Have you ever played Whack-a-Mole? Satirist Bob Ricci* has a song about a child savant Whack-a-Mole player not unlike The Who’s Pinball Wizard. I picture that young genius with an odd selection of specialty when I think about user-generated online posts that infringe on another’s work.

This goes beyond the fact that the law entitles creators to rights over distribution, although they do have such rights as Chris Castle points out. It goes to the notion of copyright owners being required to chase down every infringement of their work, request takedowns, and then watch as it’s posted again. It goes to the clear fact that Congress never envisioned user-generated sites capable of such massive infringement. No legislator would ever tell the creators to whom they have given rights that they and their commercial partners need to spend all day smashing infringements with mallets.

Referring to a site that has long hosted infringing novels, Scribd, here is what bestselling science fiction author Christopher Priest told The Guardian about his own work being infringed:

“Scribd.com were very courteous and immediately took it down, but since then it’s gone up again,” he said. “It’s very annoying … I’m a writer and I write for a living, I don’t want to have to do this.”

Exactly. This is true for individual artists, who we should want to be spending their time creating, and it is true for their publishers and distributors, for the cost of endless mallet-whacking leads us to pay more for the legal work.

I’ve been following Scribd for awhile. Not everything on there is infringed. There are some authors who voluntarily post works there, and that is their choice. However, with Scribd, YouTube and LimeWire, there’s rarely an easy way to tell what has been posted with the authorization of the rightsholder and what has not.

I was speaking with an author yesterday who owns the rights to her backlist and is thinking of taking one of the older, out-of-print books and posting it a chapter at a time online. That is a great idea from a publicity standpoint; there’s no guarantee she could find a publisher willing to reprint the book, so its commercial value is not what it once was, it gives her fans a taste of her writing while waiting for the next book, and it potentially attracts new fans who might buy her next book.

There is no doubt, however, that this author feels these posts should be her decision. She would not countenance someone who still owns a print copy of that work scanning it and posting it without her permission. And anyone who thinks that behavior is acceptable is someone whose thinking I will never understand.

The issue is not whether someone’s work should be online. The issue is whether the creator and owner of that work wants it to be online. Reproduction and distribution are fundamental rights given to creators. If creators forfeit those rights the moment a work is released, there is far less incentive to create the work to begin with.

In summary: Truly user-generated content? Can be good. Requiring creators to chase across the Internet and asking infringers to please stop, only to allow them to start again? Always bad. Before we are told about that brilliant user-generated work that can’t exist without using someone else’s song or video, let us at least agree that this technology also enables flat-out infringement, and that the burden of addressing that infringement shouldn’t fall on the creator alone.

* If you want a good laugh, (legally) download a copy of Ricci’s “It Could Happen to U2.” It’s actually a good warning for any guy wearing zippered pants.

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This entry was posted on Thursday, April 2nd, 2009 at 2:11 pm by Patrick Ross and is filed under copyright law, creators, fair use, internet, p2p, piracy. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.