The Cooks Source Case: Public Domain vs. Public Domain

If you haven’t heard about the Cooks Source “plagiarism” case by now, you’ve been missing something of a mini-meme on matters of copyright and plagiarism.

The ordeal began when author Monica Gaudio noticed that one of her articles, a piece entitled “As American as Apple Pie – Isn’t!” had been published in Cooks Source magazine without her permission. Cooks Source is, or at least was, a magazine that claimed to specialize in Western New England area food.

Upon this discovery, Gaudio wrote the managing editor of Cooks Source, Judith Griggs, asking for an apology to be printed and for a $130 donation to the Columbia School of Journalism. The response she got was less than sympathetic. Griggs said:

But honestly Monica, the web is considered “public domain” and you should be happy we just didn’t “lift” your whole article and put someone else’s name on it!

Griggs went on to insult the original piece, saying that it needed a great deal of editing, and also insinuate that Gaudio should have paid them for their time and work on the piece.

This, in turn, caused Gaudio to write about this on her LiveJournal blog (see link above) and her post was followed up by a friend of hers as well. Soon the story began to spread like wildfire. Cooks Source site became inundated and is not functioning as of this writing and their Facebook page became slammed with angry comments.

The incident also drew a great deal of mainstream media attention including mentions on MSNBC, The Guardian, The LA Times as well as a comical look at The Boston Globe to name a few.

The story also took off on Twitter, where author Neil Gaiman jumped into the fray, and countless blogs jumped into it as well.

Now, with the scandal almost four days old, little seems to have been resolved. Griggs allegedly posted a more mocking response to her Facebook page, though there is some question if the comment is authentic, but there seems to be no resolution in sight.

But while it is easy and tempting to make fun of Griggs for her lack of understanding of copyright, it is important to note that the misunderstandings that fueled her reply are very common and have actually helped create many of the Web’s other copyright dustups.

As such, it’s worth taking a few moments to look at exactly where Griggs went wrong and why that view is seemingly so prevalent, even among people who should know better.

Public Domain vs. Public Domain

The day the scandal hit, I found myself in a Starbucks with Sara from SavingForSomeday, who is also a part-time copyright attorney, talking about the case. We both agreed that Griggs position was indefensible, from an ethical or legal standpoint, but also realized quickly that “Public Domain” may be the most unfortunately named element of copyright law.

The reason is that Public Domain can actually mean two things. First, it is a legal term used to describe works without copyright protection, usually older works who have had their copyright expire. Second, it is a broad term used to describe things that are public, such as works posted online.

This means that some things can be in the public domain, in the more mundane sense, and not be in the public domain in the legal one. Considering that you don’t have to register your work to have copyright protection in it, nor do you have to include a copyright symbol with it, it’s best to assume that everything you see is copyright protected until you can prove otherwise.

However, many people, don’t seem to understand this difference. Looking at the filings in the Lara Jade case, it seems that Robert Burge made many of the same mistakes himself, confusing appearances of the work onlne, with and without copyright symbols, as meaning the work is in the public domain (in the legal sense).

Both Burge and Griggs, at least supposedly, have decades of experience in their respective fields, fields that depend on copyright as laws that govern the industry. (Note: There seems to be some doubt as to Griggs background).

Though it might seem odd that, in an era where most high school students understand the basics of copyright, that so many who have made their living in copyright-related fields do not, it’s not surprising.

The reason is that the Internet changed the way these industries interacted with copyrighted content and, though they might have been well aware of how the law worked within the old paradigm, the Web has changed the rules, if not the law itself.

Just as most end users never had to really struggle with copyright before the Web, most publishers never had to deal with users and small publishers before the Web, thus setting the stage for some very embarrassing misunderstandings.

5 Minutes and $130

Of course, the one thing that is even more striking than Griggs’ misunderstanding of the law is her attitudes toward Gaudio. The entire matter could have been resolved in a matter of minutes with a written apology and a small $130 donation. If Griggs had done that, the matter would have likely blown over without another sound.

Instead, she approached someone obviously upset and angry with an equally hostile attitude. Far from apologetic, she was insulting, demeaning and completely deaf as to the reasons Gaudio was upset.

Now, as a result of this, the Web has declared war on this small magazine, completely overrun its Facebook page, shuttered its site and, most damning of all, found other examples of Cooks Source pilfering content from other sources.

Now, it seems likely that Cooks Source will face legal action from one of the other victims of their lifting, including several major publications and its future certainly doesn’t look to be too bright.

This isn’t to say that Cooks Source wouldn’t have eventually met its end for its infringement without this case, it’s amazing it went on for so long, but certainly would not have happened so soon.

The magazine may have saved itself a few bucks by thumbing its nose at Gaudio but it hardly seems as if it was worthwhile.

Copyright Infringement, Not Plagiarism

One thing that has been worrisome to me as I’ve read the varying reports on this is that many bloggers have called this matter a case of plagiarism. Unfortunately, thats just not the case.

By all accounts Cooks Source actually listed Gaudio’s name with their printing of the work. While that makes it a copyright infringement, it doesn’t make it a case of plagiarism. Simply put, plagiarism is the taking of another’s work and claiming it to be your own, that did not happen in this case (though the magazine didn’t provide a link either).

From an ethical standpoint, there is only a slight difference here. Griggs’ response is, in my view, at least as offensive as an act of plagiarism would be. Still, it is worth noting that since the work was cited, even though it was used without permission, it is not a work of plagiarism.

It may seem to be a minor detail, especially since it doesn’t paint Griggs in any better of a light, but it is a distinction well worth making.

Bottom Line

In the end, it seems unlikely that Gaudio will be getting much in the way of satisfaction for the infringement. Since it’s unlikely she registered her work, she doesn’t have any ability to sue and, if she does register it after the fact, will be limited to actual damages. Given the nature of the case, she would be hard pressed that the magazine gained much of anything from her work, certainly not enough to justify a legal case.

Sadly, from a practical standpoint, it’s unlikely Gaudio will be getting much of her demands met. That being said, she can definitely take pride in calling attention to Cooks Source behavior and, very likely, getting them in legal hot water with other publishers who do have their works registered and legal teams large enough to follow-up on the case.

All in all though, this case is a warning to those who publish online. There are many out there with great misconceptions about copyright law and at least some of them are in very dangerous positions. If you plan on ever suing for your work, you need to register your copyright and so do every three months. Likewise, you need to offer clear licensing guidelines and make your terms of reuse clear.

Though it’s frustrating that such steps are necessary, as this case illustrates, they are.

Hopefully Griggs and Cooks Source will get what they deserve for their infringements, not to mention their approach to those who are upset about it, but it unfortunately won’t be Gaudio herself that has that satisfaction. Instead, she’ll have to be happy with the fact that she set the dominos in motion and that anything that does happen will be the result of her standing up for herself and what she believed in.

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