All Copying is Shallow

One of the core tenets of the open-source movement is that “all bugs are shallow.” With enough eyes looking at the code, someone will figure out a lurking problem and will do so easily. Copyright should have its own version of this: all copying is shallow and all plagiarism is shallow. With enough readers, authors will learn if their work has been copied.

 

Kaavya Viswanathan’s novel “How Opal Mehta Got Kissed, Got Wild and Got a Life” was recalled last week after it appeared that Ms Viswanathan had copied a substantial number of passages from two other novels, “Sloppy Firsts” and “Second Helpings,” both by Megan McCafferty. Now, according to a report in this morning’s NYT, it appears that other passages in the book may have been copied from “Can You Keep a Secret?” by Sophie Kinsella. The remix culture—take pieces from many sources and recombine them in a new work—has come to text.

 

We should start with the relationship between plagiarism and copyright infringement. Not all infringing copying is plagiarism. The best case for that is when I copy myself but have assigned the copyright to a third party. Publication agreements for books or papers often contemplate that copyright will be assigned to the publisher. So I write the article but the University of Chicago Press ends up with the copyright. I use extensive portions of that text in a subsequent work. That might be copyright infringement, but it shouldn’t be plagiarism. (And publication agreements often create a license in favor of the author to solve the copyright problem.) But not all plagiarism is copyright infringement. The vagaries of fair use—which turns in part on the extent of the work used—means that we could easily have a case that would be considered plagiarism without giving rise to a copyright violation. You can judge for yourself Ms. Viswanathan’s case (text comparisons here and here).

 

What should we do here? Ms. Viswanthan claims that her copying of Ms. McCafferty was unintentional, though McCafferty’s publisher isn’t buying that. And unintentional copying is still copying, as George Harrison found out. Harrison was sued for infringement for his song “My Sweet Lord” which was alleged to be identical to “He’s So Fine” by the Chiffons. The court’s conclusion: “Did Harrison deliberately use the music of He’s So Fine? I do not believe he did so deliberately. Nonetheless, it is clear that My Sweet Lord is the very same song as He’s So Fine, with different words, and Harrison had access to He’s So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.” Unintentional copying is still copying, so long as access can be proved, and Viswanathan has conceded that she had read McCafferty’s novels.

 

But even if we find infringement, what is the right remedy? We shouldn’t fear that copiers will get away with it—all copying is shallow—so this is not a situation where we need to increase damages to compensate for the risk of not catching the infringer (we don’t need a damages multiplier). The fact that infringers will get caught means that reputation markets will have the chance to operate, as Kirstie Baker pointed out in her blog post yesterday for my copyright seminar. If we just do present value calculations, I suspect McCafferty is to the good, as the publicity will undoubtedly boost her sales. And note the odd wrinkle there: If Viswanathan had licensed book passages from McCafferty—a consensual transaction for text fragments—readers would still have discovered the matching passages, but my guess is that the text deal would have been found very odd and worked against McCafferty’s reputation, even in a world of packaged teen-lit novels.

Comments

[Doug Lichtman]

Neat post. I always wondered about the real story behind the George Harrison dispute. After all, even if George did not recognize that he was copying someone else's hit, do we really think that the similarity escaped Paul McCartney's notice? (George walks in, starts humming the tune, and Paul doesn't stop him and say, "Whoa, George, are you kidding me?"). As you say, all copying is shallow; so what happened here?

[Michael Risch]

Ah, but that's the cost of doing a solo album - Paul McCartney wasn't around. Ringo Starr and Eric Clapton have no excuse, though, as they were on the album. :)

http://web.mit.edu/scholvin/www/harrison/c301.htm

[Randy Picker]

But Ringo's defense has to be just that--he was Ringo after all--but Clapton is God, so it is hard to imagine his defense.

http://www.ericclaptonfaq.com/biography-ecs-life-career/clapton-is-god-graffiti-nickname.html

[Bruce]

And Phil Spector, but he's got bigger things to worry about now than copyright infringement.

According to this site, the Chiffons were one of the opening acts for the Beatles in their first U.S. concert:

http://www.history-of-rock.com/chiffons.htm

I have no idea if the site is reliable. It also features the tidbit that in 1975 the Chiffons recorded their own version of "My Sweet Lord."

[Eh Nonymous]

Nice post, Randy. Echoed a conclusion I'd come to. But you put it much nicer, of course. And since you had no access to my unfixed thoughts, it's neither plagiarism nor copyright violation, but mere concordance.

[Guest]

Interesting post, but the "remix culture" trope is inapt. Given how little is known about this young woman and the culture she actually comes from, if you're going to generalize, the "went to Harvard as a teenager, cracked under the unbelievable pressure to excel" trope probably fits better.

[slevmore]

Copying may be shallow, but the shallowness raises as many puzzles as it solves. Do we predict that Little Brown will seek (or be able) to retrieve its $500,000 from Ms. Viswanathan? Do we think publishers have explicit clauses in their contracts with authors about what happens if there is copying? Perhaps publishers and agents do not bother to look for copying because they are so sure that authors will be deterred by the inevitable discoveries by readers. But then that assumes that the copying is not subconscious.
There is also shallow copying that produces no obvious economic recovery. JFK's inaugural address "ask not what your country can do for you . . " boosted the speaker's reputation but almost surely came from his pretty famous speechwriter and in turn from Oliver Wendell Holmes or Harding or another earlier source. http://en.wikiquote.org/wiki/Talk:John_F.Kennedy And yet, however well known the fact of this copying, there is something about the presentation or about the lag before listeners and readers learn that the superb line was not original, that protects the reputation against devaluation. The same for George Harrison perhaps - except that a suit for the economic gain is there easier.

[Zoran]

"The remix culture—take pieces from many sources and recombine them in a new work—has come to text."

That's right, and it did so some 50 years ago with William Burroughs. "The Third Mind", a book he wrote together with a painter Brion Gysin, explains cut-up method, a collage technique applied to writing, into some detail. Inevitably, they touch upon the copyright issue. Burroughs himself had said more than once that he took large portions of other people's work, and integrated it into his own writings. I believe he mentioned Samuel Beckett once specifically, but I'm not 100% sure about this.

[Gus]

Prof. Picker-

I'm still not quite sure what I want to do with this idea. It certainly is a neat one, and could have some potentially powerful consequences to infringement analysis. Think, for instance, along the lines of my proposed antitrust-like infringement analysis: under the existing per se-like rule, we would say that there is infringement (unless the person doing the copying were important like Harrison); under a more rule of reason-like approach we would not.

But my immediate interest isn't how this idea affects our understanding of infringement. Rather, I want to understand some of the limits to the idea. With enough eyes, all bugs are shallow. Bugs are bad, so more eyes are good, this element of the open source argument goes, so opening up the source code is good. In the same class that we looked at Kirstie's reputation markets post, we also looked at Aaron's post (http://picker.typepad.com/picker_seminar/2006/05/briggsopenbookm.html ) about limits to the application of the open source movement in the non-software context. Copying is shallow, I would suggest, because most copies are made to be given to a consumptive audience--to the people with the eyesballs. That is, the statement is a reason for open source software, but it is a fact of copyrighted works.

But as facts go, this one has limited application. In Viswanathan's case it is pretty easy to apply, because she was passing off another person's work as her own (inentionally or not). But it doesn't really apply to wholesale piracy--Penguin, for instance, selling copies of something published by Basic Books--unless those copies are of inferior quality. And in some contexts--software piracy, for instance--the eyeballs to which the copying might be shallow are the same ones doing the copying.

In some cases the eyeballs part of the equation fails. For instance, where the copied element is invisible to the consumer (semiconductor design, perhaps), or where the original source of the copied element isn't well known (a big city musician who is "inspired by" small-town and regional music that he travels the globe to find).

And in other cases the eyeballs simply don't care. For instance, knock-off clothing designs and remixed music. In both cases there is no reputational harm to the copier and there is harm to the sources (at least they argue that there is).

My point here is that the "all bugs are shallow" and "all copying is shallow" ideas have very different motivations, and from that we need to recognize their respective limitations. The "bugs" idea is meant to argue for opening up code; the "copying" idea only can apply to works that are already open, and then only sometimes.

--Gus

[Laura Heymann]

One also wonders if ventures like Google Book Search will make copying ever more shallow. Once we have a database of all the world's books, can a "compare" application be far behind?

[Eric Goldman]

Laura, this "compare" function already exists--it's called Turnitin.com. But I've never been clear that their database complies with copyright law any better than Google Book Search does. Eric.

[Daniel Schwei]

http://www.thewebshite.net/nickelback.htm

Reading the George Harrison story, I couldn't help but post this link. A humorous example of 'shallow' musical copying, except in this case by the same band.

[Erik]

In defense of Nickelback, the "soft verse/loud (distorted) chorus" pattern is common among post-grunge bands, ever since it was proven to be popular by grunge bands like Nirvana and Alice in Chains. Nickelback has other songs that deviate from this cliche method, but many of them are not popular among the masses for that very reason.

[Music Critic]

There is no defense for Nickelback.

[LawStudent2187]

I encourage anyone who's studied music to compare the Chiffons/Harrison songs. I think you'll be struck by their startling dissimilarities. This case stinks as much as the OJ trial.

[ringo spectorrison]

I have studied music, I have listened to both songs a lot, and the only differences I hear are A. the arrangement, and B. the diminished chord Harrison uses. Admittedly the chord progression is pretty generic (ii/V/ii/V, I/vii/I/vii) but the parts are deployed in the same way and the melodic phrases are pretty much identical. The same descending three-note phrase (he's so fine) is used for "my sweet lord" - they are completely interchangeable, and likewise the ascending-to-the-tonic phrase has the same rhythm and the same notes in both songs.

Can you describe the dissimilarities in detail?

[Jonathan]

What about when Mariah Carey did the Jackson 5's "I'll Be There"? There was a part when Trey Lorenz did the cool solo part using the same key as Michael Jackson had done so many years ago. Was that copyright infringement?