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Re: feedback on intellectual rights and ethics (reply to Kym)

Nov 13, 1997 01:10 PM
by Eldon B Tucker


Thanks for taking the time to reply and offer your ideas
on the subject.

>A magazine is making a monetary profit due to your submission and pays you
>for it via money or copies - this is entirely different than someone who is
>posting something without compensation.

I'm writing from the standpoint of a writer, attempting to define
the writer's rights to the materials produced. If I submit something
to be included in a magazine, and the magazine doesn't pay me for
it, do I have any less rights to my piece? Is submitting an article
to a magazine that pays nothing to be considered as intentionally
placing the article in the public domain?

>Putting something out in the public
>domain leaves it open for use - example: when a news organization is
>videotaping a "street scene" they need not get the "OK" from those walking
>down the street or anyone else in the background - it is understood that
>being in a "public domain" as being implicit permission to be "seen."  Nor
>do the news companies have to pay these "background" people.  

I think the analogy here is stretched a bit too far. An author
has rights to their writings. They can voluntarily transfer or
give up those rights. Unless they take a definite action placing
the work in the public domain, they retain the rights.

Someone walking on the street has a right to privacy. There are
situations where a newsworthy event can be reported without needing
their permission. But they retain rights to their likenesses, etc.
You can't take someone's picture, then use it to advertise a
product, without a release from them.

>The magazine may not use your article void of your permission for reasons of
>further financial gain - but a READER who wants to quote from your article,
>as long as citation is given, is protected by law.  Remember the "300 word"

Short quotes come under "fair use". But not copying the entire
article. Being not for financial gain is a partial shield against
copyright violations, but is used, if I remember it right, in
determining damages to be awarded to the author whose work was
stolen, not as a justification for taking copyrighted materials
without permission.

>>   Posting something to a mailing list is effectively submitting an
>>   article to a magazine.
>I do not see how you can draw this conclusion.

My basic reason is that it is not being put in the public domain,
because it was submitted to a specified group of subscribers in
the context of a specific discussion for the purpose of participation
in that discussion.

>Again, the write to quote is implicit in the law.  I need not ask permission
>of any author whose writings I utilize from the Web as long as I stay within
>copyright laws.

Yes, you can quote. But quoting is not the same as republishing.

>>   It's also acceptable to cite small portions of a work in a
>>   critical review. When that review is held on another list or
>>   news group, though, there's the question of intellectual
>>   honesty. The small portions quoted from a single message in
>>   an on-going discussion can easily be out-of-context, and
>>   wildly misrepresent the nature of the discussion and what
>>   the writer was saying.

>Although this can often be true, the author is the one responsible for
>taking legal action - or writing a response themselves - if they feel they
>have been misrepresented.

This is true if the quoting is on the same mailing list that the
person wrote on. If it's on a different list that they are not on,
it can be unfair to that person, being unable to defend themselves,
and may be taken out-of-context, misrepresenting what the other
person has said and believes. It becomes, then, at best, talking
about someone behind their back.

>There are many people who have been quoted who
>later wish they hadn't - made them look bad; however, this is no reason to
>halt the right to quote others.  People have the right to understand in
>their own way what an author is saying - and unless 'genuine malice' is
>evident - the author takes that chance every time they pen something.

The quoting itself is not bad. And people do understand things
differently, as for example, the exchanges between Daniel Caldwell
and Paul Johnson.

As to the issue of intellectual rights, there may be a gray area
where something is more than merely quoting someone, and becomes
republication in violation of their copyright.

>>   This can range from a mild misrepresentation
>>   of the author's views to bitter back-stabbing in a place where
>>   the author is not present to defend themselves.
>". . .bitter back-stabbing?"  Need we always look at humanity so negatively?

That's the extreme, and fortunately the exception.

>>   If someone
>>   wants a similar discussion on a different list, it's quite
>>   easy to simply make a few statements, perhaps including some
>>   ideas that they disagree with, and let things go from there.

>What you mean is unclear to me here.  Are you saying a person should write
>in their words only any disagreements they may have with a writer of a post
>on a different list?  What if they agree with the writer?  Does the same
>apply?  Although I concur that would be ideal - I don't see that happening
>in the real world - "criminal honor" is hard to come by now.

I'm trying here to sound out different approaches to transferring
a discussion to another list. One approach is, as I mention, to
mention some of the general issues on the new list. Another is to
quote the person from the other list. What approach is actually
taken depends upon the common sense and sense of fairness of the
person involved, the person wanting to transfer the discussion.

>I understand this particular passage you've offered, being it 
>the only thing I have to go on, as an attempt to limit free 

Not really. My two concerns here are (1) the author's intellectual
rights and (2) what is fair when quoting someone out-of-context,
especially if one is only presenting a single slant to a 
discussion held elsewhere.

>Your arguments don't have legal standing - I don't think.

I'm posing a discussion on intellectual rights. I'm concerned
that people may jump the gun and assume things are in the
public domain when they're not. I'd like to see the issues
discussed and hear the various arguments, including yours.

As far as what has legal standing, we'd have to go to 
copyright law and legal rulings concerning it. I don't
think the final word has yet been said. Apart from what the
law says, which is the legal equivalent of "what we can get
away with," I'd like to discuss the ethics involved, which
is "what is fair and right that we do".

>I resent (and I am a published author so this affects me too) 
>your notion that the right to quote should be taken away.
>Is this your intention?

No. You can still quote. But I believe that you have
rights to your works that cannot be taken away from you,
and that others shouldn't presume that your writings are
in the public domain and free for the taking, when you may
not have taken any action to put them there. 

-- Eldon

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