what about you, Mr. or Ms. Private Citizen, sitting at home taping shows off the TV or photocopying your favorite poems on the office copier? Are you an infringer? Or is your bum covered too? Stay tuned.
COMING SOON: What's public domain? How have changes to copyright law affected public domain? And why should you care?
Photocopying was like the shot heard 'round the copyrighted world. The rise of the Xerox photocopier in prominence as an office must-have (starting in the 1960s) made it extremely easy for anyone to create copies of documents and other photocopiables at whim, due to the fact that now entirely new plates didn't have to be made any time someone wanted to print something. Office workers must have thrown crumpled balls of carbon paper jubilantly in celebration, but publishers were probably more uneasy. Didn't this rise in new technology mean bad times on the horizon?
Not really. What it did mean was a reexamination of copyright law and the kinds of instances where it was permissable for an entity to create copies without asking permission or compensating the owner--fair use.
Let's pause here and say that the whole concept of copyright has some nebulous qualities about it. If you really think about it, the fact that you are protecting the expression of an idea can make your brain start to warp a little. But add fair use into the mix and you've got a fairly twisted mind implosion. There are no brightly drawn dilineating lines when it comes to fair use. It is the grayest of gray areas.
What is it, exactly? Fair use is a tenet of copyright law that allows for copies to be sans permission or compensation while following a set of guidelines. Fair use is allowed in certain contexts--for instance, educational purposes, research purposes, business, personal use, and such. There are certain criteria which must be met and followed for the use of copyrighted materials to be considered fair use and not copyright infringement (which is illegal).
An interesting case that brought the issue of fair use in libraries to the forefront (with "forefront" here meaning, "Hey, Congress, you should probably maybe eventually take a look at this and mull it over and perhaps make some changes, eh?") was the case in the late 1960s of Williams and Wilkins (a publisher) versus the National Library of Medicine and the National Institutes of Health. To summarize: The NIH had subscriptions to a great quantity of research journals and made photocopies of these available to researchers and doctors, but they didn't get permissions before making and sending off these copies. Most of the journals, published by nonprofits, didn't seem to give a hoot that this was happening. But Williams and Wilkins, a for-profit publisher whose journal articles were being copied without seeking permission, gave many hoots. They argued that the NIH's free distribution of these articles would undercut their already relatively limited subscriber base. The NIH countered that it was essential that the articles contained within all their journals, including the Williams and Wilkins journals they subscribed to, be made available upon request by researchers. Giving the information when it was requested, they said, was part of fulfilling their mission. "We get that," said Williams and Wilkins. "We just want a little compensation. How about a paltry fee paid to us for using our articles?" The NIH said: NO. Other libraries backed them up
The case ended in the NIH's favor, which made libraries everywhere happy. When the Copyright Act was up for revision in 1976, libraries lobbied for exemptions to allow photocopying sans exemptions. What they got instead was section 108 of the Copyright Act of 1976. This somewhat garbled section allowed libraries some fair use photocopying. This included making copies to replace or preserve documents or copies made for researchers when the original can't be provided, as in the case of interlibrary loans. Photocopiers in libraries also had to display signs warning patrons about copyright law. (Come to think of it, the photocopier at my office also has such a warning on it, which I suppose is the college covering its bum in case anything were ever to happen bordering on infringement, but considering that we just use the machine to copy office documents, the sign seems like overkill.)
I could get much more in-depth with this, but I want to focus now on another case that raised some red flags in my head: photocopies made for the classroom. Surely you've received photocopied articles or literary passages from your professors (or have made them), or you may even have received one of those "course packets"--you know, the stack of photocopies bound with a plastic spiral binding that inevitably gets snagged in the sleeve of your sweater. Anyway. These all constitute photocopies made for the classroom, for educational purposes. And all these photocopies have presumably been made because the teacher or professor first secured permission from the copyright holders and compensated them fairly. Right?
In theory, that's what's supposed to happen. But who exactly should be responsible for making sure that these permissions have been secured: should it be the responsibility of the individual professor to ensure that this happens, or does the responsibility ultimately fall upon the school? Guidelines were drawn up for fair use in the classroom (with the classroom being a nonprofit setting), which were, as all government guidelines tend to be, muddled. These copies had to meet a brevity requirement (word count), a spontaneity requirement (a piece not being used over and over), and a cumulative effect requirement, which is so muddled I'm not sure if I understand it. (According to Samuels in "Illustrated History" [see reading list below]: "generally no more than nine instances of multiple copying per course per term, with further limits on the number of works by any particular author" [26]. To which I say, HUH?) Seriously, you need an additional Ph.D. just to understand all these guidelines. What's a professor to do? Hem and haw and try to figure out in which instances he needs permissions, or just photocopy the passages from his portable Nietzche and hope that no one catches him and cares?
In a case brought against NYU in the early 1980s regarding fair use in educational settings, the very matter came up as to whose responsibility it was to ensure that educational fair use guidelines were being followed: professors or the professors' institution of employ. And in a blow to educators, it was decided that the university had to tell professors to either follow the guidelines or get the necessary permissions. The university would provide the professors with legal guidance as to whether the copying they wanted to do was kosher or not. But basically, the university played Pontius Pilate, washing its hands, ultimately, of responsibility and thrusting it instead upon individual professors.
Upon learning about this case, I felt this telltale surging in my gut that happens whenever I have uncovered a case of "that's so not fair." As someone who fervently loves education and who deeply respects and admires educators (mostly because I'd never want their jobs myself), I couldn't believe that an institution that is made upon the labors of these educators was willing to throw them to the wolves in terms of fair use. An educational institution is only as good as its faculty, but if the institution isn't willing to get behind its faculty and support them, how are we supposed to interpret that?
Not to mention the fact that this laissez faire on the part of the universities could seriously impact the quality of education of their students. I can remember many times receiving some sort of photocopied document from teachers and professors that contained knowledge I wouldn't have gotten otherwise--the book was out of print, there were too many different short story collections we would have had to buy to get such variety, the magazine was difficult to procure. These professors shared these materials with us in order to better us, to teach us and give us knowledge. They had no deviant ulterior motive. They had no desire to fleece the publisher and author. They just wanted to share ideas with us. And to know that these people could have been punished and potentially not supported by the institution that hired them just makes me really upset. It seems truly unethical. With all the other things professors have to worry about, obtaining permissions is yet another burden to add to overloaded plates. Not to mention the fact that many times the materials professors hand out copies of are timely. Were the professor to wait and obtain permission to photocopy and give us students this article on a news item, it would hardly be newsworthy by the time we got the copies.
So while I've only very briefly gone over the nebulous fair use guidelines, the most important thing to know is that they tend to raise as many questions as they try to answer. And I feel that all the nit-picky worrying over potential copyright infringement could make the sharing of information more difficult, thus putting a clamp on learning. What do you all think? Is it a good idea to allow educational institutions and libraries fair use guidelines? Should they not be exempt at all and have to pay for permission to use works? Or should fair use be even more generous so that ideas and knowledge can be exchanged even more easily? What about the NYU case? Have any educators had to worry about fair use violation? Has it stopped any of you from using materials in the classroom that would have been of great benefit to your students? Any thoughts you have on fair use are welcome.
FOR FURTHER READING:
All things copyright, plus fun pictures and anecdotes: The Illustrated Story of Copyright by Edward Samuels
More sordid details on the Williams and Wilkins case: Copyright's Highway by Paul Goldstein
Legalese on fair use: http://www.title17.com/contentLegMat/legmat.html
Association of Research Libraries' copyright timeline, with lots of interesting links throughout: http://www.arl.org/pp/ppcopyright/copyresources/copytimeline.shtml
NEXT TIME: So we've covered some instances of fair use of copyrighted materials in places like libraries and schools. But what about you, Mr. or Ms. Private Citizen, sitting at home taping shows off the TV or photocopying your favorite poems on the office copier? Are you an infringer? Or is your bum covered too? Stay tuned.
COMING SOON: What's public domain? How have changes to copyright law affected public domain? And why should you care?
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