Doctorow v Le Guin, on Copyright

This originally showed up in my LJ account, complete with more links. I received a reply and replied to it. Now, I am reposting it, though somewhat reworded so the links aren't as necessary.

Let me start by saying 1) I am a big fan of Cory Doctorow and 2) I support most of his stances on copyright v. fair use. Let me just get that out of the way.

Some time back, how far back I don't know, Cory Doctorow posted most of a work by Ursula K Le Guin (you probably know her from The Wizard of Earthsea). I say "most" because it was missing, apparently, a particularly important opening line. Doctorow also violated the "moral rights" of the piece by changing its focus.

Let me elaborate. Ruth Franklin wrote an article review about Michael Chabon's Yiddish Policeman's Union for Slate including the quote "Michael Chabon has spent considerable energy trying to drag the decaying corpse of genre fiction out of the shallow grave where...serious literature abandoned it." This was May 8, 2007.

It seems about September 2007 (not 100% sure), Ursula K Le Guin wrote a short work, an elongated paragraph of sorts, that takes Ruth Franklin's quote "literally" (pun intended): "On Serious Literarature". Le Guin first quotes the sentence in question, and then notes that she couldn't resist taking a shot at the "all too familiar image of [Franklin's] first sentence."

Now we come to where Doctorow enters the picture. He posts it (praisingly) to with the title saying something like "Le Guin Slams Slate" and then copies most of the long paragraph. He apparently leaves out only two bits: the original quote and the explanatory note. Make that out to be three bits: he left out her copyright notice. I'll get back to this. I assume a lot of these things about the article since the original BB article is gone and several references to it are at some odds as to what it original contained.

There are all sorts of issues at stake here, but before I get to that I am going to send you a few more of links to go and play with:

[The original posting had a third link, to something by Andrew Burt, which has apparently went offline in the intervening months.]

Now, in the above links, you have more information than I could have ever properly impart, but I want to add in where this all gets sticky.

A) Fair use. The quoted bit in question was a paragraph long. Can you cite fair use when you completely use a work (or well, use most of it, as the case may be)? I would honestly say that Doctorow was wrong on this one. I know all laws are about loopholes and such, but the argument goes like this: if she had put in a couple of line breaks, then he would not have felt as justified. You could theoretically have a book that is all one paragraph. Does this mean the book can be all used? No. At least, I don't think it should. I mean, maybe it helps promote grammar. But if Fair Use is intended to be a way to reference a work without completely claiming it, then you have to have exceptions when the work is short (i.e. single lines, single paragraph, haiku, etc). Fully quoting a work goes beyond Fair Use in my book.

B) Pot, Kettle, Black. Burt and Le Guin chide Doctorow for posting the article implying that she attacked all of Slate and then reference him as a "primary for", implying, well, much the same thing as they claim he implied. Frankly, bad form in my opinion. While it was poor to suggest that Le Guin's exception to a single line (a single line in an article she actually says she likes in the excluded note), it is also poor to try and reword his same argument to get your own point across while refuting his. At the same time, Doctorow makes a good point in his apology: If you were to refute an article in the New Yorker, you would not be considered in violation of any rules of grammar except implied rules of specification to say that you "slammed the New Yorker". Yes, it was one article. Of course it was one article. But it was an article approved and posted by a system that generates (as Le Guin and Burt are quick to point out) money through advertisement and whatever else. Slate had the option of taking the article down. My conclusion on this: a sticky, semantic issue that really cannot enlarge any side and just makes the whole thing pettier.

C) The Copyright Through the Blog's Footer Issue. One of the complaints that Le Guin puts forth is that uses a template that includes a Creative Commons tag that allows for free, non-commercial redistribution, the sort of CC-tag that Doctorow uses for his own work (and why so much of it is free to download [note: this is not to read that it is not worth paying for...his stuff is actually really good]). She holds that it justifies others copying the work further. I doubt that's true. I mean, just so speed this up, she has Franklin quoted and the bottom of the page copyrights the page to Ursula K Le Guin, 2007. Sure she attributes the Franklin quote, but Doctorow did not steal Le Guin's work as his own. He was proud to list who it originated from. She also says that his use of a CC-tag inspired others to steal her work further. I am going to go ahead and call at least mild BS on this. That CC-tag should not have been taken as the freedom to distribute work that was not Doctorow's own. Most news-zines and similar have a copyright notice (note that the original Slate article does, note that a review will have one...even if quotes are made). This never implies that Le Guin owns Franklin's words, or that Doctorow "owns" Le Guin's words. Most use this sort of copyright policy correctly. If some fans did not, this does not mean that Doctorow must apologize for those that used it incorrectly.

D) The "Injury" issue. Doctorow is cited as injuring Le Guin by hurting her ability to resell the work. Bullshit. Plain and simple. She is Ursula K Le Guin. She is indubitably worthy of respect. If that piece was included in an anthology of her short work, it would still sell fine. If she was a just starting writer, then maybe, just maybe. But seriously, I don't think there is a work of Dickens you cannot get for free as in air from multiple places on the Internet. The same can be said for Mark Twain. Yet these two authors continue to generate fair enough levels of sells every year to stay in constant, consistent publication. Not to mention that Le Guin has it for free on her own website and she STILL got paid 200 dollars for it. The injury bit sounds like snarky legalese.

E) Finally, the Hypocrite Issue. This is where it all centers, I think. People are trying to force Doctorow into a contradictory stance. Burt and Doctorow have tussled before. Doctorow holds that freely allowing artistic expressing to spread is the future of mankind, something of an "information and art" libertarian. Burt was, I think, part of a group that got several works in the public domain or Creative Commons taken down from Scribd because they used too broad of search terms and did not take proper time to discriminate. Burt cites that the people wrong affected could simply ask for redress. Frankly, I think it is piss poor to shoot everyone in a room and then offer the innocent ones free medical care (except while playing Diablo, where I am likely to kill everyone and res my friends...but that is neither here nor there). Taking the political stance of "we must stamp out wrongdoing now" works, but only insomuch as you protect the ones doing it correctly. From what I have read of Burt's actions and stances, I think it was right to call him out on it. For instance, disrupting the legitimate flow of Linux distributions through bittorrent so you can stop music pirating is wrong, and is probably unnecessary as long as some time is dedicated to stopping the problem before it starts. But several people were upset at Doctorow, felt that he is destroying legitimate rights of writers and that he is impeding good work to stop theft (how big a damn deal is book theft, anyhow?). One of these people seems (and I admit this is a seems) to be Le Guin, who cites Doctorow's actions as destroying an e-piracy committee.

To me, this says this is something of an example being made. This is a big deal because people want to spite Doctorow as much as anything else.

One person, somewhere, said that if Doctorow's copyrighted works were in question, that he would show his true nature and would throw a hissy fit. The completely pointless guess as to Doctorow's actions aside, I think this demonstrates that this is more than anger over a paragraph. I really do believe this is people sort of going toe-to-toe to make a point...

But it does make one think.

After I posted the above, in more-or-less exact form, to my livejournal, I got a reply. It was anonymous and I have no idea who it was, but they made their stance clear. I replied back. Both their reply and mine are posted below.

Their Reply to Me

In the first case, Doctorow was temporarily (several days) denied the ability to have people access one of his works because of a mistake in a SFWA antipiracy committee's takedown notice to scribd, which has (literally!) many thousands of works posted in violation of copyright.

As a result of his hissy fit, the SFWA antipiracy committee was put out of business, and no longer issues any takedown notices.

Trivial harm to anything except Doctorow's privileges on one side; significant harm to writers, like LeGuin, who benefited from the SFWA committee.

In the other, Doctorow unquestionably violated LeGuin's rights under copyright, and eventually, upon demand, took down the offending piece, and posted a lameass apology.

Trivial harm to anything except LeGuin's rights, and temporarily, on one side; a deserved loss of dignity for the pretentious Doctorow on the other.

My Reply to Them

If the e-piracy committee was disbanded over a single incident, then they can be put back together in equally short measure.

My statement still stands. Shooting everyone in the room and then medically treating the good guys is not a way to run a business. While the e-piracy committee might have taken down a good number of infringing works, if their system requires legitimate users to go out of their way to get their works put back up there is a flaw. The committee at least needed to be taken to task over it so they can work out ways to insure a growth, not a decline, of legitimate uses of such websites. Had their action not been called out, it might have led to others of even less discriminating nature.

I do not support the full disbanding of the committee over the one incident, assuming that it was only that one incident that led to it, but I do feel the committee needs to avoid the standard anti-piracy traps of hit first and apologize later. Especially in the realm of books where there is still debate on how bad piracy is actually impacting the industry.

To claim significant harm, it would have to be shown that her livelihood is infringed significantly by the website and others like it. I personally do not feel this is the case, but since neither side tends to pull out numbers detailing actual impact on the book business and quote more qualitative statistics or use broad, nonspecific quantities ("thousands of works stolen", "significant damage", "people who read e-books buy tree-books", "theft of books actually increases book's fame and therefore brings in more money") I am going to stand on the side of one fact. Libraries, in which a single copy of a book is shared dozens if not hundreds of times, has been a cornerstone of the book culture in this country for some time and yet the wholesale sharing of books via this method is considered a positive, not negative thing.

Just think of Le Guin's classic Earthsea novel. How many thousands, if not borderline millions, of times has this book been checked out or lent from a friend to a friend? Bought as a used book (from which she gets nothing)? Resold in a college bookstore? Read from a teacher's stack of required reading books? I read it as a library book the first time. Everyone I personally know who has definitely read it has read it primarily as a library book or borrowed one of my three copies I have owned down the road.

For this reason I do not feel that online piracy of books is as crippling to the book industry as to others. I am not saying, as Doctorow has implied, that we should openly embrace it. But we should be very careful with saying the ends justify the means. We are looking at nothing better than a repeat of the increasingly bad press that the RIAA and MPAA get.

I believe the best claim that Le Guin has in this case, and one that America tends to not properly acknowledge, is the alteration of her text's purpose and intent by being quoted in part with Doctorow's reasoning entangled into it for many first time viewers of the text. This alteration of intent, not the availability of her work (note that he could have just linked to her work and this would never have occurred...and the reader would have found on her website, as opposed to Ansible, with no monetary exchange or no discussion of it affecting her ability to resale), is where the most wrong was done. It was taking her out of context, in a sense.

Written by W Doug Bolden

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