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.