Sunday, March 6, 2016

Intellectual property and crossword puzzles

ESPN's 538 site ran a fascinating article recently about intellectual property and crossword puzzles (two things that each interest me): A Plagiarism Scandal Is Unfolding In The Crossword World.

Since 1999, Timothy Parker, editor of one of the nation’s most widely syndicated crosswords, has edited more than 60 individual puzzles that copy elements from New York Times puzzles, often with pseudonyms for bylines, a new database has helped reveal.

Apparently, a computer hobbyist named Saul Pwanson assembled a database of published crosswords, more than 50,000 of them, and wrote some linguistic analysis software to try to analyze the crossword puzzles.

And then a crossword author named Ben Tausig learned about this analysis, and drew attention to it, and now people have been trying to decide how to interpret the results, and what they might mean.

The article investigates a particular similarity in great detail. A crossword published in 2001 contained three "theme" answers:

  1. Drive up the wall
  2. Get on one's nerves
  3. Rub the wrong way

The clue for each answer included the word:

  • exasperate

Then, 10 years later, another crossword puzzle was published (by Parker), that contained the same three theme answers, and in that puzzle, the three answers all had clues which included the word "exasperate," too.

The question the article raises is: is this wrong? That is,

  • Is it technically wrong? Did it violate some sort of law? Could it have violated some sort of law, if certain things had been handled differently?
  • Is it morally wrong? Did the 2010 author inappropriately reuse somebody else's work without given proper credit? Was it some sort of plagiarism?

These are both reasonable questions, although I think the answer to the first is pretty easy: intellectual property law these days is so broad, and so vague, and so permissive, that almost any creative act can be viewed as an intellectual property issue of some sort.

You can't go five clicks on your browser without bumping up against some sort of intellectual property issue: musicians sue each other over hit songs; cell phone software companies sue each other over swiping left or right; political campaigns sue each other over the color schemes of posterboards displayed in suburban front yards.

So let's concede that yes, given the current state of intellectual property law, some law, somewhere, has undoubtedly been violated.

But what about the moral aspects? Did the 2010 author do something morally wrong?

Those three phrases are extremely common. Why, I probably find myself saying either "that drives me up the wall," or "that really gets on my nerves," or "that gets under my skin," at least once a week.

But what about the word "exasperate?" It's a very nice word. And, I must say, if I was trying to help, say, a twelve year old sixth grader learn the meaning of the word "exasperate", I might say "you know when your friend gets on your nerves?" Or when she says something that makes you see red? That means she was "exasperating".

Why, I just typed "exasperate" into my browser, and what did it return?

  • get on someone's nerves, ruffle someone's feathers, rub the wrong way
The whole controversy strikes me as touching many of the same topics that arise in intellectual property law in areas like software patents.

People think that they can "own" an idea; that they should be able to patent the idea and nobody else can have that idea without the permission of the "owner".

Which I think is rubbish, both for practical and for moral reasons.

The practical issues are that we don't have any good ways to prevent people from having ideas.

The moral issues involve my belief that an idea is an abstraction of something doesn't actually exist until you communicate that idea to some other human being, at which point you have necessarily and irrevocably shared that idea with that other person.

That is, philosophically, I believe that the notion of an "idea" is inextricably linked with the concept of communication; you have to communicate an idea to give it existence, and that communication involves some other human at the other end.

So when Tausig says that

Parker’s duplication of 65 New York Times themes during his tenure “is a gross violation”
it doesn't get very far with me. A gross violation of what?

I concede that plagiarism is a complex subject.

But when I see

Kevan Choset, a lawyer and crossword constructor, told me, that there are “extremely strong arguments” that crosswords are protected by copyright law. But are individual components of crosswords protected? “If they are taking entire themes along with the shape of the grid along with a substantial number of clues and answers, then that would be actionable copyright infringement,” Stephen McArthur, a copyright and games lawyer in Los Angeles, told me
all I see are lawyers trying to make money.

If somebody in 2010 did indeed deliberately and knowingly copy a set of themed clues from a 2001 crossword, well, shame on them.

On the other hand, 10 years is a long time, and people who work on crossword puzzles are a literate and creative group.

Perhaps, like me, they find themselves saying "ruffled my feathers" fairly regularly, and they wonder to themselves: how many different metaphors for "irritated me" have people come up with over the years?

Who can say, exactly, how the human brain works? Maybe that other person, 10 years later, had the same idea, and tried to use it themselves.

I'm powerfully persuaded by Pwanson's own comment that

“It’s hard to construct a good crossword,” Pwanson said. “It’s art.”
And now that we've gone back from lawyers to artists, it's important to remember what Pablo Picasso said, fifty years ago: When there's anything to steal, I steal, or, perhaps, the better-known re-phrasing of Steve Jobs:
Picasso had a saying -- 'good artists copy; great artists steal' -- and we have always been shameless about stealing great ideas.

Over at CNet, Dan Farber dug into the issue in much greater detail, sitting down with Phil Schiller and others to talk about it in depth: What Steve Jobs really meant when he said 'Good artists copy; great artists steal'

I asked about Jobs' statement and the seeming contradiction between suing competitors and being shameless about stealing ideas.

"I think that's been misunderstood. Copying means -- I believe this is what he meant when he said it because we talked about it back then -- doing the same thing," said Schiller, senior vice president of worldwide marketing. "I think what he meant by 'steal' was you learn, as artists have, from past masters; you figure out what you like about it and what you want to incorporate into your idea, and you take it further and do something new with it. I can see why people might confuse that with the current use people have for that phrase. You don't just say, 'I want something that looks just like yours and I'm going to sell it too.'

"Great people actually understand at a deeper level what makes something great and then build on the shoulders of that and build something even more marvelous and take it further," he added. "I think that's the case. We all learn from everything in our industry. It doesn't matter what field you are in, but copying is literally just taking and doing the same thing."

Monkey see, monkey do.

Schubert used Beethoven's work; Beethoven used Mozart's work; Mozart used Haydn's work; Haydn used Bach's work; Bach used the work of thousands of others before him, over thousands of years.

This is how brains work.

And even Jobs seemed to understand this tension between learning from somebody, versus merely aping them:

As Jobs said in prefacing his statement about Picasso and artists: "Ultimately, it comes down to taste. It comes down to trying to expose yourself to the best things that humans have done and then try to bring those things in to what you're doing."

The puzzle that Parker published in 2010 is not a copy of the one that Will Shortz published ten years earlier. It has the same three theme answers, yes. But nearly everything else is different.

And Adele's Hello didn't steal from Tom Waits. And Lionel Richie doesn't own the word "Hello", either.

Intellectual property law is a ferocious tool. Paul Kantner actually wrote my favorite Crosby, Stills, and Nash song: Wooden Ships, but due to intellectual property law it had to be kept a secret, and the album credits the song to Crosby and Stills. Although I've listened to, and loved, that song for 40 years, I didn't learn until just a few months ago that Kantner actually wrote it.

I didn't learn about it until Kantner died.

And then it could be talked about, because the lawyers didn't care anymore.

In my preferred outcome, our world is one in which crossword puzzles, smart-phone dating apps, guitar melodies, and campaign slogans are all types of communications, necessarily involving both two parties, who are sharing abstract concepts, whether these are: "these phrases express the same concept," "I think you're cute," "get off the sofa and DANCE!" or "I like Ike".

And abstract concepts shouldn't be things that humans own.

They should be things that humans share.

Oh, wait, "get under my skin" wasn't in either of those puzzles.

Maybe I should copyright it.

1 comment:

  1. Very interesting and well written. “If they are taking entire themes along with the shape of the grid along with a substantial number of clues and answers, then that would be actionable copyright infringement,” I guess it is naive to assume that the author of the second puzzle using the same clues for the word exasperate - did so on his own? That in his mind, the clues were his own and not stolen intellectual property from someone else's puzzle.