Perhaps I need to clarify my point. I thought I was clear, but I have been
accused on more than one occasion of not being so, therefore, it is probably
best I respond to this. So, here's your legal lesson for the day. I will
start by referring you back to the original discussion that was regarding
two separate works in progress by two separate authors one using the others
work in order to obtain information (or at least that is how I understood
it):
>And let us note the difference between fiction and non-fiction.
>Taking twenty others peoples work and using it to get your facts
>right in a work of mostly-unrelated fiction (such as the Vlad
>stories) is perfectly legit.
Basing your work on other peoples work that is in progress, of people who
you are in direct competition with and not working with, who have not
published their own works, but are rather working at the same time as you in
order to come to the same if not similar conclusions to what you are trying
to achieve, in order to further your own goals, and perhaps speed up the
timing of what it would take you to discover and disavow, is not perfectly
legit. It is infringement of intellectual property rights and is industrial
espionage (amongst other things that to date I have not studied yet and so
it would be very lacking, wrong and unethical of me to state what I believe
they are or not). This holds for the non-fiction line of work, in fiction
you get into infringement of a) copyright (which I will not go into here
because we've already had this discussion in the past and though I didn't
agree with several people's opinions here, certain people were very adamant
about what constituted copyright infringement, but let me just say you do
not have to have an actual copyright on file with the American Copyright
service in order to be considered the possessor and/or creator of
intellectual property, it is just a little harder to prove in court (if it
comes down to that) that you were the creator. Furthermore, there are other
ways to prove whether a copyright did in fact and in law exist, these would
be taken into discretion by the court if it ever came down to it...want to
protect yourself, give a copy of what you write to 10 of your closest most
trusted friends, I am told distribution is the second best way to protect
yourself) and b) plagiarism.
The definition of industrial espionage is a little hard to identify, but
let's give it a try. For my analysis I'll use Blacks Dictionary of Law,
Sixth Edition; West Publishing Co., St. Paul, MN (and please don't anyone go
and try and find a "better" definition in their regular dictionaries, Blacks
is the general accepted dictionary in the legal profession, so much so that
you are required to buy it when you start school, so generally anything from
it is *the* accepted definition):
Industry is defined as follows:
"A department or branch of art, occupation or business conducted as a means
of livelihood or for profit; especially, one which employs much labor and
capital and is a distinct branch of trade...it may be defined in terms of
end uses for which various people compete; it may also denote an aggregate
of enterprises employing similar production and marketing facilities and
producing products having markedly similar characteristics" -- Note: Art is
mentioned in this definition, and both literature and science is a form of
art.
Espionage is defined as follows:
"Spying or having reference to the crime of "gathering , transmitting, or
losing" information respecting national defense with intent or reason to
believe that the information is to be used to the injury of the United
States or to the advantage of any foreign nation" (a little quarky to be
using with industry, but our law recognizes that this definition may apply
to industry too)
Put the two together and you get "industrial espionage" which is basically
what I described in my second paragraph above, but also has the nice short
sweet definition of:
"Spying on ones competitors to gain a competitive advantage"
The elements of what one will be held liable for if they acquire material by
unfair means are as follows:
1) If discovery of the material was by improper means.
2) If there was a breach of confidence in obtaining the material (i.e.
you steal a friends works of which they confided in you)
3) If the information was obtained through a third person and that
person knew or should have known (RPT -- "reasonable person test")
that this information was not to be available to "anyone" (was
secret). (note this holds true even if the party using the
information DOES NOT know that the information is secret)
4) One knew or should have known (RPT) that the information was not
available to anyone and that disclosure of the information to them
was a mistake. (just because someone let's something "slip" doesn't
mean you can use it).
5) Information was acquired by theft, bribe, misrepresentation, breach
of duty of contract, and/or espionage.
Plagiarism is defined as follows:
"The act of appropriating the literary composition of another, or parts or
passages of his writings, or the ideas or language of the same, and passing
them off as the product of one's own mind. If the material is protected by
copyright, such act may constitute an offense of copyright infringement.
To be liable for plagiarism it is not necessary to exactly duplicate
another's literary work, it being sufficient if unfair use of such work is
made by lifting of substantial portion thereof, but even an exact
counterpart of another's work does not constitute plagiarism if such
counterpart was arrived at independently [in other words, if you
"accidently" create the exact same thing as another person without having
any knowledge of their work]."
The elements of when one will be held liable for plagiarism are:
1) Plaintiff owns property
2) Defendant copied work (this may be direct or imputed)
3) Improper appropriation (taking ones works and actually claiming them
your own -- sort of a conversion -- i.e. improper notice/citation)
And the exception to these elements ("fair use doctrine") are as follows:
1) Character and purpose of work (for example news journalists can use
works without citation, non-profit organizations will not be held
liable for their breach of duty)
2) Nature of work (parody: you can paradise anything without being
held liable, so long as it is obvious parody and is not "fan
fiction" or stealing -- though I don't know if most people would
consider it parody (and I believe it to be public domain, so it
really doesn't apply), I think TRiH is probably a good example of
this)
3) Amount of what is used and how substantially it is used (if it is
not the "core" of your work and/or your work would stand on its own
merits without usage of the non-cited work (non-material breach),
you generally will not be held liable -- always use generally
because there are times where you still may be liable).
4) Effect of market (will your work cause a decline in the
marketability of the other work? is your work marketable (will it
hit an audience at all, or will it just remain in your home for you
and your friends to look at)?
In other words, as stated above if you use anothers works that are not
freely available, without giving them the credit they deserve, you are
infringing on their intellectual property rights.
There, I think I just IRC'd (contrary to IRAC'ing it) his thing, though I
didn't A because there isn't anything to analyze.
>What separates
>plagarism from actual research is how well you synthesize something
>new from the previous stuff. As an example, a book on historical
>geography might integrate well with the semi-legendary battle of
>Thermopylae of if it illustrates that a gap which is now nearly
>impassible was much wider 3000 years ago -- or vice-versa. This
>has big implicatations either way, and synthesizing from those facts
>is good research. Not synthesizing is probably plagarism.
This is beside the point I was trying to make, if I recall correctly the
post I was responding to was regarding basing ones conclusions on other
authors "works in progress." Furthermore, I think Rachel corrected my
opinion very nicely in explaining that what the author of the original
message was speaking about was other authors who contributed "directly" to a
work, knowing they were contributing to "that" work but did not get credit
because they were "minor" authors. She said this was the common tradition in
the scientific community. This made perfect sense to me, and therefore I had
no rebuttal.
However, if you do want to talk about already published works, as an author
of fiction and/or nonfiction works alike, unless you are accessing public
domain, you had better either a) cite what you are going to use or b) create
something totally original and unique (no matter how well you "synthesize
it"). This does not mean you can't "use" other people's works, it's just
saying you have to create something absolutely and totally original, unique,
and that will stand on it's own merits, or cite your sources. In some cases,
you cannot use or cite unless you get authority and approval to use another
authors works in order to create your own (an exception here is scholastic
works, i.e. term papers, where approval is not necessary but citing still
is). Basically the rule in these circumstances is that no sampling is
allowed without the consent of the author; that's when law suits occur, and
the courts get involved and you waste a lot of the courts time and taken it
away from people who might actually be deserving of that time in the system.
That is, unless the author doesn't care or doesn't have the money to fight
you, etc.
>
>There was a recent novelization (I forget title and author) about
>that battle and (more importantly) about Spartan society. The
>author isn't a particularly good writer, but he brought Spartan
>society to life much better than all the non-fiction I'd read of
>the era. When a better writer tries this sort of thing, you get
>excellent books like McCulloughs "First Man In Rome" and "The Grass
>Crown", or Mary Stewarts Arthurian tales. I doubt Stewart of
>McCullough have contributed anthing new to our knowledge of the
>Authurian legends or late republican Rome, but anyone who calls it
>plagarism (and I'm not saying H. T. is) is simply off base.
I am sure it must have been a completely unique work, that as you said
"brought Spartan society to life much better than all the
non-fiction...[you] read of the era", and perhaps he used works that are no
longer protected. I haven't read it so I don't know. And actually, I've read
quite a few things in non-fiction (and some fiction, though I think it
occurs less because it is easier to be "original" in this field) that are
published and are just blatantly plagiarism. I have a feeling either the
authors of these plagiarized works know and don't care or care but don't
want the battle of fighting it, intellectual property lawyers do not provide
contingent fee agreements.... this means you pay for every hour they work
and at $250 an hour this gets expensive.
P.S. Again, as I responded Mr. Dyer-Bennet, my usage of literature in my
last example was simply to write a little on topic (I could have used other
non-fiction work just as well). This is after all not a forum for legal
debate, but should be/is dedicated to a certain author who probably doesn't
care what our opinions on plagiarism are so long as we don't plagiarize him.
I think we have just found a very good, diverse, and for the most part
intellectual group here that has grown to talk about other things beside
this particular authors works, and this is/could be a good thing...I
certainly have liked the conversations to date, and the ones I don't I
ignore.
_________________________________________________________________
Add photos to your e-mail with MSN 8. Get 2 months FREE*.
http://join.msn.com/?page=features/featuredemail