Sunday, May 01, 2022

False and Loose

The copyright-related legal blogs from last week are particularly fascinating for authors of all kinds of fiction, including alien romance writers.... and for fans of the Italian philosopher and statesman Niccolo Machiavelli.

I like to think that the author of history's most famous book on dirty politics would have approved of the legal notion that, in America, under the First Amendment, "false speech is protected..."

Legal blogger Benjamin E. Marks of the international law firm Weil Gotshal and Manges LLP, pens a spotlight on free speech and media freedom in the USA (which is an except from a larger media and entertainment law review article.)

Lexology link:

Benjamin E. Marks begins with a masterful explanation of The First Amendment (which limits government interference with American citizens' right to free speech.)

"The First Amendment to the US Constitution provides strong (but not absolute) protection to all forms of speech. As a general matter, 'government has no power to restrict expression because of its message, its ideas, its subject matter, or its content'."

He goes on to explain the few and limited exceptions that are not protected, and also mentions a few obnoxious (my word) categories that the government has attempted to unshield without success. Please follow the link for the details.

Next, Mr. Marks discusses false speech, other forms of objectionable speech, and the fact that it is mostly protected!

"False speech is protected unless it involves defamation, fraud or some other legally cognisable harm; falsity alone is not enough.5 Hate speech is also protected, reflecting the bedrock principle that the government 'may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable'.6 The First Amendment affords special protection to 'even hurtful speech' when it concerns a public issue to 'ensure that we do not stifle public debate'.7"

The First Amendment applies only to government, and not to private businesses. The line about special protection for hurtful speech reminds me of the quote attributed to French philosopher Voltaire, and often loosely translated and reported as: "I disagree with what you say, but I will defend to the death your right to say it."

Columnist David Hunter wrote an opinion article on how quotations become tangled.

It's worth noting in passing that authors and bloggers may be forgiven for innocently mangling a word or two within an otherwise accurate quote, but cobbling together a-quote-that-never-was is risky.

Credit to writersweekly for the news link.

As for publishers, they usually skate on liability. The legal buck stops with the writer and his or her sources if information of disputed accuracy is acquired without the consent of the original owner. Under maritime law, if a compromising diary is found on a beach, it matters whether it is flotsam or jetsam, for instance.

The copyright of letters, diaries, yearbooks, texts etc. belong to the author, not to the recipient nor to the finder, purchaser, or incidental acquirer, for instance.

Mr. Marks writes:

"However, a publisher cannot be held liable for the unlawful procuring of information by a source if the publisher was not involved in the illegal conduct...."
 This is really interesting for writers. Books, newspapers etc are not classed as commercial speech simply because they are sold to the public.

"... media and entertainment products are not commercial speech merely because they are distributed or sold as part of for-profit enterprises.13 Accordingly, even false media reports are generally not actionable under consumer protection laws.14"

Then, there is the matter of whether or not untruths in advertising (my words) are protected false speech depending on their audience.

Legal bloggers Kyle-Beth Hilfer and Sarah Sue Landau , experts in advertising law, of the law firm Cowan Liebowitz and Latman PC  discuss "Dark Patterns" in advertising, with especial emphasis on false urgency, for instance on commercial sites in the travel industry.

“Almost sold out.” “Act now.” Such marketing messages, conveying urgency to purchase, led to a $2.6 million settlement with the Attorney General of New York over deceptive marketing practices..."

So begins their Advertising Law Alert.

Original link:
Lexology link:

Allegedly, with the purpose of creating a sense of urgency, the travel-related platforms in question might display..

 "fictitious messages indicating the number of tickets left for a flight or a percentage of hotel rooms available at a certain price, and would prompt consumers to “book now.” For example, if a consumer was searching for a single ticket from New York to Toledo, she would see a message that there were only two tickets still available when, in fact, there were many. Consumers were thus misled to believe that time was running out to purchase the deal."
Any author looking for flights to the next author conference, or reserving a room might well wonder. We've probably all seen those "urgency" messages.  For more insights into the sexily-monikered "Dark Patterns" follow the links.

Plagiarism is also a form of false speech. Many authors have some insight into how it feels to be plagiarised, and given the conveniences of the internet, it has become increasingly easy to cut and paste someone else's work from online.

In Turkey, plagiarism is also known as pilferage.

From Istanbul-headquartered law firm Gun and partners comes a very interesting article on the concept of plagiarism. They do not credit an individual author.

Original link:
Lexology link:

Quoting them:

"Although plagiarism is not clearly defined in Law No. 5846 on Intellectual and Artistic Works (LIAW), it is one of the most common acts of infringement. Plagiarism, which is defined as “pilferage” by the Turkish Language Association under the law on intellectual and artistic works, is used to “present someone else’s work as your own, taking a piece from someone else’s work without citing the source”.

Much to consider.

All the best,

Rowena Cherry 
EPIC Award winner, Friend of ePublishing for Crazy Tuesday


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