Plagiarism, copyright and theft

Posted by Josh Rosenau on November 27, 2007
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Billy Dembski, the Isaac Newton of Information, is in trouble. He took an animation that Harvard University commissioned from XVIVO, modified it in various ways (or used a copy someone else modified), put a new title on it, and used it without permission of either Harvard or XVIVO. It appears he requested permission, was denied, and used it anyway. Bad.

Alas, the video of the event gets blurry at the precise moment when it might or might not show the copyright and credits for the video, but the video he used certainly is modified without permission and is used without permission. Both of those are academic no-nos, and also get him into a sticky legal situation. His response has been to notpologize and promise never again to do the thing he’s sure he didn’t do wrong.

He claims he got the video from the web, and that the voice isn’t his. Unfortunately, it’s impossible to know where he got it, or whose voice is dubbed over the video. If it’s his voice, then he should take responsibility (and it does indeed sound a lot like him, like someone sped up his voice and perhaps the video). If it isn’t his voice, he should give proper credit to the source.

Using copyrighted footage in a commercial presentation is clearly against the law. Using ideas and products of other people without permission is also against the law, and also violates accepted norms of the academic world. Academics produce ideas, and it is improper to take those ideas without giving proper credit. There’s a reason that teachers tend to start the year by reminding students of the serious consequences that can result from plagiarism, and not for other rulebreaking; those rules matter.

Of course, rules tend not to matter to the ID advocates. When rules get in their way, they simply dismiss them as “Darwinist dogma.” When the courts tell them they broke the rules, they just look for new ways around them. And when they get an angry letter from Harvard’s lawyers, they just slink away and try again.

There is one small matter worth addressing, though. Notwithstanding what Mike Dunford says, copyright violation isn’t theft.


My Scibling writes:

I wouldn’t argue that electronic copyright infringement is analogous to stealing a physical object. I’d argue that there’s absolutely no difference worth mentioning between the two – except possibly who the victim is.

This is patently absurd. Theft does the following things:

  • it deprives the owner of the use of her property without compensation
  • it provides the thief with that property without cost
  • it increases market scarcity, increasing costs to all

Copyright infringement does not deprive the owner of the use of his property (and whether it deprives the owner of income is often debatable). It does provide the infringer with something at no cost. It doesn’t produce market scarcity (electrons being essentially free), and the effect on market prices is debatable.

This is not to say that copyright infringement is A-OK, just that it is pretty easy to distinguish it from theft on moral grounds.

There’s also a strong case to be made for reform of existing copyright law, for a substantial expansion of fair use, a decrease in copyright terms, and improvements in the handling of copyrighted works whose authors cannot be located. A recent law review article by John Tehranian (PDF) makes the point very nicely:

To illustrate the unwitting infringement that has become quotidian for the average American, take an ordinary day in the life of a hypothetical law professor named John. ?

Following common practice, he has set his mail browser to automatically reproduce the text to which he is responding in any email he drafts. Each unauthorized reproduction of someone else?s copyrighted text?their email? represents a separate act of brazen infringement, as does each instance of email forwarding. Within an hour, the twenty reply and forward emails sent by John have exposed him to $3 million in statutory damages

After spending some time catching up on the latest news, John attends his Constitutional Law class, where he distributes copies of three just-published Internet articles presenting analyses of a Supreme Court decision handed down only hours ago. Unfortunately, despite his concern for his students? edification, John has just engaged in the unauthorized reproduction of three literary works in violation of the Copyright Act.

Professor John then attends a faculty meeting? Doodling ? provides an ideal escape. ?[H]e finds himself thinking of Frank Gehry?s early sketches for the Bilbao Guggenheim as he draws a series of swirling lines that roughly approximate the design of the building. He has created an unauthorized derivative of a copyrighted architectural rendering.

Later that afternoon, John attends his Law and Literature class?. He has assigned e.e. cumming?s 1931 poem i sing of Olaf glad and big to the students. As a prelude to class discussion, he reads the poem in its entirety, thereby engaging in an unauthorized public performance of the copyrighted literary work.

Before leaving work, he remembers to email his family five photographs of the Utes football game he attended the previous Saturday. His friend had taken the photographs. And while she had given him the prints, ownership of the physical work and its underlying intellectual property are not tied together. Quite simply, the copyright to the photograph subsists in and remains with its author, John?s friend. As such, by copying, distributing, and publicly displaying the copyrighted photographs, John is once again piling up the infringements.

In the late afternoon, John takes his daily swim at the university pool. Before he jumps into the water, he discards his T-shirt, revealing a Captain Caveman tattoo on his right shoulder. Not only did he violate Hanna-Barbera?s copyright when he got the tattoo?after all, it is an unauthorized reproduction of a copyrighted work?he has now engaged in a unauthorized public display of the animated character. More ominously, the Copyright Act allows for the ?impounding? and ?destruction or other reasonable disposition? of any infringing work. Sporting the tattoo, John has become the infringing work. At best, therefore, he will have to undergo court-mandated laser tattoo removal. At worst, he faces imminent ?destruction.?

That evening, John attends a restaurant dinner celebrating a friend?s birthday. At the end of the evening, he joins the other guests in singing ?Happy Birthday.? The moment is captured on his cellphone camera. He has consequently infringed on the copyrighted musical composition by publicly performing the song and reproducing the song in the video recording without authorization. Additionally, his video footage captures not only his friend but clearly documents the art work hanging on the wall behind his friend? John?s incidental and even accidental use of [the artwork] in the video nevertheless constitutes an unauthorized reproduction ?

At the end of the day, John checks his mailbox, where he finds the latest issue of an artsy hipster rag to which he subscribes. The ?zine, named Found, ?collects and catalogues curious notes, drawings, and other items of interest that readers find lying in city streets, public transportation, and other random places. In short, John has purchased a magazine containing the unauthorized reproduction, distribution, and public display of fifty copyrighted notes and drawings. His knowing, material contribution to Found?s fifty acts of infringement subjects John to secondary liability in the amount of $7.5 million.

By the end of the day, John has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges). There is nothing particularly extraordinary about John?s activities.

If the law supposes that (as they say), the law is an ass. These are all copyright violations, and similar such violations happen all around us. Either we are all thieves, copyright is grossly over-broad, or copyright is not theft. Those options are not mutually exclusive, I suppose.

This does not excuse Dembski. The difference between his copyright violation and the hypothetical professor’s violations is that he only violated copyright because the copyright-holders exercised their right to refuse his permission to incorporate their work into his. And there is no excuse for that. While Hanna-Barbera’s claim to the law professor’s shoulder is dubious, Harvard’s claim against Dembski is unambiguous. Should the mysterious narrator ever come forward, his claim will be even stronger, since Dembski has admitted to plagiarizing his work.

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Comments

  1. #1 Left_Wing_Fox
    November 27, 2007

    In your hypothetical, John isprotectedby three things:They don’t know; They don’t care; and most importantly, It’ll cost more to sue than they could claim in damages. That last point is why a lot of the copyright “gray areas” exists. Companies or individuals don’t have to go after every violation of their copyright to defend it, they can choose to ignore dozens of fan fictions and send the “Cease and Desist” only to ones they don’t particularly like.

    What Dembski did is classic Copyright Violation stupidity 101.

    1: He violated copyright(knowingly or ignorantly)
    2: He did so in front of a wide audience bound to catch the violation.
    3: He did so in a way that would offend the original creators.
    4: He likely received financial reimbursement for the presentation in which he used that copyright material.

    That’s the Grand Slam of Copyright Stupidity.

  2. #2 Matt Penfold
    November 28, 2007

    Josh,

    I am not sure you claim that the difference between theft of a physical object and a digital is clear stands up.

    If I go into a shop an steal a CD I am, as I am sure you agree, guilty of theft. The question that your position raises is guilty of the theft of what exactly ? Theft of the CD itself for sure, but the value of the CD itself is pennies. The actual price you pay when buying a CD is mostly for the content of the CD, not the physical medium. However you position is that taking content is NOT theft, so does that mean that a person stealing a CD should only be charged with stealing the physical medium, worth pennies ?

  3. #3 Michael Poole
    November 28, 2007

    Matt,

    What does the cost of manufacturing the CD have to do with it? As Josh pointed out, one of the key differences between copyright infringement and theft is whether the (proper) owner is deprived of the property. There are also shipping, handling, stocking and other costs associated with that particular item. The store also paid some amount (much larger than pennies) for the item. The store’s cost is the same regardless of whether the cost basis is material, scarcity, creative content or pixie dust.

  4. #4 Matt Penfold
    November 28, 2007

    Michael,

    The manufacturing cost has everything to do with it.

    Only a tiny fraction of the price paid for a CD has to do with the cost of manufacture, or even distribution. The evidence for that ? The music industry itself. The cost of online albums is often only slightly less than the cost of buying the CD, indicating the increased cost of manufacture and distribution of a CD over online delivery is small.

    Say the cost difference is �2. That seems a reasonable figure. iTunes in the UK charge about �7.99 for an album, and you can often buy the same album on the high street for �9.99. Why then would someone charged with stealing a CD not be charged with theft of property worth �2 rather than the full retail value ? The fact that they are not indicates both you and Josh are wrong.

  5. #5 J-Dog
    November 28, 2007

    We need to make a public example to discourage this type of blatent disregard for the law, so I say hang Dembski and be done with it. Of course, since he’s an IDist, he would like it better if we crucified him, and I am all in favor of helping him live up to his martyer complex.

    And for those of you that have no sense of humor (Yes, I’m talking to you IDers), get over it – this is just “street theater”.

  6. #6 Matt Penfold
    November 28, 2007

    Micheal,

    I would further add that producing an album to be distributed in whatever format carries a cost. Studio hire costs money as do Sound Engineers and Producers. Post production costs money, as does hosting an online outlet.

    So the claim that there is no theft when it comes to digital content is false.

  7. #7 _Arthur
    November 28, 2007

    The original Harvard/XVIVO “The Inner Life of a Cell” is a very slick science animated movie, must have taken months to make, with a sizeable price tag.

    Dembski claims not to be aware who in the Discovery Institute ripped off the credits and dubbed it over with DI tripe. He’s lying.

  8. #8 Richard
    November 28, 2007

    Copyright infringement provides the “infringer” with the use of a property without permission or cost, and so meets your definition of “theft”.

  9. #9 Matt Penfold
    November 28, 2007

    Josh says to be theft something must meet the following criteria, and claims that content theft only meets the second. I think he is wrong.

    * it deprives the owner of the use of her property without compensation.

    Josh says content theft does not do this. He is wrong in that assertion. Intellectual property is still property. Further there is a cost involved in creating intellectual property in both time and material.

    * it provides the thief with that property without cost

    Josh accepts this criteria is met.

    * it increases market scarcity, increasing costs to all

    There is a cost involved in making online content available. Web sites, at least ones handling any significant volume, do not come free: bandwidth costs money as do the skills needed to setup an online retail operation. Whilst the bandwidth is dependent to a significant degree on usage, the other costs are not. Thus someone who downloads online content without paying does increase in the cost to the rest of us, by ensuring every legitimate purchase has a slightly higher cost due to lower sales volumes with which to recover fixed costs.

  10. #10 Shenda
    November 28, 2007

    Josh,

    The portion of the article by John Tehranian that you cite is a very poor piece of work. Most, if not all, of the actions he mentions are clearly within the Fair Use provisions of US copyright law:

    “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include?
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.
    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

    http://www.law.cornell.edu/uscode/17/107.html

    Mr. Tehranian tries to dance around this by saying:

    “Yet if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, barring last minute salvation from the notoriously ambiguous fair use defense,?..”

    http://www.turnergreen.com/publications/Tehranian_Infringement_Nation.pdf

    While the Fair Use provision can be considered ambiguous at it?s fringes, the actions Mr. Tehranian cited are not at all ambiguous under Fair Use. Further, the supposed monetary damages he proposes appear to be fabricated out of thin air and are, to say the least, wildly inflated.

    While copyright law is an important and often murky issue, Mr. Tehranian’s article does no one a service by distorting the scope of the issue.

    I am not a lawyer. However, I have worked closely with lawyers in writing contracts involving copyright and intellectual property issues. I have also been indirectly involved in federal lawsuits involving Fair Use issues.

    Shenda

  11. #11 Andythebrit
    November 28, 2007

    Shenda’s point about fair use is good; however, I have heard representatives of the entertainment industry describe Fair Use as, basically, “a loophole for theft” that they would very much like to close.

  12. #12 Matt Penfold
    November 28, 2007

    One thing I think is clear, and that is the current concepts of what copyright is for and how it should work are no longer adequate for the technology in use today.

    After all it only fairly recently that it has been possible so easily copy and distribute copyrighted material. Sure you could copy an LP onto a tape but then try to copy that tape to another tape and the quality was rubbish. In addition until the last few years intellectual property nearly always went along with medium, books, LPs, CDs etc. Today that link has been broken I do not think the law or the people’s concepts of what is right and wrong have yet caught up with that.

  13. #13 Josh Rosenau
    November 28, 2007

    Shenda, one of the passages I elided included this discussion of fair use: “For the purposes of this Gedankenexperiment, we assume the worstcase scenario of full enforcement of rights by copyright holders and an uncharitable, though perfectly plausible, reading of existing case law and the fair use doctrine. Fair use is, after all, notoriously fickle and the defense offers little ex ante refuge to users of copyrighted works.”

    Fair use probably does indeed cover many of his uses. Educational use is a consideration in fair use, as is the non-commercial nature of his tattoo (though the tattoo artist remains on the hook). Incidental artwork in the background might not be safe on the same grounds that thumbnails on Google Images are safe, but we won’t know unless someone files suit on that subject. So forth.

    Dembski’s use was not transformative, was commercial, did tend to minimize Harvard’s copyright claim. It isn’t clear what Harvard’s market is, so I can’t say how it affects that market. He fails under at least three of the four prongs, and even that final prong is probably not enough to clear him.

    I must, however, dispute Matthew Penfold’s assertion that copyright creates “intellectual property.” My reading of the relevant passage of the Constitution makes it clear that, ceteris paribus, creative works belong to the public domain. Congress has the power to carve out certain market monopolies, but that does not create a property right in any meaningful sense. Copyright infringement does not (necessarily) take away that market monopoly, either. I’ll concede that a monopoly itself could be treated like property, or at least like a deed to property.

    Commercial piracy might be said to steal that monopolistic property, but it isn’t clear to me that things like Bittorrent even steal that, though they clearly violate copyright. These distinctions are meaningful, and inventing terms like “intellectual property” to obscure distinctions just confuses conversation without advancing any actual argument. Implicitly you are arguing that copyright creates something called “intellectual property” and that that entity is indistinguishable from any other sort of property. While a sufficiently broad definition of “intellectual property” might well allow you to make the first connection, that will mess up the second claim (assuming you define “property” in some normal way). I don’t think any assessment of what copyright actually creates could be seen as producing something identical to property as it is conventionally understood. Copyright expires, and constitutionally must expire, to choose one obvious difference.

  14. #14 Matt Penfold
    November 29, 2007

    I am unclear on what the US constitution has to do with it. First most people do not live in jurisdictions were it is relevant, and secondly it is not an infallible document.

    With regards your second point, you have the issue totally arse about tit. IP does not arise out of copyright, copyright is what is used to protect IP. I have yet to you offer a cogent argument why the efforts of the labour of my mind should be deserving on any less protection than the labours of physical effort. If I make a violin to take that from me without permision is theft, why should taking a composition I wrote to be played on that violin also not be theft ? This is the question I do not see getting answered.

  15. #15 Josh Rosenau
    November 29, 2007

    The US Constitution is why I have copyright. It grants Congress the power “To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

    Absent that passage, and laws enacting it, the composition you played on a violin would be part of something called the “public domain.” Only due to legislative acts do you exercise a temporary monopoly on the use of that work. Can you name for me any other “property” which works that way? Bear in mind that, until the 1970s, everything entered the public domain (in the US, but I think in many other countries as well), unless the author explicitly acted to place that work under copyright. Again, can you tell me other property which one has to treat like that?

  16. #16 Matt Penfold
    November 29, 2007

    “The US Constitution is why I have copyright”

    It probably is for you. For most people though it is not. The concept of copyright precedes the writing of the US Constitution after all.

    Sorry Josh, but I had thought you to be above parochial American exceptionalism like this, and would like to continue to think so. Sadly what you have said above makes be think I may need to reconsider.

    Maybe when you have got this need to go all nationalistic on me we can discuss this like sensible adults. I am afraid that otherwise you have nothing say about this that is worth hearing. At the moment you are all “Ed Brayton” for me to want to deal with.

  17. #17 rev_matt_y
    November 29, 2007

    Matt Penfold: one problem with your argument about the cost of CDs is that the pennies it costs to produce is irrelevant. What is relevant is what the retail store it was stolen from paid for it. In 1992 a CD that sold for $15.99 (the top price at the time for a new release) cost a big chain $10.75 per unit officially (not including ad subsidies, discounts, etc). So rather than taking pennies from the retail store you’ve instead taken more than ten dollars.

    Note that I agree with your overall position, but that particular point was bugging me.

  18. #18 Josh Rosenau
    November 29, 2007

    My point isn’t nationalistic, it’s an answer to the question you asked. Copyright did of course predate the American Constitution, and it wasn’t treated as a property right elsewhere, either. Wikipedia says the first use of the term “intellectual property” is in the US, in 1845. Which clearly makes American copyright law the most relevant to discussions of that term’s meaning.

    I’d like to think we can have this discussion on the merits, by looking at the relevant history, and not descend into grammar-free ad hominems. I don’t know what the Brayton reference is supposed to mean, even if the sentence including it were grammatically correct.

  19. #19 Matt Penfold
    November 30, 2007

    The Brayton reference was a comment on how you were doing a good inpression of that idiot. Brayton claims to be a deist and his god is the US Constitution. As such he is totally unable to comprhended that things may be done better elsewhere. You can see the muddled thinking that this brings about in him by reading what he has to say about Richard Dawkins. Brayton thinks Dawkins should shut up and he alienates moderate theists in the US. Leaving aside the varacity of such a claim, it shows that Brayton thinks the world revolves around the US. There is a name for such a position, and it is called American Exceptionalism. It is not an attractive trait but sadly one that is found in too many Americans. My concern is that you are in danger of falling into the same trap, by your persistance reference to your consitution and failure to acknowledge until just now that for most people what your constitution says is a matter of supreme indifference.

    If you not wish me to call your position nationalistic the solution is quite simple. Stop holding positions that are nationalistic.

  20. #20 Matt Penfold
    November 30, 2007

    Josh,

    If you really do want a civilised conversation about this then could try answering the question as why the results of the labour of my hands should deserve greater protection than the results of the labours of my mind. If I make a violin and you took it without permission you would be committing theft. If I was to write a tune for that violin and you took it without persmission I would regard that as theft as well. You clearly would not, but have yet to explain why.

  21. #21 Bonnie Boots-The Internet Wizards Publisher
    December 2, 2007

    The internet is making
    it possible for creative people to profit from their
    own work in ways that were never before
    available–but at the same time it makes it
    so much easier to violate the creator�s rights.
    In the U.S. the laws are such a mishmash even professionals do not understand them
    Of course, the trickiest part of copyright is that no matter how the laws are written, the ultimate ability of those laws to protect creative people rests solely on the creator�s ability to pay for legal representation. I�ve noted a sad example of this in my recent article available here:
    http://www.theinternetwizards.com/A-copyrightconfusion.htm

  22. #22 Josh Rosenau
    December 3, 2007

    Matt, that’s a fair question, but I think you are oversimplifying dramatically.

    If I leave my car unlocked and a homeless guy sleeps on the back seat, it isn’t theft, it’s trespass. If someone tricks me into signing over the deed to my house, it’s fraud, but not theft. If you reprint my blog post without permission it’s copyright infringement and plagiarism, but it isn’t theft. There are ways of taking things without permission that aren’t theft.

    Furthermore, ideas occupy a tricky area. Copyright and patents (which I link for reasons which may be parochial but are historically relevant) exist to encourage people to share their ideas. If you have an idea that you just don’t want others to use, you don’t publish it. The Coke formula is not protected by patent or copyright, it is protected by being kept secret.

    Copyright exists so that authors can share their ideas while maintaining a monopoly on their words’ resale and reuse for a limited time. That’s why the passage from the US Constitution above is prefaced with the comment on promoting science and the useful arts. Copyright exists to encourage sharing. Laws regulating theft, trespass, etc. serve very different purposes.

  23. #23 Tom
    December 6, 2007

    IANAL, but I have a little familiarity with copyright in the US; in that jurisdiction statutory damages are only awarded if you register the copyright. Possible, but unlikely, for an email. (Title 17, Ch 4, sec 412 of the US code)