Ethical Plagiarism Fighting
By Jonathan Bailey • May 5th, 2006 • Category: Articles, DMCA, Legal IssuesThe actions of copyright holders are under more scrutiny than ever.
News coverage regarding large copyright clearinghouses, namely the RIAA and the MPAA, have put the steps we, as small artists, take to protect our copyright in the public light and in a very hostile way. Worse still, the problem has been compounded by unpopular laws, including the DMCA, which have been used by some to silence critics and stifle legitimate speech.
Underneath all of this, there has been a tremendous undercurrent of small artists having their work plagiarized and genuinely ripped off. For every million-selling recording artist that’s losing record sales to file sharing network (a notion that is up for debate), there are thousands of writers, artists and musicians that are having their content plagiarized that have no or limited access to attorneys and relief in the court system.
Despite this, in many circles, public opinion is decidedly against copyright holders, even small ones with very legitimate concerns. To some people, protecting your copyright, even from plagiarists, is viewed as a negative thing.
Thus, it is no longer adequate to simply be “in the right”. We have to make sure that the actions we take are not just legal, but also ethical in nature. Thus, I am proposing a set of loose standards for ethical plagiarism fighting. Please note that these articles are currently in draft status and will be updated, perhaps as a separate page, as feedback comes in.
1. Copyright holders should not, under any circumstance, use existing copyright laws to impede fair use rights, silence critics, or resolve unrelated legal matters (IE: Trademark, libel, etc.).
While many times critics as well as individuals infringing on other personal/business rights, do cross lines and infringe on copyright as well, many times copyright laws are used to bring quick ends to these matters because they are easy and inexpensive to apply.
This only cheapens the rights of content creators everywhere and fosters a hostile attitude toward those wanting to legitimately protect their copyright. While copyright infringement, especially plagiarism, is serious and should be dealt with, using copyright laws simply as leverage to silence unwanted criticism or resolve other disputes, even when it is within the letter of the law, but not the spirit, should not be tolerated.
2. Copyright holders should carry themselves in a professional and courteous manner at all times.
Though plagiarism often involves heated emotions, especially when personal works are taken, it’s important to maintain yourself in a polite, courteous, but stern manner at all times. Name-calling, personal attacks and threats have no place in this fight.
3. Copyright holders should first try to resolve matters in private whenever possible.
Though many people, when they discover plagiarism, first attempt to try the case in the court of public opinion, such moves are dangerous and often do more to harm the reputation of copyright holders than plagiarists.
Copyright holders, whenever possible, should try to resolve such matters with the plagiarists themselves, whether through C&D letters or other forms of personal communication. DMCA notices and other techniques should be reserved for occasions when the plagiarists is unresponsive or can not be contacted directly.
Handling matters this way allows plagiarists to comply in a way that will not necessarily destroy their own work, can prevent people who made an innocent mistake from suffering unneeded consequences and can help educate plagiarists about copyright law.
4. Copyright holders should offer a clear and concise copyright policy on their site. Either through a Creative Commons License or a policy that they write themselves.
It’s important that those seeking to protect their copyrights do everything in their power to prevent theft before it happens, including having a clearly-written copyright policy. Such a policy would provide a clear message about what is and is not acceptable use of the work and offer a stern warning for those who seek to infringe.
This “fair warning” not only reduces plagiarism by a sizable percent and produces a more favorable legal climate, but also prevents confusion among potential plagiarists about their rights. No one who oversteps those rights can say that they weren’t warned or that they didn’t know that what they were doing was wrong.
This is a simple step that not only makes good policy, but good ethical sense. Copyright trolls and others who don’t think about copyright until it’s time to ambush plagiarists greatly hinder others attempts to stop serious acts of infringement.
5. Copyright Infringement should be dealt with as expeditiously as possible.
Matters of plagiarism and copyright infringement should be dealt with as quickly as possible, Intentionally sitting on a case of plagiarism might not only jeopardize one’s legal options, but also one’s ethical standing.
6. Copyright holders should try to build good relationships with hosts, administrators and other “gatekeepers”.
In order to effectively combat plagiarism, copyright holders should attempt to forge positive and constructive relationships with administrators whenever possible. An atmosphere of cooperation greatly aids artists in getting infringing works removed, shields hosts against potential legal action and prevents plagiarism from putting down roots at any one place.
7. Copyright holders should have a fundamental understanding of copyright law and both the rights of the creator of the work and the public.
Though no one reasonably expects your average writer/artist/musician to be a bona fide legal expert on copyright, especially regarding intricate areas such as fair use, having a fundamental knowledge of copyright law helps a copyright holder not only protect their works, but prevent them from trampling on the rights of others.
Also, Webmasters and other content creators should take the time to understand laws that affect their anti-plagiarism activities, such as the DMCA, and strive to apply those laws both correctly and fairly.
8. Finally, copyright holders online should operate with the understanding that reasonable sharing is a value that rests at the foundation of the Web.
There are many times in which the reuse of an item might technically be a violation of one’s copyright but is well within the spirit of the Web. Those who hold a strict interpretation of copyright law and want to protect all of their rights to the letter of the law need to accept that, while plagiarism and content theft are definite sins on the Web, reasonable sharing is both commonplace and expected.
Clamping down on socially accepted reuse not only aids those rallying to whittle away the rights of content creators, but also makes it more difficult to protect works from misuses that are outside both social and legal norms.
Conclusions
In the end, this piece is not intended to be a final work, but rather, something to get the conversation started. As feedback comes in on this piece, both via email and as comments, I’ll modify it and, hopefully, codify it into a final work sometime soon.
I look forward to hearing what you have to say in regards to it.
[tags]Plagiarism, Content Theft, Copyright Infringement, Copyright Law, Ethics, DMCA, RIAA, MPAA[/tags]
Jonathan Bailey is The Webmaster and author of Plagiarism Today, which he founded in 2005 as a way to help Webmasters going through content theft problems get accurate information and stay up to date on the rapidly-changing field. He is also a consultant to Webmasters and companies to help them devise practical content protection strategies and develop good copyright policies.
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Underneath all of this, there has been a tremendous undercurrent of small artists having their work plagiarized and genuinely ripped off. For every million-selling recording artist that’s losing record sales to file sharing network (a notion that is up for debate), there are thousands of writers, artists and musicians that are having their content plagiarized that have no or limited access to attorneys and relief in the court system. (emph added)
I think I know what you’re trying to say (”attention is being payed to file sharer-copyright infringers, but not to plagiarists?”), but the parallelism here is a bit lost. Plagiarism and copyright infringement are related, but not equivalent. File sharers usually maintain the identity of the artist in their ripped files because the attribution gives the copied work part of its value. This is not plagiarism, but is copyright infringement. Similarly, someone who creates a new mix out of two or more works and credits the sources of the originals is not guilty of plagiarism, but probably is guilty of copyright infringement.
I have to agree that plagiarism and copyright infringement are not the same thing, and should not be confused.
Copyright law protects the exact expression of an idea. This is what happens, for example, when someone steals someone else’s text, word for word.
However, rephrasing the same idea without giving credit to the source does constitute plagiarism, but not copyright infringement.
Plagiarism is far more subtle and difficult to fight than copyright infringement, and we not have the same legal protection.
First, since the United States does not recognize moral rights, copyright infringement is the only tort that you can bring against a plagiarist. In other countries, especially in the EU, this isn’t true. Though they are different, especially when you look at the academic sense, they legally fall under the same heading. I don’t like this, but such is life.
Also, I expanded the article at somewhat the last minute to encompass other kinds of infringement. I can see rereading things that I was not as thorough as previously thought I do need to correct a few things to be at least technically correct.
The question I want to put to you guys, and anyone else reading this, is what do you think of the rules and ideals? Verbiage aside, text can be rewritten, how are the principles? Is there anything that needs to be removed or added?
Thank you for pointing out the issues and for the ideas. I will definitely incorporate them soon.
“The question I want to put to you guys, and anyone else reading this, is what do you think of the rules and ideals?”
I would like to understand the problem better. I’m skeptical about Welch’s idea from the Boston Globe article–that we have a plagiarism epidemic simply because the web makes it easy to copy and paste. That may be part of it, but there is a more fundamental failure of beliefs and values.
Plagiarism is becoming acceptable–not as a “good thing” (yet) but as a “no big deal” thing. We are not talking about a segment of criminals doing this, but the average person.
Fighting plagiarism comes down to teaching that stealing is wrong. Seriously. How do we teach this to an adult? Is it even possible?
How can people not know or understand this (or care), already? This is what blows my mind.
I find it incomprehensible that I would have to go after people to ask them not to steal from me. What is this, the Twilight Zone?
I’m not proposing giving up, but I’m overwhelmed by the scope of the problem, which goes far beyond blogs or web pages, and can’t be solved by putting a copyright notice at the bottom of the page. Legislation is not going to solve this problem, either.
Maybe the question is, how can we make plagiarism very, very, very uncool, when “everyone else does it”? Then again, shame would not be enough.
How do we teach right from wrong, to someone who thinks those concepts are completely relative?
The point you make is valid. One of the problems, and one of the reasons that I wrote this, is because plagiarists are becoming confused with file sharers. Just innocent kids that want to listen to music.
Copyright has become a dirty word.
Personally, when dealing with plagiarism, I’ve always focused on the fact that plagiarism is a lie. You lie by saying that a work is yours when you know full and well that it is not.
Everyone knows that lying is wrong, even children.
I support copying, the CC organization and the open source movement. I draw the line though when people try to own the whole of, not just a copy of, my work.
One of the first steps that we could take is advancing moral rights in the U.S. If that were to pass, plagiarism would become an independent crime. Of course, under the DMCA with Copyright Management Information being illegal to remove, it is technically one already.
That would free us up to distinguish between plagiarists and sharers.
I think one of the problems we have is that the people who deal with copyright infringement issues, the RIAA and the MPAA are less popular than even Microsoft. We have to show people that these matters don’t just affect billion dollar artists, but also common people trying to eek out a living.
But as Dennis Miller would say, “That’s just my opinion, I could be wrong.”
“Everyone knows that lying is wrong, even children.”
Do they? At the risk of going to the obvious example, some people may say that depends on what the definition of “is,” is.
There is no question that stealing is wrong, and plagiarism is stealing. However, more people seem to be OK with it, which is what I find disturbing. How can it be wrong and OK at the same time?
As we’ve been discussing, copyright is a different issue. Copyright law exists for the specific purpose of promoting the creative arts by protecting an author’s work for a limited time…although this original purpose has been poisoned and perverted by current corporations.
“I think one of the problems we have is that the people who deal with copyright infringement issues, the RIAA and the MPAA are less popular than even Microsoft.”
Exactly, because their blind and heavy-handed approach is correctly perceived as purely greedy, not as an honest attempt to protect the artists they represent. Record companies (I forget which one[s]) have been found guilty of price fixing. In court. Which means they are criminals. Yet, the penalties they have to pay are insignificant compared to their income, so this is not even a setback. A regular consumer, on the other hand, would face crippling financial penalties, and maybe even prison.
These corporations have the full force of the law behind them when using these intimidation tactics, but no moral ground to stand on, so they should not expect any respect from the public, only fear.
Plagiarism, on the other hand, does not have time limitations, does not care about how famous or rich we are, and is not concerned with monetary matters. Using just one phrase from someone who lived hundreds of years ago, and trying to pass it as our own, is 100% wrong today, tomorrow, and 1000 years from now.
As you point out, plagiarism is about lying. It’s about dishonesty. It’s not about damages. When someone steals something I created and offer for free, and pass it as their own, they are not robbing me of any money, but they are still robbing me.
If plagiarism is ever codified into law, the damages will have to be arbitrary, like they are in cases of wrongful death. How much is a person’s life worth, in dollars? It can’t be measured. Those damages are simply punishment to deter further abuse, not the correct the damage already caused.
Thanks for starting this discussion, I’m interested in similar ideas myself from the perspective of an academic and researcher and someone who supports other academics understanding the issues of plagiarism and copyright. The challenge, as noted by other comments, is that these are both topics that speak about a common concept, but approach it in different ways. You mention ‘moral rights’ which I would also suggest are important but different again. We seem to have the following perspectives:
1. People who create things need to be rewarded and encouraged to continue to do so, particularly as we move increasingly away from commodity products as drivers for our economies towards service and information driven economies.
2. Copyright was originally designed in a world in which the duplication of existing objects was significantly more expensive than now possible in many cases. In response to increasingly global use of information the legal processes defined for copyright apply without the need to engage in a formal process of notification or registration - thus leading to the unobvious need to specify when you don’t want copyright protection.
3. In many cases the copying of material is far less important than the acknowledgement of the source, often irrespective of the amount actually copied directly. This is especially true in academic and artistic areas and is one of the moral rights (the right of attribution).
Information access and use traditionally has had ‘gatekeepers’ - printers, librarians, publishers, (academics?) who had a vested interest in the systems in place, particularly with regard to copyright. The ease of digital creation, publication and distribution has removed the need for most of these gatekeepers while also not providing a way of rewarding creators (1) or updating copyright laws (2) or tracking and acknowledging the act of creation (3). Addressing (3) effectively would remove many of the plagiarism “problems” that are now occuring (something academia is very concious of) while also possibly making (2) less of an issue if as well as providing attribution the solution included a means of communicating what uses were acceptable. As Lawrence Lessig has noted, the real problem with copyright as it now stands is that we can’t easily find who to ask permission to copy from - works are being orphaned almost as soon as they are being created in most cases.
If we really believe in (1) then a fundamental problem is the widespread perception that digital creations that can be copied easily are not ‘owned’ and can be reused or ’stolen’ without concern. This is a serious problem as it discourages creation of thoughtful, high quality content. It also provides an excuse for commercially driven creators and publishers who legitimately want to ensure that their ownership is respected. I firmly believe that the default position of established, successful, commercial publishers is to protect the status quo which has seen them be successful - this is why they are spending so much money on idiotic ideas like the Phillips ad protecting system for TVs and recorders.
We need examples of successful business models that enable people to purchase and/or use content conveniently while retaining a sense of control. We also need legislative protections that combine elements of copyright and elements of the moral rights rather than attempting to reuse antiquated systems by forcing the digital world to comply with physical constraints. I think the widespread evidence of ‘plagiarism’ and associated moral panics are merely a symptom of a loss of understanding of the value of attribution that has arisen from the focus on the purely commercial aspects of copying by publishers - most of whom have forgotten that society values (1) rather more than it does the business models they hold dear.
Stephen wrote: “then a fundamental problem is the widespread perception that digital creations that can be copied easily are not ‘owned’ and can be reused or ’stolen’ without concern.”
This is, indeed, a fundamental problem, and this is one of the very first issues we should be addressing. Where is this coming from, and how can we reverse it?
Again, I simply do not believe that the ease of copying is the *reason* for the epidemic of plagiarism and copyright theft. People do not steal simply because it’s easy, but because they either (1) do not see it as stealing, or (2) they do not think it’s a serious offense. This is what needs to change. Otherwise, legislation and business models are not going to make any difference (for the better, anyway).
Unfortunately, we are moving in all the wrong directions very quickly. On one hand, legislation is becoming insanely fascist and repressive, and the public is too ignorant/apathetic/powerless to do something about it. On the other hand, the same ignorant public has less respect than ever about other people’s intellectual property.
In academia, the plagiarism problem is almost exclusively about honesty, since financial gain is not even in the picture–not until much later. Students (1) are too careless/ignorant to attribute sources properly, or (2) they willingly cross that line, because the goal (passing a test) is becoming or has become more important than the process (learning).
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