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by
Kathy Shaidle

Bio

March 19, 2013 - 7:00 am

When I was starting out as a professional writer, taking workshops or just chatting around the cafeteria table, the question was a sure sign that you had an amateur on your hands:

“But what if an editor steals my stuff?”

These same newbies were more obsessed with where and how they should type their “© by…”  line than they were with writing something steal-able.

“Copyright is automatic,” I’d sniff smugly, longing to add, “Believe me, you have nothing to worry about.”

Of course, in those days, the IBM Selectric was the most advanced “word processor” available.

Email hadn’t been born and the Internet was in diapers.

You mailed your article to your editor, maybe even couriered it — or faxed it if the publication was particularly fancy.

Today, editors (and bloggers and other writers) do steal your stuff, because it’s so easy, and because notions of right and wrong are in flux.

At the same time, thanks to the same technology that makes theft so commonplace, copyright law has become harder to understand.

If you’re a writer, however, you have to at least try.

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That’s a tall order for me because, temperamentally, I’m inclined to think that 99% of laws are unnecessary at best and, at worst, have been passed by powerful swindlers to keep plebes like me from getting in on their con.

Take libel, for instance.

Libel is what we got when we abolished dueling.

(That’s not my attempt at a witticism. It’s literally true.)

Since they’re nothing more than an ugly vestigial growth left over from the olden days, we should repeal all libel laws and bring back pistols at dawn.

This might at least deter the wealthy and powerful from using libel and slander laws to try to silence their political opponents.

(It would help, though, if the United States finally adopted a “user pays” system like literally the rest of the planet…)

Likewise, copyright laws (and philosophies) are anachronistic, arbitrary and too often used as punitive cudgels.

As  Joe Karaganis noted in National Review:

All of this is a far cry from the narrow purposes of intellectual property (IP) outlined in the Constitution and early copyright law. The first U.S. copyright law, passed in 1790, established a 14-year term of protection, renewable for another 14 years.

It was about short-term incentives — about weighing monopolies on speech against its “natural condition” of circulation. Over the past century, this prioritization of the public domain was reversed.

Now we have copyright terms that make the public domain a mostly historical artifact, a century out of date. Now we can challenge the imperfect control of the Internet that enables piracy but also allows free speech.

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Here are some juicy examples of copyright b.s., as curated by Cracked.com:

  • The congressman who sponsored the Stop Online Piracy Act posted stolen images on his website
  • Singer Lily Allen campaigned against music piracy by ripping off someone’s Techdirt article
  • “Nicolas Sarkozy is the pirate his laws are meant to eliminate”
  • The dude who planned JFK’s trip to Dallas declared that there’s no such thing as fair use — on behalf of a giant media corporation that breaks the same anti-piracy laws it lobbied for
  • An incident involving Viacom I can barely explain
  • Particularly crazy examples of YouTube takedown notices

I’ve got one that’s rather closer to home.

In 2008, I was sued — along with Ezra Levant and other Canadian conservative bloggers — for criticizing a former employee of the Canadian Human Rights Commission.

This fellow used to sign into neo-Nazi websites, pretend to be a neo-Nazi, engage other neo-Nazis in online conversations — then charge them with posting “hate speech.”

He wasn’t happy with us for blogging about his “Nazi hunting,” so along with suing me, he served FreeDominion (a sort of sister site to FreeRepublic) and the National Post, the only Canadian newspaper to report somewhat sympathetically on our activities.

After making some brave sounding “solidarity forever” noises, the National Post turned traitor and folded like a cheap newspaper.

The rest of us are still fighting the suit.

Then last year, the National Post teamed up with The Guy Who Is Suing Us, to sue… Free Dominion.

For “copyright violation.”

You see, that website had cut and pasted a lengthy section of a National Post story about The Guy Who Is Suing Us, and that, you see, was a no-no.

Now, do you really think that lawsuit was about preserving precious and inviolable intellectual property rights?

Or about a couple of Goliaths stomping on David?

Free Dominion “won,” but it cost them thousands of dollars to fight, and taxpayers thousands of dollars to adjudicate.

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You’d think that as a (cough!) creator, I’d be super-vigilant about copyright.

I don’t want my work stolen, do I?

Well, it depends.

If you lift one of my PJ Media articles, stick your name on it, and sell it to another outlet, I’ll go after you and the magazine. Politely at first.

Then, if necessary, I’ll call down my battalion of readers and followers and shame you into submission.

If you copy and paste a couple of my paragraphs into your blog post without a hat tip, I’ll be peeved (assuming I ever notice) and probably leave a “Just wondering…” comment under the post.

If I feel so inclined, I’ll escalate the mockery to Twitter, Facebook and my own blog (and those of my friends).

When Canadian newspapers steal my blogger-husband’s original investigative reporting without credit, that’s how we respond. Public shaming is fun.

So is getting paid, like this other blogger did when he got ripped off by a minor MSM outlet.

But if you “steal” an expression I’ve coined or repeat one of my jokes, even uncredited, I’m flattered.

I’ll say so on my blog, too.

I wanted my idea to get out there, didn’t I?

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I’m not a lawyer, and you should always consult a libel attorney if you’re in doubt about whether or not something you’ve written is “illegal.”

But for what it’s worth, here’s my advice for writers:

Get libel insurance. (It often comes bundled with your household policy.)

Stay on top of the latest developments in copyright law, libel, slander, trademarks and patents.

And remember that no matter how careful you are, if you’re any good at all:

You’ll get in trouble for something you write, some day.

Don’t let analysis paralysis keep you from being a writer, like those folks I mentioned at the beginning.

For all I know, they’re still sitting at that cafeteria table, spooking each other like kids around a campfire.

Meanwhile, I’m just about to hit “send” on another article…

(KATHY SHAIDLE is a blogging pioneer who runs FiveFeetOfFury, now in its 14th year. She's been called "one of the great virtuoso polemicists of our time," by MARK STEYN. Her NEW book is Confessions of A Failed Slut (Thought Catalog, 2014).

Comments are closed.

All Comments   (16)
All Comments   (16)
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An underappreciated crucial aspect of First Amendment law in the U.S. is the restriction of libel suits by general public figures (like little man mayor Bloomberg) and "limited" public figures.

In particular, many Canadians and Brits blithely assume that U.S. libel laws must be roughly similar in pernicious effect to those in their home countries. Nothing could be further from the truth.

Libel law in the U.S. is the Hound of the Baskervilles - it DOESN'T bark. Indeed, some states such as New York and California have strict laws so citizens sued abroad of libel can countersue in their home states.
1 year ago
1 year ago Link To Comment
sued abroad *for libel
1 year ago
1 year ago Link To Comment
Not being a pr*ck is the first rule in making use of others ideas and work. Credit should be given where credit is due, and if it should not and the reason is understandable, then be forgiving.

1 year ago
1 year ago Link To Comment
For the knowledge-challenged, the relevant section of the Copyright Law is found in Section 411(a):

§ 411 . Registration and civil infringement actions

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.
1 year ago
1 year ago Link To Comment
Bringing back dueling has always appealed to the romantic in me (my husband's grandfather perished in a duel in Alabama) but think of the uproar among the gun haters in Washington.
1 year ago
1 year ago Link To Comment
As it is now, a billionaire can say most anything and get away with it. He knows his army of lawyers, a donation or two, will get his out of any difficulties. Being challenged to a duel put the nameless poor man on par with the rich gentleman. If either refused the contest, it looked bad. So people watched what they said, unless they were willing to back their words with action.
1 year ago
1 year ago Link To Comment
It is unfortunate that we have a Canadian writing about copyright in an America-based blog, as there are significant differences between American and Canadian copyright. Chief among these is that registration of copyright is, as I understand it, wholly voluntary in Canada, whereas in the United States a domestic copyright is UNENFORCEABLE unless it is registered, and the copyright holder loses significant remedies if the registration is not done prior to infringement.

Beyond that, the author has sacrificed substance for chirpiness, with the result that she confusedly conflates copyrights, defamation, and trademarks without saying anything much of substance about any of them.

What she does say is mostly wrong---or, at best, superficial and largely misinformed. She has fallen hook, line and sinker for the specious argument that "copyright restricts the public domain" and that this supposed restriction is a drag upon creativity rather than a stimulant of it. She has fallen for the cheap anti-copyright propaganda of a humor-magazine piece breathlessly retailing supposed "hypocrisies."

It is true that creatives in general, and particularly those whose work appears primarily online, need to know something about copyright. They will not find it here.
1 year ago
1 year ago Link To Comment
buzzsawmonkey, in general Kathy does not really address those kinds of technical differences. Sadly, your attempt to help is harmful because you are confusing the issue yourself.

Registration in the US is a good idea, but lack of registration before infringement only reduces the remedies, it does not make the copyright unenforceable (as a result of the US joining the Berne Convention three decades ago). One does have to register prior to litigation in the US, which is not difficult to do.

Your comment would have led to people feeling the need to rush off and start filing uneconomical copyright registrations.
1 year ago
1 year ago Link To Comment
People have sued and won with registering works with the library of congress. Such as screen writers, directors, producers, music artist, songwriters, composers, cartoon artist.... have been sued by the original Author and Authors have won. A work is copyright from the day you finish a piece of what ever. and if the Author has proof it was his work he doesn't need a registration at the library of congress to prove it. Just saying.
1 year ago
1 year ago Link To Comment
registering is only an added protection.

but who is to say someone in who register a "same works" claiming to be the author of what ever was not the author. The real Author could sue.
1 year ago
1 year ago Link To Comment
People have sued and won withOUT registering works with the library of congress. Such as screen writers, directors, producers, music artist, songwriters, composers, cartoon artist.... have been sued by the original Author and Authors have won. A work is copyright from the day you finish a piece of what ever. and if the Author has proof it was his work he doesn't need a registration at the library of congress to prove it. Just saying.
1 year ago
1 year ago Link To Comment
No, they have not. Not since 1978, they haven't.

If they did not have a registration certificate in hand when the suit was filed, it was in the course of being processed by the Copyright Office, and the work would have had to have been registered before the court would permit the case to go forward---because without registration there would be no case.

Read the copyright law; it is quite clear that registration is a necessary prerequisite to litigation. The fact that the copyright comes into being with creation does not make it ENFORCEABLE.
1 year ago
1 year ago Link To Comment
funny it has happened Before 1978
1 year ago
1 year ago Link To Comment
You are, then, unaware that the law changed remarkably in 1978, when common-law copyright was abolished.

Since 1978, no registration no court case. Sorry to intrude on your fantasies.
1 year ago
1 year ago Link To Comment
You are wrong. If you do not have a copyright registration for a US copyright you cannot go to court. The case will not be heard, because you have not met the necessary prerequisite. Without registration, therefore, the copyright is UNENFORCEABLE. You yourself admit as much, when you concede registration is necessary prior to litigation.

If you do not register prior to INFRINGEMENT, you are barred from claiming statutory damages and attorney's fees. Your recovery is limited to PROVABLE ACTUAL DAMAGES, which in most cases are negligible and the case therefore not worth pursuing. The threat to an infringer of having to pay not only its own legal expenses for defense, but the expenses of the aggrieved plaintiff, is often the key in being able to get a quick settlement, either prior to litigation or shortly after the initial papers have been filed. I have experienced this on behalf of clients many times.

As to "uneconomical copyright registrations," one can register any amount of work---any quantity of work---on a SINGLE registration form, as long as that work is all UNpublished at the time of registration. Furthermore, one may group-register contributions to periodicals (and blogs count as "periodicals") AFTER publication, using the proper forms---and, if that registration occurs within THREE MONTHS of first legitimate, intended publication, the law will treat any infringement which occurs between that first legitimate publication and the registration as if the registration had occurred PRIOR to the infringement, thus allowing the plaintiff to claim statutory damages and attorney's fees.

In short, registration is necessary for enforcement; pre-infringement registration is necessary for the best remedies; group registration is quite economical and readily available.
1 year ago
1 year ago Link To Comment
The above comment was posted in reply to Robin Roberts' comment above.
1 year ago
1 year ago Link To Comment
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