There’s a fair bit of notice being given today to a lawsuit in which a writer (Elaine Scott) is suing an online publisher (Scribd) for copyright infringement. The trend in the comments I’ve seen is to go after the writer on a number of fronts, but I’m not going to join the chorus.
If there is any single point of focus needed in the current back-and-forth about publishing it’s that an author’s copyright is law. Not old law, not antiquated law, not mushy law, not if-we-can’t-find-the-author-it’s-no-longer-law law, but law. As in it’s the law and no one else — no third party of any kind — is allowed to take away, restrict, modify or in any way lay claim to an author’s copyright without the author’s approval.
If we’re not willing to say that unambiguously, collectively and individually, then we’re not serious about writing as a profession. Because copyright law is the only thing that allows us to produce a product that can be sold. We don’t have mines full of physical ore to sell. We don’t have stands of timber we can cut down. We don’t have items that can be warehoused and protected under guard. We have intellectual property which only has value to us if the law says we have a right to control it.
As to the specifics of the case, it will hardly be surprising that yet another copyright holder is suing yet another content aggregater for posting copyrighted material without permission. This was the basis of the Napster case. It is the basis of the Google case. And it will be the basis of similar cases in the future. And no matter how these cases take shape, no matter how many times the tide of public sentiment supports the idea of taking stuff and using it for free when it is someone else’s legal property, I’m going to say that the majority is wrong.
If I have a lawn chair sitting in my front yard for a year, you’re not allowed to take it and give it to someone else. It doesn’t matter what I’m doing with it or not doing with it, or how bad the other person needs a chair. You don’t get to make that decision because the chair is not yours.
Beyond social mores and understandings that keep us all from simply taking each other’s stuff, there is a large governmental structure called law enforcement which seeks to deal with those instances where someone really does feel entitled to my lawn chair. And I’m pretty confident that we all think that’s a good idea. Except in those instances where you’re the person who really wants the lawn chair, and then you’ve got all kinds of whiny, pathetic excuses about why it’s okay to take the chair, even though you know it’s not yours.
I wasn’t using it. It was falling into disrepair. Somebody else really needed it. You weren’t stealing it, you were just borrowing it. You thought nobody lived at the house.
But all along you know the chair is not yours.
Back in the day when people used to steal jewelry instead of copyrights, thieves would sell their stolen property for cash. If you unknowingly bought stolen property from a thief, however, that didn’t protect you from the threat of prosecution for — yes! — receiving stolen property. However, an even better deterrent to acting as a ‘fence’ was the fact that if you paid a thief for a piece of jewelry, law enforcement might come in and take the jewelry and give it back to the rightful owner, meaning you would be out the money you fronted to the thief. Not good business.
Flash forward to Google and Scribd and you can see that there’s no longer any downside to taking (intellectual) property that is not yours and putting it online — or better yet, letting individual users do it for you — at which point you can monetize the aggregated traffic while pretending there’s no gambling in Casablanca. So these businesses keep springing up, individuals keep uploading content they don’t have a right to take out of the author’s front yard, the online companies continue to feign ignorance, the social networking trendsetters decry any impediments to the inevitable day when nobody owns anything and everybody has everything and it all works great because it’s fun to imagine you’re part of a revolution in which you don’t have to think about things like the law, or the fact that the stuff you just took is not yours.
So what’s the solution? The solution is to make it clear to anyone that if you don’t own a copyright that work is not yours. It doesn’t matter if you think the copyright holder can’t be found. It doesn’t matter if the work is out of print. It doesn’t matter if you’re doing a great service to all mankind. If you do not own the copyright then the work is not yours, and you do not have the right to make decisions about where that work appears or how it’s displayed or made available.
In the end, the only way this stops is if there is enforcement of copyright laws similar to enforcement of other stolen-property laws. Which means there needs to be an actual penalty for the illegal posting of copyrighted content over and above the obligation of a site to take down material if a copyright holder complains. Until that happens, there’s no incentive for any site to work harder at discovering copyright infringement before it posts material.
I don’t know Elaine Scott and I don’t know anybody at Scribd. Whether they’re all really swell people or the scum of the earth, I don’t care. And I don’t care what the money-grubbing, self-serving motivations of the lawyers are in trying to make this a class-action suit.
Napster wasn’t even a close call — it was a legal joke — and yet here we are again having the same conversation with a straight face. The only issue here is whether you can take something that is not yours — either directly, or indirectly as a third party — and do what you want with it. I say you can’t, and if you do I think you should pay.
— Mark Barrett