Following are excerpts from a website called Similar Works. As the website states, the purpose of this site is to help protect authors from plagiarism of their books.
Beginning of Excerpts:
Protect your book from plagiarism
Similar Works is a web application built to protect authors from having their work exploited and their stories taken from them.
Upload your book to Similar Works and we’ll scan the text against other titles and keep monitoring — and alert you when we find any matches.
. . . .
How It Works
The Similar Works system analyzes ebook files and identifies matching text.
Books are submitted by authors and publishers who wish to protect their copyright, or concerned readers who believe they have found a work containing plagiarized material.
Similar Works reviews all books manually before accepting them into the archive.
Once a book is accepted, the system checks that book against all other titles already added.
If we find text matches that look suspicious, we contact the author or publisher and provide information so that they can take further action to protect their copyright.
We continue to check every time a new book is added to the archive.
Our Book List shows titles that have already been added, as well as a summary of similarities that have been detected called the Similarity Band.
. . . .
The Similarity Band
The Similarity Band is a visual representation of the similarities that our system finds in books.
Each Band is a generated watermark which represents the book’s text, from beginning to end, going from left to right. This is the text as it appears inside the digital file which is uploaded into the Similar Works archive, so it includes things like the copyright notice, the table of contents, disclaimers, back matter, and samples of other books.
When every book is run through the master algorithm, the text is split into logical chunks, usually consisting of no more than a sentence or two. The Band is generated by lining up all the chunks in order, and then recording a color depending on whether a similarity has been detected within that chunk or not.
. . . .
The Band can tell you a lot about how books are related to each other! For example, if a book has a lot of stripes on the far right side of the Band, then there are similarities detected near the end of the text. That probably indicates that the same back matter or samples appear in another book. Stripes on the left indicate similarities detected near the start of the text, and they are probably disclaimers or generic copyright notices.
(We do our best to filter out disclaimers and other generic language used by a lot of authors, so hopefully you won’t see too many of those.)
Unfortunately, the algorithm can only identify similarities. It can’t tell us why the similarity exists.
Common Phrases or Quotations
If you see only one or two stripes, then those are likely common phrases. The sensitivity of the master algorithm is carefully tuned to try to avoid this, but it’s not always successful. These can also be quotations.
Here’s an example of a Similarity Band for The Best of Relations, by Catherine Bilson. You can see that there is a single white stripe indicating a similarity about two-thirds of the way through the book. That similarity was identified as coming from none other than Pride and Prejudice, by Jane Austen – which is not unusual, as The Best of Relations is based on Pride and Prejudice! In this case, it’s a famous line from Jane Austen’s classic that Catherine Bilson added to her novel.
I was given good principles, but left to follow them in pride and conceit.
The Best of Relations/Pride and Prejudice
What Does Plagiarism Look Like?
This is the Similarity Band for Royal Love, a romance novel by Cristiane Serruya. Royal Love is currently part of an ongoing court case filed by famed romance author Nora Roberts against Cristiane Serruya in April 2019, accusing her of plagiarizing lines from as many as forty other romance authors.
The Similar Works system has identified many similarities in Royal Love, spread throughout the book.
In addition to potentially being a great help to authors, PG thinks this is a fascinating field of analysis.
Some visitors to TPV have reported difficulties in seeing the embedded PDF documents in this post. PG first observed this problem this morning – Thursday, May 21 – (everything seemed to work as planned for PG yesterday) and managed to get the embedded PDFs to show up after refreshing the screen a couple of times. You may want to try holding down your Shift key when you refresh the screen.
As you can see below, PG has provided an alternate way for you to view the documents if the embeds don’t work/haven’t worked for you. PG apologizes for any aggravation this issue has caused.
Beginning Original Blog Post:
As observant visitors to The Passive Voice have noticed, PG included a post titled Plagiarism 2020 yesterday. Today, we’ll talk a bit more about plagiarism, focusing on filings in an interesting lawsuit pending in the US District Court in the Central District of California.
PG will provide a bit of explanation and commentary. (You can page through each document by moving your cursor over any page, which will reveal up and down arrows plus a zoom feature.)
If you are easily bored and want to see the most interesting document PG found during his exploration of the Court’s files (which are public records), you can scroll way, way down to the end of this post to view Exhibit C to one of the documents you will read about if you don’t immediately jump to the end.
Exhibit C appears to be the result (perhaps only part of the results) of a computerized analysis comparing the entire text of each of the two books at issue in this case to determine the ways in which they are similar to one another – the core question in a copyright infringement case that does not involve actual copying of all or a substantial portion of a copyright-protected work.
If this type of analysis proves useful and is accepted by courts, the subjective opinions of various “experts” who compare each of the texts by reading them and creating conclusory lists or summaries of similarities or differences may be replaced by something that is more objective and can provide a basis for a more accurate and predictable standard for where the line is between “inspired by” and “copied from” lies.
The Complaint is filed on behalf of Pamela DuMond, an individual author.
The Complaint names four different defendants:
Farrah Reilly a/k/a Emma Chase (for those visitors to TPV from outside of the United States, AKA stands for “Also Known As”. PG assumes Farrah Reilly is a pen name under which Ms. Chase writes.)
Emma Chase LLC – It appears that Ms. Chase may operate a limited liability company which may or may not have rights to her book and/or receive proceeds from her book.
Diversion Publishing Corporation d/b/a (Doing Business As) Everafter Romance
Simon & Schuster, Inc. (a very large American publisher)
Per a later paragraph in the Complaint, Diversion Publishing published a print version of Ms. Reilly’s book and Simon & Schuster published an audio version of the book.
The Complaint is fairly self-explanatory and what PG would expect to see in a case like this.
Rule 8 of The Federal Rules of Civil Procedure describes what a complaint must contain
(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
PG also notes that the Summons (a court notice to Defendants that they have been sued) was issued in late October, 2019. In November, 2019, two attorneys entered an appearance on behalf of all the defendants except Simon & Schuster.
In January, 2020, these two attorneys withdrew and were replaced by the S&S attorneys, so all the defendants are currently represented by the same attorneys, originally hired by S&S.
The Motion to Dismiss
The second document is a Motion to Dismiss filed by the Defendants.
A few things caught PG’s immediate attention.
The names of three attorneys appeared on the motion, all from the same firm
One attorney was from the California office of the firm – the defendants needed an attorney admitted to practice in California to file the response and provide ongoing information about California civil procedure, etc.
Two attorneys are from the New York office of the firm and were permitted to participate in a California court case pro haec vice – for this case only.
The defendants’ law firm is one of the 100 largest in the United States, with offices in New York, Anchorage, Bellevue (suburban Seattle), Los Angeles, New York, Portland, San Francisco, Seattle (in addition to the office in Bellevue) and Washington DC.
PG concludes that Simon & Schuster is completely running the case via the attorneys they originally hired and who, thereafter, in January, 2020, undertook to represent the rest of the defendants..
A large firm like the one representing the defendants would almost certainly have competent IP litigation attorneys in California, likely in both the LA and San Francisco offices. However, they’re using two New York attorneys, Elizabeth A. McNamara, a full partner with more than 30 years of experience, with lots of litigation, in IP and media matters, and Kathleen Farley, an associate focusing on media in addition to an LA IP associate. PG suspects a 20-minute court hearing in California would generate a significant number of billable hours sitting on an airplane for the New York lawyers.
The Motion to Dismiss is a 28-page document. PG doesn’t know what the current large-firm New York City rule-of-thumb per-page cost for a serious litigation document is, but PG suspects we’re looking at a serious five-figure fee just for drafting this document. If the court sets oral arguments on the motion, PG suspects an additional five figures will be spent by Defendants if the New York lawyers show up.
The biggest question on PG’s mind is, “Why is Simon & Schuster spending so much money defending this case?”
PG doesn’t know how many audiobooks S&S sold before the Summons arrived, but the dollars it has received and would generate if the audiobook continued to be sold would seem to be much less than the costs of defense. PG has no inside knowledge about settlement discussions, if any, but PG bets that S&S could get a release from Pamela DuMond, the author/plaintiff for less than it’s spending on its New York and California lawyers.
However, the fact that S&S offered to have its lawyers represent the rest of the defendants as well is an indication for PG that S&S wanted to control the defense of the case and is likely in the battle for the long haul.
Back to the merits of the Motion to Dismiss.
As PG mentioned much earlier, under the Federal Rules of Civil Procedure, a Plaintiff need only provide a “a short and plain statement of the claim showing that the pleader is entitled to relief;“
After reading the Complaint, PG thinks it’s pretty clear what Ms. DuMond thinks the Defendants did wrong. If the Defendants are seriously confused, the process of discovery – depositions, interrogatories, etc., etc., – will offer plenty of opportunity for Defendants to clear up any questions they may have.
The Defendants argue that the Complaint only mentions a few examples of plagiarism/copyright violations. PG thinks these are clearly identified as just some of the similarities, not all of them.
One thing the Motion to Dismiss does demonstrate is that S&S is going to attempt to make litigation expensive for the Plaintiff.
Plaintiff’s Opposition to Defendants’ Motion to Dismiss
For PG, this is where things became more interesting.
The copying and copyright infringement of the Defendants was most likely the result of digital text spinning followed by a re-write and polish. Text spinning — also called automatic paraphrasing — is performed by computer software containing a built-in thesaurus.
While digital text spinning results in the alteration of the original work, it also results in nonsensical phrases, awkwardly constructed sentences, patterns, repetitions, and other anomalies — all of which exist in the Defendants’ Copy. What else could explain why the very unique word “Rome” occurs at exactly 67% of the way through the digital version of the Work and at exactly 65% of the way through the digital version of the Copy; and the very unique word “Beyoncé” occurs at exactly 95% of the way through the digital version of the Work and at exactly 95% of the way through the digital version of the Copy. Defendants will argue that the exact same word placement is a remarkable coincidence or that the word is not a form of protected expression.
As detailed below, the digital versions of the Work and the Copy show similarities that are so striking as to preclude the possibility that Ms. DuMond and Defendant independently arrived at the same result. The Appendix is replete with similarities that are similarly placed in the Work and the Copy. This Court should employ a digital analysis of the Work and the Copy, rather than the antiquated paper analysis urged by the Defendants.
But the Work and the Copy share more than striking similarities in names, stock characters, or trope – they share hundreds of copyrighted elements including written dialogue, written plot points,written character traits, and written scenes, to name a few.
Prince Nicholas Frederick Timmel
Prince Nicholas Arthur Frederick
Heroine / Villainess
Heroine: Lucy “Lucille” Trabbicio
Villainess: Lucy “Lucille” Deringer
To Heroine, Lady Esmeralda
To Hero, Lady Esmerelda
Name of Bar
The MadDog Bar
The Horny Goat Pub
Owner: David Billingsley
Kardashian, Beyoncé, Brad Pitt, James Bond
Kardashian, Beyoncé, Brad Pitt, James Bond
Words on one page
penthouse, hand-painted, crystal, marble floor
penthouse, hand-painted, crystal, marble floors
Chapter 3 Passage
Pies, shop, open, chocolate, berries, counter
Pies, shops, opens, chocolate, berry, counter
Linda Blair Reference
“swiveled his head toward me like Linda Blair”
“Linda Blair Exorcist-head-spinning”
Computer Analysis of Similarities of the Two Works
If you’ve made it this far, PG congratulates you and suggests you may wish to apply to law school.
The following document is the one that interested PG the most. It is attached to the Plaintiff’s Opposition to the Defendant’s Motion to Dismiss as Exhibit C and appears to be one of the products of a computer analysis of the two works – Ms. DuMond’s original book and the one she claims violates her copyrights – to determine how similar the two works are.
After an ominously long pause in news around Canada’s bitterly contested Copyright Modernization Act of 2012, the Association of Canadian Publishers (ACP) has issued a statement of “frustration and disappointment” over an appellate court’s decision.
. . . .
fter an ominously long pause in news around Canada’s bitterly contested Copyright Modernization Act of 2012, the Association of Canadian Publishers (ACP) has issued a statement of “frustration and disappointment” over an appellate court’s decision.
. . . .
In its simplest terms, the new April 22 decision—relative to an original ruling that favored the publishers in the summer of 2017—says that the educational community has acted wrongly but that schools and universities are not required to pay the licensing fees certified by the copyright board.
This new decision, as described in media messaging from the association’s executive director Kate Edwards, asserts that while the “fair dealing” guidelines used by the Canadian education sector “do not meet the Supreme Court’s test for fair dealing, it did not uphold the decision that tariffs certified by the copyright board are mandatory.
“In essence,” Edwards says, “the decision reaffirms that the Canadian education sector has engaged in illegal and unfair copying on a systematic basis—and makes the prospect of enforcement for small- and medium-sized publishers impossible.”
. . . .
Announcing that the publishers association is “frustrated and disappointed” by this turn of events, the organization now flatly calls the Canadian market’s copyright framework “broken,” writing, “Amendments made to the copyright act in 2012 opened the door to illegal and systematic copying by the K-12 and post-secondary education sector, which has now accrued cumulative liabilities of more than $150 million (US$105.2 million).
“At the same time, amendments have limited statutory damages for non-commercial use to a point that enforcement is impractical. Urgent action on the part of the federal government is needed to implement reforms that will correct market damage and provide a policy framework that supports future investment in Canadian writing and publishing.”
. . . .
Briefly, the disputes around the Copyright Modernization Act have to do with the scope of “fair dealing” (also called “fair use”) in educational settings in Canada.
Since the implementation of the 2012 act in 2013, universities in the English-language Canadian market have worked along the lines of a “10 percent” approach, which other educational institutions, including K-12 schools, have then adopted. In some university settings, instructors have copied up to 10 percent of a book, or a full chapter, and to then distributed this copied material to students without a publisher’s permission and without paying a licensing fee, sometimes called a tariff.
At the height of what turned into a furious standoff between educational entities and the publishers, all the school boards in Ontario and the ministries of education for all Canadian provinces except British Columbia and Québec filed a lawsuit in February 2018 against the government’s copyright collection agency, Access Copyright.
And what the Association of Canadian Publishers—which represents the Canadian-owned English-language houses—had seen as its greatest victory was a July 12, 2017, ruling in Access Copyright v. York University from the federal court of Justice Michael L. Phelan, who wrote in his decision that the Modernization Act’s guidelines as interpreted by York University were unfair and that tariffs (those licensing fees) certified by the country’s copyright board are enforceable.
Our full write on the court’s 2017 is here. To refresh you quickly, Justice Phelan wrote, in part, “The fact that the guidelines could allow for copying of up to 100 percent of the work of a particular author, so long as the copying was divided up between courses, indicates that the guidelines are arbitrary and are not soundly based in principle.
“York has not satisfied the fairness aspect of the quantitative amount of the dealing,” Phelan writes in his decision. “There is no explanation why 10 percent or a single article or any other limitation is fair. Qualitatively, the parts copied can be the core of an author’s work, even to the extent of 100 percent of the work.”
And Phelan struck down the concept that York and other educational venues had cited, that of being able to “opt out” of paying licensing fees if they wanted to, fees which normally are covered by a several dollars per student per academic term. To accept that educational institutions could simply decide not to participate in the collection of funds federally mandated in the creation of Access Copyright would, the court wrote, certainly lead to economic damage to publishing.
On Monday, March 23, the U.S. Supreme Court held that states are immune from copyright liability. This is troubling because it means that state universities and libraries can abuse copyright as much as they want without liability to publishers or authors. The Court’s decision in Allen v. Cooper invalidated a 1990 amendment to the Copyright Act which had allowed copyright holders to sue states for copyright infringement.
In Allen v. Cooper, plaintiff Allen and his production company were photographers with exclusive rights to document the exploration of the pirate Blackbeard’s shipwrecked vessel, but the state of North Carolina used Allen’s photographs and videos without his consent. Although the parties entered into a settlement agreement requiring the state to compensate Allen, Allen found out that the state had continued to use the copyrighted works after the date of the settlement agreement. The Supreme Court dubbed the alleged copyright infringement “a modern form of piracy.”
. . . .
While it found that states are immune (again) from copyright infringement actions, the Supreme Court nevertheless left a legislative door open: “That conclusion, however, need not prevent Congress from passing a valid copyright abrogation law in the future.” The Court recognized the need to protect the interests of copyright holders—even from the states—saying “That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”
Depicting sports stars’ tattoos in video games does not infringe copyright owned by the tattoo artist or their licensee, a US federal court has ruled.
In the first written judgment on tattoo copyright in the US, the US District Court for the Southern District of New York yesterday, March 26, ruled that video game developer and publisher Take-Two Interactive was free to reproduce the designs featured in the real-life tattoos of basketball players like LeBron James in its “NBA 2K” series.
Take-Two, and its subsidiary 2K, had been facing copyright infringement claims brought by Solid Oak Sketches, a tattoo licensing firm which purchased the copyright for James’ tattoos, as well as other basketball players Eric Bledsoe and Kenyon Martin.
. . . .
According to the court, when artists tattoo someone, they grant an implied, nonexclusive licence to their work where it can be reasonably expected to become part of a person’s likeness.
In the case of the basketball players, the artists would have known that they were well-known figures and likely to appear in public, on TV, and in the media.
“Defendants’ right to use the tattoos in depicting the players derives from these implied licenses, which predate the licenses that plaintiff obtained from the tattooists,” judge Laura Swain wrote.
. . . .
Irrespective of the implied licence, the reproduction of the tattoos in the “NBA 2K” games qualified as de minimis use, and did not require the consent of any copyright owner, the court concluded.
Judge Swain wrote that “no reasonable trier of fact could find the tattoos as they appear in ‘NBA 2K’ to be substantially similar to the tattoo designs licensed to Solid Oak,” as they cannot be identified or observed during gameplay.
The court found that the tattoos appear only fleetingly and are obscured by the rapid motions of the in-game players.
A federal judge has handed a big win to Katy Perry, overturning a copyright infringement verdict regarding her hit song “Dark Horse.”
Judge Christina A. Snyder issued a ruling on Tuesday vacating the jury’s verdict, finding that the short musical phrase at issue is not original enough to warrant copyright protection.
The jury had found last July that “Dark Horse” included an eight-note ostinato that was stolen from “Joyful Noise,” a song by the Christian rapper Flame. The jury awarded $2.8 million in damages.
Snyder found that the jury’s verdict was not supported by the weight of the evidence in the case.
“It is undisputed in this case,” Snyder wrote, “that the signature elements of the 8-note ostinato in ‘Joyful Noise’… is not a particularly unique or rare combination.”
Snyder drew on the testimony of the plaintiff’s expert witness, musicologist Todd Decker, in coming to her conclusion that the jury got it wrong.
“A relatively common 8-note combination of unprotected elements that happens to be played in a timbre common to a particular genre of music cannot be so original as to warrant copyright protection,” she wrote.
. . . .
The decision is the second piece of good news in as many weeks for music labels and major acts, which have felt besieged by frivolous copyright litigation over the last few years. Last Monday, the 9th Circuit Court of Appeals upheld a jury verdict finding that Led Zeppelin’s “Stairway to Heaven” did not infringe on an earlier song by the band Spirit.
It may be true, as some songs have averred, that playas gon play, and haters, they gonna hate.
But federal district judges, well, they rule.
And, when asked to decide matters with elements that they may deem legally triflin’, their honors sometimes can just zing parties before them.
That was the case with U.S. District Judge Michael W. Fitzgerald in Los Angeles, as he took up a copyright infringement suit filed by the songwriters of 3LW’s 2001 piece, Playas Gon’ Play.
They asserted that pop diva Taylor Swift violated their copyright for Playas with her hit Shake It Off (to hear it, click on image above), which became a Billboard No. 1 hit in 2014 and stayed on the charts for 50 weeks. In contrast, Playas “peaked at No. 81 on Billboard’s Hot 100 chart. . . [with] more than 1,000,000 units were sold.”
The judge zeroed in on plaintiff’s claims about infringing lyrics, 3LW having sung: “Playas, they gonna play / And haters, they gonna hate.” Swift, on the other hand, crooned, “Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.”
Fitzgerald, in a rebuke that cuts multiple ways at the creativity of the works before him, found that:
In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and un-creative to warrant protection under the Copyright Act.
He granted the motion by Swift and other named defendants, tentatively, to dismiss the case, in what might be deemed an artistic Pyrrhic victory.
In a sweeping 32-page decision eviscerating the legal arguments of a disgruntled Queens real estate developer, a US Appeals Court affirmed the rights and monetary damages awarded to a group of graffiti artists whose works were destroyed without warning or consent in 2013.
The artists sued the developer, Gerald Wolkoff, in 2013 for violating their rights after he whitewashed their work at the famous 5Pointz graffiti art mecca in New York to make way for condos. A jury ruled in favor of the artists in November 2017, but it was up to a judge to determine the extent of the damages.
In February 2018, Brooklyn Supreme Court judge Frederick Block awarded the artists a total $6.75 million in a landmark decision. The sum included $150,000—the maximum legal penalty—for each of the 45 destroyed works at the center of the case.
The trial was a key test of the Visual Artists Rights Act (VARA), which grants visual artists certain “moral rights” for their work. Previous VARA cases rarely made it to trial, and were instead settled privately.
But the act, which was added to copyright laws in 1990, disallows the modification of works in ways that could be considered harmful to artists’ reputations, and grants protections to artworks deemed to be of “recognized stature.”
[Author Dr. Daniela] Simone assesses how UK law defines shared authorship and how authorship is then allocated among creative collaborators. The book confirms copyright’s reputation as a legal framework ill-suited for collaborative creative processes, arguing that it prefers single authorship (and ownership). As a result, rights tend to be concentrated in singular, rather than, multiple, hands. Simone explains the ‘why’ for copyright’s bias for single authorship and where such bias might come from. Simone then challenges this bias by offering an alternative read on copyright and collective authorship. The book opens with a description of sole versus joint-authorship under UK law (Chapter 2). Simone’s analysis of case law on joint authorship sheds light on the oddities and incoherencies of the doctrine.
. . . .
(1) Joint-authors are held to a higher standard. In comparing the tests of single authorship with that of joint-authorship, Simone reveals that UK courts hold parties to a higher standard when they seek ‘joint-authorship’, because they must demonstrate a more ‘significant’ or ‘substantial’ contribution to the work. This difference in threshold has no statutory basis, as the Copyright, Designs and Patents Act 1988 (CDPA) is neutral on this question (as was the text of the previous statutory formulations, e.g. here). (2) The test for joint-authorship is built upon a small number of highly fact-sensitive cases. There is scant precedent on joint-authorship to turn to for guidance. The few case law authorities that we do have are difficult to apply because each case involves different types of creative work, creative processes and collaboration patterns. (3) The joint-authorship doctrine is ‘polluted’ by concerns about shared ownership. Judicial discussion on the attribution of joint authorship often address whether it would be practical for the ownership of the work to be shared between multiple parties. This approach, Simone argues, conflates two different concepts of copyright (authorship and ownership), which copyright law takes such care to distinguish. (4) The test for joint-authorship breaches the principle of aesthetic neutrality. It is a well-established principle of copyright law that copyright should apply regardless of the work’s aesthetics, artistic quality or genre. Judges keeping to this principle in the context of joint-authorship claims have complicated this jurisprudence. This principle has courts avoiding language that might refer to the aesthetics, genre or quality of the work. This is especially true when judges assess the evidence submitted by the parties on the creative process and their relative contribution to the work. But courts end up producing open-ended, vague, abstract, and inconsistent language by being overly cautious on this point.
. . . .
Simone’s chief recommendation is to close this gap between the law and social norms on authorship and credits so that collective authorship enjoys its proper place within the framework of copyright. The author proposes to do so by importing into copyright law some of the more nuanced field-specific practices according to which collaborators negotiate authorship. Simone suggests that this should bring copyright into line with the expectations of creators on authorship and credits.
. . . .
These conclusions come after road-testing the joint-authorship doctrine on three types of collective authorship: Wikipedia entries (Chapter 4), Australian Indigenous Art (Chapter 5) and films (Chapter 6). The use of these three case studies in this way keeps Simone’s critique of the joint authorship doctrine rooted in concrete examples.
PG suggests that a takeaway for authors is that, if you are writing a book with a co-author, you should have a signed contract that, among other things, specifies how authorship will be handled for copyright and book credit purposes.
As with a great many things legal, problems rear their ugly heads in this area of human relationships when money (often, but not always, significant amounts of money) is involved. On occasion, pride works almost as well as money.
Note from PG: The reason that the following item and the congressional hearings it describes is important for indie authors is that §512 impacts the least-expensive way of dealing with online piracy of an author’s work – DMCA Takedown Notices (go here and here for an overview if you don’t know what those are).
From The Illusion of More:
Early last week, the Senate Judiciary Committee held the first in what will be a year-long series of hearings (roughly one per month) to review the Digital Millennium Copyright Act. Almost as old as the publicly-available internet itself, the 1998 DMCA expressed the best efforts of Congress to predict how the digital market might evolve and to, therefore, strike a balance between the interests of internet service providers (ISPs) and copyright owners.
Over the intervening twenty-two years, much—MUCH—has been written, debated, shouted, flung wailed, opined, and scorned about the DMCA, specifically Titles I and II of the five-title statute. If we ask the tech-centric/copyright-skeptics, they are likely to say that Title I (§1201) is a disaster and that Title II (§512) is working just fine; while the creator/copyright proponent will tell us exactly the opposite.
. . . .
What I will reiterate in this post is that the greatest concern to creators of every size is the conditional liability shield (“safe harbor”) provided to web platforms by §512. It is the foundation of the oft-described “whack-a-mole” problem whereby the independent author attempts to remove infringing uses of her works one-by-one, only to have them reappear on the same platform(s) faster than she can prepare new notices. (And “whack-a-mole” can be just as big a problem for a small business like an apparel maker as it is for a traditional artist like a musician.)
In response to this futile battle with online infringement, authors often give up enforcement via the DMCA takedown process (resigned to donating even more revenue to billion-dollar corporations) while they ask as a community why the major platforms in particular cannot do a better job of preventing protected works from being chronically re-uploaded without license.
. . . .
What is “Red Flag” Knowledge?
Unfortunately, you will get different answers depending on whom you ask, including a court split on the matter if you ask either the Second or the Ninth Circuit Court of Appeals. But in everyday life, “red flag” knowledge is a reasonable, common-sense inference that one can draw from a modest amount of empirical evidence and experience. If you enter the house to find trash strewn across the floor and a chagrined puppy in the corner, you will not need training in forensic science to have “red flag” knowledge that either the dog has committed a misdemeanor, or he has been artfully framed by the cat.
That roughly describes the degree of analysis Congress intended ISPs to perform when encountering evidence of copyright infringement on their platforms. As Professor Aistars noted, “Although Congress did not obligate service providers to actively seek out infringements, it did require them to act expeditiously to remove infringing materials once they have knowledge or awareness of infringing activity on their networks.”
. . . .
For example, let us imagine that the users of a web platform we’ll call Vimeo are making videos using some famous music we’ll call Beatles songs. Any ordinary observer can reasonably assume that these users probably did not license these sound recordings; yet in the case Capitol Records v. Vimeo, the Second Circuit held, on the issue of “red flag” knowledge, that the platform’s operators would have needed either legal or music-industry expertise in order to discover infringement.
Keeping in mind that voluntary removal of material based on “red flag” knowledge of infringement is a condition of an ISP’s “safe harbor,” decisions like Vimeo do more than erase this part of the statute—they exacerbate a culture of infringement through court-sanctioned willful blindness. And as Aistars added in her testimony, “Pointedly, this occurred in a case where discovery had revealed emails from managers to employees winkingly encouraging infringement.” Thus, Aistars is among those who would advocate clarifying the meaning of “red flag” to restore the intent of §512.
The Vimeo emails Aistars mentions are typical of the shoulder shrugs and middle fingers creators are used to receiving from many platform operators, and application of the DMCA to date has unquestionably fostered cultural attitudes anathema to the kind of cooperation between ISPs and rightsholders Congress specifically intended to promote two decades ago. Further, unintended endorsement of this culture among site operators may be exacerbating a persistent misunderstanding among individual and commercial users that the internet is a realm of automatic immunity.
. . . .
Anticipating the likelihood that, if there is to be any revision to §512 at all, “red flag” will be a major point of debate, Professor Tushnet warned against what she and others see as throwing out the proverbial baby with the bathwater. “If there is one message I would ask the members of the Committee to take away today,” she stated in her opening testimony, “it is that most beneficiaries of §512 are not Google or Facebook.” Tushnet cautions that if we were to amend §512 solely as a response to the challenges creators face on very large, commercial platforms like YouTube, we risk simultaneously putting compliant, smaller platforms out of operation and facilitating even greater monopolization by the largest entities.
As a statistical matter, Tushnet is making a “few bad apples” argument, except for the fact that some of the baddest apples in the bunch happen to be the most powerful, wealthiest internet companies in the world. So, even if we take her premise and data at face value (i.e. that millions of compliant sites rely on §512 to exist), this does not recommend ignoring the catalog of evidence that application of the DMCA has promoted willful blindness among the operators of major ISPs. Simply put, if twenty-million sites operate without harm while one site does harm to twenty-million creators, we still have a problem if the law shields that one site from liability. So, the status quo cannot be the final answer.
As a practical consideration, Tushnet’s argument is based on the assumption that a more clearly defined restoration of the intent of “red flag” knowledge can only be implemented by technological measures, which only the largest ISPs can afford.
. . . .
As Tushnet testified, her own Organization for Transformative Works site hosts over “four-million works” yielding 1.2 billion page views per month, while the site receives takedown notices at a rate of less than one per month, most of which are invalid. Assuming these data are correct, the site to which she refers seems barely relevant as an example. It is a large fanfic platform with what appears to be a vast amount of material—mainly short works of written text—that is highly unlikely to infringe. No sound recordings. No photographs. No film clips. At most, some fanfic writer could maybe—and I mean maybe—run afoul of a derivative works right.
From a cursory review of OTW, it is not at all evident that adopting a clearer, statutory definition of “red flag” (in order to hold the majors accountable) would force a site like this one to invest in prohibitively expensive technology in order to remain complaint. If the platform is indeed receiving takedown notices at a rate of less than one valid notice per month, this is most likely evidence that the site hosts little to no infringing material—and that when notices are received, human review is sufficient to the task. Further, the fact that the site hosts “fandoms” for a long list of works owned by major motion picture studios indicates that infringement must be very low to near zero if it has not invited the attention of an industry with the resources to send notices in volume.
Recently, Dean told me about a conversation he was having on Facebook with a group of writers who, in the 1990s, shared the table of contents in an anthology featuring stories about the X-Men. Apparently, that anthology has just gotten an audio edition, and one of the authors in the anthology was thrilled about that.
Then Dean threw some cold water on the excitement. Who’s getting the royalties? he asked. No one knew.
Yes, the project was work for hire, but the writers weren’t paid a flat fee. They were paid an advance against royalties, for all forms of the book.
Dean hadn’t heard about the audio edition ahead of time. Nor had the other authors. I’m pretty sure the writer who announced it just stumbled on it. And once Dean asked the question, the others began wondering as well.
This project—twenty years old—has a somewhat tortured history. It was packaged by a packager so notorious that when he died unexpectedly, the people who had worked with him weren’t upset about his death at all. In fact, when a certain sf convention tried to hold a memorial for him, they couldn’t get anyone to speak at it.
This packager had lied and cheated and abused his writers so badly that they had nothing kind to say about him, even if they were the type of people who would have been inclined to make nice after a death. He stole and embezzled and sold his companies—to himself, sometimes—and managed to always come out smelling…okay, I guess.
When he died, his financial affairs were such a tangled mess that I heard about the troubles the estate had untangling them. I’m not sure how that ended up.
But here’s the thing. X-men is part of Marvel which is part of Disney. Someone still believed they had the rights to that anthology, and could license it in audio. That audio money probably went straight into licensor’s pocket, not realizing that the authors had contracts that stipulated royalties and not a flat fee.
With the arrival of the audiobook came the realization that the book is still in print, which meant it’s still earning money. I’ll wager, although I haven’t checked, that it has an ebook edition (which it didn’t originally have). All of this means it’s been earning royalties steadily for twenty years, which, at least in our household, have not been paid in (ahem) twenty years.
Does that mean Dean and the other writers are owed millions? Naw. Probably not even thousands. Maybe a few hundred each maximum. But that’s nothing to sneeze at.
And therein lies a dilemma for writers. Do they pursue those few hundred dollars? Do they hire an attorney to figure out who actually is exercising the rights? Or do they just shrug and say, Them’s the breaks, and move on to other things.
. . . .
A few weeks before this debacle surfaced, I wrote a sticky note for my pile of possible blog topics. It says, succinctly:
Old system = make $$ for others. Pittance for you.
New system = make $$$$$$$ for you, and some for others.
I’ve been thinking about that in the connection with licensing for writers. If we maintain our own intellectual property, and if we publish the work ourselves, we own every part of that copyright. We license it to various companies which then make some money off the derivative product they produce.
Over his long and varied business life, PG has been exposed to a wide variety of industries and companies large, medium and small operating in those industries.
PG has helped clients who had problems because they dealt with shady characters. As a general proposition, even when the client was able to win in court, even with a generous award of damages, the client was never made whole. The whole episode became a dark and disturbing period in the client’s life that was difficult to put behind her/him. In that respect, dealing with a bad business associate had some parallels with marrying the wrong person.
PG will state that, as a whole, traditional publishing is a weird business. There are some nice and sane people in the business, but there are some very strange and maladjusted people as well, not the kind of people one would expect to find in most well-managed business organizations.
As just one example, practically every other business on the planet pays its contractors on a monthly basis if not more often. PG cannot think of any other major business segment that pays its bills to outside materials/service providers every six months. Undoubtedly there are some, but they are the exception rather than the rule. Of course, Amazon manages to pay self-published authors every month. Ditto for paying Random House, etc. However, Random House, etc., is somehow unable to remit royalties to authors more often than every six months, even royalties for sales made on Amazon for which the publisher is paid monthly.
One of the reasons authors sometimes lose track of the non-payment of royalties is that payments appear at such widely-spaced intervals. If an author were paid royalties earned on a monthly basis, he/she would be more likely to note the omission of an expected payment.
PG was about to begin a rant about the problems caused for authors by unskilled and unschooled literary agents who are yet another intermediary between an author and the author’s royalty payments, but he’s running out of time.
Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.
Up until last week, My Dark Vanessa was one of the most highly-anticipated books of 2020. A novel by Kate Elizabeth Russell. It tells the story of a teenage girl who enters into a sexual relationship with her adult English teacher and how she is forced to deal with that past when she herself becomes an adult and another former student accuses him of sexual abuse.
Heralded by both the New York Times and The Guardian, the book isn’t even due out until March 10 but has been the subject of a mammoth press push and a reported 7-figure advance.
However, that excitement hit something of a speed bump on January 19 when author Wendy C. Ortiz took to Twitter to criticize the book, saying it was similar to her 2014 memoir entitled Excavation.
. . . .
Though this was the result of a brewing controversy among Ortiz’s fans, this brought the allegations to a new audience and prompted Ortiz not only to explain in greater detail but to follow up with an essay on Medium on January 29th.
In that essay, she said My Dark Vanessa was “eerily similar” to her book. The main difference was that Ortiz’s book was a memoir of her experiences when she was abused by a 28-year-old man when she was just 13 while Russell’s was listed as a work of fiction.
Russell, for her part, reached out to Ortiz after the initial Tweets. There, she admitted to having read Excavations as part of her research. However, this did not smooth things over with Ortiz, who posted on Twitter the next day.
. . . .
Russell has gone on to say that, though her book is a work of fiction, she has been working on it for nearly 20 years. In December 2018 she stated that it was moved from being a memoir to being fiction when she chose to make the teacher in her story a composite of the adult men that abused her.
However, the allegations of plagiarism are really only a small part of the story. Ortiz’s grievances deal less with the possibility that her story was coopted, but with the publishing industry itself.
. . . .
In Ortiz’s essay, she outlines the long path she walked to get her book published.
Despite initial interest from publishers and agents, she received repeated feedback from editors that it would not achieve the kind of “wide audience” success they were hoping for with a debut author. Others simply opined that memoirs were overdone, especially for new authors and writing about sexual abuse topics.
She ended up finding a home on a small press and, though the book did well on its initial run, she found no large publishers willing to take it up after it had proven itself.
This, understandably, made it sting all the more when she learned that Russell was becoming a press and media star with her very similar tale. While her book struggled to find a large audience despite a great deal of acclaim, Russell had praise and a significant advance before her book was even out.
For Ortiz, much of the difference could be attributed to race. Ortiz, a Latinx author, felt that at least some of the success of Russell’s work could be attributed to her being white and, thus, more acceptable to the publishing industry. As she said in her essay while discussing her editors’ notes, “‘Wide’ is likely code for white.”
This accusation is nothing new to the publishing industry, which has long been labeled as being “hideously middle-class and white” or simply not having diversity despite multiple attempts and efforts to become more inclusive.
. . . .
Though it is unlikely My Dark Vanessa was a plagiarism, it still raises difficult questions about the publishing industry. This is likely why Ortiz, when discussing the book, never uses the word “plagiarism” and, instead, focuses on the broader publishing industry issues.
. . . .
The question is: Why was Ortiz’s retelling so heavily rejected while Russell’s so quickly accepted and promoted? Race, ultimately, is just one factor in this story as there are undoubtedly countless other differences including the timing of the books, fiction vs. non-fiction and so forth.
PG suggests that media storms demonstrating the many shortcomings of traditional publishing pop up on a regular basis and everyone reliably condemns racism, sexism, classism, etc.
But publishing never changes.
PG suspects it doesn’t really want to change, but also accepts that publishing can’t change. It can’t hire the talented visionaries necessary to lead such a major change.
The other factor is that the major US trade publishers are far from independent organizations. HarperCollins, the publisher of My Dark Vanessa, is owned by Rupert Murdoch’s media conglomerate News Corp. If the executives at HC don’t make their numbers, their bosses at News Corp. will find others who will.
Striking a blow for diversity or another non-monetary good won’t save anyone’s job in Big Publishing if they don’t generate what the big boss expects in the way of cash.
The EPO has published its decision setting out the reasons for its recent refusal of two European patent applications in which an AI system was designated as the inventor.
Filed by an individual in autumn 2018, the applications EP 18 275 163 and EP 18 275 174 were refused by the EPO following oral proceedings with the applicant in November 2019, on the grounds that they do not meet the legal requirement of the European Patent Convention (EPC) that an inventor designated in the application has to be a human being, and not a machine.
In both applications a machine called “DABUS”, which is described as “a type of connectionist artificial intelligence”, is named as the inventor. The applicant stated that he had acquired the right to the European patent from the inventor by being its successor in title, arguing that as the machine’s owner, he was assigned any intellectual property rights created by this machine.
In its decisions, the EPO considered that the interpretation of the legal framework of the European patent system leads to the conclusion that the inventor designated in a European patent must be a natural person. The Office further noted that the understanding of the term inventor as referring to a natural person appears to be an internationally applicable standard, and that various national courts have issued decisions to this effect.
Moreover, the designation of an inventor is mandatory as it bears a series of legal consequences, notably to ensure that the designated inventor is the legitimate one and that he or she can benefit from rights linked to this status. To exercise these rights, the inventor must have a legal personality that AI systems or machines do not enjoy.
Finally, giving a name to a machine is not sufficient to satisfy the requirements of the EPC mentioned above.
The thought randomly passed through PG’s morning mind while he was reading the OP.
Typically patent applications require some sort of attestation to the effect that the filer is the inventor and the facts in the application are true.
Here is the attestation language from a USPTO form for a Utility or Design application:
The above-identified application was made or authorized to be made by me.
I believe that I am the original inventor or an original joint inventor of a claimed invention in the application.
I hereby acknowledge that any willful false statement made in this declaration is punishable under 18 U.S.C. 1001 by fine or imprisonment of not more than five (5) years, or both.
Since the original applications in the OP named DABUS as the inventor, will a subsequent application signed by humans associated with DABUS be valid if someone has already attested that DABUS is the author and not the conniving humans who are trying to claim credit and rights to something they didn’t create?
From 8 January 2020, Paris Musées is offering as Open Content (i.e. making available without charge and without restrictions) 150,000 digital reproductions in High Definition of works in the City’s museums.
The launch of Open Content will mark a new stage in Paris Musées’ digitisation policy. It will contribute to enhancing and improving the way our collections are made available and will strengthen the measures taken to ensure better public access to art and culture as well as increasing visibility and understanding of the works in our municipal collections.
Making this data available guarantees that our digital files can be freely accessed and reused by anyone or everyone, without any technical, legal or financial restraints, whether for commercial use or not.
Digital files that contain works that belong in the public sphere under a CCØ (Creative Commons Zero) licence will be made available to everyone via the Paris Musées’ Collections portal. At first only reproductions of works in 2D that are not copyright restricted will be available as Open Content, those works that are still in copyright will be in low definition in order to illustrate, on the Internet site, what is available in the collections. Art lovers will now be able to download works by the great names in photography (Atget, Blancard, Marville, Carjat) or in painting (Courbet, Delacroix, Rembrandt, Van Dyck).
. . . .
This policy of free access is part of a programme of development, cultural mediation and opening up of the collections to Internet users. Each user will receive a file that contains an image in HD (300 dpi – 3000 pixels), a document with information about the work and a copy of the Good Practice Charter for images available under CCØ licence which will ask a user to cite the source and offer information about the work.
Although this licence is already used by international museums such as the Rijksmuseum in Amsterdam and the Metropolitan Museum of Art in New York, Paris Musées will be the first French institution to take part and make available a considerable number of reproductions.
Paris Musées, as the producer and distributor, will allow everyone to easily, enduringly, freely and instantly use High Definition images to support their research and improve their physical and digital cultural mediation tools. The reproductions of the works in the scheme will also be part of virtual exhibitions which will include cultural mediation to provide users with as much information as possible.
. . . .
How to access the free of copyright reproductions ?
On parismuseescollections.paris.fr, the images of those works that are under CCØ licence can be downloaded either directly from the file that contains the work in question, or via the home page, from a page dedicated to images free of copyright.
The API (Application Programming Interface) is an interface linked to an app. Access to Paris Musées data via the API has added to our Open Content Policy by making it possible to download High Definition copyright free images and also tie these in to information linked to the works.
. . . .
As the producer and distributor Paris Musées will allow anyone, with just one click, to obtain the reproduction of a work from our collections, to print it, draw inspiration from it or even use it as a screensaver.
In response to strong demand from researchers, students and teachers, we are ensuring they can easily, enduringly, freely and instantly use High Definition images to support their research, their teaching and their publications, thereby improving their physical and digital cultural mediation tools.
To showcase the reproductions of the works concerned, Paris Musées will create targeted virtual exhibitions which will bring users a maximum of information while encouraging them to download and reuse the images.
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Open Goldberg Variations: Before the Open Goldberg Variations, public domain recordings of Bach’s Goldberg Variations were hard to find, even though the scores themselves were in the public domain. Open Goldberg Variations wanted to change that, so it teamed up with professional musician Kimiko Ishizaka and started a Kickstarter project to create studio-quality recordings, promising to release them into the public domain using the CC0 public domain dedication tool. According to the project founders, “Musicians are usually not willing to withdraw their copyrights and their control over usage, but we feel that they thus miss opportunities to contribute to the greater good and benefit from wider distribution of their works. If this project succeeds, we hope that the recording will be available to everyone forevermore, and that it will be a truly widely known and enjoyed artistic work.” Sure enough, the project was funded at nearly double its original funding goal, and as a result all 30 variations performed by Kimiko Ishizaka are now available for free download via CC0.
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In December, a jury ruled that US-based internet service provider Cox Communications was liable for the infringement of over 10,000 music copyrights by its users. The company was ordered to pay Universal, Sony and Warner a whopping $1bn in collective damages – equivalent to just over $99,000 for each of the 10,017 works infringed.
. . . .
Cooper noted Warner’s satisfaction with the ruling, which he pointed out was the fifth largest U.S jury award in the whole of 2019, and which, he said, “clearly demonstrates that juries understand piracy is not okay”.
Cooper noted that WMG and/or the record industry had also brought similar cases against four other ISPs: Charter, Grande, RCN and Bright House, “all of which should proceed to trial within the next 12 to 18 months”.
. . . .
Cox Communications just lodged a fierce legal motion challenging the $1bn damages verdict – calling it “unprecedented”, and suggesting that the amount of money it’s being told to pay is “grossly excessive”.
According to a Memorandum filed Friday (January 31) by Cox and obtained by MBW, the company calls for one of two new outcomes – either a remittitur (i.e. a reduction in the amount of damages awarded) or an entirely new trial.
The Memorandum, filed with the Eastern District of Virginia Court, argues: “The $1 billion award is a miscarriage of justice; it is shockingly excessive and unlawfully punitive, and should be remitted or result in a new trial.”
Cox adds: “The award of $1 billion appears to be the largest award of statutory copyright damages in history. This is not by a matter of degree. It is the largest such award by a factor of eight.
. . . .
“It is the largest such award for secondary copyright infringement by a factor of 40. It is the largest jury verdict in the history of this District by a factor of more than 30.
“It is by any measure a shocking verdict, wholly divorced from any possible injury to Plaintiffs, any benefit to Cox, or any conceivable deterrent purpose.”
Cox argues that the $1bn damages verdict “exceeds the aggregate dollar amount of every statutory damages award rendered in the years 2009-2016 by more than four hundred million dollars”.
The firm cites what it calls the three previous biggest copyright statutory damages awards in the States: (i) Atlantic Recording v. Media Group Inc in 2002 ($136m); (ii) Disney Enters., Inc. v. Vidangel, Inc in 2019 ($62.4m); and (iii) UMG Recordings, Inc. v. MP3.Com, Inc in 2000 ($53.4m).
Cox posits that all three of these verdicts “were rendered against direct infringers — people who actually misappropriated the copyrighted material for their own use and profit”. In most cases, it says, these infringers “were conducting businesses based upon copyright infringement” making them “adjudicated pirates”.
. . . .
As an ISP, Cox argues that such an accusation does not apply to its business, suggesting that rather than being a “direct infringer”, it should instead be classified as a “secondary infringer” in the December ruling.
Cox then points out that the largest statutory damages ever awarded against a secondary infringer happens to be against itself – $25m in BMG Rights Mgmt. LLC v. Cox Communications, Inc. (2015).
“The $1 billion award thus appears to be the largest ever against a [secondary] infringer situated like Cox — by a factor of 40,” it says.
From The Journal of Intellectual Property Law and Practice:
Online marketplaces reach potential customers all over the world, but can also be used for goods infringing intellectual property rights. Even when online marketplace operators do not themselves participate in such transactions, they do draw economic benefit therefrom, e.g. by charging a fee per transaction. So, to what extent can they be held liable for the sale of infringing goods through their platforms? Whereas such operators qualify as providers of information society services in the sense of the E-Commerce Directive, they are also intermediaries in the sense of Article 11 of the IP Enforcement Directive. And like any economic operator, they must abide by the trade mark laws and other legislation. The interpretation of these distinct sets of rules has given rise to a number of decisions of the Court of Justice of the European Union (CJEU). Certain aspects seem to have been settled by now, but many issues remain open. Absent contributory infringement in EU trade mark law, one of the most pressing questions is if, and to what extent online marketplaces can be held liable for direct trade mark infringement.
. . . .
The Coty/Amazon case (C-567/18), currently pending before the CJEU, might shed some light over the first question, namely the liability for direct trade mark infringement of online marketplace operators, especially when they engage in additional services like they often do nowadays. Such additional services can include supplying the goods to buyers, assisting sellers in promoting the sale of their goods. The teaching to be expected from the Coty/Amazon judgment will largely depend on how the CJEU will interpret the preliminary referral. If it sticks to the facts as presented to it by the German Supreme Court, then it will probably not go as far in its analysis as did the Advocate General, who opened the door to direct liability for trade mark infringement of online marketplace operators, and by extension, online intermediaries in general. Hence, further guidance might be on its way … or not just yet.
. . . .
Liability for direct trademark infringement should not be accepted too soon, at least if online marketplace operators clearly communicate their role to the consumer. After all, establishing a direct trade mark infringement requires an adverse effect on one of the functions of the trade mark. At least as far as the essential origin function is concerned, no impairment thereof can be presumed if the advertising is not misleading as to the nature of the operator. As stated by the Advocate General in L’Oréal/eBay, in 2011, and even more so today, consumers are used to the existence of various intermediary economic activities. Of course trade mark owners should not be left without ammunition. An equitable balance between the interests of online marketplace operators and the interests of trade mark owners could be found by imposing higher monitoring duties on online marketplace operators assuming an ‘active’ role. Where such ‘active’ intermediaries cannot benefit from the hosting exemption, they can be liable for tort if they have not been sufficiently diligent and a causal link exists between their lack of diligence and the damage suffered. Requiring them to display a higher degree of diligence could therefore solve a lot. It would make sense to have a proactive monitoring duty the extent this is proportionate to the degree of their involvement.
. . . .
In this area – the prevention of infringements – an important challenge for online marketplace operators lies in setting up more performant technologies to reveal potential trade mark infringement by their customers/vendors. Automated identification and/or enforcement and voluntary, non-judicial takedown mechanisms established between online intermediaries and IP rights owners are bound to become increasingly important.
It’s not easy (at least for PG) to discover how many trademarks there are in the world. According to the latest information (2016) he could find from the World Intellectual Property Organization (WIPO), there were an estimated Seven Million trademark applications worldwide just during that single year.
PG downloaded a spreadsheet from WIPO summarizing trademark filings on a country-by-country basis from 1980 to 2018. The spreadsheet was 42 columns wide and 203 lines long. For those who may be arithmetically-impaired (as PG is) that is more than 8,500 separate data points.
These numbers show a total of more than 22 million trademark applications filed during that time.
Some trademarks disappear and others go on and on and one. In the US, trademark rights can last indefinitely as long as the owner continues to use the mark to identify its goods or services. The term of a federal trademark is 10 years, with 10-year renewal terms.
Per Wikipedia, the oldest U.S. registered trademark still in use is trademark reg. no 11210, . . . a depiction of the Biblical figure Samson wrestling a lion, registered in the United States on May 27, 1884 by the J.P. Tolman Company, now Samson Rope Technologies, Inc., a rope-making company.
Additionally, although trademarks are typically issued on a country-by-country basis but international treaties provide that trademarks registered in one nation will be recognized and enforceable in other treaty nations. Under The Madrid System (named after the city where the two underlying treaties were negotiated) is a system for the international registration of marks. It provides a means to seek protection for a trademark simultaneously in a large number of jurisdictions.
One additional complication – trademarks are issued for a particular class of goods/services so different individuals or companies may own identical trademarks that are enforceable for different categories of goods or services. For example, in the US, Ace is a trademark for hair brushes and Ace is also a trademark for stapling machines and The American Council on Education.
So, how does an online marketplace like Amazon build a system that can allow it to determine whether the name of a product sold on its marketplaces around the world infringes the trademark belonging to another individual or company without hiring the largest collection of trademark attorneys in the world?
Multiple countries, lots and lots of different product categories and a legal regimen for enforcing trademarks that may be applied differently in one nation than it is in another.
Here’s a link to a New York Times story about how a trademark can lose its protection if it becomes generic.
The Spanish billionaire who tried to smuggle a Picasso painting out of Spain has been sentenced to 18 months in prison and fined €52.4m. Jaime Botin, part of the Santander banking dynasty, was convicted by a court in Madrid earlier this week.
The work, Head of a Young Woman (1906), was seized from Botin’s yacht, known as Adix, off the coast of Corsica, France, in 2015. According to Spain’s strict heritage laws, permits are required for exporting items more than 100 years old, which can be classified as “national treasures”.
. . . .
According to Bloomberg, prosecutors argued that Botin, who bought the work in 1977, was smuggling the painting out of Spain and hoped to sell the piece at a London auction house. But Botin said he was taking the painting to Switzerland for safekeeping.
The work was originally due to be sold at Christie’s London in February 2013, but the Spanish culture ministry subsequently barred the work from being taken abroad. Ownership of the work has since been transferred to the Spanish state.
Anyone who is consistently engaged on copyright issues is used to hearing the rhetoric from the major critics, who say things like We support creators while they advocate policies that will further erode authorial rights. Whether these parties engage in this kind of chicanery in order to sacrifice artists at the altar of Big Tech, or they do it just because they are petty iconoclasts is subject to a case-by-case consideration. But if that same I care about you message is delivered by a senator to his constituents, it is acutely disappointing when he returns to the cloister of Washington D.C. and totally screws them over.
The fact that Senator Ron Wyden was going to do exactly this to Oregon’s creative community is prefaced in at least two town hall meetings captured on videos that I have seen. In one of these clips (which has not been made public), Portland-based photographer Tim Trautmann asks the senator about releasing his one-man hold on the CASE Act. After assuring the artists, musicians, photographers et al in attendance that he is “very sympathetic” to the need for a small-claim copyright option, Wyden then patronizes his constituents in a rather cloying display in the political art of hokum. First, by alluding to a mostly-false narrative in which he negotiated the amendments necessary to pass the Music Modernization Act (2018), Wyden then cites this unearned credential to imply that he will likewise help shepherd the CASE Act to passage with a few minor amendments that he personally believes are necessary.
From there, the senator rather predictably aped the tech-industry talking point that “teenagers and grandmothers posting memes could be harmed” by the small-claim copyright process, lapsing into cringy rhetoric, telling the “good people” in the room that he knows they do not want to hurt teenagers and grandmothers. In a similar video clip captured at Newberg by Trautmann, Wyden does the “grandmothers and teens” spiel along with other familiar, industry talking points, including the fallacious assertion that the small-claim tribunal would provide fresh opportunity for copyright trolls to ply their dark arts.
. . . .
Presumably the good people in those rooms know that Senator Wyden can read the bill and at least acknowledge its many safeguards designed to alleviate the very concerns the senator pretends that he alone is now raising. Not the least of these would be the mandate that the small-claim tribunal is VOLUNTARY.
. . . .
So, after blowing all that smoke around various rooms in the state, Senator Wyden returned to D.C. and asked for changes to the CASE Act that would effectively obliterate its whole purpose for existing—a.k.a. poisoned pills. For instance, his proposal to reduce the damages caps by 95% of their current level is not only too extreme a revision to call a “compromise,” but it shows the senator’s underlying contempt for the bill, for copyright in general, and, by extension, for those constituents he basically blew off in the town hall meetings. A damages cap as low as $750 for a single claim (Wyden’s proposal) is so low that it barely covers the cost of filing the complaint and is, consequently, no deterrent to the kind of real-world infringements most rights holders have a problem addressing.
. . . .
On a phone call with several Oregon creators, another Portland-based commercial photographer, Michael Shay, relayed an anecdote about Trautmann that is exemplary of the conflicts the CASE Act was written to resolve. After a local restaurant used one of Trautmann’s images without permission on its website for promotional purposes, the photographer requested a very reasonable few hundred dollars for the continued commercial use of the photo. “When the restaurant did not respond to letters and phone calls from his lawyer,” says Shay, “Trautmann expressed frustration about the situation to friends on social media, and that led to resolving the issue.”
I know. We can almost hear the chorus of tech-utopians exalting the use of social media pressure as a form of enlightened, DIY justice. But as Shay observed, social media “shaming” (i.e. a public fight) is not a very healthy solution for anybody involved—neither the copyright owner nor the infringing user—least of all in a relatively small community like Portland. On the contrary, civil laws exist in part to keep society from devolving to tribes of bullies; and very few copyright owners want to resort to bullying just so they can be fairly compensated for the use of their works. “I very reluctantly went to social media to talk about this issue at all,” Trautmann later told me. “I confided my feelings to one friend on Facebook, who then wrote a scathing review of the restaurant on Yelp!, and that resulted in settlement of the infringement matter.”
So, as indicated in my last post on this topic, Senator Wyden might want to look beyond his personal biases about copyright and the CASE Act and take a more holistic view of the community he was elected to serve. A copyright small-claim board is a civilized, voluntary (did I mention voluntary?) solution to a conflict between two members of a community—the copyright owner and the average commercial infringer like that restaurant—not the least consideration being that the restaurant would lose big in a federal case, if Trautmann had to file a lawsuit.
Readers might remember that, a couple of years ago, this blog reported on a lawsuit filed in Italy by former Argentinean footballer Diego Armando Maradona against Italian fashion house Dolce&Gabbana.
The use, by the defendants, of his name on a jersey (below) worn by a model during a fashion show held in Naples in 2009 [Maradona played for Napoli for a few years, and in that city he reached the peak of his career]. The jersey, which was sold neither before nor after the show, carried the number ‘10’, ie the same number used by Maradona while at Napoli, and had the same colour combination as Napoli jerseys. Images of the jersey appeared on general interest media and also on the Dolce&Gabbana website.
. . . .
Maradona sued and claimed damages for EUR 1 million (!) due to the unauthorized commercial exploitation of his name. He submitted that Dolce&Gabbana’s use of his name had allowed them to take an unfair advantage of his repute and also likely misled the public into believing that there would be a commercial partnership between himself and the defendants.
News has reached The IPKat that now the Milan Court of First Instance has issued its decision on the matter, finding in favour of Maradona. The court noted that [the translation from Italian is mine]:
Without any doubt, the use of a decorative element which reproduces a third-party distinctive sign or name, leads – to say the least – to the establishment of an association with that person. If the sign is well-known, also and above all in a non-commercial sector, and conveys – like the sign at issue – particular impressions of historical allure and football excellence, it cannot be freely used by third-party undertakings without the permission of the rightholder.
Generally speaking, PG suggests that you’ll have a quieter life as a fiction author if you create fictional characters with fictional names.
Briefly, there are two classes of potential claims if you use the name of a real person.
In the US, these are state laws, so there is no federal law you can rely on across the US. As you can see from the OP, there are also similar laws in some other countries, so if you publish internationally, you, too may be subject to the laws of Italy even if you live in Wichita.
The two types of claims are usually characterized as follows:
1. “The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness and persona, which shall be referred to in this article as the “individual’s identity”. Protecting the individual from the loss of commercial value resulting from the unauthorized appropriation of an individual’s identity for commercial purposes is the principle purpose of this body of law.” See Findlaw for more.
2. “Invasion of Privacy: Appropriation of a Name or Likeness
An individual may have a cause of action for invasion of privacy when their name, likeness, or some other personal attribute of their identity has been used without permission. For example, a business may use an individual’s personal photograph without consent to advertise its product. Alternatively, a person may use the name and personal information of another without consent for professional gain.
To succeed in an appropriation lawsuit, you must prove that:
1. You didn’t grant permission for the use of your identity.
2. The defendant utilized some protected aspect of your identity.
(The law varies state-by-state on what constitutes a protected aspect of identity. For example, California law expressly protects a person’s name, likeness, voice, signature, and photograph, whereas Florida statutory law is more limited, protecting only a person’s name, likeness, portrait, and photograph. State statutory law differences are frequently minimized by case law, but these differences nonetheless can affect the strength and scope of your claim.)
3. The defendant used your identity for their immediate and direct benefit.
(This “benefit” is typically commercial, as in the use of a personal photograph for advertising. Some states, such as Florida, limit liability to situations involving a commercial benefit. In other states, however, liability may attach even if the defendant appropriated the identity for a noncommercial benefit, such as impersonation for professional gain.)” See Findlaw for more.
PG suggests that you don’t really need to use Kim Kardashian’s name in your novel. Search on the term “name generator” and you will find lots of websites that will help you create a fictitious name for your wealthy Beverly Hills heroine.
Who am I to judge someone’s trademark but this one does not roll off the tongue, at all. Lucasfilm has taken the first step to oppose one long trademark based off of a Star Wars’ quote: GREASE, I AM YOUR FATHER STEAMVADER.
. . . .
A residential professional grease company (who knew this was even a thing, I mean, how many turkeys are you deep frying for Thanksgiving???) has filed a trademark registration application for the phrase GREASE, I AM YOUR FATHER STEAMVADER. The phrase is not explained on the company’s website nor is it very prominent. In fact, in the in use specimen filed with the Trademark Office, the trademark cannot even be seen on it.
. . . .
Nestor Lopez of Lopez & Lopez Contractors, Inc. filed the mark in May 2019. A trademark attorney would probably have told him to expect some pushback from Disney but who needs an attorney. The grease cleaning company faces a pending opposition from Lucasfilm over the trademark. Lucasfilm has taken the first step to oppose the mark and filed a request for an extension of time to oppose. This allows the parties time to discuss settlement and it may scare off people who are not sure about proceeding with the mark.
During one of his college summers, PG and a friend who was majoring in electrical engineering traveled to Minneapolis. The friend had a sumer internship in the legal department of a large technology company and PG found a job in a soft drink bottling factory (which demonstrated the varying market value for engineering students and no-idea-for-a-major students).
During the summer, per the OP, PG’s friend told him entertaining stories about various strange patent and trademark applications he came across during his work day. PG discovered that entertaining stories from a bottling factory usually involved exploding bottles when the bottling machine went out of adjustment or a forklift dropping a pallet of root beer.
After graduation, PG’s friend went to law school and became a patent attorney. The last PG heard, his friend had founded what became the largest intellectual property law firm in a major midwestern city.
It would be a nice ending to this story if PG had started what became the largest bottling factory somewhere, but he went to law school instead in order to remove the curse from his frivolous undergraduate major.
Artists on Twitter say that their work is regularly stolen by armies of bots that generate t-shirts from popular designs—and they’ve got the receipts to prove it.
Here’s the scam: Bots linked to popular t-shirt sales platforms appear to be crawling Twitter for replies to artists that mention phrases like “I want that on a t-shirt” or “Can I get that on a t-shirt?” Within hours, vendors on popular t-shirt destinations (including Amazon, A&H Merch, Toucan Style, Moteefe and others, according to Medium) then start offering the original work for sale without seeking the artist’s approval, let alone cutting them in on the take. The only way to have the infringing material removed is for the artist to then contact the platforms and suffer through a slow-moving takedown process. It’s an intractable problem for independent artists who rely on social media platforms for visibility but are having their work stolen en masse.
. . . .
Painter Rob Schamberger highlighted the issue in a Dec. 1 tweet, writing “Never, ever, EVER respond to someone’s art on Twitter saying you want a shirt with that art. Bot accounts will cue into that and then pirate the artwork. This then becomes a nightmare for the artist to get the bootleg merchandise taken down.”
From there, Twitter user and artist @Hannahdouken came up with an idea: the bots doing the pirating may be able to detect when customers may be interested in purchasing a shirt, but they’re not smart enough to discern what the actual content of the shirt is.
@Hannahdouken asked Twitter users to respond to an image stating “This site sells STOLEN artwork, do NOT buy from them!” saying variations on the phrase “I want this on a shirt.” It worked…
. . . .
… after which all hell broke loose, with Twitter users escalating the prank to include terrible memes and intellectual property belonging to the infamously tight-fisted Disney Corporation, like Mickey Mouse. Multiple stores almost immediately ran shirts saying things like “Not licensed by the Walt Disney Company / This is NOT a parody! We committed copyright infringement and want to be sued by Disney. We pay ALL court and tribunal fees.”
. . . .
Another Twitter user was able to trick one of the stores into running a shirt with a picture of Mickey Mouse saying “China must be held accountable for its crimes against Uighur Muslims! Just ask me, Mickey Mouse! IP of the Disney corporation! Ha-ha!”
. . . .
“If you’re an artist and your designs get stolen its extremely frustrating, since the whole process is so automated and quick there’s few things to prevent this, and the process of getting these shops to remove your work is so frustrating and doesn’t stop them from doing it again,” @Hannahdouken told Gizmodo via Twitter DM. “The shirts they sell are extremely cheap as well, so people probably feel more inclined to buy it and less likely to check on the legitimacy of sites, instead of buying from an artists store where they actually get a cut.”
Link to the rest, including images of lots of examples, at Gizmodo
On Monday, 2 December 2019, the Danish Maritime and Commercial High Court issued a ruling in a case which explores the fine line between destruction and alteration of existing artwork. The conclusion? Cutting up an existing artwork to repurpose the individual pieces as wristwatch faces constitutes reproduction of the work in an amended form – not destruction followed by the creation of a new, original work.
. . . .
In the case in question, the Danish artist Tal Rosenzweig (better known as “Tal R”) had requested a preliminary injunction against the Danish company, Kanske Denmark ApS (“Kanske”), to prevent it from cutting up the painting “Paris Chic”, created by Tal R, in order to insert the pieces into wristwatches. In addition, Tal R had also separately requested preliminary injunctions against the manufacture, sale and marketing by Kanske of such wristwatches.
In the injunction requests, Tal R claimed primarily that the intended use of his “Paris Chic” painting by the company would constitute an infringement of his copyright to the work, reasoning that it would violate his exclusive rights under section 2(1) of the Danish Copyright Act “to control the work by reproducing it and by making it available to the public, whether in the original or in an amended form […]” as well as his rights under section 3(2) of the Act, according to which “[t]he work must not be altered nor made available to the public in a manner or in a context which is prejudicial to the author’s literary or artistic reputation or individuality”.
Tal R further claimed that by marketing and offering for sale the wristwatches (even though none had actually been made, and the painting was therefore yet unharmed), Kanske had violated section 3(1) of the Danish Marketing Practices Act, according to which “[t]raders shall exercise good marketing practice with reference to consumers, other traders and public interests”, as well as section 22(1) of the Act, which states that “[t]raders must not use business identifiers and similar devices that do not belong to them […]”. Specifically, Tal R claimed that Kanske had made unauthorized use of the “Tal R” brand in its marketing, thereby implying that a commercial partnership existed between Tal R and the company.
. . . .
After acquiring the painting, Kanske had initially announced on its website that it would host an online auction, promising that the winner would be given first choice of which piece of the painting he or she desired for a wristwatch. According to one screen shot submitted by Tal R, the highest bid as of 11 November 2019 was DKK 41,000 (approximately EUR 5,467).
. . . .
According to screen shots submitted by Tal R, the company went on to claim, inter alia, that the purpose of the project was to “arouse emotions”, and that “there can also be strength in the grief that people will feel at losing something. There can be a catharsis in people getting angry at us for doing something that people think is forbidden.”
An interesting discussion around copyright is developing with Tuesday’s (December 3) release by the Association of American Publishers (AAP) of a statement on a “copyright restatement project” underway at the American Law Institute (ALI). That comment from the AAP has been followed Wednesday (December 4) by a similar statement from the Copyright Alliance.
And while the core of the argument developing here lies deep in legal assessment—less accessible to many in publishing than the familiar top-level questions of copyright protection for authors and publishers—the occasion is important for just that reason: A quiet but potentially influential reappraisal of copyright law could, as one commentator has put it, “introduce greater confusion into its area of focus.”
At the publishers’ association, president and CEO Maria A. Pallante goes so far as to call the restatement project “a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy.”
. . . .
At the Above the Law newsletter, Scott Alan Burroughs of the art law firm Doniger/Burroughs wrote in January both about what has become customary from ALI—and why a copyright restatement is out of character: “The ALI is known for its restatements of laws,” Burroughs wrote, “regarding areas of state law that differ greatly in their application from state to state, such as torts.
“In an unprecedented departure for the organization, it has set now set its sights on federal law promulgated by a federal statute, the Copyright Act.”
Not only is this effort of more than three years by ALI an unusual foray for the organization, Burroughs wrote, but it appears to be a potentially dangerous gravitation toward the support of major tech media companies.
“From a preliminary review of the project’s language,” Burroush wrote, “the copyright law is being ‘restated’ in a manner that greatly favors Big Tech and their confederates in their ongoing campaign to devalue art and content. … If adopted and relied upon, it will make it even easier for Big Tech and other corporate interests to exploit original content without artist compensation or consent (an advantage that they certainly do not need).”
In February, Washington Legal Foundation’s Glenn G. Lammi wrote at Forbes, “ALI has built its reputation in the judicial and legal communities by releasing treatises that add value to an area of law. Re-wording a federal statute and offering commentary on which among many judicial interpretations of that statute’s provisions is ‘right’ doesn’t add such value.”
. . . .
The congressional letter first echoes the surprise of many in the community about the nature of the ALI project: “Throughout its almost 100 years of existence,” the Congress members’ letter reads, “ALI has never chosen to draft a restatement of an area of the law that is almost exclusively federal statutory law—until now. We are deeply concerned by the ALI’s current Copyright Restatement Project.”
The lawmakers note that the US Copyright Office shared its leadership’s concerns with ALI in the same January period in which Burroughs’ and other observers’ articles of alarm were appearing in the news media. Expressions of concern also were registered by the US Patent and Trademark Office and the intellectual property law section of the American Bar Association.
The congressional letter then creates a short list of questions, calling on ALI to state its intentions. Some of the points of inquiry the lawmakers demand answers to are, in essence:
Why now? What triggers a restatement of federal copyright law, which “has been in existence for more than twice as long” as the American Law Institute has been.”
How is ALI approaching the restatement process?
How much weight is given to existing law and legislative history?
Are recent copyright law changes being taken into account and respected? These include one with which Publishing Perspectives readers are familiar, the CASE Act, which creates a small claims board in the Copyright Office for inexpensive claims of copyright infringement and misrepresentation.
. . . .
In the Association of American Publishers’ statement of support for the lawmakers’ inquiry, the AAP quotes the lawmakers, who note, “Any restatement or other treatise relied on by the courts that attempts to diminish the importance of the statutory text or legislative history relating to that text would warrant concern. Courts should rely on statutory text and legislative history, not restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretations.”
PG is reminded of an old Southern rural saying, “The stuck pig squeals.”
The American Law Institute (“ALI”) is a fusty old institution that belches forth a “restatement of the law” on some legal topic every few years. It has always reminded PG of a high-brow legal Cliff’s Notes which provides a summary of various cases and statutes to make them easier to understand for those who don’t want to actually do the work of researching statutes and case opinions to find out what the law actually is.
PG never tried to cite anything from an ALI Restatement back when he was doing a lot of litigation because he knew most of the judges before whom he appeared would have responded by asking him if he had any actual legal authority in the form of a statutory reference or an opinion of an actual court on the topic and making some sort of sarcastic comment about PG wasting their time.
Back to the stuck pig, the Association of American Publishers is a mouthpiece for all the major publishers in the US together with the owners of those publishers which are mostly located across an ocean. PG generally assumes that if the AAP opposes something, PG will probably support it on behalf of his author clients and Mrs. PG, who never seems to stop writing books.
PG will assure one and all that the depth of knowledge about copyright law held by virtually any United States Senator or Congressional representative can be measured in fractions of an inch. The Washington lobbyists are howling and the large publishers that employ them are promising campaign contributions and lunch with whoever the latest fashionable best-selling author is at the moment to those same elected copyright naifs who are jumping all over the ALI.
From the perspective of the ALI, all this criticism will likely increase sales of their Copyright Restatement when it is finally released. PG doesn’t think anyone he knows will actually buy a copy, but he may traipse to a local law school library to take a look.
The United Kingdom is in the midst of what might be its most important election in a century. With the drama over Brexit swirling, the country is at a crossroads and it’s very likely that the next election will shape the future of the country for decades to come.
However, that election took a back seat on Friday following a terror attack on London Bridge that killed two people and injured three. That attack has now become a talking point of the election itself, with all sides striving to assure voters.
One of the more notable responses was from Prime Minister Boris Johnson, who is also head of the Conservative Party. In a 16-tweet thread, outlined why the alleged attacker was released, putting the blame on the Labour Party, his biggest political opponents.
. . . .
However, shortly after it was published, a pseudonymous blogger, The Secret Barrister, put out his own tweet calling the thread a plagiarism of his blog post, which had been published just hours earlier.
According to The Secret Barrister, Johnson cited the same sources he did, made similar observations and then “stripped out the inconvenient context and adopted a false conclusion.”
He also added:
“I find it fascinating that, having never previously shown any interest in explaining complex areas of law to the public, within hours of my posting of a full explanation of the legal issues involved in this case, the Prime Minister’s Twitter account embarked upon a 16-tweet legal thread…”
This, as with any case of political plagiarism, has led to a sharp divide. In the responses to the thread, many have used The Secret Barrister’s words against Johnson. Others, however, have defended him against the claim.
. . . .
It’s important to fully understand the allegations against Johnson. Even though many have called this a “copy and paste” plagiarism, including The Secret Barrister himself, it is not actually that.
The words between the two are completely different. In fact, there are a lot of differences between the two works, in particular with the conclusions. They are similar works, but they are not identical or even nearly identical.
Instead, the allegations center around a combination of the points that Johnson raises, the order that they are raised in and the source he cites. In particular, The Secret Barrister found it odd that both he and Johnson referenced the same document by the Prison Reform Trust charity.
To that end, it’s easy to see why The Secret Barrister and those that support him see the similarities. The tweet thread and his post are indeed very similar, hitting very similar points and differing only with the conclusions. Though no words are copied, one might say the structure of the posts are very similar.
But does this prove plagiarism? This is where things get thorny.
For The Secret Barrister, the case is open and shut, “The possibility that the PM’s own legal advisers drafted his thread without any regard to my witterings has to be carefully considered. But I just can’t see it.”
He goes on to add:
“The number of people who have (apparently independently) noticed the similarities in substance, even if the language has been changed, leads me to believe I’m not going mad. The most obvious explanation is that Johnson (or likely his special advisers) have taken their info from the blog, stripped out the inconvenient context and used it to present Johnson as a legal sage sharing his wisdom. Or, as I’m told academics would term it, plagiarism.”
But is it that straightforward? For me personally, while I agree that there is a reason to be suspicious and wary, it’s hardly an open and shut case. It may well be plagiarism, but there are some pieces to the puzzle missing as it stands right now.
. . . .
To prove that something is plagiarized, one usually has to answer three questions:
Was the work correctly cited? If it’s correctly cited, it’s not plagiarism.
Can the similarities be explained by common sourcing, including tropes, cliches, etc? If so, it’s not plagiarism, at least not a plagiarism of the work in question.
Can the similarities be explained by coincidence? Coincidences happen. Look at the case of Dennis the Menace. Coincidences aren’t plagiarisms. [PG Note: See below]
The first two aren’t helpful here as there is no citation in either work and there’s no indication that The Secret Barrister pulled his format from another source or from a template of some kind. That leaves only the third issue.
But this is where things fall apart a bit. Coincidence is often very difficult to disprove satisfactorily. With verbatim plagiarism, this is relatively easy. We can show that certain strings are unique to the two works and that the odds of them being created independently are astronomical.
. . . .
The truth is that we don’t know and not only is there not enough evidence to say conclusively this is plagiarism but there likely never will be. Barring a confession by Johnson or additional information about who wrote the tweets and how, we are unlikely to have enough information to be 100% sure one way or another.
But, even if we did, the damage would be somewhat limited. While copying someone’s outline and one of their sources is certainly plagiarism, it’s also not as severe as verbatim copying or more direct paraphrasing.
The Secret Barrister’s original post has over 3,700 words and Johnson’s tweets barely break 700 (though they include images of documents). It’s not verbatim plagiarism and it’s not a paraphrase, it’s a different beast altogether. They are similar documents in structure and source only.
Here is a bit more about the Dennis the Menace case mentioned above, also from Plagiarism Today:
1951 must have been a very bad year to be named Dennis.
The reason is because on March 12 of that year two separate comics entitled Dennis the Menace went on sale, one in the UK, one in the U.S (Note: The UK version is dated March 15 but actually went on sale on March 12).
The UK comic Dennis, which first appeared in Beano #452, was created by David Law and published by D.C. Thomson as a comic strip inside a popular comedy comic book. It’s U.S. counterpart was created by Hank Ketcham and initially distributed by Post-Hall Syndicate as a syndicated comic strip for newspapers.
Though, based on this simple fact, many draw the conclusion that one of the two creators had to have plagiarized the other, it’s become clear that simply wasn’t the case. Not only did the two creators have no way of knowing what the other was working on, but the two characters are actually extremely different. The UK version is a true menace, a mean-spirited boy who likes to cause trouble, and the U.S. version is happy-go-lucky child that causes trouble without intending to.
The two creators largely agreed to allow each other to work on their respective comics and both are continuing in at least some form today (though the UK version is now known as Dennis and Gnasher, named after Dennis’ dog). Though the U.S. version may be the most popular internationally, the UK version is better known in its native country. No legal action has been taken against either creator.
Still, the coincidence is one of the best-known in the publishing world and was recently highlighted on Cracked. However, it also highlights one of the most difficult aspects of plagiarism detection, trying to separate what is a plagiarism and what is a coincidence. Sometimes, it can be nearly impossible to be certain.
PG notes that, under US law, plagiarism is not illegal unless it rises to the level of copyright infringement.
Plagiarism is using someone else’s work without giving proper credit – a failure to cite adequately.
Copyright infringement is using someone else’s creative work, which can include a song, a video, a movie clip, a piece of visual art, a photograph, and other creative works, without authorization or compensation, if compensation is appropriate.
Schools enforce plagiarism.
The courts enforce copyright infringement.
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Plagiarism is using someone else’s work without giving proper credit. Schools deal with plagiarism by giving the cheaters academic consequences. Most teachers will give F grades for plagiarized work, and some will do more. When I was a teaching assistant at Stanford University, some students were suspended for copying answers during a test.
Plagiarism doesn’t have to include copyright infringement. For example, William Shakespeare’s plays are not copyrighted because they’re too old. Even though it would technically be legal to copy from one of those plays for an English assignment, it would still be plagiarism if you didn’t give credit to Shakespeare. Your teacher may not be able to take you to court over it, but she can certainly give you an F. You might even get suspended or expelled from school. Even though copying one sentence from a Web site is legal according to United States copyright laws, that may still count as plagiarism in your teacher’s book.
Copyright infringement is using someone else’s work without getting that person’s permission. The author of any original work, including books, essays, Web pages, songs, pictures, and videos, automatically gets the copyright to that work, even if she doesn’t label it with the copyright symbol and her name. The work must be fixed in tangible form, which means it must be stored on something physical, such as paper, canvas, a CD, or a hard disk. This makes college students copyright owners, since they’ve already written many original works for school.
The owner of a copyright gets to decide who can legally make copies of that work. It is illegal to copy large sections of someone else’s copyrighted work without permission, even if you give the original author credit. Imagine someone making copies of the movie Finding Nemo without asking for permission. He sure won’t get away with it just by giving the authors credit on the DVD cover!
Fortunately, a fair use exemption allows you to legally copy small amounts of someone else’s work. Just make sure to give the author credit so you won’t be guilty of plagiarism!
The courts assign consequences for copyright infringement. This means someone may come after you with a lawyer if you violate his copyright. Your school can report copyright infringement to people who have the legal power to take you to court. Students have been sued for copyright infringement before. In some cases, the court may require you to pay the fees for both your lawyer and the copyright owner’s lawyer.
Earlier this year, PG created a long post about Fair Use, Derivative Works, Transformative Fair Use which is not a Derivative Work and Infringing Derivative Works. He thought it was interesting, but you may not.
Although the term may still not be familiar to the wider public—including college students and faculty—Open Educational Resources (OERs) have been an integral part of education worldwide for at least two decades. OERs generally refer to digital educational materials that anyone anywhere can use freely and legally, including the user’s right to copy, share, enhance and/or modify them for the purposes of sharing knowledge and enabling education. These run the gamut and stretch beyond digital textbooks—usually perceived as the most common educational resources—to include everything from course materials, university courses, e-learning platforms, software, and streaming videos to lectures and digital repositories of monographs and journals.
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Regardless of how different and varied OERs may seem at first—ranging from single books to multi-functional and comprehensive platforms—what makes a resource an OER is that it is freely available to anyone, notwithstanding a person’s location and affiliation. OER users may well be college and university students, but they may also be independent learners, researchers or lay readers. Of course, ‘open’ does not mean ‘without any restriction’ or ‘without any financial support.’ It simply means ‘free access.’
Likewise, ‘open’ does not mean ‘without financial backing.’ The mechanisms through which resources become ‘open’ and ‘free’ are complex, always evolving, and require ongoing financial support. A variety of financial models exist on the market that contributes to the sustainability of OERs (Downes, 2007), ranging from, among others, endowment models (funding is usually received from charitable foundations) and membership models (participating organizations contribute a certain amount as members) to sponsorship models (a range of commercial messages, more subtle or less subtle, may interrupt learning and reading), and institution models (various institutions assume the full responsibility for their OER initiatives and bear the financial burden).
MIT OpenCourseWare, an online platform housing free
eductional and teaching materials from MIT courses
Open Textbook Library, a catalog of free, peer-reviewed, and
Open Course Library, a collection of materials, including syllabi,
course activities, readings, and assessments
Khan Academy, an online source of short lessons in the form of
videos and practice exercises and materials for educators
National Science Digital Library, a library of collections and
services supporting STEM education
OER Commons, a collection of over 50,000 university courses,
open textbooks, interactive mini-lessons, and K-12 lesson plans
Wikipedia, the world’s most used free encyclopedia
Wikimedia Commons, a repository of free digital images
and various media files
In the context of libraries, OERs as we know them have been around for longer than two decades. Librarians have, in many ways, contributed to the infrastructure of open education long before various types of OERs became the norm. The Internet Archive, for example, has been up and running for nearly a quarter of a century, while Project Gutenberg, the first online repository of public domain content—also a form of OER built and maintained by volunteers, including librarians—has its beginnings in the early 1970s. These initial undertakings paved the way for the advent of new, more specialized types of OERs used today. And as education began moving in the direction of open digital textbooks—scattered in disparate sources online that students and faculty had little awareness of—librarian roles in colleges and universities began to shift, requiring more active participation in the discovery of OERs.
What exactly has contributed to the explosion of OERs in recent years? The steep cost of textbooks and higher education in general, particularly in the United States, is frequently attributed to their popularity perhaps more than any other factor. According to the College Board, undergraduates now spend an average of $1200 on textbooks annually, and this remains a concern.
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OERs are widely and universally available
technology has made the cost of sharing OERs practically non-existent
given their digital nature, OERs can be modified to fit various needs
OERs help accelerate the advancement of human knowledge
due to ongoing technological improvements, OERs can reach learners faster than print textbooks
OERs allow students and parents to save significantly
OERs promote self-directed learning
OERs reach large numbers of learners at the same time, regardless of their location
OERs have revolutionized the way remote students or long-distance learners approach education
OERs allow for a more extensive peer review process
In what has to be one of the more bizarre plagiarism stories in recent memory, Qatar Airways accused Singapore’s Changi Airport Group of plagiarizing not a paper, an idea or a proposal, but an airport.
The accusation was made by Akbar Al Baker, who is the CEO of both Qatar Airways and Hamad International Airport. In a recent press conference, he claimed that Singapore’s Changi Airport was a plagiarism of a planned expansion of Hamad International Aiport in Doha, Qatar.
According to Al Baker:
“When I show you the images later [of the planned expansion], you will realize that somebody copied our design, which was already on the table nearly six years ago … We had individuals from that country, I will not name it, that took our design and did it.”
Though Al Baker did not name the country by name, most sources indicate that he was referring to Changi Airport in Singapore.
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Both airports feature large glass ceilings with triangular frames, mammoth indoor waterfalls and lush green spaces for travelers to roam.
However, the Changi Airport Group has responded to the allegations saying that they began the competitive process for the redesign and awarded it in May 2013. According to them, the company that won has never done any business in Qatar and its CEO has never traveled to Qatar.
Though Al Baker has not responded to the rebuttal, it appears that actual plagiarism is at best highly unlikely if not completely impossible. Basically, two airports had similar designs and that led to some allegations of plagiarism. But what does the law say about this and could it ever happen?
Not only could it happen, it very likely has.
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To be clear, Al Baker and Hamad International never had a very strong case. They were accusing a Singapore airport that opened in April of this year of being a plagiarism of a project that they haven’t even broken ground on.
Given how much time, energy and resources go into designing and renovating an airport, the dates were never going to line up. When your airport isn’t going to be completed until 2022, it’s tough to claim that an already-open airport plagiarized it.
But this isn’t the first allegation of airport plagiarism. In 2018, architect Duangrit Bunnag was accused of plagiarizing their design for an airport terminal in Bangkok, Thailand. Bunrag won a contest for the job after the original winner was disqualified for failing to file the needed paperwork.
In this case, Bunrag was accused of plagiarizing not another airport but another architect, Kengo Kuma. Bunrag flatly denied the allegations saying that his design was inspired by the Thai forest and others noted that the elements that were alleged to be copied predated Kuma and were parts of traditional building techniques in the region.
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Though the United States isn’t relevant to these cases, it is the easiest for us to examine. Here, the law here is pretty clear. Architectural works are protected under copyright and have been since December 1, 1990. Likewise, three-dimensional artwork such as sculptures can be protected as well as other artistic elements that are not simply useful articles.
This means that building a substantially similar building without a license could be a copyright infringement. Even if the plans themselves were not copied, even an attempt to mimic another architectural work could be an infringement.
But while it’s certainly possible that a claim of copyright infringement could come from this kind of plagiarism, Al Baker would likely have an uphill battle proving it.
First, he would have to show that the architects of Changi Airport had access to his plans. If infringement is not physically possible, then no infringement took place, it’s that simple. That’s a huge hurdle in this case with the timing of everything. Proving that an already-completed airport infringed on one that hasn’t broken ground is going to be, at best, difficult.
But, even if that hurdle can be crossed, it’s still an uphill battle. Not all inspiration is infringement. Al Baker would still have to prove that the elements that were copied can be protected by copyright and are unique to his work. Elements such as indoor waterfalls and glass ceilings are hardly unique to any one architectural work.
For all the justifiable concern in recent years directed toward the prospect of autonomous weapons, other military uses of automation may be more imminent and more widespread. In Predicting Enemies, Ashley Deeks highlights how the U.S. military may deploy algorithms in armed conflicts to determine who should be detained and for how long, and who may be targeted. Part of the reason Deeks predicts these near-term uses of algorithms is that the military has models: algorithms and machine-learning applications currently used in the domestic criminal justice and policing contexts. The idea of such algorithms being employed as blueprints may cause heartburn. Their use domestically has prompted multiple lines of critique about, for example, biases in data and lack of transparency. Deeks recognizes those concerns and even intensifies them. She argues that concerns about the use of algorithms are exacerbated in the military context because of the “double black box”—“an ‘algorithmic black box’ inside what many in the public conceive of as the ‘operational black box’ of the military” (P. 1537)—that hampers oversight.
Predicting Enemies makes an important contribution by combining the identification of likely military uses of algorithms with trenchant critiques drawn from the same sphere as the algorithmic models themselves. Deeks is persuasive in her arguments about the problems associated with military deployment of algorithms, but she doesn’t rest there. She argues that the U.S. military should learn from the blowback it suffered after trying to maintain secrecy over post-9/11 operations, and instead pursue “strategic transparency” about its use of algorithms. (P. 1587.) Strategic transparency, as she envisions it, is an important and achievable step, though likely still insufficient to remedy all of the concerns with military deployment of algorithms.
Deeks highlights several kinds of algorithms used domestically and explains how they might parallel military applications. Domestic decision-makers use algorithms to assess risks individuals pose in order to determine, for example, whether to grant bail, impose a prison sentence, or allow release on parole. Even more controversially, police departments use algorithms to “identif[y] people who are most likely to be party to a violent incident” in the future (P. 1543, emphasis omitted), as well as to pinpoint geographic locations where crimes are likely to occur.
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As compared with domestic police departments or judicial officials, militaries using algorithms early in a particular conflict are likely to have far less and less granular information about the population with which to train their algorithms. And algorithms trained for one conflict may not be transferable to different conflicts in different locations involving different populations, meaning that the same problems with lack of data would recur at the start of each new conflict. There’s also the problem of applying algorithms “cross-culturally” in the military context, rather than “within a single society” as is the case when they are used domestically (P. 1565), and the related possibility of exacerbating biases embedded in the data. With bad or insufficient data come inaccurate algorithmic outcomes.
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Deeks argues that the military should “fight its institutional instincts” (P. 1576) to hide behind classification and limited oversight from Congress and the public and instead deploy a lesson from the war on terror—that “there are advantages to be gained by publicly confronting the fact that new tools pose difficult challenges and tradeoffs, by giving reasons for their use, and by clarifying how the tools are used, by whom, and pursuant to what legal rules.” (P. 1583.) Specifically, Deeks argues that in pursuing transparency, the military should explain when and how it uses algorithms and machine learning, articulate how such tools comply with its international law obligations, and engage in a public discussion of costs and benefits of using algorithms. (Pp. 1588-89.)
PG notes the original article was published in The Virginia Law Review and is available here.
PG is inclined to think there is virtue in secrecy for algorithms used in military conflicts. At a minimum, disclosure provides a headstart for those who may be future opponents in developing the same sort of artificial intelligence. Additionally, there is a possibility of providing assistance to a future enemy in its development of counter-weapons to defeat or reduce the effectiveness of the original algorithms.
Supreme is being sued for allegedly jacking another company’s camouflage print for a range of its ultra-hot-selling wares. According to the complaint that ASAT Outdoors LLC filed in a New York federal court this week, Supreme’s corporate entity Chapter 4 Corp. is on the hook for copyright infringement for its “unauthorized reproduction and public display” of a copyright-protected camo design that is “owned and registered by” Stevensville, Montana-based ASAT.
Apparel company ASAT asserts in the newly-filed lawsuit that Supreme – which maintains the title of one of the buzzy streetwear brands in the world – “copied [its camo] design and created derivative works of [it] and placed [them] on their apparel, such as hats, pants and jackets to sell on their website and in stores.” The problem with that, ASAT argues in its suit as first reported by WWD: “Chapter 4 did not license the design from [ASAT] for its apparel, nor did Chapter 4 have [ASAT’s] permission or consent to use or sell the design on its apparel,” such as its $218 “work” jackets and $145 cargo pants.
As such, ASAT claims that the New York-based streetwear brand has “willfully, intentionally, and purposefully, in disregard of and indifference to [ASAT’s] rights” infringed upon its exclusive right as the copyright holder to reproduce, copy, display, and make derivate works of – i.e., works based on or derived from an existing copyright-protected work – its protected camo print, thereby, running afoul of federal copyright law.
The U.S. Copyright Act is a strict liability statute. In other words, following a “rule” that you believe to be true but which turns out to be a myth will not excuse you from liability for infringement. Under certain circumstances, it is possible to plead “innocent infringement,” but even that only serves to reduce the amount of damages you may owe and does not excuse your infringement.
Here are four of the most common copyright myths—debunked.
Myth #1: Public Access = Public Domain
The first myth is that anything to which the public has access, or that is publicly available, is in the public domain; i.e., if it’s on the Internet, it can be used without a license or other permission. This is far from the truth.
Contrary to popular belief, whether a book, work of art, lyrics, sound recording, or other copyrightable work is in the public domain does not depend on where the work can be found. Instead, determining if a work is in the public domain depends on when the term of copyright protection for that work expired— or if it existed in the first place.
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Myth #2: The Poor Man’s Copyright
The second myth is a “theory” that has endured for a very long time and remains surprisingly popular with freelance writers. Instead of registering the copyrights in a work with the U.S. Copyright Office, the myth is that the protection of a “poor man’s copyright” exists when an author mails himself or herself a copy of a work and then preserves the unopened envelope when he or she receives it in the mail. A variation of the theory is having the work notarized.
Mailing yourself a copy of your work or having it notarized has no legal effect. While it may serve as evidence that the work is in your possession as of the date it was mailed or notarized, it in no way proves that you are the author who created that work or holds the rights in it. The only way to register a copyright and to have documentation of your ownership in a copyrightable work is to file an application with the Copyright Office, which leads us to the next myth.
Myth #3: Registration Isn’t Necessary
Unlike the first two debunked myths, there is some element of truth to the third myth, that registration with the Copyright Office is not necessary for a work to be eligible for copyright protection. But not registering the copyright in a work would be shortsighted and not recommended for anyone wanting to be able to enforce his or her copyrights.
Under current law, registration with the Copyright Office is not required for works created after January 1, 1978.9 Provided a work is sufficiently creative and falls into certain enumerated categories, an author’s work is protected by federal copyright law as soon as it is “fixed in a tangible medium of expression.”10 Copyright protection does not cover ideas, only the expression of those ideas. In other words, telling one or more friends about your idea for the next great American novel or of a portrait you wish to paint does not guarantee any rights under U.S. copyright law. But as soon as the idea is expressed tangibly—for example, by writing the novel or painting the portrait—the work is protected by copyright law. Then, if someone copies the novel, painting, or other work of authorship without getting permission, the author can assert infringement.
An author cannot bring a lawsuit for copyright infringement, however, without a certificate of registration from the Copyright Office.
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Myth #4: The 30 Seconds/500 Copies/Two-Thirds/200 Words Rule
The final myth is that permission or a license is not needed if only a certain number of copies are made or a certain amount or percentage of the work is used, and that sticking to these arbitrary numbers automatically qualifies the unauthorized use as “fair use” under the Copyright Act.
With acknowledgments for creativity, there is no bright-line rule that making fewer than a certain number of copies or using less than a certain amount of a work somehow makes copyright infringement permissible under copyright law. Unless a use falls explicitly under one of the enumerated limitations on a copyright holder’s exclusive rights set forth in the Copyright Act,17 permission must be sought from the rights holder to reproduce, distribute, publicly perform, publicly display, and/or create derivative works of a copyrightable work—whether or not it is registered with the Copyright Office.
The UKIPO (United Kingdom Intellectual Property Office) updated its Formalities Manual on the 28th of October 2019,adding under 3.05 a provision that “An AI Inventor is not acceptable as this does not identify “a person” which is required by law. The consequence for failing to supply this information is that the application is taken to be withdrawn under s. 13(2)”.
Although one could question how important and breathtaking this amendment is, still, it signals the intention of the UKIPO and the way that it perceives AIat this point of time. It is difficult to be sure what has triggered this new provision,, but it could be related to the patent applications submitted in the UKIPO, UPSTO and EPO, respectively, concerning (i) a new form of beverage container based on fractal geometry and (ii) a device for attracting enhanced attention valuable for search and rescue operations. What these patent applications have in common is the inventor, an AI called Dabus.
Naturally, humans are involved in these patent applications, namely in the form of the applicants, two professors from Surrey University. The question is, of course, why the applications name the AI program as the inventor, if not to provoke a reaction from major patent offices.
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Professor Ryan Abott, also a professor at Surrey University, is the head of the application’s project. One of his statements available on the website of Surrey University states,
“Powerful AI systems could hold the key to some of the mega challenges facing humanity – from the cure for cancer to workable solutions for reversing climate change. But if outdated IP laws around the world don’t respond quickly to the rise of the inventive machine, the lack of incentive for AI developers could stand in the way of a new era of spectacular human endeavor.”
In fact, the patent applications are part of a project, the Artificial Inventor project.