Wednesday, October 31, 2012

Plagiarism, Copyright and Fair Use: Plagiarism Detection Services Do Not Violate Copyright by Storing Student Papers

Photo credit: Creative Commons license: see below
Plagiarism detection systems that store student papers in the databases for comparison purposes do not violate the student's copyrights for those papers.

That's the ruling of the 4th Circuit Court of Appeals in a lawsuit by four students against iParadigms, the company that runs the Turnitin, the online plagiarism detection service used by many colleges and high schools.

The decision in A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009) held that the storage of the papers was "fair use." by iParadigms.  The court noted that no one at iParadigms ever read the papers or utilized their content other than for comparison purposes. (Click here for the Fourth Circuit's opinion).

The court noted that "the copyright owner's monopoly ... is limited and subject to a list of statutory exceptions, including the exception for fair use provided in 17 U.S.C. § 107."  The Court further noted that "fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." 17 U.S.C. § 107."

Additionally, the Court pointed out that in addressing Fair Use, Congress set out a four-prong balancing test. The elements to be considered by the court in deciding if something is Fair Use are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantially of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
 The Court then analyzed each of these factors, and found the use by iParadigms was Fair Use and therefore did not violate the students' copyright for their papers.

photo credit: <a href="">Will Lion</a> via <a href="">photopin</a> <a href="">cc</a>

Tuesday, October 30, 2012

Random Penguin - Merger of Publishing Houses: Impact on Writers Uncertain

Two traditional publishing houses have merged in an effort to combat Amazon's domination of the e-book market, and with it the future of publishing.

Some rights reserved by electropod
Random House and Penguin are merging to form Penguin Random House.  Click here for the NY Times report.  

The new publishing giant missed the opportunity for the obviously superior and more serendipitous name "Random Penguin,"  which could also have resulted in a GREAT logo. But I digress.

Penguin Random House will have about a 25 percent share of the printed book market in the United States, but the merger is undoubtedly driven by e-books.  The settlement of the recent anti-trust suit over e-book pricing has left Amazon with a huge advantage in the e-book market, which some expect will climb back to the 90 percent level it previously held.

How will all this impact writers?  Well for most of us trying to find a publisher, it will likely make things a bit more difficult.  For established writers, one wonders if the combined publishing house will jettison some of its mid-level authors.

The only thing that is sure is what Bob Dylan wrote nearly 50 years ago - the times they are a-changin'.

Monday, October 29, 2012

Handy Tool to Determine Copyright Status

Have a question about the copyright status of a particular work?  The internet provides two quick and easy references to give you a quick answer.
Illustration through Open Source Art, Royalty free license

Digital Copyright Slider is a nifty little online tool for giving you a quick idea about the applicable copyright status of any published work. The Digital Copyright Slider is a tool developed by the American Library Association, and available for sharing pursuant to a Creative Commons Copyright.

Click here to link to the site.  Then you just slide the cursor down the scale until you  hit the applicable type of work and date. 

This little tool does not provide a detailed legal anaysis of copyright for any particular work, but it does give you a quick at-a-glace, rule of thumb.

A second more detailed resource is the flowchart developed by Sunstein Intellectual Property Group.  At first glace, it is a little more complicated.  But it provides a more detailed anaysis which you might expect from a law firm website.  Click here to link to the flowchart. 

For researchers, writers and educators, they are both useful tools to have in your internet toolbox.

Friday, October 26, 2012

Fraud Is Essential Element of Plagiarism

Used Under Creative Commons license. See Credit below.
Fraud is one of the essential components that differentiates plagiarism from plain ol' copying.  That's the view expressed by Judge Richard Posner in his excellent book, The Little Book of Plagiarism (Pantheon 2007), which was discussed in my last post.

The common law elements of fraud are (1) a false statement of a material fact, (2) known to be untrue by the person making the statement, (3) intended to be relied upon (4) and which relied upon by a third party (5) to that person's detriment.

Posner maintains that copying becomes plagiarism when this element of fraud is satisfied.  In legal briefs and opinions, no one expects originality.  There is no reliance upon the statements being original nor detrimental reliance.

The same is true of text books.  Originality is not expected by the reader or by other authors.  In fact, most texts are the result of institutional corporate authors.  The entire point of text books is to accumulate the stated wisdom of others, not blaze new ground.   Consequently, unless one is wholesale copying from the work of someone else, there is no fraudulent element to some copying and therefore no plagiarism.

But for dissertations, student papers and other academic research and writing, originality is expected.  Copying of the work of others does constitute a misrepresentation which is relied upon.  Universities, professors, even high school teachers, suffer to their detriment as they try to award grades.  But even more so, fellow students suffer.

The same is true in novels that are copied from others.  But to Judge Posner, it is not the reader who suffers the detriment.  Rather it is the author whose work is copied and the competing authors who must try to sell their original books in the same marketplace.

Judge Posner also has some interesting ideas on those who use the names of prominent people or authors to sell their books, such as the rumors about Margaret Truman.  In a later post, I'll discuss Ms. Truman, the continued books of Robert Parker, and the plethora of books carrying the James Patterson name.

photo credit: <a href="">dullhunk</a> via <a href="">photopin</a> <a href="">cc</a>

Wednesday, October 24, 2012

Little Book of Plagiarism - Noted Judge's Handy Little Book About Borrowing, Creative Process, Copyright and Plagiarism

The Little Book of Plagiarism (Pantehon Books, 2007) is a handy 110 page book that discusses plagiarism and its relationship to legal rights, academic ethics, the creative process and even fraud. Its a book everyone involved in creative works should pick up and at least skim, if not devour.

The book is the work of Judge Richard Posner, noted conservative judge on the United States Seventh Circuit Court of Appeals in Chicago.  But Posner is more than a judge.  He is an opinionated scholar*, senior lecturer at the University of Chicago Law School and author of at least 29 books ranging from Sex and Reason, to The Problematics of Moral and Legal Theory, to his 2010 reflection on the economic collapse of 2008, A Failure of Capitalism.  His classic on economic analysis of the law, The Economics of Justice, originally published in 1981, is now in its 8th edition.

Despite its short length, it is not a basic primer - although it does cover the basics.  This little book is a well-crafted discussion of plagiarism and all its aspects, including history, theory, relationship to the crative process, technology, penalties, and even academic politics as it relates to claims of plagiarism. 

One has to be careful to distinguish those aspects of Judge Posner's book which are widely accepted and those which are the Judge's own opinions or analysis.  But that aside, Judge Posner's intellectual powers cannot be denied.  

Among the items in Posner's book to be considered:

1.   Plagiarism is not just copying.  It includes an element of fraud, either upon the reader or often upon the competitors of the author, be it fellow students or competing authors. 

2.   Copying in some types of works without attribution is to be expected, and therefore it is not plagiarism.  Specifically Posner notes that this is prevelant in text books and in such areas as legal briefing or even court opinions where one has no expectation of originality.

3.  Self-plagiarism is not plagiarism - at least as a general rule.  All authors repeat themselves, and that is expected.  It becomes an issue only in those rare circumstances where the author effectively tries to reissue a prior work as a new work, thereby deceiving his audience.

4.  Technology is having its impact.  Technology is making copying so much easier.  But likewise, universities and publishers are availing themselves of ever-cheaper computer programs and technology to check student papers and submitted works for plagiarism 

I'll be expanding on these topics in future posts. 

*Most recently, Judge Posner has been in the press for his scathing review of  The New Republic of Reading Law, co-authored by fellow conservative U.S. Supreme Court Justice Anton Scalia.  Responding to Posner's criticism, Scalia accued Posner of "lieing," to which Judge Posner took umbrage.

Monday, October 22, 2012

Plagiarism, the Law and Its Aftermath

In 2006, the literary world was blown away by a half-million dollar advance given by Little Brown to a 17-year-old incoming Harvard freshman with a near-perfect SAT score.  Her book, How Opal Mehta Got Kissed, Got Wild, and Got a Life, was the hottest thing in print.  So hot that Dreamworks bought the movie rights before publication.

Kaavya Viswanathan, a young Indian-American, was suddenly weathy, famous, and it seemed the world was her oyster.

Then someone on the Harvard Crimson read her book and thought it seemed a little familiar.  A little too familiar.  Some quick research revealed that large segments of Viswanathan's book were taken directly from the first two Jessica Darling novels by popular "chic-lit" novelist Megan McCafferty.

It was clear and blatant plagiarism.

In an instant, the whole dream dissolved into a nightmare.  The television appearances were not happy promotional fluff, but were rather accusatory news interviews.   Little Brown immediately recalled all copies of the book from warehouses and bookstores.  Return of the advance was demanded, and although it was kept confidential, the movie deal fell apart.

Further investigation showed Viswanathan also copied from several other authors, including English novelist of Indian heritage Salmon Rusdie. 

Viswanathan protest her innocence, claiming that her copying was innocent as a result of reading the copied authors.  She simply didn't remember the source when she was writing.  But few believed that such exact and extensive copying could have been the result of inadvertence or innocence.

The case illustrates when plagiarism expands beyond the realm of  ethics and into law. Viswanathan clearly breached her contract with Little Brown by not providing an original work.  She also infringed on the copyright of McCafferty, Rushdie and several other authors, for which she could be held liable for statutory damages.

Although the matter was resolved out of court, she also could have faced both civil and criminal liability for fraud and theft by misrepresentation. 

So what happened to Ms. Viswanathan?  Did her embarrassment drive her from Harvard?  Did it destroy her life before it had hardly started.  Did it relegate her to a career as a Wal-Mart greeter?

Not hardly.

She graduated from Harvard in 2008, then went on to Georgetown Law School where she landed a 2011 summer associate position with the swank New York law firm of Sullivan and Cromwell.  Although she would have graduated in 2012, there is no word as to where she landed.

Note:  In 2011, Viswanathan's mother and father were tragically killed in a plane crash as her father flew his small private plane home after the couple had spent a weekend visiting their daughter in Washington, D.C.

Friday, October 19, 2012

The Long Arm of Facebook Shuts Down Page for Copyright Violations

It was the long arm of Facebook, not the law, which shut down The Cool Hunter Facebook page for repeated copyright violations.

The Cool Hunter is an interesting website (click here) that features artsy-fartsy photos of architecture, art, travel, clothing, and even advertisements.  According to its founder, Bill Tikos, The Cool Hunter's Facebook page was growing by 1,500 to 2,500 "likes" per day.

But no more.

Not sure this has long-term ramifications for writers.  But this is another example of the conflict that continues to bubble and percolate at the intersection of technology, social media, and copyright law.

photo credit: <a href="">Oliver Hine</a> via <ahref="">photopin</a> <a href="">cc</a>

Wednesday, October 17, 2012

Plagiarism - What Is It? (Part 1)

Plagiarism is difficult to define.  In many ways, it defies any specific definition.

Royalty free image from Open Clip Art Library
Generally, it is though of as copying someone else's work. But not all copying is plagiarism.

But how about copying yourself?  In some quarters, copying your own work can be considered self-plagiarism.

Plagiarism cannot be fully addressed in one post - or maybe even a dozen.  So like David Copperfield, I shall be begin at the beginning  -- but is that plagiarizing Dickens?

Plagiarism is not illegal.

There is no law against plagiarism.  One cannot be sued for the tort of plagiarism or charged with a crime for plagiarism. Those offenses don't exist.

Plagiarism is both broader and more narrow than copyright or trademark infringement.  Those who plagiarize are not liable for damages.  They do not spend time in jail. The legal system becomes involved only where the act of plagiarism also constitutes some other type of violation: copyright infringement, trademark violation, fraud or breach of contract, for example.

Plagiarism is largely a matter of ethics, honor and codes of conduct.  Journalists, authors and those in academia can lose jobs, suffer damaged reputations or have careers destroyed by accusations of plagiarism.

In a way, it is like honesty and lying.  It can impact your reputation.  You can even lose your job if you lie to your boss.  But unless you are making a false report to the police, or the IRS, or while testifying in court, the government generally takes no interest in your prevarications.  

Monday, October 15, 2012

Plagiarism and the Presidential Campaign

Photo from Romney for President website
Plagiarism has popped up in the Presidential campaign.

Friday Night Lights creator Peter Berg has charged the Mitt Romney campaign with plagiarism for lifting the slogan "Clear Eyes, Full Hearts, Can't Lose" from his hit television show and using it as one of the Romney campaign slogans.

Berg may have a point.  The slogan was created by Berg for the character of Texas high school football coach Eric Taylor.  It was used regularly by the Taylor character to inspire his players during the show's five year run.

The phrase was picked up by the Romney campaign a few weeks ago and has been used without permission or attribution. 
This isn't the first time plagiarism has been raised in a presidential campaign.  In the 1988 campaign for the Democratic nomination, then Presidential candidate Joe Biden was accused of plagiarism for copying of a section of a speech by Neil Kinnock, Brittian's Labour Party leader, as well as lifting some other aspects of his campaign speeches. 

Politicians are always borrowing pieces of their speeches -- speeches which everyone knows mostly are written by unnamed speech writers.  When does borrowing, or copying, or being inspired by someone's words become plagiarism?

Over the next few weeks, I plan on a series of posts dealing with the issues of plagiarism, copyright infringement, and fair use.  I hope to explore the difference between permitted building upon the works of other, unethical plagiarism and illegal infringement. The answers are not always clear and often rest with the eye of the beholder. 

So how will these latest allegations impact the Presidential campaign?  Not at all. Mitt Romney's advisers may be well advised to quietly drop using the phrase. But it is not a trademarked expression so there seems no legal requirement to do so.  And really - with issues facing the nation such as the economy, jobs, the deficit, Afghanistan, Iran, cyber attacks, health care and government stalemate, do we really want to be voting based upon whether a campaign should or should not have borrowed an expression from a fictional football coach?

Friday, October 12, 2012

Writers Getting It Wrong: Trial Court Decisions Are Not "Precedent"

Here's a small example of writers (or broadcasters) getting it wrong.

A recent story on NBC's Today Show reported about a rape case in which the defense lawyer subpoenaed the victim's computer records, including all of her Google searches for the month before and after the rape.

The court initially ordered the victim to comply, but the victim risked contempt of court and refused on the basis that she was being victimized all over again.  The court relented and denied the subpoena.  The defendant was convicted and sentenced to 25 years in prison.

The story concluded by reporting that the trial court's decision had established precedent in the new area of law.


Stare decisis is a fundamental principle in American law brought over from the English Common Law.  It means "let the decision stand."  This guiding pricipal calls for courts to follow prior decisions in order to provide consistency and equal treatment of people in the same circumstances. Much of what lawyers do in briefs is to argue about how prior decisions apply to the case before the court.

But state trial court decisions do not establish precedent.

Only appellate decisions -- in fact only published appellate decisions -- establish precedent.  State trial court decisions are not legal authority and cannot be cited as precedent.  In other words, a decision by a trial judge in Marion County, Indiana is not precedent and cannot be cited to a trial judge in Jefferson County, Indiana -- let alone to a court in Ohio or Texas.

There is an exception for published decisions of federal district courts.  Some federal trial court decision are published in the Federal Supplement or the Bankruptcy Reporter, as well as online.  Those decisions generally deal with pre-trial procedural issues and carry some precedential value.

This is a legal technicality for most - but not for lawyers.  Attorneys who have improperly cited "not for publication" decisions have suffered rebukes in published opinions, and even sanctions.

If you're writing about the law, you should try to get it right.

Wednesday, October 10, 2012

How Long Is My Copyright Valid?

How long is a copyright valid?  The short answer:  Life of the author plus 70 years.

There is a much longer answer.  But for most authors, musicians, playwrights, and other creative artists, currently producing creative works, the work is protected by copyright for the life of the creative artist plus 70 years.

(This short answer brings up the need for estate planning by creative artists, but that's a topic for another day.) 

For works created after 1977 where corporations or other business entities own the copyright (works for hire), the copyright protection extends for 95 years from the first publication or 120 years from creation, whichever comes first.  The same is true for anonymous works or works published under pseudonyms.

The major change in copyright law occurred with the Copyright Act of 1976.  Prior to that Act, copyright was valid only for 28 years, subject to one renewal period of 28 years.  But as the copyright on some of the major creative works of the 20th Century were poised to expire (think "Mickey Mouse"), Congress was pressured to publishers and movie companies to extend copyright protection.

There are intricacies of the Copyright Act which apply to works created between 1923 and 1977.  The protection offered those items depends on when they were created and when they were published.  Copyright can vary from 95 years from publication to life plus 70 years, to an absolute deadline of December 31, 2047.  If you are dealing with something created prior to 1977, you need to check on the specific applicable law or contact me and I'll try to answer your specific question.

Works published prior to 1923 are in the public domain and do not have copyright protection.*

*Thanks to Kevin Grierson,  an intellectual property lawyer in Norfolk, Va., for pointing out the need for a small correction to the original post, which has now been made ("created" in the last paragraph changed to  "published").  Kevin also suggested the following link as a good resource for the intricacies of copyright and public domain:

Monday, October 8, 2012

Graphic Book Offers Great Primer on Copyright and Fair Use

While doing some recent research, I stumbled on a graphic book -- a comic book, if you like -- that is one of the best short primers I've found on the law of copyright and fair use.

Bound by Law: Tales from the Public Domain looks like a comic book, or maybe more accurately, a graphic novel.  But don't let its for fool you.  This is maybe the best short-hand treatment of the law of copyright and fair use that I've come across. Sit down with this paperback and 40 minutes later you will have a pretty good foundation on laws that are essential to writers and other creative artists.

The book is written and illustrated by Keith Aoki, James Boyle and Jennifer Jenkins, and was published by Duke University Press in 2008.  It features a foreword by Davis Guggenheim, Academy Award winning director of "An Inconvenient Truth," with a very insightful introduction by Cory Doctorow, award winning Sci-Fi writer & co-editor of Boing Boing website.   

The book is geared toward documentary film makers, but the approach and content is equally useful for writers as it is for film makers.  If you feel at a loss about your intellectual property rights, or your right to use or comment on the works of others, this is a great place to start.

Bound by Law is available on Amazon in a new expanded Fifth Edition.  To view the book on Amazon, click here.

*Image by by Keith Aoki, James Boyle and Jennifer Jenkins, used pursuant to Creative Commons non-commercial use license.

Friday, October 5, 2012

Banned Books Week: Attacks on Independent Judges Threaten Free Expression

Creative Commons - some rights reserved by ilkin
As Banned Books week winds down, every writer (and reader) must be alert to threats to freedom of speech.  The latest danger is indirect.  But indirect attacks are often the most dangerous

The abrasive political movement is taking its toll as conservative groups are now targeting the judiciary, vowing retribution for court decisions with which they disagree.

So, why should writers be concerned?  It's just politics as usual, isn't it?   No. 

Writers often find themselves on the side of the unpopular, the controversial, the ideas and images which many do not want to see.  And there are large groups - perhaps growing - that want to suppress the ideas and views with which they do not agree.

Books are targeted for too much profanity, too violent, teens having sex, adults having too much sex, showing gay life styles in a positive light, being subversive, being anti-Christian, ridiculing Mohammed.  

What protects writers is the First Amendment and its counterpart in virtually every state constitution.

Who enforces those constitutional rights?  The courts.  More specifically, constitutional rights are enforced by  judges who are independent.  Judges who do not fear that a decision supporting the right to unpopular expression will cost them their job or even their career.

In Florida, the Republican Party has taken the unprecedented action of actively opposing the retention of two Florida Supreme Court justices in that state's non-partisan selection / retention process.  The proffered justification is a nearly decade-old decision on the issue of effective assistance of counsel in a capital murder case.  The real reason is the desire of the Republican Party to grab control of the state supreme court by ousting two court members appointed by a Democratic governor and replacing them with Republican appointees.  Click here for Miami Herald article.

In Pennsylvania, the Tea Party has vowed retribution over last week's decision refusing to uphold Pennsylvania's restrictive voter identification law. Click here for article, "Tea Party Threatens Revenge Against Pennsylvania Justices for Not Upholding Voter ID Law."

In Iowa, conservative groups were successful last year in removing three members of the Iowa Supreme Court who decided in favor of same-sex marriage in that state. And they have taken aim in this November's election on another member of the Iowa Supreme Court who voted for the right to same-sex marriage. For PBS article and audio report, click here. 

Federal judges are protected by lifetime appointments and a prohibition on lowering the compensation of federal judges.  These recent events show the wisdom of the Founding Fathers in doing so. 

But state appellate judges are not so protected.  That makes them susceptible to the type of tactics being used in Florida, Pennsylvania and Iowa.

Judges need to be independent.  Writers of all people should recognize this.

The right to publish, whether it be The Pentagon Papers or No Easy Day;  the protection against banning books whether Fanny Hill or 50 Shades of Gray; the removal of books from libraries whether Slaughterhouse Five or The Perks of Being a Wallflower -- the resolution of these issues depend upon decisions of an independent judiciary.

Writers and all artists who depend on the First Amendment need to stand up and oppose these attacks on an independent judiciary.  Your rights - and writes - may depend upon it.

Wednesday, October 3, 2012

More on Sources for Free Images on Internet

Used under Creative Commons Licence 3.0
Some rights reserved by Sergio Tudela

A few weeks ago, I posted about various sources for royalty free images on the internet.  These images can be used freely, without payment of royalties, for various projects such as blogs, civic newsletters and even your child's homework, and their use does not violate any copyright laws.

Some of the images may even be used for commercial purposes.

Here are four additional internet resources for royalty free images:

Flikr (click here) is the largest storage site for photos on the web.  Millions of these photos are licensed for Creative Commons use, including some for commercial use.  Along the top headings on the Flickr site, go to Explore, then on the drop-down menu click on Creative Commons.  Conduct your search, and just make sure to give the proper attribution on the photo. 

Example of royalty free image.  Creative Commons 3.0 - some rights reserved by pfarrell95
Compfight (click here) is a great search engine for royalty free images.   Many of its images come from Flikr, but it is not associated with the photo storage site.  On the left column, Compfight gives you the ability to search for Creative Commons images (royalty free for non-commercial purposes, with attribution), or "Commercial" for images that can be used for commercial purposes.  And if you blog or have a website with Wordpress, Compfight is even better.  There is a plug in that allows you to use the Compfight search engine directly from Wordpress.

Photo Pin (click here) is another great search engine for blog photos, or even images for commercial use.  It is very easy to use, gives you options on how to display your results, and gives you a multitude of options on the size image to download.  Photo Pin requires that you copy and paste the link to the photo in the credit line.

Photo from Photo Pin - see link below

Royalty free Halloween artwork from Open Clip Art

Open Clip Art (click here) is a totally free site of clip art images.  The images here may be used for any purpose, including commercial use.

Link to Photo Pin photo:
<a href="">Stuck in Customs</a> via <a href="">photopin</a> <a href="">cc</a>

Monday, October 1, 2012

Banned Books Week: Missouri School Celebrates by Banning Slaughterhouse Five


Creative Commons 3.0, some rights reserved by stuartpilbrow


It seems the Republic, MO school district has a different idea about the meaning of Banned Books Week.  To celebrate, it decided to ban two books. (For news coverage, click here)

Slaughterhouse Five, Kurt Vonnegut's classic of time travel and the horrors of war, is rated as number 18 in Modern Library's  top 100 novels of the 20th Century (click here) and is listed in Time Magazine's 100 greatest English language novels since 1923 (Click here for list).

It is also being banned by the school board in Republic, Missouri, along with Sarah Ockler's Twenty Boy Summer, a book that explores teenage relationships and sexuality.  Only one of the four school board members had read either book.

Banned Books Week - September 30-October 5 - is sponsored by the American Library Association.  It celebrates the freedom to read and the dangers of those who want to control what we can read. 

Wesley Scroggins, a Missouri State University business professor, took it upon himself to rally opposition to Slaughterhouse Five because it contained (in his opinion) too many curse words and was unchristian.  "How can Christian men and women expose children to such immorality?" Scroggins wrote in a local newspaper column.

Slaughterhouse Five remains on the list of most frequently targeted banned books.  The American Library Association has prepared a list of the top targeted books by decade. For the past decade, the most targeted books?  Harry Potter.  

Among the other most-targeted books:  J.D. Sallinger's Catcher in the Rye, Maya Angelo's Now I Know Why Caged Birds Sing, John Steinbeck's Of Mice and Men, Judy Blume's Forever, and still Mark Twain's The Adventures of Huckleberry Finn. 

For the complete list of most banned books in the past decade, click here.