Tag Archives: law

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Shakespeare: almost certainly a plagiarist

Lego ShakespeareRemember me raising the spectre of plagiarism last week with regard to J K Rowling? Well, here’s a neat counterpoint via TechDirt; the people at GrokLaw have sat down and tried to work out how many lawsuits Shakespeare’s King Lear would garner were it published under the same system of copyright law as exists in the US today:

How many lawsuits do you see? At least a half dozen? I even see some methods and concepts claims, if we view it with modern copyright owner eyes. Remember J.K. Rowling’s litigation over methods and concepts that Darl McBride and Chris Sontag cited? I suppose he could have raised a transformational fair use claim. But what if he accessed the prior works in digital format? Does fair use exist there? Or maybe they’d have been DRM’d. He’d maybe then never have read them.

Of course, what really would have happened is there never would have been a King Lear written. It would have been too legally risky. You can go to jail for copyright infringement, after all, even if you are noncommercial, if you distribute a DVD, and if we are imagining, let’s imagine Shakespeare did that. Shakespeare wasn’t even noncommercial. And there are criminal sanctions under regular Copyright Law, too.

If Shakespeare had plenty of money, he could have contacted all the copyright owners and paid them whatever they asked, but if he didn’t have enough money, the result would have been he would have been unable to afford to write King Lear. Do we want a world where Shakespeare can only write King Lear if he has money? If you think I exaggerate, remember what happened to internet radio? And if one song is worth $80,000, is the sky not the limit, if you are a copyright owner and hold all the legal cards and can get Congress to keep upping the ante to suit you?

As the last paragraph suggests, the full piece is a partial response to the Jammie Thomas/RIAA case, but it highlights the same risks I mentioned last week as regards plagiarism suits against authors. [image by ryanrocketship]

As a supplement to that, via The Valve comes an essay at Harpers by Jonathan Lethem, which I guess I must have missed last time round. It’s a lengthy, beautifully written and eloquent defence of plagiarism in a postmodern media world, in which he points out that almost every big media company who fights against perceived plagiarism actually owes their success to it. You should go and read it.

In a courtroom scene from The Simpsons that has since entered into the television canon, an argument over the ownership of the animated characters Itchy and Scratchy rapidly escalates into an existential debate on the very nature of cartoons. “Animation is built on plagiarism!” declares the show’s hot-tempered cartoon-producer-within-a-cartoon, Roger Meyers Jr. “You take away our right to steal ideas, where are they going to come from?” If nostalgic cartoonists had never borrowed from Fritz the Cat, there would be no Ren & Stimpy Show; without the Rankin/Bass and Charlie Brown Christmas specials, there would be no South Park; and without The Flintstones—more or less The Honeymooners in cartoon loincloths—The Simpsons would cease to exist. If those don’t strike you as essential losses, then consider the remarkable series of “plagiarisms” that links Ovid’s “Pyramus and Thisbe” with Shakespeare’s Romeo and Juliet and Leonard Bernstein’s West Side Story, or Shakespeare’s description of Cleopatra, copied nearly verbatim from Plutarch’s life of Mark Antony and also later nicked by T. S. Eliot for The Waste Land. If these are examples of plagiarism, then we want more plagiarism.

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JK Rowling: probably not a plagiarist

Poor old JK Rowling; whatever you may think of the Harry Potter books (I think they make passable doorstops), there’s no denying that her success has brought her into the firing line of a lot of resentful (and less successful) creatives. As reported at TechDirt, Rowling is once again being accused of plaigiarising someone else’s work in order to create Hogwarts et al.

In these trigger-happy times of copyright law, cases like this are bound to come up – though it’s telling that you you have to make it pretty big before anyone will bother suing you. But the long-term implications and precedents are important to writers and other creatives – especially in science fiction and fantasy, which thrive on what has been described as their ongoing conversational nature. In a genre where building on (or dismantling and deconstructing) the ideas of your predecessors is an integral part of the game, a few successful suits of this type could open the gates to a flood of smaller cases; it seems there’s plenty of copyright lawyers who don’t care how spurious a case is provided there’s a chance of a decent fee. Here’s TechDirt‘s Mike Masnick:

The whole thing is pretty silly, of course. The publisher is vehemently denying any copying, and it seems unlikely that any copying did actually happen. However even if you did grant the premise and say that Rowling was “inspired” by some other book, so what? Did it really change the economics of the original book? If anything, this latest claim is just a clear money grab, designed to give new attention to a long-ignored book. No one could claim with a straight face that Rowling’s work took away any value from the other book.

Masnick also links back to an incident from last year that shows that not quite everything Orson Scott Card says is reactionary bigoted claptrap (though this example has some serious sexist undertones); commenting on the Harry Potter Lexicon case, Card pointed out that Rowling’s agressive defence of her own intellectual property hasn’t done her any favours, and that the world of literature is entirely based upon the adoption, adaptation and reuse of other people’s ideas. In defending herself against these latest accusations of plagiarism, she actually weakens the arguments she used to win the Lexicon case. Which all goes to show that copyright justice frequently boils down to a game of who can afford the better legal team… so, no news there, then.

Just to be abundantly clear, here, I’m not trying to claim that copyright law works in a way it doesn’t. The point I’m trying to make is that, as a reviewer, critic and wannabe writer of fiction, I’m well aware of the fact that there are only a few handfuls of basic story plots and character archetypes from which to start writing. The art of fiction is to flesh those essentials out into something new, but equally it’s possible to deconstruct and boil down any story into a simple synopsis that can make it sound remarkably similar to any number of other stories, without there having been any hint of deliberate copying involved in their creation. If we know that as readers and writers, how can we support a legal framework that can so easily exploit these phenomena in the name of financial gain?

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Democracy and punishment – Asian executions and Czech castrations

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gallowsNew Scientist ponders whether the arrival of true democracy will put executioners out of business in Asia:

The biggest obstacle to ending executions in Asia is politics, not culture. Often, the trigger for a decline in capital punishment is a degree of democracy and an easing of authoritarianism.

[snip]

… this suggests that the main explanation for high execution rates in certain Asian countries is the authoritarian politics of their leaders. As the region continues to develop and become more democratic, we expect the executioner to become a vanishing species.

That, of course, presumes that the move toward more democratic government is universal and irreversible; that’s not a bet I’d be keen to make until I’ve watched the economic events of the next decade or so, personally.

Capital punishment may be on the decline overall (at least officially), but over in Europe the Czech Republic has caught the attention of other countries with its policy that allows judges to sentence certain types of sex offender to chemical castration. The Council of Europe defines it as a form of torture, but other lawmakers aren’t so keen to exclude it from the statute list permanently:

The Czech Republic has allowed at least 94 prisoners over the past decade to be surgically castrated. It is the only country in Europe that uses the procedure for sex offenders. Czech psychiatrists supervising the treatment — a one-hour operation that involves removal of the tissue that produces testosterone — insist that it is the most foolproof way to tame sexual urges in dangerous predators suffering from extreme sexual disorders.

[snip]

Now, more countries in Europe are considering requiring or allowing chemical castration for violent sex offenders. There is intense debate over whose rights take precedence: those of sex offenders, who could be subjected to a punishment that many consider cruel, or those of society, which expects protection from sexual predators.

Punishments of all types raise questions of societal ethics, and with a subject as sensitive as sexual crimes it’s inevitable that opinions are going to be sharply divided. At the risk of channeling Focault for a moment, though, I’d point out that there’s a connection between executions in the Far East and chemical castrations in central Europe – they’re both ways of appealing to (and manipulating) mob sentiment. Given the threat of global political instability in the near future, I suspect we’ll be seeing more physical punishments on statute books, not less. [latter story via MetaFilter; image by Scott Clarke]

At what point does a mutilation become a just punishment? Is chemical castration going to be more effective at preventing sex offences, or making it look as if something is being done about sex offences?

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Regulating military robots

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triple-gun robot droneFollowing on neatly from Tom’s post about the Pentagon’s future war brainstorms and the US Office of Naval Research’s recent report on battlebot morality, philosopher A C Grayling takes to his soapbox at New Scientist to warn us that we need to regulate the use of robots for military and domestic policing uses now… before it’s too late.

In the next decades, completely autonomous robots might be involved in many military, policing, transport and even caring roles. What if they malfunction? What if a programming glitch makes them kill, electrocute, demolish, drown and explode, or fail at the crucial moment? Whose insurance will pay for damage to furniture, other traffic or the baby, when things go wrong? The software company, the manufacturer, the owner?

[snip]

The civil liberties implications of robot devices capable of surveillance involving listening and photographing, conducting searches, entering premises through chimneys or pipes, and overpowering suspects are obvious. Such devices are already on the way. Even more frighteningly obvious is the threat posed by military or police-type robots in the hands of criminals and terrorists.

As has been pointed out before, the appeal of robots to the military mind seems to be that they’re a form of moral short-cut, a way to do the traditional tasks of battle and control without risking the lives of real people. But as Grayling says, that’s a short-sighted approach: it’s not a case of wondering if things will go wrong, but when… and then who will carry the can?

Call me a cynic, but I doubt the generals and politicians will be any keener to shoulder the blame for mistakes than they already are. [image by jurvetson]

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Sueing Google – how far does the law extend into the internet?

judge's gavelOK, you’ve probably seen this story already, primarily re-reported with a certain muted gloating that someone got one over on the Big G; a guy called Aaron Greenspan has successfully retrieved $721 of AdSense earnings from Google by filing a small claims lawsuit against them after his account was closed without explanation.

This is great news for all the people who fear Google’s monopoly on search, but what bothers me here is the question of whether the spirit of the law that governs an internet user need necessarily prevail in any section of cyberspace said user chooses to use.

I spoke with Adam C. of AdWords once more on the phone. After pointing out that in the United States of America, the accused are generally given the right to know both the crimes they are being accused of, and the identities of their accusers, Mr. C. responded by saying that such thinking did not apply to Google’s terms of service. Effectively, Google’s position was that it was above the law, and if not any law in particular, then at least the spirit of the law.

In this case, the judge disagreed with that stance (though it should be noted that, as it appears above, it has been paraphrased by Greenspan rather than quoted directly). With the inevitable caveat that I am not a lawyer or legal professional, it strikes me that this sort of question will become increasingly important as virtual worlds proliferate.

Let’s say you get burnt in a gold-trading deal in your favourite MMO; who has legal jurisdiction over an exchange that happens entirely electronically? Just how binding is that click-through EULA for the game, or for the trading site? If you’re based in the US but the huckster is based in China, how would you go about prosecuting (if you could at all)? [via The Guardian; image by steakpinball]

Questions like this are a reminder that the internet is still a wild frontier with a whole lot of loopholes. If nation-states are weakening in influence, how will they project the legal protections of their citizens into a space that has no geography?