Unethical Asset Manufacturing

[Jules Siegel]

At 01:37 AM 04/26/97 -0400, doktor at primenet.com wrote:

>Unsure of how to procede, the plagiarist and his "editor" send e-mails to
the people whose work they've filched, asking permission to reprint their
P-list posts.

[1] Let's not use actionable words such as "plagiarist." Also, let's be very
accurate in what we say. I did not ask anyone's permission to reprint his or
her public postings. Dale did inform people who are quoted in the book they
would each receive a free copy. He did not ask their permission. I did ask
Andrew Dinn for permission to quote from his private e-mail messages to me.
I did not ask John Mascaro's permission to use his public messages. I did
ask him to look at it and tell me if there was anything he wanted to
correct. He removed a couple of sentences that he felt were too personal and
he wrote an excellent essay which now appears in the book.

[2] Let's be aware of what Lineland actually does contain, instead of
jumping to insulting conclusions.

Very little material written by pynchon-l posters actually appears in the
book. The book consists of about 80% my writing and 20% mostly very brief
scattered comments or questions from pynchon-l (a very generous estimate, as
one longish item is a press release for the Ig Noble Awards, another is a
Call for Papers and a third is John Mascaro's essay). Anything that does
appear in the book is covered by the concept of fair use. None of it has any
commercial value.

The longest items (none of them more than a couple of dozen lines) are
mostly brief discussions of the propriety of reading the answers Chrissie
and I wrote to the questions. There are a few items on banana smoking and
etaoin shrdlu. There are a couple of especially vicious attacks on me. There
are some defenses. All of this appears in the Pynchon-L Archive and is
available to any scholars who might find it valuable.

Approximately 35 books about Pynchon or his works have been published. The
ones I've seen quote freely from his works and each other. Others apparently
quote from my Playboy article, sometimes, I gather, without attribution. No
one has ever checked with me before quoting from the article. They don't
have to, because they are making fair use. The same goes here.

It's especially true because pynchon-l at waste.org is public forum. Its main
purpose is the exchange of information about Thomas Pynchon and his works.
Pynchon's personality was examined on many occasions in the past on the
list. This was just the first time that anyone who actually knew him talked
about him.

Posting a message to a discussion list gives others an implied license to
quote it. When a copyright owner acts in such a way that reasonable people
would assume that he or she is allowing them to make copies, the law
interprets his or her conduct as creating an implied license. If you look in
the pynchon-l archive, you will see that my longer postings carry my
copyright notice. Anyone who posts to a list who does not wish his message
to be re-posted can add an explicit statement revoking implied consent.

This does not mean that the writer loses his or her copyright. You can't
take someone's message and use it in an advertisement without permission,
among other unfair uses. Tom Stanton wondered if the discussion were some
"new form of unauthorized biography." That would make a great advertisement,
but I would have to get his permission before using it in that way. I don't
have to get his permission to use it in a book.

It's quite common for people on pynchon-l to quote an entire message and all
its responses in full, even though this practice is frowned upon on the
Internet because of the waste of bandwidth. Perhaps someone can explain to
me why it's unfair of me to do this occasionally in a book in the very
careful and considerate manner that I've described above.

[3] Let's look at copyright law and custom. Dale and I did quite a bit of
very serious research on this topic before deciding to go ahead with the
book. The subject was discussed extensively on more than one occasion on
three journalism lists to which I subscribe, one of which is exclusively
dedicated to ethics in journalism. Although some people did raise the same
questions that have appeared on pynchon-l, the consensus was that it was
fair and ethical to reprint messages sent to public e-mail discussion lists,
with or without asking permission.

The following material was sent to me by Donna Wair at the Vanderbilt
University Law Library. The items with numbers are the original text. Below
each item is my response.

Begin quoted material
-----------------------

Copyright: Some Copies Are Ok Because They Are "Fair Uses"

There's one other rule that lets many people lawfully copy others' work: The
fair use doctrine.

The fair use doctrine asks several questions:

1. Is your use noncommercial?

Yes. They mean advertising here, not publishing information.

2. Is your use for purposes of criticism, comment, parody, news reporting,
teach, scholarship, or research?

Yes.

3. Is the original work mostly fact (as opposed to mostly fiction or opinion)?

No.

4. Has the original work been published (as opposed to sent out only to one
or a few people)?

Yes.

5. Are you copying only a small part of the original work?

Yes--in almost all cases -- or the work, a question or comment, is too short
to be protected, or is covered by implied consent.

6. Are you copying only a relatively insignificant part of the original work
(as opposed to the most important part)?

Yes -- in most cases -- or the work, a question or comment, is too short to
be protected, or is covered by implied consent.

7. Are you adding a lot new to the work (as opposed to just quoting parts of
the original)?

Yes.

8. Does your conduct leave unaffected any profits that the copyright owner
can make (as opposed to displacing some potential sales OR potential
licenses of reprint rights)? 

Yes.

The more YES answers there are to the above questions, the more likely it is
that your use is legal.

------------------
End quoted material

>Usually the legal questions are easy and the ethical ones hard.  But here,
even those who don't care if Sr. Siegel includes their e-mails concur that
it would have been better for him to have obtained permission.

They are entitled to their feelings. No one here has ever considered my
feelings before posting defamatory and often disgusting messages that quote
freely from my postings and my work. Now I'm supposed to ask their
permission to reproduce parts of these remarks as a small part of a book. I
haven't seen all of the mail about this, but from what Dale tells me, most
of the people making complaints are not mentioned in the book and some may
not even have been involved in the discussions.

>Unethical. That's the word for it, all right.

I don't agree with this in any way. I haven't in any way hurt anyone by
quoting from his or her postings, almost all of which are related very
directly to statements I made or are attacks on me or defenses. In every
case, the writer has received full attribution. My use follows all the
generally accepted academic and journalistic rules on quotation.

I do think that it borders on the unethical to criticize something you
haven't read. I think it would be better for everyone to look at the book
before making these unfair charges.

What would you say if some reviewer accused Thomas Pynchon of plagiarism for
the many elements in his books that are derived from the work of others --
and then it turned out that the person had not even read Pynchon's books?

--
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