Meum et teum . . . MINE and THINE!

by Terry Thornton

An ethical, moral, and legal confrontation has recently caused debate in the "blog" community. This on-going discussion over the problems of a large on-line genealogy information provider, a for-profit company, taking copyrighted material without asking and without notice and placing that material on their site for their paying customers to use has caused me to rethink my position on copyright and copyright infringement.

For those of you who are not aware of this confrontation, a for-profit corporation took copyrighted and non-copyrighted pages from blogs and websites around the world and made them available to their paying customers/subscribers. The materials copied were not asked for; no permissions were granted --- the firm's automatic computer bot/spider/crawler "thingamodo" just searched the Internet for what it wanted and took it. When the company's hand was called on the matter, it announced that the collection of materials it had gathered in this fashion would be available to all free --- but one had to register to see the collection. And eventually the furor roared loudly enough that the collection was removed from the company's offerings. The genealogy and history online community is still abuzz about this effort to gather other folks' materials and to profit from them. Many of us think the firm violated the copyright laws of the United States in this heavy-handed taking of materials without asking to turn a profit from that effort. For a good summary of the legal problems involved, go to the blog by Craig Manson, GenaBlogie. Craig is writing a multi-part series regarding fair use and the law. For a reaction of a blogger whose work was taken without notice or permission and placed in the collection, read Janice Brown's articles at her blog, Cow Hampshire.

And all of this is made even the more interesting to me because of my younger son's interest in intellectual property law. Since his law school days he has had an interest in copyright laws. It is always fun to listen to his discourses on how those intellectual property laws are changing and how they need to be changed even more.

Meum et teum . . .

Several years ago when I was in undergraduate school, one of the English professors at Ole Miss always talked about meum et teum which he summarized as "What's mine and what's yours" with regard to giving proper credit in the use of copyrighted materials. All of you remember those easy days of footnoting and citations before the age of computers and the Internet.

Today the notion of "what's mine and what's yours" is in sad need of a clear new definition that should be widely publicized and widely followed and immediately implemented. I know that courts move slow and with great deliberation --- but the Internet is running at the speed of light and copyright infringements appear rampant.

The simple act of plagiarism means to take and use as one's own the writings or ideas of another according to the definition found in my old 1969 edition of the American Heritage Dictionary of the English Language edited by William Morris. I doubt that the definition has changed much over the years --- but with the modern machinery of computers with cut-and-paste and with capturing devices to snatch images and pages off the Internet, modern acts of plagiarism seem to be more common. Even print journals, especially some of the regional and local ones, seem to be chock full of articles that have been published elsewhere by another author.

I think that the notion of taking another's written words and using them as your own is akin to stealing and then lying about that act of stealing. But what about taking another person's work/words and copying them but giving the original author credit for the writing?

What is fair use --- what are the limits on meum et teum?

If a writer of words is asked by someone who wants to copy those words and use them and the writer grants permission, then that is like asking, "May I have some of your candy?" If you are given some candy, it is yours to eat or even to sell although this latter move would probably guarantee that you'd never get any more free candy from this individual!

But to take someone's words without asking is akin to stealing candy and eating it! And an even worse case is to steal the candy and then to sell it to others thus preventing the original owner from this potential source of income.

And to be caught taking someone's words and selling them and attempting get by with the theft by merely saying, "I'm sorry," is the same as a candy thief who has stolen the candy, eaten it, and upon being caught says, "I'm sorry."

Stolen words used by others are like stolen pieces of candy --- once eaten they are gone forever.

Meum et teum!

Let me explain some of the reasons why I try to adhere to the principle of what's yours is yours --- and what's mine is mine.

Example One. Over the years I've had others to take some of my work and distribute it without asking, without permission. One case prevented me from the publication of a book that I had been developing for several years.

In an earlier life, I was a university professor, and as such, in one course I taught several times per year, I developed a rather comprehensive workbook/activity book. Over time I modified those materials into a free-standing secondary book which I provided to my students. The work was clearly marked with my copyright notice; the printing of the book was done in our local printshop and the cost absorbed through my students' course activity fee.

Once I got the book to my satisfaction, I submitted it for publication to the University Press of the institution where I taught; it was accepted and a contract was signed. The press editor explained that it would be about three months before they start setting it up. About one month later, I was informed that my book had already been distributed to several hundred teachers in a neighboring state --- I had no idea how a state agency in another state had my materials in their possession much less how they had printed it without my knowledge and or permission.

It took me nearly two weeks to find out. A former graduate student of mine had accepted a job with the state's department of education and had suggested that a soft-bound book she had would be good to print and distribute to that state's teachers. My materials were copied, title page and all, bound and distributed; the only page they omitted was the page bearing the copyright notice.

[I guess all of this could be also used to prove the old adage that goes "Those who can, do. Those who can't, teach. Those who can't teach, teach teachers. And . . . Those who can't teach teachers end up in the state department of education!]

The attorney I consulted looked into the matter; sovereign immunity protected the state agency; the former student didn't have, as we would say here in the Hill Country, "a pot to piss in" so there was no hope of recovery. But the contract I had signed with the press had a clause that required that the book/materials not to have been previously widely distributed --- my attorney said that I should cancel the print run. I did so.

[All was not lost however. I continued to use that book. I designed a workshop around it and took it on the road. When the state that had printed and distributed my book without authorization contacted me about doing the workshop for them, I negotiated the most expensive workshop I'd ever done --- we had 340 people to attend and I charged that state a most scandalous amount. I realized more from that one-day workshop than anyone had anticipated from the textbook!]

Example Two. Most of you know from reading this blog, Hill Country, that there are no fees to subscribe nor do you see any advertisements on my pages so you know that I'm not making any money off of Hill Country. But if you have looked carefully at these pages, you know that my content here is copyrighted. But whether or not the copyright notice is visible, the law states if it is my work, then with or without the statement of copyright, it is copyrighted.

I had a person to ask me recently when I was going to publish my materials --- there was more to the conversation. The individual had never heard of me until they read a series of articles I did here at Hill Country which they accessed after finding a reference to my work while doing a Google search. The individual really wanted to know if they could use my work and my pictures in a book they were planning to write. But the question was, "When was I going to publish some of my work?" I replied, in writing, that my work at Hill Country was published. It was published in digital form on the blog site/Internet; it was published in a digital form on CD; and it was published in hard copy in a paper file I was maintaining. And I informed the individual that the work published in all three formats was copyrighted.

I think this individual was still living in the printing press stage of development. Just because something is printed in digital form on the Internet does not make it less published than a hard copy from a private printing, a vanity press, or a legitimate press!

But I think the worse case scenario with this individual was the implied "Well, it is not really published since it is not printed on paper so I'll just snatch it off the Internet and use it before Thornton gets wise!"

Meum et teum!!!!

My candy in digital form may be easier to take and eat but once you've eaten it, it is gone forever. Stealing is stealing no matter if you are doing it at the speed of electrons racing through the ether or if you are grabbing candy from the baby's hand!

Example Three. Some time ago I granted permission to three different individuals representing three separate agencies (non-profit) to copy one or more of my Hill Country articles and to distribute those specific articles through their publications. A rather cut and dry arrangement --- and something I've done without problem with several other groups over the years.

Recently one of those individuals informed me, however, that he had taken additional articles and used them without asking --- that he didn't wish to bother me to ask!

"Opps. I took some of you candy and I've eaten it already! I hope you don't mind. Please tell me you don't mind!"

Mind hell --- Meum et teum!!!!

Example Four. Once, while we were living elsewhere, I was reading my local newspaper. Like so many local small-town papers in the South, this newspaper had a variety of local columnists whom it hired (or probably paid by the inch of copy) to do regular columns. One of my favorite writer's articles was always in the weekend edition of that small paper.

I flipped through the paper reading and scanning and there in that column were my words jumping off the page and back to me! The columnist had taken a copyrighted article I had written and previously published in another format and had copied it word for word with no mention that it was copyrighted by me. To the columnist's credit, however, she did mention me as the writer. When contacted, the columnist's only defense was to say, "I didn't think you would mind. I'm sorry."

"Opps. I took some of you candy and I've eaten it already! I hope you don't mind. But I will be paid for using some of your candy which I took without asking --- please tell me you don't mind!"

Mind hell --- Meum et teum!!!! Forgive --- maybe. Forget --- never!

Example Five. One day this week I was informed that another of my Hill Country articles was being distributed with this verbal explanation: "I used one of your articles in our agency's publication which is being distributed today. I'm sorry I didn't ask but if I had telephoned you for permission it would have been about midnight last night and I didn't wish to wake you up."

"I took some of your candy and have eaten it already because I didn't want to wake you up to ask!"

MEUM et TEUM!!!!!

Folks, the bottom line is that if we don't honor each other's works and words, how can we possibly expect large for-profit agencies to play fair? The examples from above involving the taking of my copyrighted materials and using them without permission are trivial in comparison to what can be done with bot and spiders and crawlers sneaking into your web pages and taking what they wish without your knowledge, consent, or permission.

I hope that this current issue involving corporate unauthorized use of copyrighted materials can be used to establish firmly a meum et teum standard that can be easily applied and universally followed by those of us who publish in a digital format.

According to Craig posting at GenaBlogie, these four factors should be analyzed in each case of copyright infringement. Let's see how these factors relate to the principle of meum et teum.

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. My Example One was an infringement by a nonprofit educational agency; no one profited from selling my materials. Certainly the Example Five involved a nonprofit agency albeit an infraction of not honoring the dicate which presumes the asking and the receiving of permission to copy entire works.

2. The nature of the copyrighted work. I'm afraid that the courts are leaning to protecting works of art --- painting, photographs, music, creative writings (novels, poems, etc.) but giving great latitude in the use of digital materials of a genealogical or historical nature. I'm afraid that blogging is so far down on the list of works to protect that most judges don't even know that we exist. I resent the notion that a poem or a song or a picture or a photo I might take or make or write or compose seems to enjoy more protection as a copyrighted creative work than do any of my blog articles.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. My Example One was the taking an entire manuscript [except the copyright notice page] and copying it page for page. It is my understanding that the recent corporate case involved copying entire pages of the blogs and websites their bot/spider/crawler went over. My Example Four involves the word for word copying of an entire article.

4. The effect of the use upon the potential market for or value of the copyrighted work. My Example One --- the value of my work was destroyed completely as a printed work. The press that had agreed to publish had a clause that they would not/could not publish works that had been previously widely distributed. The works that were recently copied and distributed without permission by a genealogy company meant that those blog owners who have advertisement income based upon the number of "hits" or visitors to their blog had their income potential reduced. My Example Four means that I have at least one article which I probably can never sell to any of the regional newspapers because it was published already in a newspaper without my permission. Example Five probably means that there is now limited marketability of the blog article which was copied and distributed without my permission. And, yes, I realize that these are trivial points but most matters of the law boil down to money.

And in matters of money, I think all of you would agree: What's yours is yours and What's mine is mine. And if I take your money or if you take mine, that is theft. It should be no different with printed and published words.

Stolen money can be replaced. Stolen ideas and stolen thoughts and stolen words set loose through unauthorized use and unauthorized re-publication should be a concept that even the simplest among us can understand and not violate.

Meum et teum!

Thanks to Janice Brown of Cow Hampshire for alerting many of the blogging community to this problem and for continuing to provide updates and thanks to Craig Manson of GenaBlogie for his careful insightful writings about this issue. I lifted the four factors above directly from Craig's post at http://geneablogie.blogspot.com/2007/09/did-ancestry-violate-copyright-law-part_10.html