Romance, Historical, Contemporary, Paranormal, Young Adult, Book reviews, industry news, and commentary from a reader's point of view

community ethics

It’s not just what we say, but also what we mean

It’s not just what we say, but also what we mean

20130923-231922.jpg

I know; I know. You’re as burned out as I am on all the community drama of late. And here I promised a post on the marketplace of ideas, when instead I’m writing one on plagiarism. But because we are a community based so strongly in words and in the interpretation of texts, it’s important to share a common meaning when we use terms that indicate a violation of some part of the community’s rights or ethics. And reading through some of the comments on the Shey Stahl situation reminded me how complex the concept of plagiarism can be, especially in a community that places such a high value on intellectual property rights.

Many of you probably know about how Stahl’s recently released book, For the Summer, shares some almost word-for-word similarities with the immensely popular 2011 Twilight fan fiction Dusty, written by TeamBella23 and YellowGlue. As of last night, Stahl’s book was available on both Amazon and Barnes and Noble, but it is no longer for sale on either site (I have not checked B&N, but all of Stahl’s books, some of which have been traditionally published, are now unavailable from Amazon). Currently, Stahl’s Twitter feed is locked, her website is down for “maintenance” (although accessible through a cache pull), her Facebook page seems to have been pulled (although, again, available through a cache pull), after many responded to her statement on the goodreads review that started the discussion:

I’ve been made aware of the accusations on GR stating I’ve taken another authors words from them and I stand by my stories always being 100% mine. Please know the facts before you accuse someone of something so wrongful.

The “facts” are provided in a goodreads review of Stahl’s book (well, currently, at least; I’d take screenshots if I were you), where Ari Bookzilla places seven passages from both books side by side (she stopped reading at the 20% mark, so all of these are early in the Stahl book), that share more than a few words. Andrew Shaffer also posted a comparative screenshot on Twitter, as well as a comparison between For the Summer’s blurb and that of another book, showing substantial overlap. One of her editors even came forward and said she expressed concern to Stahl about similarities between her writing and that of other fan fiction authors. Even the current editor is distancing herself from the author at this point.

And then there’s the usual back and forth between the author’s fans and those who believe she plagiarized Dusty, with all of the attendant vague legal threats and accusations of bullying.

I am not going to spend a lot of time tracking through the immense number of comments and back and forth on this issue, because I’m more interested in clarifying the distinctions between plagiarism and copyright infringement, which always seem to get elided and bungled in these situations. However, both the overlaps between the two and the points of differentiation are critical, in part because the recourse and the remedies are not always the same.

Plagiarism is the act of passing off of another’s work as your own. Any type of work, published or unpublished, public domain or privately held, can be plagiarized. The words do not have to be exactly the same, but there must be a persistent and obvious repetition between the two works, such that the plagiarized work is substantially the same in expression, rhythm, and syntax, as the original.

Plagiarism is not a criminal act. Instead, plagiarism is generally considered to be an ethical violation, although it may give rise to civil litigation and/or civil penalties. In an academic environment, for students, it can be grounds for expulsion, and it almost universally is considered a violation of a campus policy, and, if the school has one, an honor code. For authors working with a professional publisher, there is usually a contract term requiring that a book be the author’s original work, so plagiarism can result in breach of contract and cancellation of the publishing contract and return of advance monies (among other things, like the publisher pulling an author’s plagiarized books, a la Signet and Cassie Edwards, wherein Signet gave Edwards back her rights). Or remember when a book that “borrowed” substantially from Jane Eyre was eventually pulled by Dreamspinner Press when the texts were placed side by side?

Also note: plagiarism does not need to be malicious or even intentional. Of course, the more similarities one discovers between texts, the harder it is to believe that the plagiarism was not intentional, but intent is not necessary to prove plagiarism.

Plagiarism is not the same thing as what we call “inter-textuality,” where one book is specifically invoking, involving, and even riffing on another (like Jasper FForde’s Eyre Affair, for example). And even if someone writes a book that features the same character types or even the same basic plotline, that is not necessarily enough to support an accusation of plagiarism. Originality is said to reside in the expression of a work, not necessarily in its basic plot and character components, which, as many have pointed out, are finite in variety and combination.

Still, not all uses of another person’s work — even when acknowledged as such — are lawful.

Copyright Infringement is the unlawful use of intellectual property that belongs to someone else. If, for example, you use song lyrics in a story without getting permission from the songwriter and/or the music publisher, you are infringing on copyrighted work. If you use a photo that is licensed to another person without their permission or without paying a licensing fee, that is infringement. Check out Roni Loren’s experience if you do not believe this. And the common act of scraping online content can absolutely constitute copyright infringement, as Sunita pointed out in a previous blog post. Where plagiarism is the passing off of another’s work as one’s own, copyright infringement is the unauthorized use of someone else’s work, even when credit for authorship is present.

Copyright infringement can, however, involve plagiarism. If, for example, someone copies material from a copyrighted work and passes it off as her own, that is both infringement and plagiarism. The Janet Dailey/Nora Roberts case is a good example of that intermingling. And unlike plagiarism on its own, infringement does directly provide for legal remedies.

But here’s where things get slightly complicated and often misunderstood:

Every work expressed in a tangible medium (including on a computer screen) is technically copyrighted. Even the poem you scribbled on a cocktail napkin and shoved in your pocket. This is common law copyright, and it carries with it the right to have someone cease from using your work (through a cease and desist letter, a legal injunction, or the filing of a DMCA notice). It can also entitle the author of the original work to any direct profits received because of the original work (note: this can be extremely difficult to calculate and not necessarily worth the cost of pursuing the claim).

However, if the author of the original work files copyright registration within three months of publication, that author now has the right to file suit against the infringer and possibly receive what are called “treble damages” (triple damages) under federal statute (copyright is a matter of federal law, and enforcement of registered copyright is therefore handled by federal courts). Registration filed within five years of publication is considered “prima facie” evidence of the validity of the registration (literally, “on the face of it”). There are many complex facets to the notice issue, which are articulated in Title 17 of the US Code, Chapter 4. And as those who have pursued claims will tell you, it can be costly, frustrating, and even inspire backlash, like Nora Roberts experienced from Janet Dailey’s fans (not to mention the fact that Kensington eventually picked Dailey up and continued to publisher her books). An author with a proven track record of sales can find her way back to publication and even success, which can make it seem like there are few consequences to plagiarizing infringement.

Like plagiarism, infringement does not have to arise from any particular intent (or even knowledge of infringement), but intent can, in limited circumstances, make a difference in determining the penalties for infringement, especially if one is found to be an “innocent infringer.” And for those occasions when we all utilize copyrighted works, it is crucial to remember that “fair use” is merely a defense to infringement. In other words, it is a lawful exception to the penalties for infringement, it is not an absence of infringement.

Why does any of this matter? In Stahl’s case, some of her defenders are insisting that because the work that overlaps so substantially with hers is fan fiction, the authors of Dusty (and, I’m assuming, the other works that are now being implicated) should be the focus of any wrongdoing.

So let’s take that argument at face value; let’s say that Dusty is a work that infringes on the copyright of Twilight. Because plagiarism and infringement are not the same thing, it is absolutely possible to plagiarize a work that itself infringes on another’s copyright. Now, I am aware of no claims of infringement against Dusty, but even if there were, Stahl would not be absolved of plagiarism charges on that basis. Plain and simple, plagiarism is the act of  copying another’s work and passing if off as one’s own.

There have been numerous cases of plagiarism that have resulted in seemingly no penalty for the plagiarizing author. St. Martin’s Press denied plagiarism accusations against Lenore Hart’s The Raven’s Bride in 2011, despite passages similar to those from a 1956 book called The Very Young Mrs. Poe. Ian McEwan was accused of plagiarizing passages from Lucilla Andrews’s 1977 memoir.  McEwan even acknowledged his use of Andrews’s memoir, but denied the plagiarism charge.

But in a bookish environment where more authors than ever are self-publishing and where fan fiction is moving into the mainstream for even traditional publishing, these thorny issues are likely to become more common, not less. And as a community, we need to be clear both about the terms we are using to describe these happenings, and the effect of those terms on the authors in question and the community as a whole.

One big issue I think we need to deal with is the way plagiarism, especially, because of its status as an ethical transgression, makes it very difficult for people to separate the act from the actor. Perceptions of plagiarism as a character or moral flaw are common, and despite those authors who do find their way back, in some cases there can be a very high bar to forgiveness. Remember Kay Manning, the treasurer of the Kiss of Death RWA chapter? Hers was one of the few unqualified apologies I’ve ever seen from someone who plagiarized, and still there were many who felt she deserved more punishment. Sometimes, those authors who simply refuse to admit wrongdoing can come out looking better than those who do, which is really pretty sad when you think about it.

In some ways, it may be impossible not to personalize an action like plagiarism, and to perceive the plagiarist as ethically or morally corrupt. And, in this current online environment, there may be backlash against those who make an accusation of plagiarism, a defense of the accused author by trying to discredit and morally impugn the accusers. One of the real problems with this is that it tends to distract us from the toll this takes on the community itself, a toll that goes way beyond the actual plagiarism to a place where things become so personal and hyperbolized that a deep sense of animosity and distrust takes hold between authors and readers, such that readers who publicly uncover plagiarism become designated as “bullies” and authors and or readers who defend the accused author are seen as fanatical or crazy or ethically bankrupt. We are already seeing the effects of this loss of perspective, as the recent changes at goodreads and the Lauren Howard debacle indicate. The incredibly disappointing handling of the Howard story by both Salon and Jane Friedman’s Writing on the Ether  reveals the strain on journalistic standards when it comes to the allure of drama over the plodding pace of circumspect research. And it’s always easier to see the balance between timely action and over-reaction in retrospect.

Respect for intellectual property is critical in sustaining the integrity of a bookish community, but so is tending the community and the way the community manages ethical and legal lapses. Trespasses need to be acknowledged and remedied, but is there a way to do this without making the drama disproportionately magnify and even eclipse  the very real problems that plagiarism and infringement can cause in a community that is both united and potentially divided by its shared engagement with stories.

 

 

 

20130923-231919.jpg

Let’s Talk About Free Speech and the Internet (again)

Let’s Talk About Free Speech and the Internet (again)

download

[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. [p56] For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. FCC v. Pacifica Foundation, 438 U.S. 726 (1978), quoted in Hustler Magazine v. Falwell, 485 U.S. 486(1988) **

Back in the olden days, before the Internet made everyone an expert on what can and can’t/should or shouldn’t be said online, Jerry Falwell sued Hustler for their satirical portrayal of his “first time.” Mimicking and spoofing the old Campari ads, Hustler presented a faux-interview, in which faux-Falwell talks about drunkenly losing his virginity with his own mother in an outhouse (“Campari in the crapper with Mom,” the faux interviewer calls it). It’s crude, rude, offensive, and, according to College Humor, “funny as hell.”

The Supreme Court ruled against Falwell, holding that because the piece was so obviously satirical, it must be protected, even if “is patently offensive and is intended to inflict emotional injury.” The Court goes on to point out that the nature of political cartoons is that they are “often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided.”

Although the First Amendment traditionally protects individuals from government intrusion into their right to speak and assemble freely, there are private tort actions that can result from certain types of speech (defamation and intentional infliction of emotional distress, for example), which is why Falwell could sue a privately run magazine for the purported harm caused by its lampoon.

The Hustler case is a good example of how speech can be extreme and incredibly offensive, but still be perfectly legal. It’s also a good example of how even when speech is legally protected, that doesn’t mean it can’t be hurtful and costly in certain ways. And in our ongoing back and forth about book reviews and “bullies” and the alleged need for more “civility,” we need to start being more open and honest about both sides of the speech discussion, because the less we’re willing to look at both sides fairly, the more inaccurate, warped, and antagonistic the whole subject is becoming. And the closer we’re coming to chilling good, constructive creative and critical speech, from both authors and readers.

I realize this is a tall order, and it requires attention to — among other things — Constitutional law, political theory, the role of criticism in a society that has such broad speech protections, and the nature of our online communities, particularly how we want them to function and what we want them to look like. It’s going to take more than one post to flesh out. But I want to undertake a little project to talk about why it’s important to protect speech we may find offensive, hurtful, and even divisive, while at the same time taking a good look at the potential effects and costs of such speech on our online communities.

So let’s start at the beginning:

Free Speech and the First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The sentence construction is very telling — a prohibition against Congress 1) legally recognizing one religion over another, 2) refusing to allow people the right to freely practice their religion, 3) limiting free speech or free press, 4) limiting the right to gather and protest something the government has done. Note that the Establishment Clause actually appears before speech rights, and that the amendment itself is explicitly conscious of the relationship between individuals, groups, and the government.

This awareness in part derives from the relationship between the Declaration of Independence and the Constitution, the first being an assertion of separation and liberation, the second an attempt to contain, stabilize, and delimit what remained after freedom from English rule was secured: “We the People . . . in Order to form a more perfect Union. . . ” It is no mistake that “We” is the first word of the Constitution, because the US is a constitutional democracy, which means that we rely on the Constitution to ensure that the rights of the minority are justly represented in a political system that rests power in the majority through representative government.

Representative government is, under the best circumstances, an imperfect reflection of the “people,” and so the Bill of Rights attempts (among other things) to guard against the legal and political tyranny of the majority (there’s a ton of political philosophy I’m skipping over here, so as not to make this longer than it already is). It is not, despite casual, persistent perceptions to the contrary, a guarantee for anyone to say anything in any venue at any time, nor is does it differentiate among ideas. In fact, “viewpoint neutrality” is a hallmark of free speech law, so as not to allow the government to sanction some ideas (or religions) as superior to others. This is both a blessing and a potential weakness, because it provides for minority viewpoints, however pernicious, to be given air (like in the cases where the KKK is given the right to march and speak), but it also inadvertently recognizes that a democracy can undo itself through its own legitimate processes.

This is not to say that all types of speech are recognized as equal. Political speech, for example is recognized as “core,” which means that it is considered to be highest priority when measuring the individual’s right to self-expression against the government’s right to suppression. When a right is “fundamental,” meaning it is named within the Constitution or included as part of Due Process, the government’s interest in impinging on that right must be “compelling,” which is a very high legal standard. By contrast, commercial speech – that is, speech related to products and services offered for sale and profit – receives less Constitutional protection, and if it is deemed to be dishonest or false, it has basically no protection.

So how does this relate to book reviews and book communities? After all, as many have pointed out, we’re often speaking of things that don’t seem to have much social or political importance, and books for sale participate in the stream of commerce. However, language about art and ideas has long been treated as vital to the political and social welfare of a democratic society. The right to express oneself artistically has long been recognized as of great value in a society that places foundational trust in individual rights and voluntary submission to a social contract. And the right to talk about and criticize ideas expressed in art is equally valuable, as is evident in the Constitutional rationale behind copyright: “To promote the Progress of Science and useful Arts.” Authors are granted copyright and inventors are granted patents because such rights promote the arts and the sciences, which, in turn, advance society.

Book discussions rarely implicate free speech in the most obvious sense of the government directly impinging on the right of authors and readers to express themselves online, but the kind of discussion at stake is critically important to speech law and political theory. By the same token, the welfare of the community(ies) is also at stake, because speech rights are only significant insofar as they affect and are affected by the community at large. The rights of the individual are always contextualized by the integrity of the whole, and vice versa. Which is why all of this is important to our most mundane and our most explosive exchanges about Twilight or September Girls or all those creepy billionaire tentacle sex books on Amazon. And why, in turn, those discussions can model all sorts of constructive qualities — empathy, critical thinking, respectful listening, heterogeneity of viewpoints — that enhance individual and social bonds.

Constitutional scholar David Cole points out that

In the United States, a strong First Amendment tradition means that people are free to, and often do, say plenty of outrageous, stupid, malevolent, and hateful things. Just listen to radio talk shows. But what we don’t see in response are riots and violence. The constitutional principle that demands freedom for speech that is offensive may in turn teach and reinforce the tolerance that is at bottom, essential to a functioning diverse society and world. . .

There is a place for limits. I am a professor. I do not tolerate, in my classroom, disrespectful speech of any kind, because it interferes with the learning environment that I seek to foster. I am also a father, and have a similar view with respect to the need for respectful speech around the dinner table. A responsible newspaper publisher might well decline to print an article that its editors were convinced was likely to spark violence. But these limits are not imposed by law, but by social norms and ethics, which are in turn informed by discussion, dialogue, and culture.

The vast majority of the time, the speech we’re arguing about is lawful. What we’re often debating are the “social norms and ethics” by which our communities do/should function. Sometimes these norms are asserted as a means to shut down lawfully expressed ideas that some may find offensive, while other times “free speech” is invoked to defend something that is really more about community standards and ethics than the law. In both cases, legal and social concepts may be misapplied, and an opportunity to have robust debate short-changed.

As we move forward, I’d love to know what your ideal online book community looks like. What are the primary values, who are the participants, what does participation look like, and how does the community remain functional?

Next up: The book community as a Marketplace of Ideas and a primer on the different varieties of protected and unprotected speech.

 

** Note: this series is primarily a US-centric analysis, in part because issues of “free speech” are so often conceptualized within a US political and legal context. I will try to include international comparisons when relevant.