A Screed on Copyright

Let’s imagine I’ve bought a CD and ripped it to my computer to get MP3s of each track. (You kids can imagine I bought the album from Amazon and downloaded it straight to my computer, if that makes it easier to picture.) Then I copy one of the MP3s to my smartphone and set it as the ringtone for when the Evil Mastermind calls. I copy them all to my Kindle Fire and my MP3 player, each of which I’ll use to play the songs in different situations. I also leave them on my desktop computer where I’ll listen to them at times like now when I’m working at my desk.

Next I post a review on my blog where I quote a few lines (maybe a full paragraph) from your book and post it a few days later (okay, maybe weeks) to Amazon. It’s a five star review and you especially like one line (the one where I call it “the best book ever written”). You add a quote of that line (with proper attribution) to the book description on Amazon (and every other retailer), in large red letters across the top of every page on your website, and tweet it every hour on the hour with a bit.ly link to the book’s Amazon page.

Have either of us done anything wrong here? We’ve both copied something for which we don’t have the copyright. We didn’t ask for or obtain permission from the copyright holder.

Before going further I should mention my normal disclaimer: I’m not an attorney (although I often play one on the internet). Nothing here should be considered legal advice. If you require legal advice you should consult an attorney.

Phew. Glad I got that out of the way.

Back to our examples, each of these is okay under what is known as “fair use,”  which is essentially a “limitation or exception” to a copyright holder having exclusive control of their copyrighted work. Fair use is tricky. The courts have said it comes down to a case by case basis with several things that are considered in coming to a decision. When someone finds a new way to violate a copyright it is almost impossible to know whether this falls under the fair use exception until it goes to court. Since no case is exactly the same as another a particular situation might be adjudicated multiple times before the rough parameters of what is and isn’t okay become clear. Based on previous court case we now know that ripping those MP3s is okay, because I bought the CD. Sending them to friends or posting on a website for others to download, isn’t. If you quote my full review on your website rather than just a line or two, you’re violating my copyright. (The same would apply if I quoted your entire book in my review, although that would clearly be silly of me.)

The latest brouhaha over fair use is a decision allowing Google to make snippets of books available in searches. For the full range of thoughts from your peers who (like me) are armchair lawyers, peruse the comments at The Passive Voice. My opinion happens to be the same as the only lawyer who weighed in on the subject, The Passive Guy himself, who agreed with the decision.

I’m going to wrap this up by waving a red flag while pretending authors are all bulls. First, I want to be clear that I’m on your side. I want authors to be able to make money for their writing. I love it when I hear of an indie author with a good book who is making Lamborghini money instead of Starbucks money. However, too many people (especially authors, corporations, and lawmakers) are confused about the purpose of copyright. The basis for all copyright law in the United States (also patent law) is a single sentence giving Congress the power to pass laws that are:

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.

As we’ve already discussed, what that exclusive right consists of has been further defined over the years by Congress and case law. But the goal isn’t to maximize the benefit an author receives from their work. It’s to “promote the Progress of … useful Arts.” Too often authors perceive their creations, incorrectly, as being like their house, a piece of property that they and their heirs will receive all the benefits from until they decide to sell. It isn’t like that at all. Some object to anyone else making money from the sweat of their brow. (They need to consider the basis of the employer/employee relationship. The world is filled with instances of one party profiting from the work of another.) In the specific instance of the Google court ruling, the individual authors aren’t even in a position to make money from their work in the way Google is using it. They’re losing nothing. However, this use DOES “promote the progress of Science and useful Arts.” I’d even argue that this could potentially have positive effects on the discoverability of the author’s books.

Just to stir the pot a bit more, the current copyright laws in the US have some issues. Specifically, laws in 1976 and 1998 that increased the term of a copyright to beyond the life of the author were an instance of Congress acting on behalf of their corporate overlords (Disney and others) rather than focusing on their proper goal of “promoting the Progress of Science and useful Arts.” How many potential authors do you imagine have said to themselves, “I’d write a book, but I’m not going to because fifty years after I’m dead my heirs will no longer have exclusive rights to it”? A copyright should balance the justifiable expectation of an author to be able to profit from their work, but not longer than required to encourage a reasonable person to proceed. These changes in the copyright law have had some negative consequences to society as a whole. The most obvious detrimental effect has been to cause many books published in the US since 1923 to not be readily available. If you aren’t riled up yet, I recommend reading an ebook by Science-Fiction author Cory Doctorow (free for download here). I’m sure something there will do the trick.

Now I’m going to go hide before gangs of authors with pitchforks and torches show up to tar and feather me.

Author: Big Al

Big Al (who insists he only has one name, like Cher, Sting, and Madonna) spends his days writing computer programs that are full of typos, homonym errors, and incorrect verb usage. During his evenings, he writes reviews of indie books for BigAl’s Books and Pals and has recently taken over The IndieView, a website founded by indie author Simon Royle as a resource for indie authors, indie reviewers, and those who read either.

24 thoughts on “A Screed on Copyright”

  2. And thanks for identifying the real problem: Copyright law is to benefit corporate ownership, not creator ownership. It really makes no sense when you think about it. Most people today won’t watch something in black-and-white, much less silent, but hoards of movies are wasting away because no one can play them (or restore them) because of copyright concerns.

    Maybe the corporate weasels are trying to start a nostalgia wave in about ten-fifty years, but given the less-than-rapt attention span of the lowest common denominator consumer culture we’ve spawn, I think they just want to make sure no one else makes any moolah on what they think is their’s. The hobby of old-time radio show collecting is well on the way out because of this, as a couple of bonehead companies are claiming copyrights to a whole mess of popular and pivotal programs, forcing all the previously free sources to withdraw them from circulation, since no one has the dosh to fight over things in court.

      1. Thanks, Rich and Lynne.

        Rich, The reason I was expecting some blowback is because I have a long history of finding myself in arguments on the internet with authors over copyright law. Usually this is because they view a copyright (incorrectly, by law and my opinion) as the same as ownership of real estate or some other possession.

  3. “It was a dark and stormy night.”

    I think Edward Bulwer-Lytton would be proud that his opening line is so well known, although miffed that it has been mocked as bad writing. We should all be so famous!

    I’d be happy to have someone quote a line or two from something I wrote.

  4. Nice Al, excellent explanation. I’m in the court of whatever Amazon does to help me sell books and have people find me is alright by me.

  5. I’ve been a little confused by the whole Google thing. My books are listed on Google Books, but the author (publisher, whomever uploads it to their database) sets it to only reveal a certain portion, so it isn’t as if the entire book is free for anyone to “Google Book” search and read. But I’ve run across authors who are extremely upset. What am I missing here? I must be missing something.

      1. Melinda, I should first say that I haven’t poked around in Google Books, so I’m going based on my understanding and descriptions from other sources. But my understanding is they have the entire text in their database. That it is the entire text is (at least partially) why some authors are upset. How they got that text varies (I believe they scanned and OCRed some books). You can search on a phrase and may have multiple snippets of your book returned, just as happens with a Google search.

        Where I can easily see the usefulness to a user and the positive to an author is more in the non-fiction arena. Someone doing research in a particular area could do searches, find a particular book kept coming up in his search results, and since they would only be returned snippets of the book that were pertinent conclude that the book would be valuable in their research and buy it. The snippets aren’t often going to be enough to answer their question (consider how often the few sentences returned in a Google search are enough compared to how often you go to the webpage returned when the snippet returned appears to be in the right ballpark for what you’re trying to find out).

  6. I always thought that copyright laws came into play when an individual profits from the work someone else created. It sounds silly now when I think about what Al said above about the employee/employer relationship. However, as an Indie author, I have no employer. I am my own boss. I’m confused. No shocker there. 😛

    1. Copyright law confuses most people, Nicole. 🙂

      (Before saying anything, all of this is based on my understanding of US copyright law, which may be faulty, is far from complete, and is not always the same elsewhere.)

      Profiting from someone else’s work isn’t the issue. Nor is causing the copyright holder to not profit when they might otherwise have done so. Although both enter into the picture in different ways.

      For example, Martin Crosbie had a post a few days ago where he talked about a picture he used in a blog post and got in trouble with the copyright holder. While you could argue he profited by using the picture, the reality is, any profit was trivial. I believe any damages awarded if an instance of copyright infringement goes to court will be influenced by whether the infringer (is that a word?) profited by this misuse, but it isn’t what determines whether there was infringement.

      Another situation is how the copyrighted material is used. Educational institutions, for example, get more rein in what is considered fair use. A creative writing teacher might copy four or five pages of a novel or several poems from an anthology and pass them out to the entire class.If challenged, that is almost surely going to be deemed okay. Copying the same amount and passing the copies out in another situation (maybe something technical as part of training in a corporation) is probably not going to. In either of these situations, the copyright holder is not making a sale that they might have without the infringement.

      1. Okay, I understand all that. Do copyright laws only come into play when something is used word-for-word? For example, say another writer read one of my books and then wrote a book almost identical to mine (maybe changed some character names, settings,etc. but anyone who read their book could tell it was copied from my work) and then published it. How much do CR laws cover?

        1. P.S. I really have no problem with Google doing this. I see it as more exposure for Indies. 🙂 However, I am still not sold on that ap you told us about. LOL!

        2. I’m guessing now, Nicole. 🙂

          The short answer is, It depends. I’m sure it doesn’t have to be word for word. Former Beatle George Harrison was sued because the tune of his song “My Sweet Lord” came too close to the tune for the old Chiffons hit “He’s So Fine” and lost. I don’t believe it wasn’t a note for note copy. And yet I don’t believe there has been a suit (or if there was, it wasn’t successful) over Vanilla Ice’s “Ice Ice Baby” which obviously uses a significant portion at the start of the tune “Under Pressure” (David Bowie and Queen).

          A word for word copy is a clear infringement. Even a paragraph that is quoting someone else’s work as my own thoughts could potentially cross the line, even if in a situation where quoting the same words and giving credit to the original might fall under fair use. I don’t think there is a clear cut answer.

          In your example, it almost surely is copyright violation.

          As for your PS, I could argue either side as to whether that app should or shouldn’t be legal. But I’m confident that it is (in the US) because of the law Orin Hatch got passed that specified what would and wouldn’t be considered legal in that kind of an application.

  7. And for those who didn’t look at the post and comments at the Passive Voice I linked to, they really do give a good overview of the range of thought on the Google decision, including why some authors aren’t happy with it.

  8. Copyright law seems to be a complex can of worms that varies from country to country. Years ago I tried to study and make sense of the international agreements drawn up initially in the Buenos Aires Convention and then the Berne Convention. It did seem to me that it was set up for corporations with enough money to police any transgressions and, it seemed, not all countries in the world had agreed anyway. I have since resigned myself pretty much to a similar stance to the one Jim seems to be taking.

    A bold article, Al.

    1. Thanks, TD. Therein lies one of the issues with copyright law although I’m not sure how it could be fixed. That is (and I think this goes for most countries, but some are worse than others) is that getting a remedy is problematic. I, a non-author, have had situations where a copyright of mine has definitely been infringed. The harm to me was negligible and the benefit to the infringer was as well. Almost a no harm/no foul situation. While I could have complained, there was no point. On the other end, if Universal Pictures put out a Mickey Mouse movie without an agreement with Disney, you can bet as soon as Disney got wind of it the legal papers would be flying and there would be big money involved, both in lawyers and the eventual settlement or court awarded damages. But a large area in the middle where the cost of preventing it is unlike to be recouped in any damages awarded.

    1. Thanks for the comment, Lois. Hopefully it happens and you can get an attorney with deep pockets to sue on a contingency basis. 🙂

  10. You can come out now Al. 🙂 We’ve all seen instances in the media of copyright being abused. As far as I’m concerned, I would love my books to go into the public domain for anyone and everyone to read [once I’m gone of course]. However I’d rise from my grave if some corporate finagled the rights to my work [posthumously] in order to make a profit.

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