Copyright/Intellectual Property

Montana Photographer Takes on Republican Party

19 October 2017

From American University Intellectual Property Brief:

In March 2016, Peterman photographed Rob Quist, a musical performer and Democratic candidate for Montana’s only seat in the US House of Representatives. The Montana Democratic Party contracted Peterman to cover the Mansfield Metcalf Celebration campaign event. Afterwards, she gave both the Party and the Quist Campaign limited license to use the photo of Quist, as well as other photos.

On May 9, 2017, Peterman was alerted by a friend that the Republican National Committee (RNC) had used one of her photographs on a mailer. The picture was overlaid with text reading, “For Montana Conservatives, Liberal Robert Quist Can’t Hit the Right Note.” An RNC spokesperson said the photo was taken from the Quist Campaign’s Facebook page. Peterman says that she never gave permission for anyone outside of the DNC or Quist’s campaign to use the photos, and they are committing copyright infringement.

. . . .

It is unlikely that Peterman will be able to obtain any monetary damages from the RNC. She registered the copyright on May 12, 2017, in order to be able file suit. When one party takes another’s copyrighted material, the wronged party may only sue for statutory damages if the material was already registered. Because Peterman’s photo was not registered, she can only sue for actual damages. Actual damages can be obtained when there is proven loss to the offended party. Currently, it is unclear whether she planned to use the photograph for anything besides licensing it to the Democratic Party of Montana. If she did have another use for the photograph, she would need to produce evidence that she would have made a profit in such an endeavor, and prove that the RNC prevented her from making this profit.

Link to the rest at American University Intellectual Property Brief

PG wondered what attorney might have filed this suit. Court documents list the attorney’s name as Erin M. Erickson.

Here’s an excerpt from Ms. Erickson’s professional bio as it appears on her law firm’s website:

Erin was raised in Polson, Montana. She attended Gonzaga University in Spokane, Washington, graduating with a Bachelor of Arts in English Literature.

Erin attended the University of Montana School of Law. While attending law school, she served as a legal writing and research graduate teaching assistant; interned for the U.S. Attorney’s office; served as Vice President of Phi Delta Phi; and was a co-founder of the University of Montana Women’s Hockey Team.

. . . .

Upon graduating, Erin began her legal career with Phillips & Bohyer, P.C. In 2009, she became a shareholder in the current firm, Bohyer, Erickson, Beaudette & Tranel, P.C.

Erin is admitted to practice in all Montana State and Federal Courts, as well as the Confederated Salish & Kootenai and Blackfeet Tribal Courts. She has considerable experience practicing within the Montana Human Rights Bureau and the Department of Labor and Industry. Erin’s primary areas of practice include: insurance defense, insurance coverage, bad faith, employer liability, employment and labor law and EEOC compliance.

Erin is a member of the State Bar of Montana, the Western Bar Association, the American Bar Association and the Defense Research Institute (DRI). She has presented at various continuing legal education seminars in the areas of labor and employment law. Erin has also presented seminars to insurance claims professionals throughout the Northwest on a variety of insurance related topics.

PG says this is a perfectly respectable bio but it doesn’t reflect any expertise in copyright or IP law.

At Core of 5Pointz Trial: Is Graffiti Art Protected by Law?

18 October 2017

From The New York Times:

Graffiti has come a long way since the 1970s when fly-by-night taggers sprayed their work on bridge abutments or subway cars then slipped away before the authorities arrived. These days, fashion labels use it in their photo shoots. Huge corporations include it in their ad campaigns. In museums and auction houses, it has been rebranded with a classy new name: aerosol art.

On Tuesday, however, a trial began in Brooklyn that will eventually determine whether graffiti, despite its transient nature, should be recognized as art to the point of being protected by federal law. The trial, which is likely to explore broad questions of aesthetics, property rights and the relationship between the arts and gentrification, has, at its heart, pitted more than 20 graffiti artists whose work appeared in the beloved 5Pointz complex in Long Island City, Queens, against the owner of the buildings who demolished both them and the art adorning their walls.

. . . .

5Pointz was a rare collaboration between a real-estate developer and a group of street artists. In 1993, when Long Island City was beset by crime, the developer, Jerry Wolkoff, allowed a crew of taggers to decorate his buildings at 45-46 Davis Street with a wild array of colorful, swirling murals.

For 20 years, 5Pointz was an offbeat tourist destination that not only attracted thousands of visitors, but also helped transformed Long Island City into the thriving residential neighborhood it is today. 5Pointz eventually became “the world’s largest open-air aerosol museum,” in the words of Eric Baum, a lawyer for the artists, but its existence was always predicated on Mr. Wolkoff tearing it down and developing the complex, which he ultimately did in 2014.

Before the demolition, the artists tried several times to stop it — asking city officials to grant the complex landmark status, even attempting to buy 5Pointz themselves, Mr. Baum said. They filed suit in Federal District Court in Brooklyn shortly after Mr. Wolkoff destroyed their art, sending in a team of painters to whitewash the graffiti.

. . . .

 Their claims rest on a rarely tested provision of a federal law called the Visual Artists Rights Act, or V.A.R.A., which has been used to protect public art of “recognized stature” created on someone else’s property. Given that the plaintiffs are seeking financial damages for ephemeral work they did on Mr. Wolkoff’s walls, Judge Frederic Block, who is presiding over the case, suggested on Tuesday that the case would very likely venture into novel legal territory. “We’re working with a clean slate,” Judge Block said.

. . . .

 In his opening statement, Mr. Baum told the jury that they would hear from several art experts that the whitewashed graffiti was indeed of “recognized stature” and that Mr. Wolkoff, no matter how generous he had been with his buildings in the past, failed to give the artists the proper 90-day notice that 5Pointz was slated to come down. Mr. Baum added that his clients never wanted to sue; they wanted to save 5Pointz. But once the complex and the art had been destroyed, he said, they had only two choices: ask for money or do nothing.

. . . .

 Mr. Ebert acknowledged that 5Pointz was a “fantastic place” — one that Mr. Wolkoff helped create — but he argued that the law in question was irrelevant. “V.A.R.A. does not protect buildings,” he said. “It protects art.”

Link to the rest at The New York Times

Cady Noland Sues Seeking Destruction of Artwork “Copy” She Disavowed

17 October 2017

From Artsy.net:

On Tuesday, artist Cady Noland filed a lawsuit seeking the destruction of Log Cabin (1990)a wooden sculpture formerly attributed to the artist that has been embroiled in authenticity and legal disputes.

The suit asserts that, in an effort to conserve the piece, it was entirely reconstructed from new wood without permission or notice, essentially producing an unauthorized copy. Noland says this copy and its subsequent sale for $1.4 million violated her copyright and rights under the Visual Artists Rights Act (VARA).

. . . .

Purchased by Schürmann in 1990, the large-scale wooden sculpture went on view outdoors in 1995 as part of a long-term loan with Aachen’s Suermondt-Ludwig-Museum. The piece stayed outside for approximately 10 years, according to the complaint.

The suit charges that in 2010, a conservator evaluated the cabin and recommended to “one or more” of those named as defendants that all of the logs should be replaced. As a result of the advice, “the entire edifice” of the piece was replaced and the original discarded. In July of 2014, the conserved Log Cabin was sold by Galerie Michael Janssen to Ohio collector Scott Mueller for $1.4 million.

Shortly after the sale, Noland says she was informed about the replacements to her work for the first time. She was told the piece had “suffered significant deterioration” and that “a great number of the logs had rotted or begun to rot.” Noland faxed Mueller on July 18th disavowing the piece, writing “this is not an artwork” and noting it was “repaired by a conservator (sic) BUT THE ARTIST WASN’T CONSULTED.”

Under VARA, artists can disavow their work and prevent attribution to them if the piece is mutilated  or modified in ways that are prejudicial to an artist’s reputation. Noland has disavowed other pieces in the past for such reasons, including Cowboys Milking in 2011. The previous disavowals likely contributed to a clause in Mueller’s purchase agreement that, should Noland disavow Log Cabin within 12 months of the purchase, he was entitled to reverse the sale—which the collector sought to do following Noland’s fax. After receiving $600,000, Mueller sued Janssen and his Berlin gallery in a New York court in June of 2015 for the rest of the funds, but the case was dismissed as being time-barred.

. . . .

Barring a settlement, the suit will provide rare case-law around VARA, which is often invoked but rarely litigated to verdict. The law does grant artists the right to disavow mutilated or distorted art. But it carves out an exception for modification “which is the result of conservation or public presentation, including lighting and placement” unless that modification is “caused by gross negligence.”

. . . .

Noland also charges that the restoration of her work duplicated the cabin in violation of copyright law, which prohibits the reproduction of copyrighted or derivative work without permission. The charge raises broad questions about the conservation of conceptual art, notes Amy Adler, an art law professor at New York University.

“At what point does conserving a piece mean recreating it?” she asked.

Link to the rest at Artsy.net

The 5 Weirdest Lawsuits About Authors Stealing Ideas

14 October 2017

From Electric Lit:

In a lawsuit filed September 14, a former Swarthmore College baseball player named Charles Green accused Chad Harbach, author of The Art of Fielding, of stealing significant plot points from Green’s unpublished autobiographical novel, Bucky’s 9th. “The two baseball novels bear a substantial similarity that could occur only as a result of Harbach’s access to a version (or versions) of Bucky’s and his large-scale misappropriation of Green’s creative efforts,” the suit claims. Among the “uncanny” parallels cited: Both are baseball stories. Both concern, specifically, the baseball teams of Division III liberal arts colleges. Both involve a baseball prodigy coming of age, and incorporate a “Recruiter-Mentor Plot” and an “Illicit-Romance Plot.” Both feature an estrangement between a father and his adult child. Also, both have a “climactic beaning scene.”

Does this amount to plagiarism? It’s hard to say. The two novels share a number of elements, but many of these elements are also present, in, say, the Futurama episode “A Leela of Her Own.” Unlike cases of stolen language, à la Jonah Lehrer or Melania Trump, claims about stolen ideas are challenging to prove. But that doesn’t stop people from trying.

. . . .

J.K. Rowling has been accused of idea theft, and vice versa, so many times that there’s a whole Wikipedia page for “legal disputes over the Harry Potter series.” The earliest was American writer Nancy Kathleen Stouffer, who sued Rowling for infringement in 1999, when only three of the books had been published (although it was already clear that the series was turning a handsome profit). Stouffer claimed that she’d invented the word “muggle” in her vanity-press book The Legend of Rah and the Muggles, and that another of her works featured a character named Larry Potter. This is thin enough—but the court didn’t just rule that the similarities were too vague to amount to much. It actually found that even Stouffer’s weak evidence may have been fabricated. “In connection with this litigation, Stouffer has produced booklets entitled The Legend of Rah and the Muggles that were allegedly created by [publisher] Ande in the 1980s,” says the judgment. “However, plaintiffs have submitted expert testimony indicating that the words ‘The Legend of’ and the words ‘and the Muggles,’ which appear on the title pages of these booklets, could not have been printed prior to 1991.” Ditto for the tale of Larry Potter, which the judgment describes as the story of “a once happy boy named Larry who has become sad.” Stouffer said that the ’90s provenance of the words “muggle” and “Potter” wasn’t related to the case; she attributed it to “the fact that she continued to revise the story into the 1990s.” But the court found the whole thing unconvincing. Not only was the case dismissed, but the judge fined Stouffer $50,000 for “intentional bad faith conduct.”

Link to the rest at Electric Lit

From What Copyright Does Not Protect:

The Copyright Act says:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 5 

. . . .

Copyright law protects the expression of facts and ideas, not the ideas and facts themselves. Works that have not been fixed to a tangible medium are just ideas. Ideas are fair game for everyone to express in their own words. And ideas have been stolen since the dawn of art and literature. Here are some examples:7

  • Canterbury Tales by Chaucer took ideas from the Italian author, Boccaccio.
  • Shakespeare took plots for 90 percent of his greatest plays from other authors.
  • Dimitri Yernetz wrote a series of books about a young magician under the titleTanya Grotter, written after J. K. Rowling’s Harry Potter.
  • Cameron Crowe’s movie Vanilla Sky was a remake of a 1997 Spanish movie called Open Your Eyes. Penelope Cruz starred in both.

Link to the rest at Washington State University – University Communications

Appeals Court Skeptical About Overturning Marvin Gaye Family’s “Blurred Lines” Victory

11 October 2017

From The Hollywood Reporter:

The $5.3 million punishment against Robin Thicke and Pharrell Williams for infringing Marvin Gaye’s “Got to Give It Up” to create “Blurred Lines” made quite a loud noise throughout the music industry. Since the jury’s 2015 verdict, song theft claims have flourished, and some recording stars like Sam Smith and Ed Sheeran have settled allegations rather than face the music at a trial. On Friday, the “Blurred Lines” creators got an opportunity before the 9th Circuit Court of Appeals to argue why a legal error was made. But those who found the “Blurred Lines” trial result discordant may have to brace themselves for the next verse in this dispute. Not only did the three judges who heard the appeal seem skeptical about overturning the district court’s judgment, but there may be decent chance that Gaye’s family is in line for an even bigger victory.

At the hearing, 9th Circuit judge R. Randy Smith called the “Blurred Lines” appeal an “important” one. Twice. And he let the attorneys argue beyond their time allotments in what’s often a sign that a big decision is coming.

. . . .

Before the mid-1970s, sound recordings weren’t protectable under copyright law. Congress changed that, but given that Gaye’s “Got to Give It Up” was one of the last songs before the legislative change went into effect, his family was forced to litigate the “Blurred Lines” case under a certain disadvantage that no modern music creator would today face. Only protectable elements were given weight — and according to U.S. District Judge John Kronstadt, that meant forgoing any analysis of Gaye’s original “Got to Give It Up” recording. Instead, what’s protectable is whatever was expressed by the sheet music deposited at the U.S. Copyright Office. Jurors never got to hear Gaye’s original song. Instead, each side had musicologists testifying about that sheet music and whether there was any substantial similarity.

The appellants are contending that Judge Kronstadt committed reversible error a few different ways. First, by not sufficiently filtering out unprotectable elements when refusing a summary judgment motion before trial. Second, by allowing the other side’s musicologists to draw inferences beyond what was expressed in the sheet music. And third, by not properly instructing the jury on the need to disregard unprotectable elements like the “groove” on Marvin Gaye’s hit.

Thicke and Williams, though, are now the underdogs.

“This court has never overturned a verdict in a music copyright case and this shouldn’t be the first,” said Lisa Blatt, the Arnold & Porter attorney for the Gayes.

Link to the rest at The Hollywood Reporter

You can be the judge.

Marvin Gaye-https://youtu.be/fp7Q1OAzITM
.

Robin Thicke and Pharrell Williams-https://youtu.be/58mNSqq1rTM

Publishers Support Small Claims Legislation Introduced by House

7 October 2017

From the Association of American Publishers:

The Association of American Publishers (AAP) supports the Copyright Alternative in Small-Claims Enforcement Act of 2017 (or the CASE Act of 2017), a bi-partisan initiative introduced earlier this week.

. . . .

[The proposed legislation] would establish a process within the U.S. Copyright Office for resolving disputes involving low-value claims.

As it stands today, both copyright claimants and copyright defendants are at a loss for affordable dispute resolution when it comes to small claims. A report of the American Intellectual Property Law Association stated that the average cost of litigating a copyright infringement case in federal court from pre-trial through the appeals process is $278,000 – an amount which is out of reach for many authors, publishers and related businesses in the copyright ecosystem.

Link to the rest at the Association of American Publishers

PG says be careful what you wish for. When large organizations are sued in by individuals in small claims court, many companies hire attorneys to appear in court in their defense.

Some small claims are legitimate, but others are just weird. PG doesn’t know if any of the small claims courts around the US have effective pre-trial processes for cleaning out the weird claims, but if the proposed Copyright Small Claims court does not, publishers and authors will be spending lots of time and money defending claims that they stole somebody’s idea as embodied in a middle-school writing assignment.

From TechDirt:

For a while now, some in the copyright community have been pushing for a copyright “small claims court” as an alternative to filing a federal lawsuit over copyright law. It’s true that, especially for small copyright holders, the cost of filing a lawsuit may appear to be rather prohibitive. But it’s not clear that a small claims court is the answer. A few years ago, we wrote about some potential concerns with such an approach, but have also admitted that if set up right, it could have some advantages. But that requires it be set up right.

Unfortunately, a new bill has been introduced, by Rep. Hakeem Jeffries, along with Rep. Tom Marino, to officially set up such a system — and it’s done in a way that looks like it will not be well-designed, and instead will lead to a massive rush of small claims, especially by copyright trolls.

. . . .

But the really big problem in my mind is that this seems likely to just be swamped by copyright trolls. We already see that they’re flooding the federal court system, where multiple rulings against joinder (i.e., the ridiculous bundling of thousands of possible file sharers together) has meant that when trolls do sue, they’re generally limited in how many people they can sue. Making the process cheaper, but still offering statutory damages amounts that can be quite scary to the average American, and that can still get the job done of scaring threatened users into paying up fines that are much smaller than the $15,000.

And, yes, this small claims system will allow for discovery, which is the key feature that trolls want. They want to sue, and then get discovery where they can send demands to ISPs for names of subscribers based on IP addresses, and there doesn’t appear to be anything in the bill to stop that. It does note that parties seeking discovery need to show “good cause” to enable discovery, but that may be a fairly low bar.

. . . .

Another potential issue: the bill would let individuals go after not just actual infringers, but alsoservice providers if they fail to follow through on a DMCA takedown notice. Basically, it exports the DMCA safe harbors to this small claims process as well, but that may mean that internet platforms are going to get dragged through this process that was meant to focus on small claims that could be easily adjudicated.

Link to the rest at TechDirt

Showing NFL Football Games in Church

5 October 2017

Copyright law is a many-splendored field.

The following has nothing to do with books, but discusses an obscure and interesting (at least for PG) corner of copyright law.

From Plagiarism Today:

Churches host Super Bowl viewing parties as a family friendly and dynamic evangelistic opportunity to reach out to their community, but what about copyright issues and potential infringement problems?

Churches can host Super Bowl parties without fear of penalties and interference from the NFL for copyright infringement…IF they stay within certain boundaries. Recently, we asked the NFL about regular season games and playoffs. They gave the green light as long as churches follow the same guidelines outlined for the Super Bowl.

. . . .

CCS: What is the NFL’s policies regarding showing regular season games and playoff games during the season? Does your policy only apply to the Super Bowl?

NFL: It is acceptable for churches to follow the same guidelines throughout the season if they want to watch regular season games at their church.

CCS: Many churches enjoy gathering together to watch the football every year, but are unsure about necessary steps that must be taken in order to stay copyright compliant when doing so. What requirements must a church meet in order to host a “viewing party?”

NFL: If a church holds a “viewing party” in its usual place of worship and does not charge a fee for attending, the NFL will not object.

A key point in the NFL’s response to churches is its allowance of a viewing party in the “usual place of worship.” This is an important qualification to understand. We understand that many churches do not have a typical church campus and may use rented public spaces to conduct worship services. Here is the NFL’s position on these situations:

CCS: Many churches hold regular services in rented spaces (i.e. convention centers, hotel conference centers, movie theaters, and school auditoriums). Does your previously mentioned statement regarding “usual place of worship” also apply to churches in these situations?

NFL: No, the NFL’s grant of permission is with respect to the church property (not rented spaces).

. . . .

There are some important rules to follow to avoid being tackled with risks of copyright infringement:

  1. Churches must show the game live on equipment they use in the course of ministry at their premises.
  2. Churches cannot charge admission for the party. The NFL has stated, however, that churches may take up a donation to defray the cost of the event.
  3. Churches must not use NFL Shield, Super Bowl or Club logos to promote the party.

The NFL has the right to put restrictions on how churches and other establishments show the games because the broadcasts, like all televised programs, are protected by copyright law. The U.S. Copyright Act specifically restricts public establishments from transmitting broadcasts on TV screens larger than 55” without paying license fees to the copyright owner. In this case, the NFL owns the rights to show the live TV broadcast of the game.

Link to the rest at Plagiarism Today

CCS in the OP refers to Christian Copyright Solutions.

CCS describes its mission, in part, as follows:

CCS is a leading authority on church music copyrights, providing simple music licensing solutions and clear educational resources. CCS is the only Christian company to partner with ASCAP, BMI and SESAC (U.S. performance rights organizations) to offer one-stop performance licenses that allow religious organizations to legally play, perform and stream more than 20 million Christian, holiday and secular songs of all genres.

Remove Watermarks Online? Be Prepared to Answer to the DMCA

2 October 2017

From Art Law Journal:

Google recently made headlines in the photography community when it released a paper authored by several of its engineers that essentially concluded that a watermark on any photograph is vulnerable to being removed en masse because of the way that most stock photo agencies present images on their websites.

Although framed as “Making Visible Watermarks More Effective,” the research paper and the blog post that articulates its findings in plain English, effectively serve as a how-to manual for anyone interested in building a tool to systematically remove watermarks online. The paper specifically explains that websites such as stock photo libraries, which tend to place watermarks in the same place across each image in their catalogs, are particularly susceptible because artificial intelligence can easily predict where the watermark appears and undertake steps to remove it.

. . . .

Fascinating stuff, to be sure. But I thought of a different solution: The law.

. . . .

Most people have heard of the Digital Millennium Copyright Act (DMCA) for at least one of two major provisions: (1) the so-called “safe harbor” provisions that immunize certain online service providers from liability in exchange for agreeing, among other things, to take down content upon receiving a complaint from the copyright owner; and (2) the “anti-circumvention” provisions that make it illegal to hack through the digital rights management software used to restrict access to copyrighted content, such as the Advanced Access Content System (AACS) that protects content on Blu-ray discs.

But there is a lesser-known aspect of the DMCA known clunkily as the provision on “integrity of copyright management information.” Known more conveniently by its abbreviated name CMI, Section 1202 makes it illegal to falsify or remove copyright management information (CMI). It also makes it illegal to distribute knowing that the CMI has been removed or altered.

What is CMI Anyway?

Section 1202 of the DMCA lists eight broad categories, including:

  1. The title and other information identifying the work, including the information set forth on a notice of copyright.
  2. The name of, and other identifying information about, the author of a work.
  3. The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
  4. With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.
  5. With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.
  6. Terms and conditions for use of the work.
  7. Identifying numbers or symbols referring to such information or links to such information.
  8. Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.

It’s clear, then, that a visible copyright notice, would be considered CMI under DMCA laws. Similarly, a visible title appearing across an image would constitute CMI. Embedded metadata such as IPTC or PLUS information that provides “identifying information” about the work or the author would also plainly qualify. Courts have also held that credit lines, such as watermarks, appearing on or next to photos, as well links to photographers’ websites, such as those that appear next to photos on social media services, also clearly qualify.

. . . .

It’s worth clarifying that infringements of DMCA Section 1202 are separate from any infringement of the underlying copyright. For example, if I steal an image from a stock photo library, remove the watermark, and use it in a project without first securing a license (assuming that there is no applicable exception, such as fair use), I have violated not only Section 1202 for removing the watermark but I have also engaged in run-of-the-mill copyright infringement for using the image without a license.

Link to the rest at Art Law Journal

5 Uncomfortable Truths About Plagiarism

30 September 2017

From Plagiarism Today:

When it comes to plagiarism, there’s an understandable desire to bury our heads in the sand.

We don’t want to believe plagiarism exists. If it must exist then we don’t want to believe it’s that common. If it’s that common then it can’t be that bad. If it’s that bad, there must be a way to stop it.

. . . .

Truth 1: Most Plagiarisms Aren’t Caught

In the age of plagiarism detection software and an eagle-eyed public, it might seem that there’s no place for a plagiarist to hide.

However, he truth is that most plagiarisms aren’t caught, at least not timely.

The reason isn’t because the technology is flawed or readers have poor memories, but rather, because there’s so much to read and so little is actually checked.

Sure, any piece of text can be checked for matching passages, but many schools and publications don’t bother using the tools at all. Those who do often use it in a spotty fashion and, even when it is used consistently, it’s still to easy to ignore or misinterpret results.

Take for example journalism, which has been mired in plagiarism scandals in recent years but has still steadfastly refused to use plagiarism detection software.

. . . .

Truth 5: Plagiarism Isn’t Going Away

There was plagiarism before the internet and the internet only made plagiarism easier. There’s no reason to think it will go away now.

Yes, the internet has been a double edged sword for plagiarism, making it easier to detect as well. But since most plagiarisms are still undetected, that ease of detection provides little deterrence.

While there are many things that can and should be done to reduce the amount of plagiarism, including crafting plagiarism-resistant assignments, educating on proper citation and using plagiarism detection tools correctly, none of it will completely stop stop plagiarism.

Trying to eliminate plagiarism is akin to trying to eliminate crime. You can (and should) work to reduce it, but as long as humans behave like humans, you can never eliminate it.

Link to the rest at Plagiarism Today

I Subscribed to What? What Online Subscription-Based Marketers Need To Tell Their Consumers

30 September 2017

From Trademark and Copyright Law:

I am certainly not the only person who has been lured into purchasing a too-good-to-be-true, deeply discounted product online, only to learn that what I actually purchased was a subscription to buy more stuff.  Kate Hudson’s athletic wear company Fabletics hooked me about a year ago when I saw a cute workout outfit advertised on social media for only $25.00.  I purchased the outfit on Fabletics’ website, only to discover months later that I had become a “proud” member of the Fabletics “VIP” program.  Despite its fancy name, all it means is that I was paying, unbeknownst to me, $49.95 a month to receive a monthly shipment of more workout clothes.  Despite my VIP status, I never actually received my monthly gear because I was unaware I was a member, and hence I never returned to the website to pick out my monthly items.  This allowed Fabletics to continue to charge me each month, until I noticed the charges almost 5 months later on my bank statements.

. . . .

The Federal Trade Commission (FTC), the government agency tasked to enforce truth-in-advertising laws, calls this kind of subscription-based sales “negative option marketing.”  Negative option marketing allows sellers to interpret a customer’s failure to take an affirmative action to either reject or cancel a payment plan, as an agreement to be charged for goods or services, even if the consumer does not need them.  Negative option marketing can pose serious financial consequences to consumers if they are unaware of the sales terms and continue to be billed for products without their knowledge.

There are four kinds of plans that fall into the negative option category:

  1. Continuity plans (Fabletics’ model), where consumers agree in advance to receive periodic shipments of products or services until they cancel the agreement.
  2. Prenotification negative plans, which allow marketers to send periodic notices to consumers offering goods or services, like a book or CD. If the consumer takes no action, the product ships and you are charged.
  3. Automatic renewal plans, which is exactly how it sounds. A magazine publisher, for example, may automatically renew a consumer’s subscription when it expires and charge them for it, unless the consumer cancels the subscription or auto renewal option.
  4. Trial offer plans, which may be structured as free-to-pay, or nominal-fee-to-pay. Consumers receive goods for free or at a nominal price during a trial period. After the trial period ends, the marketer usually then charges a much higher fee unless the consumers affirmatively cancel the subscription or returns the products.

With the increase in online shopping, online subscription-based marketing programs are booming.  Because many online shoppers become “click-happy” (like me) and try to navigate through webpages quickly without paying sufficient attention to lengthy notices, they often miss the fine print in the terms of the agreement disclosing that they will be billed monthly until they cancel. Further, in some cases, realizing that you are being billed monthly is not easy.

. . . .

To avoid these problems and protect consumers, in 2010 Congress enacted the Federal Restore Online Shoppers Confidence Act (ROSCA). ROSCA prohibits negative option online marketers from charging or attempting to charge consumers for products or services unless the marketer does the following: (1) clearly and conspicuously discloses the material terms of the subscription or program before obtaining the consumer’s billing information; (2) obtains the consumer’s express consent to take part in the subscription program and be charged under those terms; and (3) provides a simple mechanism for the consumer to cancel the subscription and to stop recurring charges. The Act gives the FTC and state attorney generals an additional basis to target companies engaged in unfair and deceptive marketing practices.

. . . .

[T]he FTC has brought numerous actions under ROSCA and the Federal Trade Commission Act against online negative option marketers.

Link to the rest at Trademark and Copyright Law

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