Author: Karl Fogel

On April 18th, 2007, I’ll be a panelist at a session with the provocative (and somewhat enigmatic) title of “Interoperability: computer industry giants versus music?”, at Les Rencontres québécoises de l’industrie de la musique, at the Bonsecours Market in Montréal, Quebec. The other panelists will be from the music distribution industry, plus at least one from the Electronic Frontier Foundation. I’m looking forward to a lively discussion! Full report here afterwards…


Well, this isn’t really a “full report”, but the panel discussion was terrific, and not at all the slugfest one might expect — genuine discussion took place. But the most interesting thing about the conference as a whole was that although it was mainly composed of people from the recording and radio industries, many were very receptive to the message that copyright is not always good, and many also showed signs of giving up on DRM as a strategy for controlling copying. It may be that the industry is starting to see the light, at least in Québec, Canada.

Portait of Joyce Hatto

By now, the whole classical music world has heard of the Joyce Hatto scandal (Wikipedia’s article is excellent).

Joyce Hatto was a pianist who died in June, 2006. She didn’t play many concerts, but she recorded prolifically — or so everyone thought, until it was discovered, in early 2007, that most of her recordings were plagiarized from the records of other pianists. She never knew about it, apparently: the plagiarism was the work of her recording engineer and husband, William Barrington-Coupe.

The best part is how the deception was uncovered: when someone put her recordings onto a computer, automated comparison routines kept stubbornly identifying them as other pianists’ tracks!

It’s a great example of what we’ve been saying about artists putting their work online: sharing files widely prevents plagiarism, by making it much easier to detect. Forget Hatto herself for a moment — think instead of all those other pianists, whose recordings were passed off as her work: the reason the hoax was detected at all was because their track information was available online. And if the recordings themselves had been available online, the problem would only have been detected more quickly, probably years ago.

The unmasking had nothing to do with DRM, by the way. DRM is the set of software and hardware handicaps that prevents computers and music players from sharing files freely with each other. It’s true that some of the programs that detected the similarities between Hatto’s recordings and other pianists’ also have built-in DRM, but the DRM is utterly irrelevant to the comparison techniques that spotted the correlations. In fact, if DRM were as effective as the record companies wish it were, it would only have hindered the comparisons, since then the other pianists’ track information might not have been readily available for examination.

But we’ve still got a long way to go. The Wikipedia article on Hatto had the following sentence, as of early February 28th:

Meanwhile the British Phonographic Industry (BPI) has begun an investigation. If the allegations are true, it would be one of the most extraordinary cases of copyright infringement the record industry had ever seen, according to a BPI spokesman.

Notice how the hoax is identified as “copyright infringement“, not “plagiarism“. I checked the reference: the BPI spokesman apparently referred to “piracy”, so in the interests of accurate quoting, I’ve changed the Wikipedia article to say “piracy”. But that’s not really satisfactory: the word “piracy” is often used to refer to both unauthorized printing and plagiarism, as though the two are the same offense. The word thus provided a semantic pivot, around which some Wikipedian was able turn from one of the word’s meanings to the other, making it into a case of “copyright infringement”.

Who was this mysterious misquoter?

We’ll never know, because they did it anonymously, though clearly on purpose. For when the sentence was originally added, it quoted the BPI representative correctly. Later, someone came along and changed just one thing: “piracy” to “copyright infringement”. You can see the edit here. Probably they felt that “piracy” was too loaded a term, and that “copyright infringement” would be more accurate. Unfortunately, this is exactly the conflation — equating unauthorized copying with stealing credit — that the record industry promotes; the pity is that their effort has been so successful.

I’ve fixed the text to say “piracy” again. But the BPI spokesman should have talked about “plagiarism” in the first place, because that’s what we’re dealing with here, and the more we let digital files circulate freely, the less plagiarism there will be.

Portait of Matthew Gertner Back in late 2006, Matthew Gertner (of AllPeers) and I did a mutual interview about copyright reform. It was a fascinating and wide-ranging conversation, and he’s posted it on PeerPressure, the AllPeers blog.

From Matthew’s introduction:

“…Rather than assuming that some copyright is necessary and trying to decide exactly how much is optimal, [Fogel] suggests that we imagine a world without copyright and take it from there.

He contends at the beginning of the podcast that, not only does he not know personally what the right level of copyright is, but that it isn’t possible to know this based on current evidence, a view that I find eminently reasonable. I also agree wholeheartedly with the way he concludes our discussion:

I think that there is some built-in exclusivity there but I also think… whatever change is going to happen is going to happen essentially through a market process. It’s not going to be that Congress suddenly wakes up and drastically reconsiders copyright law. Instead, some number of artists, just as some number of software developers did a couple of decades ago, will by choice release their stuff under these liberal copyrights, And they will create this little fertile safe space for sharing that will grow, and basically we’ll have two parallel streams: there’s the old stream and the free stream. And people will just start choosing stuff based on what they like, not based on ideological concerns about how it was produced. And we’ll just see what happens.

At the end of the day, we need to create an environment where individuals can test their own approaches to copyright and let the market decide what works best. I don’t necessarily see as strong a connection as Karl between liberal copyright terms and free content, however, and I hope that this makes our discussion more dynamic and thought-provoking.”

There are both download and streaming links available — listen to it here.

Click the image above to watch QuestionCopyright.Org Executive Director Karl Fogel delivering a talk at the Stanford University Library’s Technology Chalk Talk Series on October 19, 2006. The video is available to view and download on the Internet Archive.

The talk is about 90 minutes long, including the question-and-answer session after the presentation. The audience members’ backgrounds were in library science, computer science, publishing, and law, so the Q&A was particularly good in this talk.

On Thursday, October 19th, from 2:00-3:30 p.m., I’ll be giving a SULAIR Technology Chalk Talk on the history of copyright, hosted by the Standford Universty Library, in Room 102 of the Hewlett building (on the other side of the quad from Green library). Here’s a map to the building:

I’ll talk about the history of copyright, its original goals and its effects today, and will leave plenty of time for questions and discussion afterwards.

Many thanks to James Jacobs, User Services Technology Specialist at the Cubberley Education Library, for arranging this.

Still composite from street interviews, Chicago, 2006

In order to document the public perception of copyright today, we went around Chicago with a video camera over two days in the summer of 2006, asking strangers what they think copyright is for, how it got started, how they feel about filesharing, and for any other thoughts they have on copyright. We didn’t tell the interviewees about this website or the nature of our project until after each interview was over.

The points that showed up consistently were:

  1. Most people felt that copyright is mainly about credit, that is, about preventing plagiarism.

  2. Everyone was on the artist’s side — everyone wants to feel that they’re treating the artists right. Over and over again, we heard the sentiment that when someone goes to a concert they’ll buy the CD “to support the band”, even if they already have all those songs on their computer already.

  3. Many people felt that copyright was about giving creators the means to make a living, but that in recent times it’s been abused and corrupted by corporate interests.

  4. No one — not even the interviewee who had just read a book on copyright — knew where copyright comes from. Most people had the feeling it had been around for a while, though estimates varied widely on how long. One interviewee knew of the Constitutional clause that is the legal basis for copyright in the United States, but wasn’t familiar with the history leading up to that clause.

  5. People were ambivalent about filesharing. They don’t feel like it hurts anyone, except perhaps the music distributors, but they still feel some residual guilt about it anyway.

You can view the video at the Internet Archive. It is also available at Google Video and YouTube.

The video is in the public domain; all participants signed a release form permitting their footage to be used. Many thanks to Ben Collins-Sussman and Brian Fitzpatrick for their help filming, and to Ben for huge amounts of help with editing.

“The Surprising History of Copyright” is coming to LinuxWorld at San Francisco’s Moscone Center, on Wednesday, 16 August 2006, 3:30pm at the O’Reilly Media exposition booth (#928). I’ll be giving a talk about the history of copyright, how the economics of replication and distribution have changed radically since the 1700’s, and how both creators and publishers can flourish using different strategies than the traditional copyright monopoly.

The slides for the talk “The (Surprising) History of Copyright and What It Means for Open Source” are available in PDF and OpenOffice Presentation formats. The slides are meant to be accompanied by the talk, and don’t really stand by themselves, but I’m providing them for those who didn’t have time to write down the URLs and the bibliography at the talk.

The Google Book Search Library Project promises to be, among other things, the greatest plagiarism detector ever created. So why are the Association of American Publishers and the Authors Guild suing Google over its plan to digitize millions of books? In the case of the AAP, it’s probably because they understand that copyright law really exists to subsidize distributors, not writers or readers. They’re just looking out for their own interests. Or at least they think they are: it’s much more likely that Google search results will improve book sales than hurt them. In any case, one has to pause at the spectacle of a publishers’ association coming out against readers being able to locate the books they’re looking for more efficiently than ever before. But what’s more interesting, if not exactly unexpected, is that the Authors Guild is reacting in the same way. Here’s what the Guild’s president, Nick Taylor, had to say:

“This is a plain and brazen violation of copyright law. It’s not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied.”

How odd. Mostly, authors are not the owners of the copyrights in their work — publishers are. And even in those cases where the author retains copyright, she has usually signed a contract granting exclusive printing and distribution rights to a particular publisher. Nick Taylor’s comment might make sense in some idealistic world where authors typically retain control of their work, but for the authors he represents, the world is rarely like that. Meanwhile, the Authors Guild ignores an amazing possibility opened up by Google’s project: we will be able detect plagiarism with a thoroughness hitherto unthinkable. Google is the world’s premier search engine; they have made billions of dollars matching snippets of text together and displaying the results. After digitizing these texts, the natural thing to do is to start looking for ways to cross-reference them. For legitimate citations, the effect of this will be mere convenience: instead of trudging to the library or bookstore, you can click on a link. But for cases of plagiarism, the effect will be a revolution: whereas in the past, discovering plagiarism required that the same person read both books, it will now be possible to flag potential instances of unattributed copying automatically! So why isn’t the Authors Guild cheering Google on? A clue can be found in the Guild’s self-description, as given at the end of their press release about the Google lawsuit


“The Authors Guild is the nation’s largest and oldest society of published authors and the leading writers’ advocate for fair compensation, effective copyright protection, and free expression.”

There’s a subtle bit of cognitive slippage going on there. They start out stating (accurately) that they are the largest society for published authors. But then they go on to claim that they are the leading writers’ advocate for fair compensation, effective copyright protection, and free expression. Where did that slide from representing published authors to representing all authors happen? Anyone who writes is a writer; and thanks to the Internet, any writer who wants to be published can be, by simply making their work available on the Web. This is not wordplay, it is a fundamentally important fact of modern information distribution, as many popular bloggers have learned. The Author’s Guild does not represent most authors anymore, if it ever did. It represents a tiny minority of authors: those whose works have been found fit for distribution by a certain kind of publisher, the kind that makes a massive initial investment in a print run and then depends on strict monopoly control of the copyright to recover that investment. Tellingly, the Guild’s identifying statement doesn’t contain a word about plagiarism, a threat faced by all authors. While texts may be shareable resources, reputation and credit are not: plagiarism is a concern for all writers, no matter how their work is distributed. Yet the Guild’s omission isn’t limited to that one press release. A search for the word “plagiarism” across their entire web site returns only this:

Search word: plagiarism 0 results found.

Perhaps the Guild thinks that the phrase “effective copyright protection” includes plagiarism, but as we have noted elsewhere, copyright “protection” is really not about plagiarism: one can permit limitless attributed copying without approving of or permitting plagiarism. The two are separate, and the Authors Guild, of all organizations, should know this. The Authors Guild’s heart is in the right place; the problem is just that they’ve bought the industry myth: that authors’ interests are always the same as publishers’. If the AG really wants to look out for the interests of all authors, not just the small percentage with successful monopoly-based publishing arrangements, they’ll knock on Google’s door and ask how they can help. Instead, they’re suing for copyright violation, even though what Google is doing is both well within the bounds of so-called “fair use” and enormously beneficial to the Guild’s members. The Great Cross-Referencing has begun. Let us hope the Authors Guild sees the light and allows it to continue.

[Postscript: When I first wrote this article, I wasn’t aware that Amazon had already been doing in-book searching for some time. This means that Amazon could do automated plagiarism detection as well, and perhaps there are other organizations in the same position. But note that Amazon is not the target of publishing industry lawsuits, probably because Amazon negotiated with publishers for access to book text, rather than just scanning it in the way Google did.]