RootsTech 2014

Some people eat, sleep and chew gum, I do genealogy and write...

Tuesday, March 11, 2014

Genealogy, Privacy, Plagiarism, Copyright and more

Genealogists deal with some pretty difficult issues. At its most complicated level, a genealogical researcher might be dealing with legal, social, political, linguistic and technological challenges. Also, buzzing around like flies in a horse corral are the issues of privacy, plagiarism and copyright. In the past, I have written extensively about both privacy and copyright issues. For some reason, I haven't had much to say about plagiarism. My guess as to why is that both privacy and copyright are to some extent, legal issues and being an attorney for the past 39 years probably makes those subjects take on more importance.

Of the three issues, copyright is the most litigated and defined and is included as part of a recognized legal specialty called intellectual property law which also includes patent and trademark law. From the perspective of a practicing trial attorney, intellectual property law is rather esoteric. The number of attorneys who practice in this specialty exclusively is very small compared to almost any other area of the law. There are always some attorneys practicing patent law in any major city, such as Phoenix, Arizona, but in reality, attorneys who do not deal with patents and only practice in the area of copyright and trademarks are very scarce and mostly employed by very large law firms. One reason for this is that litigation about patents, trademarks and copyright is almost exclusively limited to the Federal Court system. Jurisdiction for all copyright cases lies in the Federal District Courts.

In my experience, all three of the areas, privacy, plagiarism and copyright, have very significant amounts of baggage in the form of folklore. The general public's understanding of these three subjects is woefully deficient. Over the years, nearly all of the claims clients have been involved in either as plaintiffs or defendants, touching on any of these three issues, have lacked any factual or legal basis.

One area that is commonly misunderstood is the interface between what is referred to as plagiarism and what can be claimed as a violation of copyright. The definition of plagiarism is so broad, that nearly any violation of copyright can also be considered to be an act of plagiarism. One definition of plagiarism that I think is helpful comes from Dictionary.com:
an act or instance of using or closely imitating the language and thoughts of another author without authorization and the representation of that author's work as one's own, as by not crediting the original author: It is said that he plagiarized Thoreau's plagiarism of a line written by Montaigne. Synonyms: appropriation, infringement, piracy, counterfeiting;theft, borrowing, cribbing, passing off.
Now, was my quoting from Dictionary.com either plagiarism or a copyright violation? No. By definition it is not plagiarism because I gave a link and attribution to the source. It is not a copyright violation for a number of reasons, mostly because of the doctrine of fair use. If you would like to see a discussion of the application of copyright law to dictionary definitions, look at the Copyright Advisory Network of the American Library Association, Office for Information Technology Policy "Dictionary definitions - copyrighted?"

Plagiarism is not a legal issue. It is primarily a moral issue. Citing a legalzoom.com article entitled, "Plagiarism: What is it, exactly?" 
If you use another person's work and do not attribute that work to the author, including copying text verbatim, paraphrasing a phrase or summarizing an idea, you are essentially committing plagiarism. Plagiarism usually occurs when a writer fails to:
  • cite quotes or ideas written by another author;
  • enclose direct text in quotes; or
  • put summaries and/or paraphrases in the his or her own words.
Now, genealogy gets really sticky in this area. Facts are not subject to copyright. Likewise, many genealogically important documents are either too old to be covered by copyright law or, in the United States, are not copyrighted because they are public documents created by the Federal government. Essentially, plagiarism does not arise to the level of a legal issue unless it also involves a violation of copyright. Most of the battles about copyright and plagiarism are being fought today about online content. If you feel you are a victim of a copyright violation, I would suggest you do some basic background research in the area to educate yourself and dispel and misconceptions you may have about your "rights." You can start by going to the U.S. Copyright Office website.

Rather than go online and rant about the problem, I would suggest that you take appropriate legal action and confer with a licensed attorney who practices in this area. You can start the process by sending out a "Take Down Letter." A good example and explanation of such a letter can be found at "Sample DMCA Take Down Letter" on IPWatchdog.com. There are dozens of such sites with sample letters on the Internet. By the way, DMCA stands for Digital Millennium Copyright Act.

I would further suggest that you don't go accusing people of violations of the copyright law and plagiarism if you are not the injured party. In legal terms, you have no standing to raise the issues. In Arizona, you could find yourself in a messy case of defamation.

You might want to refer to my disclaimer tag above. Nothing I say in this blog is intended as legal advice in any particular case or controversy.

No comments:

Post a Comment