Portait of Karl Fogel

I’ll be giving a talk at the O’Reilly Tools of Change for Publishing conference in New York City next week: Beyond Numbers: Gatekeeper Effects and Just-in-Time Publishing, on Tuesday, February 12th, at 2pm; conference details here. The talk is on the commercial potential of on-demand publishing of freely-licensed material, even as a storefront business model, and how it could mean a richer and more participatory experience for readers, authors, and booksellers.

Another way to get at it is with this question: what economic arrangements would help ensure that publishers spend their energies on publishing, instead of on today’s contradictory combination of publishing and the prevention of publishing? The latter is what happens when publishers exercise copyright to prevent others from publishing certain things (such as fan fiction and other derivative works), and it’s still considered a normal part of the business — like a hospital that somehow thinks its job is partly to cure its own patients and partly to make patients at other hospitals sicker.

The conference as a whole looks excellent. Naturally, there will be a lot of attendees who are, to say the least, not in complete agreement with QuestionCopyright.org’s mission. But this conference attracts people in the publishing and bookselling industry who are looking for new ideas, and who fully understand that the old monopolies, enforced as they were by technological constraints, are going away. I’m looking forward to talking with them, and seeing many of the other presentations there.

I’ll put up the slides to the presentation as soon as they’re ready, and link to them from here… Okay, done: OpenOffice.org (ODP), Adobe PDF, Microsoft PowerPoint (PPT).

A US court has found that copyright law can cover “cease-and-desist letters”, that is, letters sent by copyright holders telling someone to stop distributing copyrighted content.

Cease-and-desist letters are frequently used as tools of censorship (as Chilling Effects has ably documented). A common scenario is that someone gets upset at having something of theirs quoted, and is able to shut down the quotation by claiming copyright over its text and then sending C&D letters to anyone who displays it. The quoted text is not royalty-generating for the copyright holder (not that it would excuse censorship even if it were); rather, the sender of the C&D is simply using copyright law as a tool to prevent the publication of potentially embarrassing information — that is, to censor.

The recipients of C&D letters often don’t have the legal resources to fight them, but they at least can cause publicity problems for the sender by posting the letters. “Look, Global MegaCorp is trying to force us to stop posting their research papers, in which their own scientists determine that their products kill kittens. Read their letter here!” And by drawing attention to the attempted censorship, these organizations are sometimes able to raise enough resources to fight the C&D order in a legal arena.

But now a lawyer who sends C&D letters has persuaded a judge that the texts of the letters themselves can be copyrighted, and therefore recipients can be enjoined from displaying them publicly.

That’s right: they can censor you, and then they get to censor your ability to talk about the exact way in which you’ve been censored. Lovely, isn’t it?

The fundamental problem here is copyright law’s promiscuous tendency to assign a monopoly-empowered owner to every snippet of text (or music, or video) out there, no matter what the consequences to society. As far as the law goes, the judge’s reasoning may well be sound. I’m not a lawyer, but his finding (Case No. MS-07-6236-EJL-MHW) actually seems to make sense within the crazy framework of copyright law:

Under the DMCA, the copyright holder need only plead a prima facie case of copyright infringement. In re: Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 263 (D.D.C. 2003). A certificate of registration of a copyright constitutes prima facie evidence of the validity of the copyright and facts stated in the certificate. 17 U.S.C. Section 410(c). Melaleuca has registered the Sheppard Letter with the Copyright Office. See Supplemental Filing Re: Copyright Registration Certificate for Sheppard Letter, Ex. 1 (Docket No. 18-2). This is prima facie evidence that the Sheppard Letter is copyrighted and satisfies the first prong of demonstrating a prima facie case of copyright infringement. 43SB has valid arguments and enforcing this subpoena pre-litigation may have far-reaching consequences, therefore some preliminary examination of the potential claim is necessary. However, the Court will not go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash this subpoena. It is sufficient in this instance that Melaleuca has registered the Sheppard Letter with the Copyright Office.

The party seeking a subpoena must also make a prima facie showing of copying of constituent elements of the work that are original. See In re: Verizon Servs., Inc., 257 F. Supp. 2d 244, 263 (D.D.C. 2003). The entire Sheppard Letter was posted on the Website by user “d2.” This suffices to show a copying of constituent elements of the work that are original by user “d2.” Therefore, the Court finds that all the elements necessary for a subpoena to issue under 17 U.S.C. Section 512(h), including the notification requirements of section 512(c)(3)(A) and the prima facie case, have been satisfied for user “d2.” The Court recommends that the motion to quash with respect to “d2” be denied.

(I think the full text of the decision is here, which I found via a link from this summary at the Internet Library of Law and Court Decisions. Note that the principal issue seems actually be a motion to quash a subpoena seeking the identity of a comment poster, and the finding of copyrightability of the C&D letter is merely part of that decision. However, I am not a lawyer, and would appreciate any comments lawyers might have on the structure of this decision and its effectiveness as precedent.)

What’s interesting about the whole situation (aside from its obvious irony) is the implication that at least some senders of C&D letters know that there’s something shameful in what they’re doing. At least, they are clearly aware that the public will perceive them as attempting to bully their targets into silence. It’s a rare acknowledgement from the copyright industry (or at least from John W. Dozier, Jr., the lawyer who started this) that the public understands how copyright law is used to censor — for otherwise, why object to cease-and-desist letters being displayed? If they thought their requests were reasonable, they wouldn’t mind them being made public.

The question now is how to get more people to understand that not only is it censorship when you get a C&D letter for posting memos (or C&D letters), it’s also censorship when you’re not allowed to translate a book you like, or are prohibited from making a derivative work without the approval of the author of the original work.

[See also articles about this case at Techdirt and Slashdot.]

Ben Collins-Sussman playing the banjo by the water.

Reader Ben Collins-Sussman sent us this letter after watching a group of hobbyist banjo players in an Internet forum shy away from sharing music because they were worried about copyright issues. It’s hard to add to Ben’s eloquent outrage, but we should step back and ask: how did we get here? When did the inconceivable become everyday? When did musicians start censoring themselves as a matter of course? (Notice how copyright issues actually come up twice, independently, in the forum Ben points to. That’s two times in a discussion that’s only nineteen posts long. It would be nice if this were somehow exceptional… but sadly, it’s not.)

Here’s Ben’s letter:

I frequent exciting websites like www.banjohangout.org, where banjoists from all over the world (all 12 of us!) talk about banjos, songs we like, how to play things, and so on.

This forum thread is depressing:


People are talking about how much they like this recording of a new piece of banjo music by Steve Martin (yes, it’s the same Steve Martin!), and saying how happy they are that Steve tabbed it out into a monthly banjo magazine. At some point, somebody asks if anyone has the tab written out for the banjo ‘accompaniment’ played against Steve’s banjo in the recording (by the famous Bela Fleck). Somebody else responds that Bela Fleck’s teacher, Tony Trischka, taught him (in person) how to play the accompaniment, but is afraid to write it down on paper and share it with others, because of possible “copyright issues.”

For centuries, musicians have been teaching and learning from each other, imitating and improvising together… and now we have some hobbyists who are afraid to show each other how one particular person happened to improvise some accompaniment on one particular recording? Yeesh.

Swedish Pirate Party Flag

Seven members of the Swedish Parliament have published an opinion piece calling for the decriminalization of filesharing. Written in reaction to a government analyst’s recommendation that file-sharers be punished by losing their Internet connections, the letter is practically a verbatim recitation of what the Swedish Pirate Party has been saying for a long time now:

“…Decriminalizing all non-commercial file sharing and forcing the market to adapt is not just the best solution. It’s the only solution, unless we want an ever more extensive control of what citizens do on the Internet. Politicians who play for the antipiracy team should be aware that they have allied themselves with a special interest that is never satisfied and that will always demand that we take additional steps toward the ultimate control state…”

When he visited the United States last summer, Rick Falkvinge, the Pirate Party’s founder, pointed out that one of the Party’s most important functions was educating other politicians. By competing for seats in Parliament, the Party forces other candidates to give more attention to copyright and patent issues, out of fear of losing votes to the Pirates. It looks like that’s exactly what’s happened here. If so, kudos to Rick and the Pirate Party: they’ve made a powerful argument for valuing civil liberties over obsolete business models, and it’s clearly catching on when members of Parliament from the Moderate Party adopt a major plank from the Pirate Party platform.

[Update: Over at the P2P Consortium, there’s a good new interview with Rick Falkvinge up. Shameless confession: we’re very pleased to see the references there to Falkvinge’s speaking tour here last summer, which QuestionCopyright.org arranged.]

Picture of the U.S. Library of Congress

The Working Group on the Future of Bibliographic Information at the Library of Congress has just released its final Draft Report. There’s much that’s good in it, but it’s lacking an important feature: an insistence that bibliographic data be license-free, as per point 8 of the Open Government Data Principles. (See also Jonathan Gray’s post about this, and the Open Knowledge Foundation petition.)

This may just be an oversight on the working group’s part, or it may reflect some deeper hesitancy about committing fully to the public domain. They’ve asked for comments on the draft, though, and it would be great if they heard from a lot of people about this. You can send them comments here:

Here’s what I sent them…

Unless I’m mistaken, the Draft Report doesn’t explicitly say that bibliographic data released by the Library, or by any government agency for that matter, should be license-free and in the public domain. This has nothing to do with the works that are referenced by the bibliographic data, of course, since they may be under a variety of licenses. But the bibliographic data itself should be free for all to use.

The Open Government Data Principles may be worth taking a look at. It’s a short and very comprehensible document; see especially Principle 8 (“license free”).

Thank you,
-Karl Fogel
Editor, QuestionCopyright.org

Got Data?

This Friday and Saturday, I took part in a working group meeting of 30 open government advocates, organized by Carl Malamud and Tim O’Reilly, to develop a set of Open Government Data Principles.

One of the few bright spots in United States copyright law has always been that data produced by the government is, in theory, in the public domain. While there have of course been encroachments on this doctrine from time to time, it has generally been been held to in practice as well as in theory.

Unfortunately, being in the public domain isn’t necessarily the same as being online and accessible in reasonable formats via modern protocols. For example, Carl Malamud has spent a fair amount of effort prying the raw records of copyright registrations out of the U.S. Copyright Office at the Library of Congress and putting them online in a much more useful way than the government ever had. Similar stories abound among those with experience extracting electronic data from governments.

The purpose of the Open Government Data Principles is to clearly and precisely articulate what the standard should be for governments to make public data available — to promote a standard that government agencies can live up to, and that constituents can expect. These principles do that, but they’re just a start: now we have to actually meet them!

(The meeting’s sponsors were Sunlight Foundation, Google, and Yahoo, by the way; much thanks to them.)

French Pirate Party freedom poster

Thanks to Jeff Ubois for bringing this one to our attention…

Internet users in France who illegally download too many times will risk having their Internet connection taken away by court order. No, I’m not making this up: read about it in The Guardian, Tech Crunch, The New York Times, and the French Pirate Party‘s page (with English) about it.

The French Pirate Party (PPF), at the above link and elsewhere, is doing a good job of articulating what’s wrong with this — aside from the fact that the content providers don’t need their own taxpayer-funded private police force anyway, that is. As the PPF points out, the new measure will result in:

  • “filtering of internet content” (they have to watch you to catch you)

  • the “creation of an independent authority, parallel to justice, able to terminate internet access of users, and to punish any ISP that wouldn’t comply” …and if that sounds like hyperbole to you, remember how utterly compliant state police forces generally are when the Business Software Alliance or local equivalent requests a raid — the PPF is absolutely right to be worried.

  • “creation of a national directory of such ‘terminated’ users.” I haven’t read the new law, but I assume the PPF has and is reporting accurately. So apparently, once you’ve been caught — gasp! — downloading some bits you didn’t pay for, it’s clearly important to make sure you never commit this heinous crime again.

(There’s more translation at Bruce Sterling’s blog.)

I haven’t read the details of the new law, and at least one commenter thinks there’s less to worry about here than it might at first appear. But these sorts of state-industry alliances haven’t done too well for citizens in the past. It is highly unlikely that nuances of “fair use” (or whatever the local equivalent is — French law is different in this regard) will be respected. Many of the commenters pointed out how this law could easily be used for political censorship. One gave the example of unauthorized videos of police actions: if the copyright holder for the footage is a news organization with an interest in maintaining good relations with the government, then citizens who redistribute the images might now be risking their Internet connection

The best interpretation here is that the government of France has completely bought into industry propaganda about how artists need copyright to survive. That’s already pretty disappointing, especially in a country where the government itself funds so much artistic activity, thus belying the very assumptions on which this new law is based.

This may be of interest to the QCO crowd. Eric Anderson has put his dissertation, “Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891” online under a Creative Commons license. I notice he’s at Bowling Green University, home of the Browne Popular Culture Library, an amazing repository of American popular culture (post 1876). If you ever find yourselves in Western OH, do take a trip to the library!

Title: Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891
Author: Anderson, Eric
Degree: Doctor of Philosophy (Ph.D.), Bowling Green State University, American Culture Studies/History, 2007.
Advisor: Philip G Terrie
Pages: 231p.

How did people think about copyright in the nineteenth century? What did they think it was? What was it for? Was it property? Or something else? How did it function? Who could it benefit? Who might it harm? Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891addresses questions like these, unpacking the ideas and popular ideologies connected to copyright in the United States during the nineteenth-century.

This era was rife with copyright-related controversy and excitement, including international squabbling, celebrity grandstanding, new technology, corporate exploitation, and ferocious arguments about piracy, reprinting, and the effects of copyright law. Then, as now, copyright was very important to a small group of people (authors and publishers), and slightly important to a much larger group (consumers and readers). However, as this dissertation demonstrates, these larger groups did have definite ideas about copyright, its function, and its purpose, in ways not obvious to the denizens of the legal and authorial realms.

This project draws on methods from both social and cultural history. Primary sources include a broad swath of magazine and newspaper articles, letters, and editorials about various copyright-related controversies. Examining these sources – both mainstream and obscure – illustrates the diversity of thinking about copyright issues during the nineteenth century, and suggests alternative frameworks for considering copyright in other times.

[Thanks Copyfight]

Bob Ostertag

Bob Ostertag is a musician and experimental audio artist based in San Francisco. He has been performing and recording since the 1970s. In October of 2007, I interviewed him about the release of his new album, w00t, a collage of computer game sound and image that began as the sound for Special Forces, a live cinema piece by Living Cinema (Pierre Hébert and Bob Ostertag). Bob is one of a growing number of musicians who have decided to release their music for free Internet download. Even within this group, Bob is unusually progressive — or as I prefer to think of it, ahead of the curve: he chose a Creative Commons Attribution 3.0 license, which allows not only downloading at no charge, but the freedom to make derivative works and to make commercial use of the music, for example as the sound for a live performance for which tickets are sold.

In October 2007, I conducted the following interview with Bob about the album’s release. (Note: between our previous article by him and now, Bob joined the board of directors of QuestionCopyright.org).

Karl: First of all, what’s the name of the album?

Bob: “w00t” [spells it out]

Karl: So were you yourself a devotée of the video games whose sounds w00t draws on?

Bob: Did I play the games?

Karl: Yeah.

Bob: No, no… I’m reluctant to admit that…

Karl: [laughs] Too late, it’s all part of the public record, it’s the front page of the New York Times tomorrow: “Bob Ostertag: I Never Played The Game”.

Bob: Yeah, me and JT Leroy, it’s all a hoax! Uh, no. But I’m very interested in the gaming phenomenon. My partner in this, John Cooney, actually designs games, and if you go to his website you’ll see that he puts up free, online Flash games, for which he’s very well known.

Karl: Do you happen to know if that’s “free” as in “all uses allowed”?

Bob: Yeah, you just play them online, and they’re fantastic, he’s been listed in many places. They’ve actually gotten very popular. He’s actually a former student of mine, the one I mentioned in my earlier article at QuestionCopyright.org, the one who got the cease-and-desist letters from corporate lawyers.

Karl: So there are two sort of copyright-related things going on here. One is that you use a lot of other people’s material, and two is that you decided to make the result of that use available itself under an open license, regardless of the license of the original material.

Bob: Yes, well, I wouldn’t say that my decision to put this under an open license is related to the fact that I make use of others’ material, because I put all my work under that license, whether I use others’ material or not. So the fact that I use a license that allows people share and download and copy is sort of a separate issue. Obviously, though, the fact that I decided to use terms which are pretty minimal also creates ideal terms for allowing works like this one.

Karl: It certainly frees you at the outset from any charge of hypocrisy. I mean, anyone could take this album and starting using it in their own mix.

Bob: And I would say that computer games absolutely pervade our culture, I mean, we’re really living a computer game, we’re all doing this on a daily basis.

Karl: …yeah, some of them just happen to have real missiles attached…

Bob: Yes. And particularly gamers, you know, every gamer lives in a collage of computer games right now…

Karl: By that do you mean that they just have a large set of games, or that the games themselves are composed of references to games that came before?

Bob: By that I mean that I think their life experience right now and their experience of games are pretty close to a collage. A real gamer doesn’t play just one game, they’re involved pretty deeply, actually, in a variety of games. A lot of gamers put so many hours into gaming, that the visual and audio landscapes of the games become part of their lived experience. So that’s what I mean. I don’t mean that the games themselves are collages of elements from other games, but I mean that if you’re a gamer, if you’re an avid gamer, the way you experience the world of games is pretty close to a collage already.

Karl:Yeah, I mean, I don’t play a lot of the games myself, but I talk to a lot of people who spend a fair amount of time gaming either on their own home console or they’re sort of taking part in virtual reality worlds that are games but also they’re places that you live, that become your mental space. Is the album sort of an attempt to make that mental space external, to express it artistically, and make it apparent to other people who don’t play these games?

Bob: Sure, that’s a fair description.

Karl: Have you ever done music for a game yourself, like been hired by the game company?

Bob: I have, yes. A long time ago, a long time ago. I mean it was trivial; I didn’t actually write anything, I just did the sound effects.

Karl: Was it satisfying artistically, or was just completely like, you know…

Bob: Yeah, it was a day job.

Karl: “I was young, I needed the money”, that kind of thing?

Bob: Exactly. Well, I wasn’t so young, but I did need the money.

Karl: [laughs] Would you say that your conception of what the album is is the same as your collaborator’s, or is he sort living in a different universe?

Bob: Oh I think pretty much the same. But you should ask him!

Karl: I’d like to. Is his email address in the email you sent me?

Bob: Yes, or you can contact him through his website.

Karl: Maybe what I’ll do is I’ll just send him a transcript of this and then he can just add comments, and then we can just post that. [We’ll invite John Cooney to comment. -KF]

Bob: Sure.

Karl: I think this is the first release you’ve done that is under a completely free license…

Bob: Yes.

Karl: …the previous ones were Creative Commons licenses, and I think they allowed derivative works but they didn’t allow commercial redistribution, is that correct?

Bob: Correct, correct. Also, all those previous ones had a prior life, they were first published in the traditional way, and then later I put them online for free download.

Karl: Are you going to have a printed CD with your own booklet and stuff?

Bob: No.

Karl: Oh! Okay, so I just download it, burn a CD, print the liner notes, put it in my own jewel case.

Bob: Yup. Or you just download it and put it in your own iTunes, or wherever you put your music. And the file that you download, if you put it into iTunes, it’ll actually display the artwork in the way that iTunes displays cover art, the same as if it were released commercially.

Karl: What made you take the jump from… I mean, using the previous licenses is a little bit more than testing the waters, it’s actually going pretty far, but this is really diving in. In terms of changing the terms to be, basically, anyone can do whatever they want with it, as long as they credit you.

Bob: Really, for my own terms, I’d pretty much just put it in the public domain. Because in a sense I feel like using these Creative Commons licenses perpetuates the myth that somebody might actually be able to enforce the terms that they’d like, which is actually not true.

Karl: Hmmm, that’s an interesting statement…

Bob: If somebody uses it and doesn’t credit myself or John, I have no recourse. I’m not going to, uh, hire a lawyer, I mean that’s just a myth. So in a sense, if I had my druthers I’d just put it in the public domain. But on the other hand, I support of the efforts of the Creative Commons, I want to be part of that overall effort. So even though by using the creative commons license I’m technically claiming rights which I have no means to enforce, and couldn’t enforce if I wanted to, I still want to be part of that, I want to support them.

Karl: You know, one thing that occurs to me is that, if by some chance somebody did use the stuff and pretend it was theirs, and not credit you, even though you might not hire a lawyer, you could make public stink about it, and in that case having the Creative Commons attribution license on sort of helps your cause.

Bob: But I could do that anyway.

Karl: Yeah, you could do it even if it were in the public domain. It just becomes a little bit easier.

Bob: The point is to make a moral claim. Having the license on doesn’t show how it got there, it would just be a matter of principle. But I could show that I had this thing up on the web at a certain date, then that would show that people that we did it.

Karl: Yeah, I don’t think it would make a legal difference. So do you think you might move to public domain for later works, or do you want to sort of stick with giving Creative Commons a public nod like that?

Bob: Oh, I think I’m comfortable with Creative Commons attribution license.

Karl: Last week Radiohead released their new recording, In Rainbows, for free Internet release. Do you see yourself as working in the same direction?

Bob: Well, no. Which is not to criticize Radiohead. I support any move towards free culture, particularly in terms of the Internet. But there are important differences between what they are doing and what I am doing here.

w00t is not available on the Internet for a limited time only. It is a free release. And w00t is not a one-time experiment. I have put all my music up for free download. Radiohead has made clear that intention is not to give away its music, but rather to “prevent it from leaking out to the public haphazardly over several months before the official CD release.” And that release will be a box set priced at $80! Whether this ultimately plays out as a move towards freer culture or a convoluted marketing ploy will have to be seen.

Jessica Ferris

photo by Colin Lieberman

Jessica Ferris is a writer, performer, and teacher in the San Francisco Bay Area. After reading the article “New York University Confuses Filesharing with Plagiarism”, she wrote this response, exploring the process by which copying and plagiarism get mixed up with each other.

So an NYU provost confused filesharing with plagiarism. Many people do. How come?

I have a hunch that one of the contributing factors is the “Everything I Need to Know I Learned in Kindergarten” Syndrome.

Lots of copying goes on in primary schools: students copy down words from the board, teachers make copies of the week’s spelling test, administrators make copies of the parent newsletter. But when Miss Winthrop says “don’t copy,” she’s not referring to any of these activities. What she means is: “Don’t copy the work of someone else and try to pass it off as your own.” She means “Don’t plagiarize.”

But her choice of words is understandable, given her audience. “Plagiarism” is a four syllable word with tricky spelling, and understanding it requires abstract thought. How do you explain standard source-crediting practices to a seven year old? Meanwhile, “copy” is a two syllable word with easy spelling, and it refers to a concrete physical action.

I was teaching in an elementary school last week, and I looked up “copy” in the classroom Webster’s dictionary. It didn’t list “plagiarize,” as one of the meanings, but nonetheless, if I had told any of the students not to copy, that is the meaning they would have understood. I think this kind of under-the-radar meaning — the one we took as gospel from our beloved and feared primary school teachers — allows the RIAA and other organizations to so effectively confuse the general public, and even learned members of academia. To many people, “copyright” means “the right to control copying and take credit for having created the source material.”

A Case Study

When I did a Google search for “sue for plagiarism,” the top ten results were all discussions of the same case. The clever folks at Turnitin.com decided to make money by using the Internet as a way to spot (and thereby discourage) plagiarism. A teacher can submit a student paper, and Turnitin compares it to its huge database. This database includes text from Internet pages, text from commercial databases of journal articles and periodicals, and text from every student paper an educator has ever submitted.

A couple of high school students whose papers were archived by Turnitin are now suing the company for copyright infringement. This is dizzying enough just by itself, but it gets more dizzying. Look at this blog post discussing the case, and just try to sort out the different meanings of “copy,” “copyright,” and “plagiarism”:


No, better yet, let’s do it together. Let’s look at the first three paragraphs.

First paragraph:

Got a term paper to write? No problem, just fire up the old Internet connection and copy some text from Wikipedia. Of course, in the good old days, you had to copy off of a neighbor or buy a copy of a paper some other student had written a few years ago.

The word “copy” appears three times. The first time it means “reproduce with the intent to plagiarize.” The second time, in the phrase “copy off of,” it means “plagiarize.” The third time it means “a reproduction made to facilitate plagiarism.”

Simply, copy = plagiarize.

Second paragraph:

Hoever [sic], modern technology means more than just new ways to cheat. It also means new ways to catch cheaters. A couple of years ago, many schools started turning to plagiarism checking software like Turnitin. The software includes a large database of documents, and when a paper is uploaded the program checks it against that database.

“New ways to cheat,” of course, refers to his use of the word “copy” in the first paragraph, filling out the nefarious connotation of the word “copy” just a little more.

“Plagiarism” in this paragraph means just what we expect it to, which is to say, just what “copy” meant in the first paragraph: “taking the writings of another and selling and/or publishing them as one’s own product.” (Definition from Dictionary.law.com. Have you ever checked out the etymology of “plagiarize,” by the way? It’s interesting: it comes from a root meaning to kidnap or to snare.)

On to the third paragraph:

But here’s the thing. It then adds that paper to the database for future reference. And it doesn’t ask your permission. So a couple of high school students decided to sue Turnitin for copyright violation.

This is getting very confusing! Turnitin makes money because teachers want students to stop copying, but Turnitin copies student papers! So if the copying that cheating students do is wrong, and the copying that Turnitin does is wrong, copyright violation must be just like plagiarism! Right?

Well, wrong. The muddy use of the word “copy” leads us astray.

“Copyright,” means simply the sole right of the creator of a work to say who can make reproductions of that work. The creator can sign this right over to someone else — for example, to a publisher. But copyright, in its central sense, doesn’t have anything to do with who gets credit for creating the work — it’s assumed that the creator of the work should always be credited (thus even when an author assigns copyright to a publisher, the publisher still puts the author’s name on the book).

Things are further confounded because our legal system is strange. See what dictionary.law.com says (bold emphasis mine):


n. taking the writings or literary concepts (a plot, characters, words) of another and selling and/or publishing them as one’s own product. Quotes which are brief or are acknowledged as quotes do not constitute plagiarism. The actual author can bring a lawsuit for appropriation of his/her work against the plagiarist and recover the profits. Normally plagiarism is not a crime, but it can be used as the basis of a fraud charge or copyright infringement if prior creation can be proved.

See also: copyright infringement

Since it’s difficult to sue for plagiarism, people often sue for copyright infringement instead. As in, “You took credit for having created my work, you dumb depraved hack, but I can’t sue you for that because our legal system is so twisted! So instead I’ll just sue you for having distributed my work without my permission, even though that’s really not the heart of the matter.”


So what does this all mean? It means that people fighting for copyright reform have an uphill battle, because they have to clarify our culture’s ambiguous use of language before we can all participate in the same nuanced discussion.

And while the list of failed campaigns for “No, Guys, Say It This Way!” is a long one (freedom fries, anyone?) our culture does change language use when there are enough people who are passionate about what the change signifies. The words we use to talk about minorities, for example, have changed as a result of civil rights activism.

Personally, I find myself a bit more vigilant about what I say to my students, and lucky for me, there is no shortage of teacher stock phrases. Instead of “don’t copy,” I’m pulling out the less-used but just as effective “keep your eyes on your own paper,” “do your own work,” and “no cheating.” The kids are understanding just fine.