Geek Is Not A Foreign Language (Update)

It could easily be seen as a compliment to Defending People blawger, Mark Bennett, that he finds himself in the crosshairs of others who want to be him.  Just recently, he’s had to fend off some local third-stringer named Andy Nolen who got the brainstorm to smear other Houston criminal defense lawyers with fake reviews on yahoo!, while making himself the savior.  After being called out by Mark, a false review was posted to Avvo, which was quickly tossed.

These are the things real lawyers are forced to go through in the digital world.

And then there was Melina Benninghoff, whose blog was a simple scraping of posts stolen from elsewhere, notably Bennett’s.  It doesn’t matter whether Benninghoff did it personally or left it for someone else to do for her, since (as has become Mark’s mantra)when you outsource marketing, you outsource ethics. 

This brings back the fond memories of another scoundrel, U.S Law.com, a low-rent garbage website that tries to eke out a living by stealing content from real blogs and selling advertising. 

When this is done by lawyers, it’s a clear representation of how marketing has corrupted the ethics of desperate lawyers who are incapable of maintaining a practice based on their skills and competence, so that they’ve chosen to scam the public (and other lawyers) to create the impression of competence where none exists.  No, they shouldn’t be lawyers.  No, they shouldn’t be trusted.  No, they shouldn’t be hired.  Not even for a quick mani/pedi.

But the underlying problem isn’t one limited to lawyers. The problem is that some geeks are of the view that there are no rules when it comes to the internet; at least no rules that apply to them. Because it’s so easy, no, simple, to steal content via RSS feeds from anyone, anywhere, they are entitled to do so, no questions asked. 

The thought process goes something like this:  We (meaning those of us who create content) don’t get it.  If our content is put out on an RSS feed, it’s an invitation to the rest of the digital universe to take it, use it, change the name and offer it as their own.  It’s not their fault that they’ve taken us up on our RSS feed invitation. If we put it out there for them to take, then why should we blame them for doing so?

Before explaining why this notion is fundamentally wrong, allow me a moment of reflection.  Bennett learned of Benninghoff’s theft of his content from me, when I notice that a link to me came from Melina Benninghoff’s “blog”.  After seeing the scraping, I sent Bennett an email alerting him to the theft.  I know that Bennett, as a creator of content, isn’t too keen on worthless rats stealing the fruits of his effort.  I knew that he would want to know, and wouldn’t take kindly to it.

A few months earlier, following my excoriation of U.S. Law.com for ripping off blawgs at will, Bennett sent me a book called Digital Barbarism by Mark Helperin, who makes me look like an amateur curmudgeon.  I’ve been reading the book slowly, as Helperin’s words take time to absorb and require absorption to appreciate.  It’s a work of genius.  I might consider reviewing the book, but I’m unworthy.  Mark Helperin is far better a writer, a thinker, than to deserve the praise of a lowly lawyer like me. 

Now back to the geeks.  Stealing doesn’t take brilliance, and barely takes effort.  See the plate glass window at the front of the store?  Throw a rock through it and you can grab anything shiny inside you want.  It’s simple.  Any moron can do it.  You can do it. But it’s illegal, it’s criminal, it’s wrong.  The fact that you can steal easily doesn’t change the nature of stealing.  What synapse isn’t firing that leads you to think otherwise?

Two factors seem to embolden the geek entitlement mentality.  First, they assume no one will know that they’ve stolen content from others.  It’s a big digital universe and it takes an awful lot of vigilance, or some dumb luck, to stumble on a theft.  Second, there isn’t much that can be done about it.  We aren’t likely to go around suing every scumball website like U.S.Law.com that’s existence is premised on theft, lies and idiocy, even if we can figure out who is operating the sleazy sites.  Like the eponymous Chase of U.S.Law.com, likely a twelve year old working out of his mommy’s basement trying to scam up enough money to keep the juice flowing to his playstation 3.

But legitimate blawgers have one weapon available, and it’s a particularly potent weapon when it comes to scum like the Andy Nolens and Melinda Benninghoffs of the world.  We can shame them by making sure that as many people as possible are aware of the fact that they haven chosen to engage in unethical, scummy conduct.  We can undermine their purpose by using our page rank to surpass their page rank, so that when they not only obtain no benefit from their sleazeball tactics, but our perpetually held out to ridicule for what they’ve done.

It’s possible that Melina Benninghoff doesn’t even realize that she’s become the butt of some very harsh criticism.  It’s possible that she allowed some ignoramus to have his way with her lawyer marketing strategy.  But this remains her responsibility; Responsibility is what being a lawyer is all about (and no, it’s not about making lots of money so you can achieve work/life balance).  Whether she actively or passively failed to take responsibility for her online presence, she remains responsible.  That’s one of the burdens that comes along with a law license.  Too hard to do?  Tough.

If Benninghoff is a real lawyer, then she will profusely apologize to Bennett, and everyone else she’s harmed.  She will admit her wrong and acknowledge that she has wallowed in the gutter.  She will learn from this egregious wrong.  She will no doubt be given a stern lecture, but will ultimately be forgiven, for she is but one of a multitude of bone-headed lawyers who have been taken in by the culture of legal marketing and social media that has undermined what little remains of the integrity of the profession.  In other words, she’s neither alone nor special. 

She’s just pathetic, along with so many others who think that lawyers put on dark red lipstick and hotpants to walk the streets in search of clients.

As for Andy Nolen, there’s no excuse and no forgiving.  Like another of his ilk, Ollie the Cabdrivertising lawyer, whose time will be occupied defending the this post from Mark Bennett.  Some quasi-senscient nutjob named Wayne Conley, who is apparently the guru in charge o
f Melina Benninghoff’s internet and twitter marketing effort, has decided to go toe to toe with Bennett.  I imagine the scraper will have to be scraped.  This Wayne Conley is not merely illiterate, ignorant and foolish, but totally out of his league trying to mess with “a loved one” of Bennett’s. 

There’s only one question remaining.  What will Melina Benninghoff have to say about all this?  Stay tuned.

15 comments on “Geek Is Not A Foreign Language (Update)

  1. Cathy

    As a geek AND a lawyer, can I temper this a bit? First, the term “stealing” is inapt to describe the matter at hand. Throwing a rock through a window or stealing a CD is indeed a very different thing than what’s described here. Those are rivalrous, physical pieces of property, whose theft or destruction leaves the possessor lacking what he previously possessed. Which is not the case here.

    Now, scraping content and putting it on another website may still be illegal, as copyright infringement. But then, what makes what these sites do any different than what Bloglines or Google Reader or other RSS readers do? After all, they take content from an RSS feed and republish it so people can read it on another site. I’m not saying there’s no distinction between these situations, but that it’s important to make those distinctions because otherwise you risk forbidding good/constructive/author-enriching uses of reproduction technology while you try to stamp out the bad.

    One of those distinctions is that RSS readers don’t generally misrepresent the origin of the content. If I read your site in my reader (which, sadly, I can no longer do because you truncated the feed, which has the effect of ensuring I read your site less often) I know it’s YOUR words. Having someone misrepresent your words as theirs is something else entirely. Nevermind copyright, that seems to be a form of fraud, and now you are in the realm of trademark and passing off and the like, a whole separate legal regime.

    And when it comes to LAWYERS doing it, there’s something extra wrong about it because of the nature of the profession. Clients trust us, and they must be able to trust us for us to do our jobs. But, as you and others have noted, if you’re the kind of lawyer who would perpetrate this kind of fraud, of passing off someone’s work as your own, then how can you be trusted? Here the rules regulating the profession begin to be implicated.

    Nonetheless, I would like to caution that the excoriation be somewhat tempered. Having the freedom to copy what another created has always been tolerated to some extent. It MUST be tolerated, because if all creations were locked away, no one would be able to create anything subsequently. All creations come from something created before, and if we’re not allowed some latitude in sharing creations we limit whatever value their consumption might offer. But that line between what’s tolerable and intolerable, between impermissible copying and copying as legitimate consumption, is not fixed, nor is it particularly consistent between one medium (e.g., writing, pictures, music) and another, or even within one genre. For instance, while perhaps copying blawg posts may be bad, but what about briefs? complaints? discovery instruments? When is copying an acceptable part of getting the job done, and when is it inequitable? Ultimately that line is much harder to draw than many may realize, yet it still needs to be drawn very carefully.

  2. SHG

    Uh, no.  An RSS feed is a license to read, not to steal.  And content isn’t created for the purpose of someone else having a “good/constructive/author-enriching use of reproduction technology,” so denying others their “good/constructive/author enriching” opportunities isn’t really a concern, since they have no right to use my content for their own “good/constructive/author enriching” opportunities.  Your geekiness has overtaken your lawyerliness.  The line is hardly difficult.  It’s abundantly clear.  Fair use is fine, but anything else is wrong.  It’s that simple.

    And I’m sorry if you don’t click through to my full posts, but I’ve been forced to go to limited feed because my posts were appearing in dozens of other people’s scraped blogs, under their name and to sell their advertisements. 

  3. Cathy

    The RSS mention, which got cut down to get the comment under 3000 characters, originally noted that there’s some sort of CSS issue preventing me from easily reading posts after clicking through, which is why I often don’t. I left the bit it in though because it exemplifies that there’s a trade-off in fencing in content: you keep it from being unfairly used, but at the price of readership. It’s a legitimate choice for you to make, but it does come at a cost.

    As for my geekiness surpassing my lawyerliness, there I have to strongly disagree. First of all, fair use is never “abundantly clear.” The old saw is that fair use is the right to hire a lawyer… but ultimately, in the US whether a use is fair is determined on a 4-5 point test and, as volumes of case law attest, never that cleanly. Even the easy cases are hard.

    Secondly, I actually gave you a sound, though superficial, analysis of why uslaw.com et al’s use of your content probably ISN’T ok. We both get to the same point, but via a different path. And that’s more to my overall point. I do apologize for being critical, especially because I generally support the sense of indignation the scrapers evoke, but you are invoking a normative, policy argument that doesn’t make your point. Not only does the sense of wrongness not actually define the behavior’s potential illegality, but the policy argument you employ is itself vulnerable to challenge.

    As they all may be: the copyright policy debates are extremely fraught. But you have been drinking at the well of Helprin, and while he may believe he’s got it all figured out, he is but one voice (and arguably not that credible of one). I’d strongly encourage you to read the works of, say, Lessig (whom Helprin unfairly criticizes), or Cory Doctorow (himself an author, and though a layman, better-versed and cogent on the law in question than most lawyers), or even, perhaps, me… Or many, many others who’ve spent years contemplating and writing (or even practicing!) around these issues. At minimum these other voices provide balance to the copyright policy debates, if not also the better of the arguments and more rigorous analyses.

    I can provide you with links if you’d like. Far be it from my geekiness surpassing my lawyerliness, this area of concern was my call to action to become a lawyer in the first place, and it’s something I spend a great deal of time and attention on. Because ultimately if the Helprins and other copyright maximalists win the day (which has not yet been won, despite lots of scary rhetoric) it will come at a huge cost to further creation, as well as free speech and other civil liberties, and I don’t think that’s an outcome you’d want. Remember that copyright as we know it, even at its historical outset, was all about regulating expression, so no matter how just the indignation certain copying may raise, it’s still something whose limitations we’d want to be careful about imposing.

  4. SHG
    Lots of words, but you seem to be reiterating this point:

    Having the freedom to copy what another created has always been tolerated to some extent. It MUST be tolerated, because if all creations were locked away, no one would be able to create anything subsequently. All creations come from something created before, and if we’re not allowed some latitude in sharing creations we limit whatever value their consumption might offer.

    This doesn’t say anything.  It’s a religious statement and nothing more.  We’re both in agreement that it’s infringement to life content wholesale. I believe we’re both in agreement that it’s infringement to lift a portion of content without commentary or purpose.  We’re in agreement it’s plaigerism to take someone else’s content and pass it off as your own.  These are the issues raised, and I find nothing difficult, nor even controversial in them.

    But the “freedom to copy” doesn’t belong to the copier.  It belongs to the creator. This isn’t “sharing”, but one person creating and another taking that person’s creation to use for their own benefit.  And you would leave it to the taker, the thief, to decide what’s justifable and what’s not?  Does that really make sense to you?

    Spouting meaningless religious gobbledygook justifications about how this is a freedom of speech or civil rights issue doesn’t fly.  Free speech isn’t the freedom to steal from others.  There is no civil right that entitles you to take another’s property.  And intellectual property is every bit as much property as any physical item.  Someone made it, whether with a hammer or a keyboard.  It’s theirs, not yours to give away on their behalf, no matter how generous your intent.  It’s simply not yours to give unless you’ve created it.  If the content creator chooses to let the world have it, lock, stock and barrel, that’s another story.  But that’s not my choice for my property.

    And you can always come here to the blawg itself and read to your hearts content.  There’s no CSS, or DMV, or VTL or any other set of letters, preventing your reading whatever you please.  You just can’t take it and put your name on it, no matter how much this might help creativity to flourish elsewhere.

  5. Cathy

    Technical things first: the CSS is what controls your blog’s layout. It doesn’t work right (and makes the site illegible) in certain browsers, including various versions of IE. That may well be IE’s fault, but since you are asking Mark Bennett to look into his site’s weirdness, FYI re: this for you…

    More as soon as I expunge 300 characters from the rest of my comment… (this is like tweeting on a grand scale…)

  6. Cathy

    Your own argument about IP is a religious one too, one that many have advocated before you, and one that strains under scrutiny. It picks up on natural rights/Lockean theory and takes the view that “sweat of the brow” is enough to earn property protection on one’s work. But the problems with that position are many, including that copyright law is not intended to (and currently doesn’t) reward mere effort as much as it is to reward original expression. Moreover, as for “intellectual property [being] every bit as much property as any physical item,” that’s just not so:

    + Physical property is rivalrous; once it’s gone it’s gone. IP you still have even if someone else has a copy.

    + Physical property is yours indefinitely. IP is “yours” only for a limited (and changeable) duration.

    + Physical property can be adversely possessed. IP can’t be, and any form of trespass is inherently illegal regardless of work’s disuse.

    + “Title” in IP comes from authority granted to Congress from Art 1 Sec 8 to make Copyright Act. Title in physical property does not.

    + “Ownership” of IP is a grant of a finite set of specific rights alien to physical property, whose ownership gets a bigger bundle of rights that are unheard of in copyright law.

    + Despite “ownership” of IP, non-owners also get rights in IP. None of these rights are owed by owners of physical property to non-owners.

    Etc.

    Meanwhile, as for “And you would leave it to the taker, the thief, to decide what’s justifiable and what’s not?” the “thief” doesn’t decide; the law does. At the same time you get your grant of copyright and the rights it entitles you to, you also get limitations on those rights. Perhaps there could be more efficient systems of determining in advance the practical contours of those limitations (civil law systems like Germany’s, for instance, articulate the public’s allowances very specifically, whereas US law is deliberately fuzzy) but that’s the way the system works here. And through the use of precedent we are not completely without guidance. The issue now is that the ease of digital copying is straining the copyright model we’ve been using (the law we use today was largely drafted in the ’50s) and our statutes and case law are having trouble catching up.

    Where we disagree is the direction the law should take in resolving these tensions. I’m advocating calling on a different (and not at all unprecedented) philosophy to fill in the gaps. To NOT use “sweat of the brow” and other maximalist ideas to articulate what copyright law should be. Because it’s not gobbledygook at all to claim there’s harm in clamping down too hard on non-copyright holders’ uses of creations; there’s actually data supporting such statement.

    BTW, did you know that at its inception the US was a pirate nation? Copyright was allowed only to US authors. Otherwise it was perfectly legal to reproduce the rest of the world’s works.

  7. SHG

    You should let me know when stuff like this happens, and please use words I understand (given that I’m a curmudgeon).

  8. Jeff Gamso

    I’m a lawyer, too, just a simple criminal defense lawyer, but I’m stepping outside the law to speak from the point of view of the layman (which is easy, in this case since I know virtually nothing about copyright law and even less about technology – my blawg pushes the limits of what I can do, and it’s as free of frills as it is mostly because I can’t seem to do any frills).

    As a layman, here’s what I know. Take my physical stuff without my permission, that’s stealing.

    Take my words and pass them off as your own, that’s stealing. (I’ve also been an English professor. Plagiarism is, in fact, an academic crime, sometimes punished harshly and sometimes not, just like other crimes. There’s a wonderful book on plagiarism called “Stolen Words.” That’s how the world views it, whatever the IP lawyers say.)

    Take my words, give me credit for them and build upon them, that’s fair use.

    Copyright law is, I’m quite sure, far less simple-minded than that. But none of this has been about the nuances of copyright law or patent infringement. The overlap is there but more, I think, by analogy than anything else.

    It’s ultimately about right and wrong. And that’s pretty simple.

    Later today I might just link to these comments, copy my own words, and spin yet a longer blawg post from this.

  9. SHG

    Yup.  Perhaps it’s only simple to us because our heads aren’t clouded by the myriad of nuanced points that consume IP lawyers, but like you, I fail to see how any of the intricate details distinguishing content from hard property alters the nature of the problem.  If I wrote the content, then the other person didn’t and they can’t take it and claim it as their own.  I truly fail to see this as a difficult concept.

  10. Curt Sampson

    I just wanted to check, since you appear to believe so strongly in IP rights and attribution, that when you sing “Happy Birthday” to your kids, you do tell them who wrote it, and you have gotten permission from the authors for the reproduction (especially if it’s a public performance), right?

    [email protected]

  11. SHG

    Oh man, this could have been such a good comment if only you had used another song.  Try it again with another song and then you can really nail me to the wall.  We use the Beatles’ birthday song in my house.  Give that one a try.  Really, you’re so close.  Don’t give up now.

  12. Curt Sampson

    Yes, I appreciate the irony of you engaging in apparent copyright infringement in response to my criticism of your attitude that copyright should be extended indefinitely. From this I assume (perhaps wrongly) you understand the point I was making. Care to respond to it?

  13. SHG

    Gee, you must be a laugh riot at parties.  Fine, let’s get serious. As much as I appreciate Helperin, and I do so love his writing, I am not an absolutist on copyright.  I believe in fair use, and I’m fairly liberal in my view of what constitutes fair use.  My beef is against the commercial use of content created by another.  There is a huge gap between singing Happy Birthday in the dining room to your kids and singing on a recording for sale without sending Mildred Hill’s heirs a check.

    And if you don’t want to send Mildred Hill’s heirs a check, then do what the Beatles did.  Come up with your own birthday song. I assume (perhaps wrongly) you now understand my comment above a little better.

  14. Curt Sampson

    Let me just point out that if you’re not an absolutist, you need to say so. After all, you’ve called a book proposing that most works written since the early part of last century never enter the public domain “a work of genius,” and you got into an extended argument with someone who, though they agreed that what you were complaining about was wrong, said, “Having the freedom to copy what another created has always been tolerated to some extent. It MUST be tolerated….” What conclusions am I to draw from that?

    So, if you believe that copyright should never expire, yet you believe in fair use, tell me, what’s the difference between fair use (i.e., the government saying that under certain circumstances someone can use your work without your permission) and copyright terms (i.e., the government saying that at some point in time, someone is going to be able to use your work without your permission)?

    Or, if you’re really much more in agreement with the Lessig view of the world than the Helperin, and you’re just having a bad day or whatever, come out and say so. Because what I got from your whole exchange with Cathy is that you disagree with most of what she’s saying.

  15. SHG

    Whenever someone tells me that they know what I meant better than I do, I check to see where I went wrong to cause such miscommunication.  Unfortunately, I’m not seeing a problem here, so I’m just going to have to live with the knowledge that you’ve scrutinized my post and decided that I failed to meet your expectations.

Comments are closed.