XerXesXu
Virgin' on literate.
- Joined
- Oct 18, 2011
- Posts
- 1,733
Sorry, I somehow missed your post.You keep invoking legal principles in a discussion that isn't about the law. As far as I can see, nobody in this discussion is arguing that what 8letters did broke any laws; the focus has been on plagiarism, which is in general an ethical issue but not a legal one. (Caveat here because I haven't checked every jurisdiction in the world to see whether somebody has legislated "plagiarism".)
Simon and the other folk who expressed their disapproval of 8letters are not a government imposing sanctions, just private individuals expressing a personal judgement of another individual's actions as they relate to a community norm. There's no question of "constitutionality" there. As a lawyer you presumably understand that social censure of this kind is not subject to the rules of a court case, so I'm at a loss to understand why you keep suggesting they're applicable.
He said it himself: "If people feel I crossed a line, I crossed a line".
I'd dispute the accuracy of that "and no more", but even if one accepts it for the sake of argument... why would any more be needed for this to be a problem? "Articulating expressions which evoke transient emotions and sensations" is at the heart of authoring an erotic story.
There’re two legal situations where allegations of plagiarism can become litigious, contract and tort, specifically defamation.
TORT
Starting with DEFAMATION, suppose 8Letters walks into his weekly creative writers meet up, the pub goes quiet, all the other members turn their backs to him. They cut him dead, he hears whispers of ‘Plagiarist’ and tut-tuts of disapproval. He thinks, "SimonD and EB, those bastards have 'lowered me in the estimation of write thinking people'." (Couldn't resist that pun).
He could sue them in defamation. Wherever the burden of proof lies, a jurisdictional thing, the Court’d have to decide the criterion for a. plagiarism and b. whether the weight of evidence has or hasn’t met that criterion, depending upon whom the burden of proof lies. "I don't know the criterion, but I know it's been/not been exceeded when I see it' won't cut the mustard.'
We all recycle words, even 92% of the words, not Cliches, words, used by Shakespeare had been used before. There's no evidence that he coined any of the evocative phrases for which he's famous, he picked them up and ran with them. Anyone can do that. A recycled rose can smell as sweet.
So, where will the Court draw a line so that the court can understand why it's ‘reprehensible’ copying? 'I just feel it in my bones' won't fly.
Consider the phrase, ‘story idea’. It can be an idea for a story, sometimes called a story prompt, you’ll see discussion of this in LC68’s prompt swop thread, and his expectation of how those who pick up a prompt should seek permission, acknowledge etc. Those are rules of courtesy, his thread, his rules type of thing. They’re unenforceable, anyone can pick up a prompt and run with it. Anyone can pick up a whole story and run with it - a ‘West Side Story.’ Lots of Shakespeare’s whole plots get regularly recycled in a contemporary setting to great literary acclaim. I see Othello’s being recycled in the contemporary dress of the culture wars. No problem. Shakespeare never had copyright anyway.
If it’s not filching words, or evocative expressions, or premise, or title, these have always fallen, immediately, into the public domain - what is it? It’s stealing another person’s original work with intent to obtain some benefit from another by deception, such as an academic degree, or job ,or promotion etc for which you’re not qualified. It’s sui juris with using forged certificates.
CONTRACT.
That’s why the only people who truly care are those, between whom there’s a contractual relationship, and who don’t wish to be cheated. Cheating is a breach of contract from which serious consequences flow. A contract may set out a criterion for copying or it may just use the word ‘plagiarism’ as tut-tuted in defamation. It will usually set out the procedure and range of agreed contractual consequences.
The excerpt must contain the imprint of original literary, scientific, philosophical or creative work which is being passed off.
The stakes are high either way. If you wrongly eg; expel a twenty year old student for plagiarism you'll be responsible for topping-up their meal-ticket-for-life, not just loss of earnings, but loss of pension and any medical treatment consequent upon suicide attempts, psychiatric care for PTSD and therapy for depression and anxiety – and that’s just the special damages. The general damages – for distress, pain and suffering, loss of the amenities of life, of joy, of hope, for blighted ambitions, especially where you’ve doubled down, refused to listen to reason, rejected their lawyer’s proposals of a reasonable compromise and put the poor child through a punishing trial even after you see her wheeled into court in a wheelchair, well, the general damages alone can be huge.
I think you can see that ethics are neither here nor there, and that in any western democratic country contracts can be litigated and professional bodies, are subject their own rules which are supervised by the Courts.
Not every person's unsusceptible to social and consensus pressure, many have pointed out that poor old 8Letters isn’t. Many aren't. His ‘confession’ was obtained under torture. I'm not susceptible, that's why the vulnerable paid me to resist it on their behalf. It can be done. Often nothing more is necessary than the response in Arkell v Pressdram. Of course, it cuts both ways.
Arkell v. Pressdram – Letters of Note
My responses to your other points are implicit in the above, you can pick them out.
Vagueness and penalising retropectve legislation are constitutional matters in the USA and countries with constitutional courts. Uncertainty is dealt with differently in contractual settings, avoidance, then consideration whether the contract as a whole is severable etc, etc. Defamation obviously does give a bulwark against the expression of social pressures, freedom of speech does not extend to obscenity and defamation. To Turd’s point, Story Idea as in prompt, is different from story idea as in “I went home to my father’s farm to escape during covid. I sat out under an apple tree and apples fell on my head. That got me thinking. I gathered them up and took them home to make jam.” And that part of the story which goes, “I threaded an apple on a piece of string, like with a conker, and started twirling it around my hand. It came to me circular motion, action and reaction vectored on my hand, I looked at the moon transiting the sky in the east and sun ending its daily transit in the west, and thought, ’What if I play around with a few variables’”
Coffee time.
: Edited to remove duplication caused by the Oops function.
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