Harriet's Defenders, Part Three

In Part One of this series, we examined people who give legitimacy to Harriet Klausner by publicizing (e.g. linking to or Tweeting about) her reviews as if they were legitimate reviews, who accept her reviews at face value, or who otherwise don't see anything wrong with her behavior on Amazon.  In Part Two, we looked at members of the mainstream media who wrote "puff pieces" on Hattie.  Today, we turn to those defenders who try to make arguments in support of Hattie, but who ultimately fail.

I. FAIR USE

Amazon Comment: "I am not a lawyer, but what she does falls under 'fair use'."

Full disclosure: I am also not a lawyer.  But US copyright law is posted online for all to see, and in my opinion, HK's plagiarism does not constitute fair use.

Many people have speculated that Harriet Klausner copies, quotes, or slightly rearranges book jackets, Amazon book descriptions, Publishers Weekly (and Kirkus and Booklist) reviews, and/or other publicity material provided by publishers.  Well, it's not just speculation, any more.  You can see some examples here.  (Occasionally, one of us from the HKAS is motivated to post such comparisons on the suspect reviews themselves, so be sure to check the comments on those, as well.)

Before we continue, please also note that Hattie does NOT cite these sources.  She passes their words and/or ideas off as her own, including typing her name at the bottom of each "review" as though she was the author of all the content (words AND ideas).

From 17 USC 101 (17 USC being the US law governing copyright):

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.

It's not a stretch to say that Harriet's rearrangements constitute "derivative works" of "literary works."  (It doesn't have to be "literature" to constitute a literary work -- it just has to be written down in words, numbers, etc.  This covers Publishers Weekly reviews, for example.)  When 2 of 3 paragraphs of some of Harriet's reviews contain the exact same ideas as the Amazon book description or the Publishers Weekly review, there's not really any question.  Let's put this in more concrete terms: You can't simply re-word a Harry Potter book, telling the exact same story, and get away with it.  Why not?

From 17 USC 102:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

(I didn't reproduce the whole list of copyrighted materials, but it includes things like literary works, works of visual art, and so forth.)

And from 17 USC 103:

The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

and

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.

One more, from 17 USC 106:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

...
(2) to prepare derivative works based upon the copyrighted work;

In English: a copyright holder also owns the rights to derivative works.  So, to use a real life example, if you wrote a novel and you own the copyright to your novel, you are the only one who can negotiate with respect to, say, screenplays.  Further, if you write something that includes pre-existing material, you might be able to copyright the part of it that consists of your original material, but you do not own any rights to the quoted material.

With that background, let's move onto 17 USC 107, which I will quote in its entirety:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

This section essentially defines fair use.  There's a lot of room for interpretation, and a lot of case law (i.e., court decisions) affecting this.  Since this is already pretty technical, we'll stay away from the case law.

One minor clarification before we move on: Just by virtue of being set down in a tangible medium (e.g., paper), (original) words are copyrighted -- like this blog post (except for the parts quoted from 17 USC).  You can also register your copyright with the government by paying a fee and filling out some forms.  The advantage of the second option is that you can sue for damages when someone infringes.  You are unlikely to be able to do that if you don't register your copyright, but you can still have the offending material taken down (since this is usually a problem on the internet, these days).

In simple terms, you are allowed to quote or paraphrase a couple of lines from a book in a term paper, or include a quote in an online review.  The problem is when you take the entirety of the book description or jacket copy or Publishers Weekly review, paraphrase it, and pass it off as your own.  This is a problem for #3 and #4 above from 17 USC 107, specifically.  With respect to #3, Hattie is using most -- if not all -- of the copyrighted work (PW reviews are short, after all).  With respect to #4, Hattie's reviews can affect the market for or value of the copyrighted works.  In a real sense, Hattie's reviews can draw traffic away from the sources from which they were plagiarized.

In short: Harriet's activities DO NOT COUNT AS FAIR USE.

Note: US government publications are NOT protected by copyright (see 17 USC 105).  I'm free to quote copyright laws all I want.

II. DISCLOSURE

I'm going to refer you to an earlier post where I quote the FTC guidelines for disclosure.  (There's only so much legalese any one person ought to be expected to take, in a single blog post, and I'm probably already over the limit with this one!)

Amazon Comment: "But there is an understanding that a reviewer will get the product for free. Since a book is not an expensive item, it is acceptable and understandable. When was the last time Roger Ebert explicitly state he got into the movie for free?"

In the same thread: "It is unclear what specifically a reviewer has to disclose. One can argue that for a prolific reviewer, it is clear they get the book for free."

If the FTC guidelines weren't clear enough, here is what Amazon has to say about disclosure:

"Full disclosure: If you received a free product in exchange for your review, please clearly and conspicuously disclose that that you received the product free of charge. Reviews from the Amazon Vine™ program are already labeled, so additional disclosure is not necessary."

It seems obvious to me from that, that a book clearly counts as a free product.  Disclosure required.

A few of Harriet's reviews are from the Vine program, and a small number of them are Amazon Verified Purchases.  My quibble (at least with respect to disclosure) is not with those.  It's with the multiple reviews posted in the wee hours of the morning on books' days of release.  It is within the realm of possibility that a person found a book on a bookstore's shelf before the official release date -- I've seen that happen.  A person could also attend a midnight release party for a book, or could download a Kindle or other electronic edition at midnight.  This same person might even be able to read the book in a couple of hours, and post a review before 6AM.

However, a person could NOT do this for all the books Harriet regularly posts reviews for on Tuesdays (the day when many books are officially released).  One or two?  Yes.  22 or 67 or 80?  No way.  We must conclude that Harriet is receiving advance copies of books from publishers (read more about some verified, specific and non-disclosed examples here).  And SHE IS NOT DISCLOSING THIS.

I quoted some arguments above where people argue that well-known reviewers are assumed to have received free products.  But I have encountered more than one person who is not familiar with Harriet Klausner.  For example:

Amazon Comment: "I have never read any of her other reviews before."

That being the case, this person clearly doesn't know that Harriet is a prolific reviewer.  There are a lot of other people like the person I just quoted.  Think about the first time YOU read one of Harriet's reviews.  You might not have thought it was very well-written, but was there any reason to assume it was fake?  It's only after you started noticing her reviews popping up again and again, or after you read the comments on her reviews, that you realized there was a problem.

One can assume that a newspaper columnist or a movie critic on television is a professional.  One can NOT assume the same about your average Amazon reviewer.  In fact, that's the whole point of Amazon reviews -- providing the point of view of the everyman (or everywoman), of a fellow consumer, of a regular Joe (or Jane) who is just like you.  Harriet's reviews appear alongside reviews from regular consumers -- you know, people who paid for (or disclosed they received for free) the items they're reviewing.  We're tricked into putting HK reviews in the same category as all the others, even though Harriet doesn't abide by Amazon's own rules.  (Plus, for what it's worth, sometimes Roger Ebert doesn't like a movie.  Harriet gives 99.7% of books 4 or 5 stars.)

In the end, not only is Harriet violating copyright laws, she's violating FTC guidelines (and Amazon rules) about disclosure.  This isn't just conjecture -- you can read the laws for yourself.