Jonathan Lethem On Plagiarism

tmalone writes "This month's Harper's Magazine includes an excellent essay by the novelist Jonathan Lethem titled 'The Ecstasy of Influence: A Plagiarism,' in which he discusses the public commons of ideas and the absurdity of restricting other peoples' right of second use. 'Artists and their surrogates who fall into the trap of seeking recompense for every possible second use end up attacking their own best audience members for the crime of exalting and enshrining their work.' Taking issue with the idea that any work is 'untainted' by others' ideas, he declares, 'Any text is woven entirely with citations, references, echoes, cultural languages, which cut across it through and through in a vast stereophony.' Later on he argues that 'Contemporary copyright, trademark, and patent law is presently corrupted. The case for perpetual copyright is a denial of the essential gift-aspect of the creative act.' Lethem finishes up with simple request: 'Don't pirate my editions; do plunder my visions.' The best part of the essay is at the end when he provides a key to all of the sources he stole his ideas from."

Comments

Straw men considered highly inflammable

[ThurlMakes7]

Here's the straw man, nicely summarized by kdawson -

Taking issue with the idea that any work is 'untainted' by others' ideas

Um, have you ever heard anyone express this idea? Me neither, it's completely absurd. (Even Emily Dickinson, who locked herself in a room for thirty years, acknowledged her influences.)

So Latham parrots the standard Structuralist argument, that we're just vessels for other people's words. "Language speaks us," etc.

So, the theory goes, when we open our mouths its "society" or "our ancestors" talking, and we're just ventriloquist dummies, capable of not much more than rearranging someone else's stuff. Structuralism was big in the fifties but had gone out of fashion by the seventies, and the only place it lives on today is in American lit-crit departments.

Yes, all culture is derivative, but we still know originality when we hear it and see it. You can mix and mash-up day and night and still not come up with anything that shows the spark of originality or genius. Everyone recognizes this except structuralists.

There big problem today is in rewarding that spark of originality, when it's so easy to copy bits. But Latham's argument is dishonest: he makes the problem go away by making "originality" go away. He just wants it all for free. Bwaah!

Re:The /. headline is typically bad.

[NetSettler]

One man's "creative influence" could very well be one lawyer's "plagiarism". It is all a matter of degree.

There are surely gray areas, but your remark suggests there is nothing but gray areas, and I don't think that's true. Under the law, copyright protects the form of a work, not an idea. It comes right out and says that plainly, in a way that law doesn't always do. Just to make sure there is no confusion. As such, "creative influence" insofar as it is an "idea" is generally protected.

The author of the article seemed to speak at times as if he were arguing against things that are in fact not in play. It is considered fair use to quote one another in the course of public dialog. (The right of fair use happens to be implementationally threatened by coercive DRM attempting to conform to the DMCA, but that's a slightly different problem. I have argued (but so far have not managed to convince any actual lawyers) that the legal concept of an easement (from Real Estate law) needs to be injected into Intellectual Property law in order to address the present state of affairs in that regard. For rights to be meaningful, having some way to enforce them seems useful. There are a number of mechanisms for addressing infringement, but there needs to be a counterbalancing force to address fair use. That the US Government Copyright FAQ does not even mention "fair use" in the set of questions is perhaps telling in and of itself.)

It is trivially true that as you morph an idea from a single source, there is a point in which the idea is still so much the original that the new form carries with it no serious value and cannot legitimately be called its own work. So in this regard, your remark is technically correct.

However, another way of interpreting copyright might be not to regard it as a right of use, but a standard we hold ourselves to before we call something a contribution. That is, if I take a play you wrote, change a word or two, and then offer it back to the public, odds are the public will say "this wasn't a material contribution". Forget copyright issues, my obligation to say I have contributed something is higher. If I'm a writer, even a good one, and call a press conference every time I type a period or comma, eventually people will get tired. It's not a novel, or even a chapter, until a chunkier contribution has been made. And copyright just enforces that same notion, but between people instead of internally within them.

So maybe it is just a matter of degree after all. But maybe degree matters. Maybe the whole point is, as in Aristotle's Virtue Ethics that at either end of the spectrum is an "unreasonable extreme", and that there really is no well-defined, uniquely determined midpoint, but that the goal is to seek a balance in spite of that fact, so that one doesn't slide to one of the endpoints. To say that any contribution, no matter how trivial, that includes another's work is ok is to create spam. To say that any contribution, no matter how large, that includes another's work, is infringing is to create a society that doesn't grow through interaction.

Getting paid

[digitalhermit]

I don't mind people copying all the docs I've written.. Most are GPL anyway. But I remember one particular guy... One day he writes me and asks all sorts of questions about printing in Linux. He asks for examples, he asks me to explain how the print system works. At first I started answering him then I just point him to my online docs. I don't hear from him again. Months later I'm browsing another site and find an article about Linux printing. It sounds vaguely familiar. Sure enough, the bastard had pretty much taken my emails and the structure of my docs and submitted it for pay as his own to an online documentation site. Not a single reference to my docs, even though he cut/pasted whole sentences. Bastard.

Re:An Idea Is Not A Possession

[reallocate]

>>" at every step in the chain, transfers were made with negotiated contracts.."

The transfer to a publisher is a matter of contract. The publisher cannot transfer to you any rights it did not acquire from the work's creator. That means a purchaser does not have the right, for example, to make and distribute multiple copies of a work unless the work's creator transferred those rights, via the publisher.

There is no place for anyone to acquire those rights other than by transfer from the work's creator.

>"Copyright law is the government stepping into the free market and granting monopolies to the authors. I think this is thought to make the market better as it takes away the need to have a contract with every person you sell a book to for instance."

The purpose of copyright law is to encourage the production of creative works by guaranteeing that a work's creator has a chance to derive financial benefit from his work, and to protect that work from alteration and distortion. It is not a grant of monoploy. It's a recognition of, and protection of, the existence of rights that occur naturally when we create something. Very few people could devote a career to, say, writing novels, if anyone could grab the first copy off the printing press, start copying it and compete with them for sales. Very few of us would devote a career to any kind of creative work if we had no way of keeping others from altering our work and marketing it under their name. E.g., if it wasn;t for copyright law, you could copy Picasso print, slap your name on them, and sell them as yours. Or, I could grab all off Slashdot's code, open a site called Slashdot, start selling ads, and the current proprietors could do nothing to stop me. In those circumstance, I doubt Picasso would have painted or that Slashdot would exist.

>>"...are jokes one of those things that we do not grant copyright monopolies on?"

Repeating or reciting something you've read is not copying the physical object on which language encoding that joke was originally placed. (I suppose a comedian could go after another comedian who stole his material, but I'd consider it an abuse of law if that same comedian came after people repeating his jokes in the office. Remember, abuse of the law does not mean the law is bad. It means the abuser is bad.)

Your reference to "public domain" presupposes the notion that, in the absence of law, anything that anyone makes would be owned by everyone else, not by the person who made the thing. If you'll think about that, you will understand how invalid that is. Being in the "public domain" is a status granted and regulated by the law of man, not of nature.

Re:There is no bright line.

[NetSettler]

Under the law, copyright protects the form of a work, not an idea.

In the case of music, for instance, where is the line between idea and form? George Harrison got sued and lost for subconsciously copying two motifs totaling 9 notes from "He's So Fine" by Ronald Mack into his own "My Sweet Lord" and adding different lyrics.

This is a fair example to raise for discussion, and I'm happy to engage it.

Here is how I break down that situation:

First, there are certainly always "edge issues" for anything small. Can one copyright a fortune cookie? A haiku? What is fair use when you want to quote part of a fortune cookie? None of these are easy issues, but I think the practical answer is "notwithstanding copyright, don't bet your fortune on copyrighting something so tiny that people are likely to reproduce it". So from the side of the person who did originate the work, I think they should enjoy flimsy protection not because I don't value a crisp statement but because I think there's too much societal good in being able to compose sentences. Another way of sayng what I'm saying is that I am fine about the idea of saying that anything shorter than x words can't be copyrighted. It's not chunky enough. And that saying this is so is not enough to refute the goodness of copyright.

In a sense, music has this problem all over because, like some forms of digitized computer stuff, there just aren't that many ways to do certain things. Computer Science people have no business copyrighting (or patenting--a separate can of worms) small things like xor or an assignment statement. A trivial exhaustive search would find certain alleged "protected works", and that should be proof of obviousness (while for patents it's taken as infringement, which seems inane in small search spaces).

The idea of copyrighting a few notes, therefore, seems silly to me. Though obviously there's nothing silly about the dire consequences of the present system, which admits the possibility. I just don't think the problem is copyright or law. I think it's courts and lawyers and maybe even juries. We've taken all the judgment out of judging, and told people to be ultra-literal and that using their hearts and minds is not allowed. Something wrong there, and no wonder we get to odd rulings. So that suits like the one you describe occur seems more like an abuse of the courts and/or ineffective counsel than really a material breakdown in the copyright system. The core value of copyright seems to me to be that, Jabberwocky notwithstanding, people mostly don't memorize long written works and so don't accidentally regurgitate them. Music, by contrast, is often memorized and integrated in a way that makes it possible to regurgitate accidentally. As a consequence, I'd easily be swayed by an argument that music should be under different forms of protection than written works. I've made similar arguments for software patents.

I've argued that software copyright neglects some basic concepts, one of which is something I call convergence issues. (And perhaps there's an analogy to music.) There is work that is done for "best practice" reasons and work that is done for "creative" reasons, but copyright law does not distinguish. If I assign to you to write a paper on Truth and you turn in the same essay as your classmate, you should get an F. But if I assign you to write a program that tests truth of the combination of booleans, you should get an F if you don't get the same answer as most of your classmates, since there's a convergent solution. Programming is an engineering discipline, and we value convergence in engineering tasks. While writing is a divergent discipline, and we value individuality. Yet copyright sees the two the same, and that matters if you're going to claim that "having converged" is the test of "infringement".

We want the choice by a computer to use a square box or rounded-edge bo