On April 28, 2011, an IP reiver who hides behind the pseudonym Laughingwolf posted the entirety of the section of my September 20th, 2010 post “Ernest C. Withers and the F.B.I.” devoted to the Withers matter at his blog, Loopy Lair: The Home of Laughingwolf. No link to my original post, no credit to me — thus tacitly claiming authorship of this essay for himself. That behavior has a name: plagiarism.
Laughingwolf’s Blogger profile indicates only that he’s male, lives somewhere around Toronto, and works in the arts as a “writer/animator,” which means he should know about IP rights and has no excuse for these actions. “Loopy Lair” has been online at Blogger since December 2006; my browsing thereof suggests that all text and image content there (aside from visitor comments and Laughingwolf’s replies thereto) gets pirated from other sites, sometimes with credit to the original source, often, as in my case, with none.
The blatancy of this fraud, which I discovered on August 25, brought out my own inner wolf. I’ve zero tolerance for plagiarists. Dispensing with the courtesy of personal notification to Laughingwolf that I’d discovered his thieving, this time I decided to go straight for the jugular. Blogger is a Google product. It offers a “Report Abuse” function that involves reading some clear instructions about “Removing Content From Google” and then filling out a simple form. Doing so sets in motion the requirements of the Digital Millennium Copyright Act (DMCA), forcing Google — as host of the blog — to investigate expeditiously and remove promptly any offending material.
An hour later, that post was gone. Google’s “Blogger Team” emailed me subsequently to confirm this, the message opening with “Thanks for reaching out to us.” (Oh, the pervasive language of the therapeutic model . . . it’s everywhere.) Presumably Google also sent this miscreant a serious warning about his DMCA liabilities. Laughingwolf”s email address is email@example.com. Perhaps he’ll put into practice the motto of his blog, “Paws and reflect . . . ,” before he’s tempted to sin that way again.
Appropriately, Google required me to certify that I was the legal holder of the copyright to this essay. (Alternatively, one could identify oneself as the authorized representative of the copyright holder — a designated lawyer, literary agent, etc. — if that were the case.) This matters very much, because the possibility of misuse of the DMCA exists; mistakenly or maliciously, one could use it to press for the removal of material that was legally online, or even to shut down a website legitimately publishing licensed material.
Falsely claiming copyright is in fact a criminal offense, though the fine is small enough that it doesn’t seem much of a deterrent. Here’s the federal law on that:
Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500. 17 USC § 506(c)
If you publish a website or blog, then, you should know exactly how to file a DMCA counter-notice if wrongly accused of copyright infringement, because that too must be done expeditiously. The site PlagiarismToday offers a clear explanation of the counter-notice option, while The Chilling Effects Clearinghouse provides a simple counter-notification generator.
Most false claims of copyright don’t occur online, as it happens, but in print, with print publishers deceitfully putting their copyright notices onto public-domain material and soliciting licensing fees for the use thereof. This is reprehensible, and inexcusable. While I believe in the necessity of the copyright law, I also agree that copyright should have an expiration date, upon which work enters the public domain for free use by all. (For an excellent source on this abuse of copyright law, see “Copyfraud” by Jason Mazzone, Gerald Baylin Professor of Law at Brooklyn Law School. Click here for a free PDf download of his 2006 essay, originally published in the New York University Law Review.)
As noted in a previous post — “Copyright for All Primates?” from July 27, 2011 — the British news agency that licensed publication rights to a series of self-portraits by a macaque monkey tribe has implied repeatedly that it owns exclusive rights to those images and controls all subsequent usages thereof. UK law may differ from US law in this regard, but that comes perilously close to a false claim of copyright protection. I suspect that Caters News Agency Ltd. of Birmingham, UK has decided to tread carefully here, insinuating violation of copyright without actually asserting it in so many words, precisely because they have no legal grounds on which to stand and any formal threat would prove toothless.
For sophisticated but accessible takes on this situation by people with far more legal expertise than I, see “Black Macaques and a Camera Cause a Copyright Uproar,” a brief by third-year law student Mark Tratos, posted at the website Intellectual Property Brief (a publication of the Washington College of Law at American University in DC), and “Patent and Copyright Theories for Unnatural Fortuitous Creations – The Macaque Self-Portrait,” at Ryan Alley: Intellectual Property Law, the website of a respected patent attorney.
I’ve said previously that this ain’t rocket science. If I can understand the analyses to which I’ve linked above, you probably can too. Get familiar with the basics of copyright law.
In brief, copyright in a work protected under Title 17 of the U.S. Copyright Law vests initially in the author or authors of the work, and goes into effect the moment the work is embedded in some transmissible form — saved in a digital file, written down on paper, etc. Whoever creates a copyrightable work is its author and initial owner. Said owner of a copyright has the exclusive right to reproduce and duplicate the copyrighted work (among other rights).
The exception to this rule is known as “fair use.” According to the law, “[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research, is not an infringement of copyright.”
Note that to qualify as “fair use” the purpose must be not only non-commercial but in some way educational and/or editorial. That is, it’s not sufficient to create an unprofitable blog and post copyrighted material by others thereon without adding substantive commentary thereto.
Note also that “fair use” does not allow republication for such purposes of the entirety of a copyrighted work, but only small excerpts. Its function is to enable quotation of pertinent passages from the works of others — a few paragraphs of prose from an essay, a verse from a long poem, a portion of an image — in a way that encourages debate, without allowing the one doing the quoting to reproduce so much of the original that the reader or viewer no longer needs to seek out the source in order to experience the work as its author intended.
Reprinting the entirety of my essay, as Laughingwolf did so cavalierly at his blog, does not in any way qualify as “fair use.” He republished the complete text, rather than quoting one or more small portions of it; he made no comment on it; he could not claim any critical, educational, or scholarly usage of it. A slam-dunk, if I’d taken him to court. His pretense to authorship of it, implicit in his omission of my byline, added insult to injury.
I should also say that while I consider the protection afforded me by the copyright law appropriate and necessary, I also believe in the justness of the “fair use” exception thereto, when properly applied. I make use of this myself, as a researcher and scholar and author, and allow others to make use of it in relation to my own work, so long as they respect the rules that apply to “fair use.” I can’t recall ever complaining about anyone quoting an excerpt from my writing — even a lengthy one — in a non-commercial context.
I consider “A Fair(y) Use Tale,” in which Prof. Eric Faden of Bucknell University offers a tutorial on fair use in the form of a mashup of snippets from classic Disney cartoons, not just brilliant in its own right but unquestionably legal on all four points of the “fair use” exception. I commend it to you as a lucid introduction to the subject, as a demonstration of “fair use” in action (applied to a notoriously litigious rights holder while leaving the Disney Corp. with no cause for action), and as a charming entertainment in its own right.