Oh, that's 'reasonable borrowing and paraphrasing', is it? The kind of 'paraphrasing' that involves word-for-word recital at length from someone else's book.

Signet aren't really doing a lot to improve the poor light in which genre romance is regarded, are they?

'We can't be sued so we don't care' seems to be their attitude. Terrific.

I intend to 'borrow and paraphrase' from a whole series of Signet novels in order to 'create' my next 'original' work. Then perhaps they'll have a different attitude?

The scary thing is we don't know how often this occurs. If the writer is a little more careful and "adapts" the passage to her style then it would be very hard to pick up. This is quite an interesting story.

Quite right. Though if they 'adapt' properly, then I have no problem with it. The information is fair use; it's the expression of it that belongs to the original author, though an acknowledgment is still nice.

That statement from Signet sounds quite defensive. They definitely need to review the definition of "reasonable borrowing and paraphrasing", as it does not include lifting entire passages of text.

I bet they're not so forgiving when it's one of their publications being plagiarized.

Hi Ros.

I hope I'm not being a pain, but this is one of those situations where I feel professionally obligated to point out the difference between plagiarism and copyright infringement, which are utterly unlike each other.

Copyright infringement is about stealing. Plagiarism is about lying. Since it is possible to steal without lying and to lie without stealing, it is easy to commit one of these acts without the other.

Plagiarism, of course, is not a legal term, but an academic term, which means "use without clear attribution." It contains an implied lie -- that is, the implied statement that the author composed the text, when in fact she did not. However, if someone plagiarizes (that is, tells a lie) in order to obtain a benefit from someone (say, selling ten million books) then that is illegal -- it's called fraud. And since there is no "public domain" argument (and no "fair use" exception) concerning fraud, I think it would be wrong to say that she hasn't done anything illegal. She certainly has; she's defrauded her readers and her publishers.

Copyright infringement is about use without permission, regardless of whether there is proper attribution. On this point, the publishers would be correct in their statement that permission is not legally required (and, in my opinion, not morally required either) for works in the public domain. They're also right in saying that no permission is required for "fair use" (and again, in my opinion, morality doesn't require it either).

So my point is that here, law and morals are actually on the same side. It was wrong morally to use the text without attribution for the same reason that it was illegal to do so: it made an implied false statement. But it was not wrong morally or legally to use the work without permission, as it is no longer anyone's property and there's no one to ask.

I agree completely that the distinction needs to be drawn between plagiarism and copyright infringement, and this seems to me to be exactly what Signet have failed to do.

You know, I've been wondering whether or not this constitutes fraud, in exactly the way that you describe, Ken. If I had ever bought this woman's books (which I'm glad to say I haven't) I would have done so in the expectation that the words in it were her own. I would now be feeling that I had been deceived in that.

What action, if any, would you recommend could or should be taken? I believe that some of the stolen work is still under copyright, so presumably those authors could sue. If that doesn't happen, how would one go about the fraud issue?

Well, assuming that one could actually prove the six elements of fraud (see the points I made in response to Jane and you below), the main problem would be that the damages suffered by any particular buyer would be so small that they wouldn't justify the hiring of counsel to represent him/her in the case.

(In the case of a deliberate action like fraud, courts will sometimes add punitive damages, but that is the exception, not the rule.)

This is the sort of thing for which class action suits were designed. You try to certify that you are a member of an identifiable class, the members of which are too numerous to be personally involved in the lawsuit, but who all suffered the same injury for the same reason. (e.g., consumers who were all overcharged by Visa or MC for international exchange rates.) Then you sue on behalf of all of them. When you win the case (or, as is more likely, when you get a settlement), you then try to locate as many of the potential members of the class as you can, and you offer to give them their fair share of the award. (That's a real headache, and eats up a portion of the award.)

Followed the link from Smart Bitches. Thanks for clarifying. While I knew she didn't violate (many) copyrights, I'd wondered what legal action could be taken against her for the plagiarism. Provided anyone decides to take action...

Actually, one of the authors she "borrowed" heavily from in one text is very much alive and kicking-- Paul Tolme, the author of the 2005 magazine article on black-footed ferrets. Whole paragraphs of his work get quoted verbatim other than some grammatical divisors to make it a conversation rather than a lecture.

The trick being, of course, that it's a magazine article and isn't worth the time and money for him to sue for copyright infringement to take back possession of his words.

The latter observation would be accurate if we were speaking only of the actual damages.

Section 504 of the Act, however, allows for automatic damages. If willful infringement of a work with a registered copyright can be proved, those statutory damages can be as high as $150,000 (at the discretion of the court).

This is definitely one of the clearest explanations I've seen about this.

Don't you think that there is a causation problem? I.e.,
can it be proved that readers would have acted differently if they knew of the copying. Did the readers rely to their detriment on the mispresentation?

I don't think, with the statement provided by Signet, it could now go back and claim that some fraud occurred since it stated publicly that she has done no wrong. Admission against interest.

I don't think it matters whether they would have acted differently. The point is that they were missold the books under false pretences.

And you may be right that with that statement, Signet are now complicit in the fraud.

No, Jane's right. There are six elements to civil fraud under common law:

1. Defendant made a false statement of fact.


2. Defendant knew the statement was false, or was reckless with regard to its truth or falsity.


3. Defendant intended to deceive the plaintiff.


4. Plaintiff justifiably relied on the statement of the defendant.


5. Plaintiff suffered measurable loss.


6. Plaintiff's loss was caused by his/her reliance on the defendant's false statment.

The problem is that sixth element. You have to prove that your damages wouldn't have occurred if it hadn't been for the fraud perpetrated on you. (Or, in the alternative, that the fraud was a "substantial factor" in bringing about your damages.) Here it would be hard for most buyers of the books to demonstrate that that happened.

Except that, since Edwards became such a bestseller, don't people buy her books precisely because they presume she's written them?

Yes, that's true. The question is whether they'd be sufficiently concerned about those particular passages. The thought experiment is this: "If I had known that these particular passages in Book #1 were not written by Edwards (that is, if she had footnoted them properly), would I still have bought Book #2?" I think the answer is probably Yes, which is why I think there's a causation problem.

I think I'm left with the same feeling I had earlier today when I first read about this: the law is not the most effective weapon against this kind of activity; the media is a far more useful tool. Shame, not guilt, is what's needed here. And in particular, I think, shame that makes publishers sit up and take notice so that editors aren't permitted to let this kind of thing happen.

Wandering over from SBTB...

I don't know. I think if I had read Book #1, then heard author was a plagiarist, I would not buy Book #2, no matter what parts of the book were plagiarized. I don't want to support someone with so little integrity. I think point 6 could be proven.

However, I think point 5, that the loss was measurable (the price of a paperback, many of which would've been bought used?) and, given Edwards' recent statements, point 3, would be harder to prove. Or am I misunderstanding "measurable"?

Hi,

I agree that causation would be the main stumbling block in making a prima facie case of fraud. It is very hard to demonstrate (because it's probably false) that a particular purchaser wouldn't have bought the book if they'd known the relevant passages weren't composed by the author.

In academic situations the proof of fraud is much easier, because it's usually clear that the instructor wouldn't have given the particular grade if s/he'd known about the falsehood.

Hm, my understanding of the term "admission against interest" is that it is merely an exception to the hearsay rule. That is, the fact that there is an admission against interest means that the evidence can be presented in court despite the fact that it's an out-of-court statement offered to prove the truth of the matter asserted. But admissions against interest aren't per se probative of anything. I agree that a jury might well think that the statement the publisher made today means that they didn't reasonably rely on the false statement, but then again, they might not. It certainly wouldn't mandate a summary judgment or directed verdict.

Technically admission against interest is definitionally not hearsay but I meant it as this would be a statement allowed in court, maybe in a form of estoppel against the argument that fraud was committed even though the statement was made out of court.

Well, again, it might be evidence that there was no fraud, but it wouldn't be dispositive.

It might also be evidence that there was fraud. As in, "We were so thoroughly taken in by her lies that we even supported her publicly."

Whoops - that last comment was by me, Jane at Dearauthor

Hello Jane!

I'm now contemplating cobbling together some of my favourite fanfics and trying to pass them off as my own work. I wonder whether anyone would notice the steals (apart fromt the fact I don't actually write any myself might raise suspicions!).

Send them to Signet; they clearly don't have access to Google.

LOL!

Above you stated what Signet said. Then at the end you stated "Penguin have so far not addressed the issue at all."

Sorry to tell you but Signet and Penguin are the same company.

You need to do your research before posting a comment.

Now you can go look up who the other publisher is and make the correction. LOL