Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2010
Parting Thoughts
It's Not Easy Being an Author
By Robert Weiss

Someone has said that an author lives in a vacuum. Well, not really.

Of course, researching the bones of a work, shaping those bones into a structure of ideas and images and then giving life to the ideas and images by reducing them to words on a printed page can sometimes be an isolating process. But what about after the words have seen the light of day?

It depends.

For example, in my time as a practicing lawyer, I wrote a number of articles published in national law journals. Pretty dry stuff, I have to admit. However, one time after publication I did meet a lawyer who had actually read an article of mine.

But then, turn the page to more gutsy stuff, like fiction or military nonfiction or biography. If what you write is reasonably good, not only will people read it, but some will try to steal it. The clever ones, in the case of nonfiction, will paraphrase what you have written and under the concept of “fair use” in an attempt to filch your copyrighted work. Others will change names of persons and places, alter a description here and there. You get the idea. With courts hung up on the concept that a copyright is just another species of property, it is difficult and often prohibitively expensive for an author to protect his work.

Now the digital age has provided another ocean in which the literary Blackbeards do their dirty work. Let me relate a recent experience. The Bulletin, in its June 2010 issue under the heading “Among Ourselves,” noted that I had written an essay about Ernest Bloch, the composer, which appeared in a British musical magazine early in 2010. Ernie Bloch II, the composer’s grandson, keeps tabs on happenings relating to his grandfather and in late June called my attention to the fact that a website was advertising the article in book format at $7.95 a copy.

What was offered for sale was an exact copy of the article as it had appeared in the British magazine. My agreement with the magazine provided that I retained the copyright to the material and the magazine owned the copyright on the design and layout. The owners of the website had infringed both our copyrights. What do you do when somebody steals your ancestor’s tintype? Usually, not much. Although it was flattering to think that someone might pay $7.95 for a half dozen pages of something I had written, they weren’t paying it to me. Besides, it was not flattery that I was seeking. I just wanted them to stop. The article was my baby, something I had created.

In this case, because the Internet was involved, something could be done. Fifty years of law practice had taught me that it is a fool’s errand to act on your own behalf. So, I called my friend Steve Ellis, who wrote a letter as an “official notification” under the provisions of the Digital Millennium Copyright Act to remove the infringement from the website. The letter advised that the law required expeditious removal or disabling access to the infringing article upon receiving the notice and also pointed out that failure to do so might result in a loss of immunity for liability under that act.

The next day the advertisement was gone. Needless to say, a happy result.

It makes one wonder, though, when creating a remedy for the digital age, if Congress hasn’t also given the new breed of digital pirates the means to exploit an author’s copyrighted material on the Internet by pretending innocence until caught at it and given notice to cease, as was done in my case. The message is: be vigilant and give notice under the Digital Millennium Copyright Act and hope the infringers understand that you are serious.

Robert Weiss is an inactive member of the Oregon Bar who practiced law in Portland for more than 50 years.

© 2010 Robert Weiss

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