At the end of last year we wrote about the case of Karl-Theodor zu Guttenberg, former Federal Minister of Defense in Germany, who lost both his post and his doctorate when it turned out that he had plagiarized portions of his doctoral thesis. Now the journal Science is reporting another possible case:
German Education and Research Minister Annette Schavan is facing allegations that she plagiarized parts of her dissertation, published in 1980. A Web site, called schavanplag (in German) has listed 56 incidents in which the anonymous accuser says Schavan copied phrasing from improperly cited sources.
That on its own might not be so remarkable, were it not for the fact that there have been at least two other recent cases of plagiarism by German politicians -- Silvana Koch-Mehrin in June last year, and Jorgo Chatzimarkakis a month later.
Now, I don't know what exactly the positions of all those German politicians were on unauthorised sharing of files online, but I somehow doubt that any of them approved of it. And yet they seem not to have had any qualms about copying other people's work and passing it off as their own.
Beyond the double standards involved, there's another important point to be made here, I think. Plagiarism is about denying creators attribution that is rightly theirs. When people share files online, by contrast, there is no attempt to pass them off as their own work -- the attribution is always preserved, because otherwise people wouldn't know what they were downloading.
That's probably why online sharing can sometimes increase the sales of the works involved: it's a way of signalling that you enjoy something -- and a personal recommendation is perhaps the most powerful form of marketing around. Plagiarism, on the other hand, is a conscious attempt to boost your own reputation by depriving others of the recognition they are due, with all that this implies for lost rewards.
So which is worse? And which one should German politicians be most concerned about?
In copyright circles, Mark Twain's speech to Congress in 1906 is well known as being the point at which he made clear his desire that copyright should be vastly expanded to make sure his kids kept earning money:
My copyrights produce to me annually a good deal more money than I have any use for. But those children of mine have use for that. I can take care of myself as long as I live. I know half a dozen trades, and I can invent a half a dozen more. I can get along. But I like the fifty years' extension, because that benefits my two daughter, who are not as competent to earn a living as I am, because I have carefully raised them as young ladies, who don't know anything and can't do anything. So I hope Congress will extend to them that charity which they have failed to get from me.
He later argues for infinite copyright:
The English idea of copyright, as I found, was different, when I was before the committee of the House of Lords, composed of seven members I should say. The spokesman was a very able man, Lord Thring, a man of great reputation, but he didn't know anything about copyright and publishing. Naturally be didn't, because he hadn't been brought up to this trade. It is only people who have had intimate personal experience with the triumphs and griefs of an occupation who know how to treat it and get what is justly due.
Now that gentleman had no purpose or desire in the world to rob anybody or anything, but this was the proposition--fifty years extension--and he asked me what I thought the limit of copyright ought to be.
"Well," I said, "perpetuity." I thought it ought to last forever.
Some have argued, somewhat convincingly, that Twain as actually doing a somewhat brilliant satire, which not everyone understood. That would be awesome, if true, and there are some hints that it may very well be. However, it does appear that Twain himself was somewhat more conflicted on this particular issue. Siva Vaidhyanathan has an entire chapter (pdf) of his excellent book, Copyrights and Copyrwrongs, devoted to Twain's fluctuating views on copyright. However, he does suggest that later on in life -- from 1898 onward basically -- Twain appeared to be a strong maximalist.
So it's interesting to then discover, via Joe Betsill, that during that same period, Twain argued that "the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism" and that this wasn't a bad thing. The specifics are that Twain was writing a letter to Helen Keller, who a decade earlier (at 12-years of age) had just gone through a controversy in which she was accused of plagiarizing heavily from another book for her own work, The Frost King. Twain wrote to Keller, with whom he was friendly, after learning about the plagiarism accusations:
Oh, dear me, how unspeakably funny and owlishly idiotic and grotesque was that "plagiarism" farce! As if there was much of anything in any human utterance, oral or written, except plagiarism! The kernel, the soul—let us go further and say the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism. For substantially all ideas are second-hand, consciously and unconsciously drawn from a million outside sources, and daily use by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral calibre and his temperament, and which is revealed in characteristics of phrasing. When a great orator makes a great speech you are listening to ten centuries and ten thousand men—but we call it his speech, and really some exceedingly small portion of it is his. But not enough to signify. It is merely a Waterloo. It is Wellington's battle, in some degree, and we call it his; but there are others that contributed. It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a telephone or any other important thing—and the last man gets the credit and we forget the others. He added his little mite—that is all he did. These object lessons should teach us that ninety-nine parts of all things that proceed from the intellect are plagiarisms, pure and simple; and the lesson ought to make us modest. But nothing can do that.
Then why don't we unwittingly reproduce the phrasing of a story, as well as the story itself? It can hardly happen—to the extent of fifty words except in the case of a child; its memory-tablet is not lumbered with impressions, and the actual language can have graving-room there, and preserve the language a year or two, but a grown person's memory-tablet is a palimpsest, with hardly a bare space upon which to engrave a phrase. It must be a very rare thing that a whole page gets so sharply printed on a man's mind, by a single reading, that it will stay long enough to turn up some time or other to be mistaken by him for his own. No doubt we are constantly littering our literature with disconnected sentences borrowed from books at some unremembered time and now imagined to be our own, but that is about the most we can do. In 1866 I read Dr. Holmes's poems, in the Sandwich Islands. A year and a half later I stole his dedication, without knowing it, and used it to dedicate my "Innocents Abroad" with. Then years afterward I was talking with Dr. Holmes about it. He was not an ignorant ass—no, not he; he was not a collection of decayed human turnips, like your "Plagiarism Court;" and so when I said, "I know now where I stole it, but whom did you steal it from," he said, "I don't remember; I only know I stole it from somebody, because I have never originated anything altogether myself, nor met anyone who had."
To think of those solemn donkeys breaking a little child's heart with their ignorant rubbish about plagiarism! I couldn't sleep for blaspheming about it last night. Why, their whole lives, their whole histories, all their learning, all their thoughts, all their opinions were one solid rock of plagiarism, and they didn't know it and never suspected it. A gang of dull and hoary pirates piously setting themselves the task of disciplining and purifying a kitten that they think they've caught filching a chop! Oh, dam—
That was sent in 1903. Yet just three years later, he was arguing to Congress that ideas were property and should remain in the possession of those that created them forever:
So if I could have convinced that gentleman that a book which does consist solely of ideas, from the base to the summit, then that would have been the best argument in the world that it is property, like any other property, and should not be put under the ban of any restriction, but that it should be the property of that man and his heirs forever and ever, just as a butcher shop would be, or--I don't care--anything, I don't care what it is. It all has the same basis. The law should recognize the right of perpetuity in this and every other kind of property.
Now, plagiarism and copyright are not exact equivalents -- though there can (and often is) significant overlap. But it's difficult to see how the same person can reasonably argue both points. Perhaps that lends some credence to the claims that the Congressional hearing was, in fact, satire. Either way, I think I like the 1903 Mark Twain waxing poetically on how all ideas are plagiarism much more than the 1906 Mark Twain whining about how his children are too useless to do anything and need to keep making money from his books long after he's dead.
Now here's a weird one. THResq has a report concerning Lindsay Lohan's lawyer in her ridiculous case against the rapper Pitbull. That lawyer has now been accused of plagiarizing most of a recent filing which tried to argue that Pitbull's First Amendment rights weren't an issue in the case. If you don't remember, Lohan sued Pitbull because he had a lyric in a song that reads "I got it locked up like Lindsay Lohan." According to Lohan's lawyer, this violates her publicity rights under NY state law. Publicity rights, of course, are a relatively recent phenomenon, found in various states, that are now being abused widely by semi-famous people to try to stop others from talking about them.
Lohan's lawyers seem to be particularly enamored with using publicity rights claims in new and increasingly bizarre ways. She's sued E*Trade for one of its commercials that refers to a baby named Lindsay and says she's a "milkaholic." Despite no other connection to Lohan, her lawyer insisted this was a violation of her publicity rights. Then there was the time that she threatened the jewelry store from which she took a necklace, leading to her arrest. What was the threat about? Believe it or not, the claim was that the video store surveillance footage was a violation of her publicity rights. Yeah.
Either way, Pitbull's lawyers filed their motion to dismiss (pdf) not too long ago, arguing that Lohan failed to state a legitimate claim:
... the First Amendment bars her claims because the Song is protected artistic expression. Moreover, the incidental use of Ms. Lohan's name was not for advertising and trade purposes and therefore is not proscribed by Section 51 as a matter of plain and unmistakable law. Ms. Lohan's remaining causes of action are equally baseless, since she has not -- and cannot -- allege facts warranting injunctive relief, monetary damages for severe emotional trauma or a finding of unjust enrichment.
Honestly, this should be a pretty easy case to dismiss, and I'd be surprised if the judge let it go much further. However, Lohan's lawyer, Stephanie Ovadia responded to that with an opposition filing that rambles on bizarrely about a variety of topics from the First Amendment to publicity rights to trademark law to consciousness (seriously, see below), with little effort to actually explain what that has to do with the case. For example, there are random discussions of "non-verbal expression," tattoos, inciting lawless behavior, trademark infringement, celebrity look-alikes and whether or not any of that is covered by the First Amendment. Of course, absolutely none of that has anything whatsoever to do with the case at hand or the issues it raises. Nor does Ovadia even attempt to try to connect these issues to the case.
There are also just some outright bizarre parts in the filing:
The threshold of consciousness is the dividing line between something that can be processed by the conscious mind and something that enters the subconscious mind without any such processing. A hidden message is not intense enough to produce a sensation but has sufficient intensity to influence the behavior and mental processes of one's mind. The decisions the conscious mind makes are based upon the knowledge and reasoning skills one has developed through experience and education....
It goes on in the same manner for a few more sentences, never once even coming anywhere near a legal point, nor referencing any part of the case.
Pitbull's lawyers quickly hit back with a filing (pdf) and exhibit (pdf) of their own, noting that Lohan's filing doesn't actually address the pretty clear legal issues raised in their initial motion... and also pointing out that perhaps the reason the filing is so nonsensical is because nearly all of it is plagiarized from random web sources, which they highlight in a handy chart. That bizarre quoted text above apparently comes from the Thinkquest library, which appears to be a project of the Oracle Education Foundation, and whose content is "created by students around the world who have participated in a ThinkQuest Competition."
Other sources include a bunch of copied paragraphs from the Thomas Jefferson Center for the Protection of Free Expression (who, I would guess, would likely come down on Pitbull's side in this case), the LA Times, the Association for Corporate Counsel's website, some presentation about publicity rights found on Docstoc, some law firm websites and a variety of other sources. I'm not a lawyer, but it's not hard to read the filing and wonder what the hell Ovadia was thinking. As THResq wonders, beyond helping to make sure that this case is unlikely to live much longer, the cutting-and-pasting throughout the legal filing might actually expose Lohan and Ovadia to copyright infringement charges themselves, especially from the law firms whose content was copied.
Update: Eriq Gardner, who wrote the THResq story has an update:
Reached for comment, Ovadia's office pointed the finger at Anand Ahuja, of counsel at the firm, who wrote the brief.
Ahuja was contacted too and says that he turned in "4 or 5 drafts to Stephanie, who looks like somehow by mistake submitted the first one."
He adds that typically his first draft includes footnotes and references and that it gets amended along the way, but that the submission was turned in past the judge's deadline, stripped of his footnotes, and that it was Ovadia's job to review it before signing and filing the document.
None of that makes Ovadia or her law firm look very good. First, I love the finger pointing between the two lawyers in the press. It's like reality TV inside a law firm. Second, Ovadia's name is on the filing. It doesn't matter if Ahuja wote it, she should have read it and realized that it was almost entirely nonsensical. Third, I don't know how they write "drafts" but cutting and pasting huge chunks of totally irrelevant information -- including a treatise on consciousness, just doesn't seem like a particularly reasonable practice.
Curebit, a Y Combinator startup that just closed a round of funding from Dave McClure’s 500 Startups fund, has been caught red-handed stealing HTML code, images, and the like from 37signals.
Leaving aside the usual point that Curebit's employees almost certainly didn't break into 37signal's office and physically remove all the HTML code and images in the way that the word "stealing" suggests, here's how Curebit tried to justify its actions with the following rather weak excuse:
We had a different homepage, were a/b testing different pages, came across the 37signals post and were like 'wow we should see how that converts!' We are big fans of rails and what 37signals is doing and did not really think through the implications of what we were doing. We just kind of thought about it as a fun test to run.
Unsurprisingly, that didn't convince many people, and eventually, Curebit apologized -- sort of:
Recently we launched a site with several pages copied from 37signals’ Highrise. We did more than take inspiration from their design – we actually used html & css code, and hotlinked to images on their site. We apologize to David and 37signals for ripping off their work. It was stupid, lazy, and disrespectful of their creative efforts.
Curebit still doesn't seem to be admitting that what it did was wrong, although most people would say that it was. But there is an interesting discussion to be had about what exactly it did wrong.
The prevailing view, outside of Hollywood, seems to be that IP creators need to accept that copying is here to stay and that criminalising a “victimless” activity is stupid. Make it easy for us to pay for stuff and we won’t have to steal it.
And yet when the victim isn’t a big evil Hollywood mogul (or one of the tens of thousands of people who work for him) but one of our own… well, then IP thieves should be dragged through the streets until they tearfully apologise. What’s the difference?
Well, one difference is that most of the things that people copy and share are simply enjoyed in private, not displayed on a company's public web site for people to see and admire. That means that there is an element of passing off here – plagiarism, in other words. Carr addresses the possibility that the anger provoked by Curebit's actions was down to the fact that it was plagiarism rather than simple copyright infringement:
Is it, as some argued on Twitter when I asked the question earlier, that plagiarism is different from copyright theft? No. And not least because plagiarism is copyright theft. Like most copyright theft, plagiarism doesn’t deprive the creator of their original work and is usually committed by someone who is too lazy or cheap to acquire or create something legally.
Well, Curebit's wrongdoing may well be copyright infringement and plagiarism, but the latter is still very different from the former, and Carr himself goes on to identify exactly why:
The only real difference is that in plagiarism the infringer is usually pretending to be the creator of someone else’s work.
This is the cardinal sin in a world based on reputation. If you build on somebody else's work, you must give attribution for that work, just as you must cite your source if you blog or tweet a story you have learned about from someone else.
Reputation is the glue that holds together all of the hugely-successful open collaborative software projects like Linux or Apache: there's no money involved (at least, not directly), but people are paid in terms of the respect they earn from their peers for what they do and how well they do it. Failing to acknowledge the fact that you are using their work is tantamount to disrespecting that code -- and hence the norms of the community.
That, I think, is why parts of the developer world world reacted so violently to Curebit's use of 37signal's code and images. If Curebit had admitted what it was doing up front, with full acknowledgement of the provenance of the work, and noted that it was building on 37signal's code as an act of respect, I suggest that few would have cared. The community norms would have been maintained, 37signal's reputation would have been enhanced, and its coders would have received the kudos that was rightfully theirs.
So this is not, as Carr suggests, a case of double standards on copyright infringement. The "infringement" here -- which undoubtedly exists according to the letter of the law – is irrelevant for a community that has placed sharing and collaboration at its heart. This is not about who owns what, but about who respects whom -- and shows it in the appropriate way.
It's really quite amazing how frequently those who support more draconian copyright laws seem to be caught up in ethically dubious copying. We just had the example of the Hollywood astroturf group, CreativeAmerica, pretty blatantly "remixing" an anti-SOPA email alert from Public Knowledge, and turning it into a pro-SOPA argument. But this next one seems even worse. SOPA supporters, such as the MPAA and the very same Creative America, seemed overjoyed to point folks to an opinion piece in the Salt Lake Tribune by the state's attorney general, Mark Shurtleff, claiming to support SOPA and PIPA.
Just one little tiny problem... there appears to be a fair bit of evidence that Shurtleff "copied" his work from elsewhere and simply "remixed" the work of others. TorrentFreak goes into great detail how many of the statements in the opinion piece supposedly written by Shurtleff, have appeared elsewhere from pro-SOPA folks.
To back up this claim we will highlight a few sentences from the Attorney General’s article, and compare them with those previously delivered by the MPAA and affiliated pro-copyright groups.
The first sentence that caught our attention is: “It will take a strong, sustained effort to stop Internet thieves and profiteers.”
Strong words, but also familiar ones. In fact, former MPAA President Bob Pisano uttered exactly the same words in 2010 when he congratulated the Senate Judiciary Committee with unanimously approving the COICA bill, the predecessor to SOPA and PIPA.
They go on to find lots of other rather complex phrases that show up in both Shurtleff's "new" opinion piece... and lobbying efforts from times past. In fact, the whole thing seems like a classic "remix" -- cutting and pasting lots of works from elsewhere, and creating something "new" out of it. Who knows if this reaches the legal standard for copyright infringement... but it certainly calls into serious question either the legitimacy of the op-ed... or, the competence of Shurtleff. Once again, we think such remixing is good and should be allowed. But it's pretty crazy to argue for laws like SOPA... and do so with what certainly sounds like plagiarized phrases from elsewhere.
European Commission Vice-President Neelie Kroes has invited Karl-Theodor zu Guttenberg, a former Federal Minister of Defence, and of Economics and Technology, in Germany, to advise on how to provide ongoing support to Internet users, bloggers and cyber-activists living under authoritarian regimes. This appointment forms a key element of a new "No Disconnect Strategy" to uphold the EU's commitment to ensure human rights and fundamental freedoms are respected both online and off-line, and that internet and other information and communication technology (ICT) can remain a driver of political freedom, democratic development and economic growth.
Of course, that's rather rich coming from a region where France already allows disconnections as punishments (HADOPI), and where the UK has legislation in place that will allow it to do the same (Digital Economy Act). But it turns out that the ironies are even deeper.
The reason that Karl-Theodor zu Guttenberg -- once seen as a likely successor to Germany's current Chancellor, Angela Merkel -- is no longer the Federal Minister of Defence, and of Economics and Technology, is that he resigned when it emerged that he had plagiarized significant parts of his doctorate.
After initial denials, Guttenberg was forced to admit the extent of his plagiarism thanks largely to a crowdsourced wiki called GutenPlag (original German) offering "collaborative documentation of plagiarism", which went through his thesis searching for passages taken from elsewhere without acknowledgement. In total, it claims to have found "1218 plagiarized fragments from 135 sources, on 371 out of 393 pages (94.4%), in 10421 plagiarized lines (63.8%)." There's even an interactive, color-coded visualization of what happened where.
Certainly, Guttenberg has been punished: as well as losing his position in the German government, he was also stripped of his doctorate. But his appointment as (unpaid) advisor to the "No Disconnect Strategy" raises a question. Is somebody whose downfall was mostly brought about by a website and its crowdsourced revelations really the right person to lead a project that aims to support online activists?
There is also the issue of Guttenberg's multiple copyright infringements. This was investigated with a view to charges being brought, but then, as Wikipedia explains:
In November 2011, the prosecution dropped the charges, having found 23 relevant copyright violations but only marginal economic damage. Guttenberg had to make a payment of 20,000 Euros to a charitable foundation, the court ruled.
In jurisdictions with extreme copyright laws, that "marginal economic damage" argument wouldn't be enough to protect those accused of infringement from prosecution or from being disconnected. So again the question has to be: is Guttenberg really going to understand what "No Disconnect" means to human rights activists living under authoritarian regimes when he got off so lightly himself?
The professor, Panagiotis Ipeirotis, wrote a very detailed blog post about what happened, but after it went viral online, and some others expressed concerns that it may have violated the privacy of some students, he took the post down. The Chronicle of Higher Education had a mirror of the post up for a while, but have since taken it down. What was really amazing is that Ipeirotis spends much of the post explaining just how "effective" his efforts to catch cheaters was. He was mainly using the (somewhat controversial) service Turnitin, and certainly found a lot of folks who were clearly copying answers from elsewhere. Reading just the first part of the post would make you think this had all been a huge success and that Ipeirortis was actually singing the praises of such software.
But he's not. The key point was that it absolutely destroyed classroom morale. Rather than coming to class each day eager to learn, students (apparently even those who weren't cheating) just weren't as happy about the overall learning experience in the classroom. And part of that may have come from Ipeirotis, who notes that he spent a ton of time that semester "dealing with" cheaters and his general distrust may have carried over into the classroom. He notes that the whole class was a lot less fun and a lot less focused on actually learning.
That was clear in the classroom and later came through in the evaluations, which were significantly lower than usual -- which also resulted in him getting a smaller raise. While some responded to the blog post by focusing just on the evaluations and the raise, he noted later that the evaluations was a lesser issue compared to the more general one, and in a later post, he noted it was the other issue that was the real problem:
Even if I had received a $1M bonus from NYU for my efforts, the basic problem would still be there: the teaching experience would degenerate into a witch hunt, focusing on cheating, instead of being about learning. And yes, I would still write the same blog post even if I were fully satisfied with my annual evaluation. In fact, the blog post was in my folder of draft posts for a few months now, long before receiving my annual evaluation.
This is a key point that we've been trying to make about enforcement in the copyright world. Even when it seems "effective," the overall environment -- created by suing fans, by trying to lock down technologies, by pursuing new draconian laws and by blaming people for sharing information -- is simply toxic. It's not a positive environment in which new beneficial ideas and solutions come forth readily. It's an angry us-vs.-them world, rather than a "let's learn and solve problems together" world.
And just as we've suggested all sorts of new business models that simply take "infringement" out of the equation, Ipeirotis similarly suggests that professors get around the whole cheating/plagiarism issue not by trying to crack down on cheating, but on creating situations where cheating is impossible or less effective:
He suggested several options. You could require that projects be made public, which would risk embarrassment for someone who wanted to copy from a past semester. You could assign homework where students give class presentations and then are graded by their peers, ratcheting up the social pressure to perform well. And you could create an incentive to do good work by turning homework into a competition, like asking students to build Web sites and rewarding those that get the most clicks.
The simple fact is that some people will always find a way to infringe, just as some people will always find a way to cheat. But plenty of others will not. Plenty of people want to support the content creators they like, just as plenty of people at universities really do want to learn. What many who focus on enforcement and punishment don't realize is that creating an environment that focuses solely on punishing those who infringe or cheat does have serious and significant spillover effects and unintended consequences on the rest of the "market/class." If, instead, you focus on the people who do want to support or who do want to learn, and provide them with a positive environment to do so, it actually ends up creating consequences in the other direction -- often turning around those who wanted to infringe or to cheat, and turning them into good actors as they see what's happening around them.
The folks at Attrition.org have been tracking a guy named Gregory Evans who runs LIGATT Security for a while now. Evans apparently hypes himself up as a fantastic hacker, though Attrition suggests he's not all that skilled in reality. Still he's been able to get himself a fair amount of press over the years, though Attrition obviously thinks he doesn't deserve it. One thing that Attrition has spent a lot of time on is showing that Evans has a history of plagiarizing content in his "books." However, the folks at Attrition contacted us, a few months ago, to let us know that Evans was using a Techdirt article in one of his books. The "book" is what Evans calls a "scrapbook," supposedly of a bunch of articles about computer security, including at least one of ours. Evans claimed that he got permission to reprint every article in his book, and Attrition decided to see if that was true.
As we told them at the time, we were unaware of any request for permission from Evans, but in our case, that didn't matter. As we've stated repeatedly, our content is free for people to use, and we consider it to be in the public domain. With that, I figured we were done with it, but Attrition has now put out their article on the results of their research (including our response), and they couldn't find anyone who said they had, in fact, given Evans explicit permission to use their work (it's not clear if anyone even received a request).
In our case, we stand by the fact that we (perhaps alone of all the sources he copied from) don't mind the fact that he decided to reprint our stuff. That's cool. Anyone can do that. But what struck me as interesting, was this bit:
It is also worth noting that Evans tries to establish a copyright on the book, despite the fact that every article he used is already copyrighted:
"No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form, or by any means; -- electronic, mechanical, photocopying, recording or otherwise, without permission from the original author."
This disclaimer is laughable, as Evans himself did not obtain permission to use all of the articles contained in the book. Worse, in using the articles without permission while charging $39.95 for the book, he is profiting off these copyright infringements.
While we're fine with him re-using our works, one thing that we're not at all okay with is him then claiming copyright over it or otherwise trying to then limit the reuse of our works by others. That's copyfraud. As for the others in the book, I would imagine they're even less pleased, since it appears that most, if not all, of the others whose works were used do consider their works their own copyrighted material, and did not sell that copyright to Evans.
This is pretty funny. When it comes to the ridiculous and totally unnecessary idea for a fashion copyright, we've discussed three different academics who support the bill, and are often held up as the leading voices behind getting fashion copyright passed. We've talked a few times about Susan Scafidi, who is probably the most vocal supporter of the law. However, last year, we also wrote about Jeannie Suk and Scott Hemphill, based on a Boston Globe article, mainly playing up Suk's (a Harvard professor) role in writing the actual law for Senator Chuck Schumer. Our article mainly focused on the paper that Suk and Hemphill wrote about fashion copyrights, which we found to be chock full of some of the most ridiculously bad economics around, including the positively laughable claim that competition is bad because it reduces profits and hinders innovation.
Either way, Schumer clearly liked being able to use a "Harvard law professor's" research as cover for this ridiculously bad bill, and it was no surprise that both Suk and Scafidi were apparently among those recently called to testify before Congress about the bill. However, we received a note from someone going by the pseudonym "Untenured Colleague," who has put up an entire blog that appears to be dedicated to the claim that Suk and Hemphill "plagiarized" significant parts of their paper from Scafidi. The "Untenured Colleague," notes the irony of someone pushing for laws against copying allegedly copying others.
To be honest, I tend to find calls of "plagiarism" pretty silly, most of the time. If people are building on each other's ideas, is that really so bad? Though within academic circles, it's certainly quite a charge. But I do find some irony in someone in favor of stricter anti-copying laws even being accused of copying, because those in favor of the laws often underestimate just how quick people are to accuse others of copying. I have no idea if Suk and Hemphill plagiarized from Scafidi at all. You can look at the chart this "colleague" put together or a more detailed explanation and make your own decision as to the legitimacy of the claims.
Frankly, I'm not at all sure that the actions rise to the level of plagiarism. It certainly appears that Suk uses similar phrases, terminology and ideas as Scafidi has, but it's not uncommon for those advocating the same thing to do exactly that. I regularly see people advocating the same position I've taken, using nearly identical phrases and arguments that I've used (and even coined!), and I have no doubt that I've done the same to others without realizing it. But, really, what strikes me about this whole thing is that it demonstrates one of the serious problems with expanding copyright, especially into highly innovative areas like fashion design. People see "copies" in all sorts of things, and are quick to accuse others of copying, whether it's legit or not. Adding such a law in a highly competitive, thriving and innovative industry is just going to create a rash of unnecessary lawsuits, as different designers accuse one another of "copying." That may be good for lawyers, but it's not good for the industry and it's certainly not good for the public.
Whenever I speak about Free Culture at schools, I'm asked "what about plagiarism?" Copying and plagiarism are two quite different things, and you don't need copyright to deal with plagiarism. To make this clearer, I made a one-minute meme song and video about it:
As Mimi demonstrates with the giant Copy Machine, copying a work means copying its attribution too:
just copy the credit along with the work
When people copy songs and movies, they don't change the authors' names. Plagiarism is something else: it's lying. If Copyright has anything to do with plagiarism, it's that it makes it easier to plagiarize (because works and their provenance aren't public and are therefore easier to obscure and lie about) and increases incentive to do so (because copying with attribution is as illegal as copying without, and including attribution makes the infringement more conspicuous). American Copyright law does not protect attribution to begin with; it is concerned only with "ownership," not authorship. Many artists sign their attributions away with the "rights" they sell, which is why it can be difficult to know which artists contributed to corporate works.
I chose Beethoven to illustrate how copyright has nothing to do with preventing plagiarism. All Beethoven's work is in the Public Domain. Legally, you can take Ludwig van Beethoven's songs, Jane Austen's novels, or Eadweard Muybridge's photographs and put any name you want on them. Go ahead! You're at no risk of legal action. Your reputation may suffer, however, and you definitely won't be fooling anyone. If anyone has doubts, they can use that same copy machine - the Internet - to sort out who authored what. Lying is very difficult in a public, transparent system. A good analog to this is public encryption keys: their security comes from their publicity.
The song says "always give credit where credit is due," but in many cases credit is NOT due. For example, how many credits should be at the end of this film? I devoted about two and a half seconds to these credits:
Movie and Song by Nina Paley Vocals by Bliss Blood
But I could have credited far more. In fact, the credits could take longer than the movie. Here are some more credits:
Ukelele: Bliss Blood Guitar: Al Street Recorded by Bliss Blood and Al Street
What about sound effects? Were it not for duration constraints, this would be in the movie:
Every single sound effect in the cartoon was made by someone. Should I credit each one? Crash-wobble by (Name of Foley Artist Here). Cartoon zip-run by (Name of Other Foley Artist Here). And so on: dozens of sound effects were used in the cartoon, and each one had an author. What about the little noises Mimi & Eunice make? Not only could the recording engineer be credited, but the voice actor as well (as far as I know, these were both Greg Sextro).
I included a few seconds of Beethoven's Fifth Symphony at the end, which I didn't credit in the movie. Should I have? Why or why not?
I could credit the characters:
Starring: Mimi Eunice & Special Guest Appearance by Ludwig van Beethoven
I could be more detailed in crediting myself:
Lyrics and Melody by Nina Paley Character design: Nina Paley Animation: Nina Paley Produced by Nina Paley Directed by Nina Paley Edited by Nina Paley Backgrounds by Nina Paley Color design by Nina Paley Layout: Nina Paley Based on the comic strip "Mimi & Eunice" by Nina Paley
The ass drawing also came from Wikimedia Commons, where it's credited to Pearson Scott Foresman. But who actually drew it? I have no idea. I doubt that Pearson Scott Foresman could even legally claim the copyright on it to "donate" to Wikimedia in the first place, but there they are, getting credit for it instead of an artist. That's because copyright is only concerned with "ownership," not authorship.
Then there's the software I used, good old pre-Adobe Macromedia Flash. Should I credit the software? What about the programmers who contributed to the software? I also used a Macintosh computer (I know, I know, when Free Software and Open Hardware come close to doing what my old system does, I'll be the first to embrace it) and a Wacom Cintiq pen monitor. How many people deserve credit for these in my movie?
Mimi and Eunice themselves were "inspired" by many historical cartoons. Early Disney and Fleischer animations, the "rubber hose" style, Peanuts, this recent cartoon, and countless other sources I don't even know the names of - but would be compelled to find out, if credit were in fact due. Is it?
And so on. It is possible to attribute ad absurdum. So where is credit due? It's complicated, the rules are changing, and standards are determined organically by communities, not laws. I had to edit the song for brevity, but I kind of wish I hadn't excised this line:
A citation shows us where we can get more of all the good culture that Free Culture's for
Attribution is a way to help your neighbor. You share not only the work, but information about the work that helps them pursue their own research and maybe find more works to enjoy. How much one is expected to help their neighbor is determined by (often unspoken) community standards. People who don't help their neighbors tend to be disliked. And those who go out of their way to deceive and defraud their neighbors - i.e. plagiarists - are hated and shunned. Plagiarism doesn't affect works - works don't have feelings, and what is done to one copy has no effect on other copies. Plagiarism affects communities, and it is consideration for such that determines where attribution is appropriate.
At least that's the best I can come up with right now. Attribution is actually a very complicated concept; if you have more ideas about it, please share.