Monthly Archives: November 2010

Recipe for Hate

I am absolutely steamed over this recent debacle with Cooks Source being outed for rampant copyright infringement . The pure audacity of someone assuming anything posted on the internet is “public domain” and it up for grabs is one thing, and I will not deny that artistic and intellectual creativity benefits from the availability of content on the internet. However, flagrantly building a business model on top of the backs of people’s work is another.

The newest update I read was from TechDirt, and can be found here:http://www.techdirt.comom/articles/20101117/03315211909/cooks-source-apology-really-a-rant-blaming-the-woman-it-copied-for-daring-to-tell-people.shtml

One of the comments to this article piqued my interested, though:


ChurchHatesTucker (profile), Nov 17th, 2010 @ 12:13pm

This is problem of the law, I think. Judith heard (correctly) that recipes aren’t covered by copyright. I’m guessing she thought she was in the clear for reposting recipe.

Now, there’s a point where ‘recipe’ ends and ‘narrative expansion’ begins. Judith obviously crossed that, and violated copyright laws in doing so.

And if you bore down to what was “taken” and what benefit anyone received, Monica seems to have done rather well.

Color me jaded.

The poster got a bit of guff from the comment, which makes me want to explain what’s really going on. They do have a good substantial point – recipes aren’t covered by copyright.


I am not the only person talking about this issue, obviously. Here’s one of the better retellings I’ve come across on the internet. We’ll call this the “Fact Pattern “.

Editor of a for-profit magazine published a non-licensed recipe, with attribution.


“Recipes cannot be copyrighted.”

“Editor should have been paid for the work done editing to the recipe before publication.”

“Anything posted on the internet is public domain.”

This is the breakdown:

1. Copyright for Recipes

The key problem for this whole issue lies in the ability to “copyright a recipe”. What I haven’t seen many people talking about is that there are two distinct parts of a recipe: the ingredients and the instructions.

Ingredients : For the same reasons that you can’t claim a copyright in facts, you cannot claim a copyright to the ingredients included in a recipe; if one person could sue the pants off of everyone else who wanted to use “apples, filling, and pie crust” – they would have hugely unfair monopoly.

Instructions: This is where the shades of grey for copyright begin. For the basic idea, the level of protection corresponds to the originality of the work, which range from free expressions (think, a highly creative field like fantasy writing) to ideas and concepts (how-to books, blogging) and then pure facts (like historical baseball scores). The closer you are to expressions, the easier it is to claim a copyright in everything included. Conversely, the more facts you have, the more creativity you are required to put around those facts in order to claim a copyright in the parts of the work that are not those facts.

However, there are only so many things that you can do with facts: arrange them and/or explain them. So if you want to claim a copyright on a “recipe”, then you are, in fact, claiming a copyright on the explanation of how to prepare and cook that recipe. “Apples, filling, and pie crust” are not included – but a discussion of the types of apples that are available during the thanksgiving season and which will bake better or give you a different flavor would be copyrightable. Not the information, but the words you put together in order to explain that.

So in our fact pattern, the original author is able to have a copyright, and the ability to license that copyright, off of her work for an apple pie recipe.

2. Editorial work

Given the previous explanation, it should make a bit more sense now why the Editor has an argument for being able to utilize the works involved. They took a list of ingredients (not copyrightable) and the instructions provided by the author (copyrightable) and then put them through what they claimed to be an extensive editorial process. This process, arguably, could have moved beyond a “derivative work” (which would be under the original author’s copyright protections) to an “original work of authorship” (given the extent of the corrections) based purely on the facts presented by the original article.

As it turns out, the actual article that the author, Monica Gaudio, wrote is hosted on Gode , and is described as “Redactions of two English apple pie recipes and a discussion of how they changed over time”. As a copyright attorney and artist, I would consider this an academic piece as well as a recipe – so more towards an expression than a how-to, or “highly creative”.

Now, for the life of me, I cannot find the article published by CooksSource after they got their hands on it to make a comparison of what they did to the article. This is a good thing, I suppose, considering it was in fact copyright infringement. If anyone can find it, please let me know!

(In the best situation for CooksSource, they could have done a completely academic critique of the author’s piece, arguing for a different conclusion with reference to the author’s own researched facts. If that was the case, then I highly doubt that there would have been as big an issue as there was.)

The critique, then, lies in the idea that any amount of “editorial work” they did to the piece. If they did not do what I just described above, which is highly unlikely, then an attempt to use the self-same piece with some grammatical or syntactical corrections, or maybe even some strategic paragraph rearrangement, would still be a far cry from being able to claim that the particular piece by Ms. Gaudio was in any way a legitimate use of the non-copyrightable material involved. In fact, it appears that it was a blatant taking of her piece with attribution, but no payment or licensing from the author.

3. Copyright and Public Domain

Again, with all of that said – it should be clear that the piece Ms. Gaudio wrote was covered by copyright. Not only that, but the copyright invested when she wrote the piece. It was also, arguably, licensed to be hosted on the site that it was lifted from.

So what would have given the Cooks Source editor any impression that what she was doing was legitimate? While her claim is wrought with “everyone does it” (read: it’s easy to do) and “you should be glad we didn’t just rip you off” (read: they did provide attribution), the claim that the work was in the public domain is just downright fraudulent.

Brief history lesson: Public Domain refers to two things:

* works not covered by any Intellectual Property rights (ex: facts), and

* (2) works whose IP rights have expired.

By expired, I mean that as the American copyright law is concerned, it is so old that it has become part of our culture and therefore, no one can claim any monopolistic rights on copies of that work (aka: a copyright).

There is a long list of legal changes for when a copyright would or would not expire. Here’s a little breakdown:

The Transition from 1909 to 1976 Copyright Act and its Amendments

pre ’23         Not registered                                 Public Domain

’23-’63         Date of Publication (w/ notice)  28 years (if renewal, no public domain (67))  (95, 2018-58)

’64-’77         Date of Publication            28 (auto renewal (68))                                         (95, 2060-73)

pre ’78         Not published (1/1/’78)  Life + 70

1978            “Fixed in a tangible form”              Life +70

Safe to say – it’s convoluted. At first, if one did not register that copyright, then the work did not receive copyright protection. Later, the copyright renewed automatically. Now, the copyright invests automatically and that lasts 70 years after the authors death. (However, if you’re working with a work before created and published before ’78… it can be in the public domain, given their circumstances. For our fact pattern, though, we don’t have to worry about it.)

So could the Cooks Source Editor have thought that Public Domain meant in order to come to her conclusion?

Likely she believed that “public domain” meant “publicly available”, but if that was true, then everything in the Public Library would be in “public domain” – which is certainly not the case. Taking some guidance from her own words regarding, one could assume that she understood that there was copyright protection covering the material, but that the author forfeited the copy protection by publishing her piece online. (Making it available to be stolen makes the piece legally steal-able? I think not!)

The moral of the story…

What one can say, though, is that this kind of activity IS taking place. She got caught, but many others have not. So if you have works that you want protected that you have not registered the copyright in, yet – keep them off the internet. If someone takes it and registers it before you do, your chances of proving that you wrote it first involve a long up-hill battle.

If you have a piece that is registered that you are willing to publish online, though, here are a few tips:

Put a copyright notice on the piece: “(c) 2010” – Though it is not required by law, it does show your intent to claim a copyright should the issue come up – which may deter this kind of thieving in the first place.

Put a disclaimer on the piece: “this work is registered and the author will send an angry internet-mob after you if you take this piece without my permission” – That certainly shows your willingness to sue, should they be discovered.

Keep it off the internet. While this is not my typical pro-internet marketing, if you have something of value, then there is some value to stealing it. It’s your call, but I hope you make an educated decision about the risks involved.

Oh, and fwiw – The last bit is especially true if you’re writing a novel. Most hard copy publishers want the “Right of First Publicity” with a work, which means that the piece has not been published (aka: made available for public consumption). Posting a few chapters or the whole piece on the internet does count as publishing, even if it feels informal, and may damage your ability to license or sell the piece with exclusivity.

So… that’s my take on the situation. Hopefully I’ve provided some further insight into the conundrum and why this Editor may have thought she had some hazy right to do what she was doing at all.

That’s it for now.


Miss Nomer, Esq.

As an additional note – there is something to be said about wishing to publish online, but have “some rights reserved”. Creative Commons  is a fabulous non-profit working with content creators to span the gap between copyright and pubic domain or open source by providing a spectrum of copyright licenses. From their website…

* Some Rights Reserved

* Creative Commons defines the spectrum of possibilities between full copyright and the public domain. From all rights reserved to no rights reserved. Our licenses help you keep your copyright while allowing certain uses  of your work ― a “some rights reserved” copyright.

Check them out and educate yourself about the options available to you, if you’re going to pursue internet publishing. It could save you a bundle!


(c) Nicole L. M. Jurkowski 2010


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[Latin] Quid Pro Quo


Academic Latin Pronunciation: Quid Pro Quo

Legal Latin Pronunciation: Quid Pro Quo


The New College Latin and English Dictionary says….

* Quidam, quaedem, quiddam; pronoun a certain one, a certain person, or a certain thing

* Pro; adj “esse pro” (+ Ablative) to be as good as, be the equivalent of

* Quo; that, in order that (Ablative form of Quid)



* Pro eo quod: in view of the fact that




Quid Pro Quo: “Something specific for a comparable something else specific”


Quid Grammar: Indefinite Pronoun, is more definite that aliquis (“someone”, “somebody”, “some”),


Pro Grammar: Preposition, governing the ablative. (The ablative is the objective case for a nouns in Latin. The ablative comes in three flavors: the “from”-case (Ablative), “with”-case (Instrumental), or “where”-case (Locative) ).


Quo Grammar: “Quo” is the ablative case of the noun quid, used when the purpose contains a comparative or a comparative idea.


Combined, the phrase turns into Quid (“a specific something”) Pro (“for” + ablative) Quo (“a specific something” – ablative case, denoting equivalency), or as it’s easier to read: “something for something comparable”.


So that’s what the grammar means, but what’s the significance? It’s probably one of the more common uses of latin for business and law… but do they still match up to what the latin signifies?


From the Century Dictionary–noun

1. Something given for something else; a tit for tat; in law, an equivalent; a thing given or offered in exchange for or in consideration of another; the mutual consideration and performance of either party as toward the other in a contract.


Wordsmith WordsUsage

“As is now known, `back-channel’ negotiations achieved a quid pro quo. In return for Russian offensive missiles not being placed in Cuba, President Kennedy would remove Jupiter missiles from Turkey and promise not to topple Fidel Castro’s communist regime militarily.” ― Ronald H Carpenter, When the Right Words Counted, Naval History (Annapolis, Maryland), Oct 2001.


Black’s Law Dictionary, Deluxe Eighth Edition (p.1282)

[Latin “something for something”] An action or thing that is exchanged for another action r think of more or less eqal value; a substitute . See Reciprocity (2). Cf. Consideration. [Cases: Contracts *50. C.J.S. Contracts 87.]


So unlike the rest of my posts… Yes! The latin has actually managed to keep the same meaning. For me, the nuance lies in the fact that there are a very impressive number of types of ablatives, but that doesn’t matter for the one phrase. Perhaps the more impressive part of all of the research for this particular phrase is the fact that I’m now stuck in Black’s Law Dictionary in the “Q” section realizing how many phrases I could potentially do this type of Blog post for. It’s rather daunting…


Fortunately for y’all, I’ll just leave it to the ones I actually ran across in school and practice!



Vestra Magistra, Esq.

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Public Domain, Damages, and Hardcore Activism

So in the grand tradition of a few of the law blogs I follow, I’m going to start posting some of the articles that I find that I think may be of interest to folks that follow the blog. In addition to conversations with friends and other random encounters, these types of articles are where I get my inspiration from for posts.

Magazine Steals Website Article, Tells Protesting Author She Needs Lesson in Public Domain
Rule 1 about Copyright law – it invests when a piece is written, not when it is registered.
Rule 2 – A Copyright notice/symbol has not been required since the US joined the Berne Convention, effective March 1, 1989.
Rule 3 – If you take someone’s article off of the internet and repost it with attribution, most people don’t get upset. However, if you build a business republishing others articles without their consent, and The Internet finds out… You’re screwed.

In 3rd Music-Download Trial Replay, Minn. Woman Is Hit with $1.5M Verdict; $62,500 Per Song
Subject: 24 illegal downloaded, copyrighted songs
Trial 1: $222,000
Trial 2: $1.92 million (later reduced to latter verdict was reduced by a federal judge in Minnesota to $54,000)
Trial 3: $1.5 million (average of $62,500/song)

Summary: Violations for copyright infringement are both incredibly vague and insanely over-valued. The third trial was for “damages” from having the copyright infringed.

(I could really do a nice big entry on all of these types of cases…)

And not to be outdone… Porn Industry Lawyer Is New Copyright King With 16,700 Lawsuits Filed

That’s right – The Adult Copyright Company offers “hardcore protection for hardcore content,” according to the website , and they have just set the record for the most copyright infringement lawsuits filed in the shortest amount of time. The second runner up now is a “team” of lawyers that purport to help indie film makers by suing unnamed file sharers by figuring out IP addresses. Here’s their 15 minutes of fame link .


(c) Nicole L. M. Jurkowski 2010

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[Latin] Res Ipsa Loquitor


Academic Latin Pronunciation: Reys Eep-sah Low-quee-tur

Legal Latin Pronunciation: Rays Eep-seh Low-quit-tour

The New College Latin and English Dictionary says….

  • res, rei, or rei: f Thing; matter, affair; object; circumstance; event, occurrence; property, possessions, wealth; estate, effects;
  • ips-a, -ius: adj (f) self, very, just, mere, precisely; in person; by herself, alone; of her own accord; she, herself
  • loqor, loqui, locutus sum: tr To say; to talk of, speak about; to tell, tell of, mention; (fig) to declare, show, indicate (here: present indicative)


  • “res ipsa”: in fact, in reality


Res Ipsa Loquitur: “The thing” “speaks” (for) “itself”

During my first year of law school, I thought this was one of the best use of latin. Not because those who first used the phrase were referring to any important political oration from ancient Rome, but because the latin expressed the meaning of the word so much better than english ever would. As I see it, given the rampant personification of inanimate things and animals in our culture, getting across the idea that a situation speaks for itself so boldly required something different. Because honestly, jaw dropping situations only happen so often – and typically, they leave us speechless. (So why not babble some latin, while you’re at it?)

Getting to the point, though… In a discussion about legal Negligence that can have a huge amount of nuance (who has what responsibility and what are/were reasonable actions taken because of that responsibility (Duty of Care and Breach, for those following along)) – this was the easy situation. Given the facts, there is just no possible way that there wasn’t some sort of negligence, even if you couldn’t put your finger on who did it. (Don’t you just love double negatives?)

Or as I like to say – this is the “Train Wreck” doctrine.

Specifically, its the train wreck at Montparnasse in 1895 Paris, France…

This image has forever been emblazoned in my mind as the true definition of “res ipsa loquitur“. Just ask yourself…

“How did that happen?”

If your answer is: “Someone, somewhere, with power to avoid this situation did something they weren’t supposed to.” – then you’ve gotten it right.

For the law, the power of this doctrine comes from the fact that there is no direct evidence of how anyone accused of being negligent behaved. The negligence is inferred from the fact that there was an accident at all. The kicker for pinning a defendant with the blame is whether they had “exclusive control” over the “instrumentality” that cause the accident. (Restatement  (Second) of Torts, § 328D)

While not originally applied to medical malpractice cases, now our big case on point for it is Gray v. Wright  where a surgical team was found to be negligent. Why? Because back in 1957, a seven-inch hemostat was removed from a woman six years after her gall bladder surgery. As for evidence of negligence… the only way for the instrument to have gotten in there was for the surgical team to have left it. She didn’t have to prove that any one particular person was negligent, because the fact that it’s there at all “speaks for itself”.

I could go on and on about other, more modern forms of the doctrine, but I’m here to talk about the language! So where was the ancient use of the phrase? In an oration entitledPro Milone by Marcus Tullius Cicero, 52 BC.

A very, very brief sum of the situation has Cicero attempting a defense for his friend Milo against murder charges by saying that Milo acted out of self defense. As part of the oration, Cicero sets up the facts that Milo killed Clodius out of self defense. Milo was traveling on official business, heavily encumbered in regalia, with his family and house (“harmless slave”, etc.); Clodius had been missing from the political scene earlier that day… so when the two met (Clodius traveling alone, on a horse), Milo’s actions were in line with self-defense, rather than murder because under the circumstances, it was not logical for him to act in such a manner unless such a manner was necessitated by circumstance. (The need to kill in self defense speaks to the situation where one is ambushed, rather than where one is out to murder.)

For those of you who want the full scoop, here’s the wiki-link. (I’m actually quite impressed by Wiki’s editors’ ability to get so much decent info about ancient topics, but then again, classicists have been at this for over 2k years and its not like the story is open to interpretation anymore.) FWIW – Another great resource for latin translations (rather than summaries of stories) is the Perseus Collections  through Tufts University.

So what does all of this mean for the prima facie v. res ipsa loquitur debate?

Prima Facie – “At first sight”

A noun phrase used to describe evidence for a case that has all of the components of proving the case required by law. (Eg: a Copyright registration in a case of infringement.) For common law, unless rebutted, the evidence would be enough to prove your case, or at least a fact in your case.

Res Ipsa Loquitur – “The thing speaks for itself”

A noun phrase used to describe evidence for a case of negligence where the situation itself provides the inference of guilt. Someone with responsibility (Duty of Care) and exclusive control over the situation MUST have done something wrong (Breach) because common sense says that the accident/occurrence could not have happened otherwise. Trains don’t go through the second story of a building on their own, nor do medical instruments grow organically in little old ladies.

The distinction, then, is in the thing being self evident. It is the facts that make it so that the situation is self evident or the situation that necessitates some facts had to have happened.

Prima facie – FACTS Res ipsa loquitor – THING

And now that I’ve shown the world that the best way to make this distinction can be found in the latin itself, which takes abstract legal concepts and boils them down into words from a beautiful language – my job is done!

Okay class – homework for next time is reading chapters 4-6 of Cicero’s De Legibus . Get reading!


Vestra Magistra, Esq.

[Also – extra credit for the student who can tell me what “Quid pro Quo” means, and not just the translation. It’s probably one of the more common uses of latin for business and law… and as our friend Inigo Montoya says… “I do not think it means what you think it means.”]

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