Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Did Social Platforms Really Find a Moral Compass?

In 2012, I wrote a post called In Defense of (a little) Elitism, which was naturally criticized by some in the tech-utopian world for being, y’know, elitist.

The apparent good in this digital-age model — that it is populist — is also its own weakness when we look at results in various media.  Most obviously, it doesn’t take more than a glance at the effects of extreme populism on journalism to realize that we now have news tailored to every taste — conservative, liberal, alternative, user-generated, subversive, and just plain wacko. No one can argue that the consumer isn’t “getting what he wants, and for free,” but the democratization of journalism has broadened the concept to include literally anyone with a computer. 

At that time, the likes of Alex Jones, Richard Spencer, terrorist groups, channers, The Daily Stormer, et al were well into metastasizing narratives of hatred and conspiracy, but few in the mainstream were talking about that incipient disaster, failing to truly grasp how digital platforms were extending, rather than shrinking, the influence of these toxic forces. If anyone questioned the reasonableness of giving those voices free platforms, Big Tech and its network of well-funded cheerleaders insisted that banning, or even muffling, these incubators of hate would do more harm to “free speech” than whatever harm was being done by leaving them alone.  

That was before 2016, of course, when the tin-foil hats, racists, and misogynists were not merely invited into the mainstream by the Party of Trump, but they were put front and center. Now, Silicon Valley had a problem. Battle lines were being drawn for the existential survival of the Republic (without which, there is no speech right, by the way). The longstanding official policy of “platform neutrality” would soon prove untenable. Nevertheless, until very recently, if a platform was criticized for hosting toxic content, the boilerplate answer was usually something like the following:

While we do not condone [vile content], we are reluctant to play the role of censors or arbiters of truth… [filler bullshit]… protecting free speech…[more filler bullshit]…and we believe democracy thrives from a robust exchange of ideas…[concluding bullshit]. (See Mark Zuckerberg speech at Georgetown University, October 17, 2019.)

Last week, that tone shifted, not altruistically mind you, but because the standard rhetoric was becoming a financial liability. ADWEEK announced that Reddit would be purging several hate-speech laden subreddits, including fan pages named for Donald Trump. While this is welcome news to many, I would remind readers that when Steve Huffman, a co-founder of the platform, assumed the role of CEO in 2015, he announced plans at that time to clean up Reddit’s act. So, I assume it is in response to the apparent sluggishness of said cleanup that he stated, “I have to admit I have struggled with balancing my values as an American and around free speech and free expression with my values and the company’s values around common human decency.”

Call me a cynic, but Huffman’s equivocation can only be read one way:  that toxic content is, at last, bad for business. Because it was only due to pressure from the some of the largest advertisers, either threatening to cancel, or actually cancelling ad buys that suddenly made it much more difficult for the big platforms to sweep all the Nazis and other assorted haters under the rug they liked to call the “exchange of ideas.” Not that that claim was ever anything but gibberish. If hate speech and incitements to violence are “ideas,” these were vetted long before we had the internet, and there is no principle whereby a social platform owes the KKK fresh digital soil in which to grow new roots.

Concurrent with Reddit dropping 2,000 hate-mongering subreddits, CNN also reported that YouTube finally jettisoned the channels of white supremacists Richard Spencer and David Duke, one year after promising to do so. The news channel states …

“Last year, CNN Business found that one Nazi channel YouTube had deleted before was back up and making no attempt to hide itself or its connection to its previously banned accounts. The channel was first taken down in April 2018 in wake of a CNN investigation that found ads from over 300 companies and organizations running on YouTube channels promoting white nationalists, Nazis, pedophilia, conspiracy theories and North Korean propaganda.”

And finally, even the beleaguered Zuckerberg, whose relationship status with Donald Trump has been stuck on “It’s complicated,” finally caved (at least somewhat) to pressure from both major advertisers and his own employees.  The Washington Post reported …

On Friday, Zuckerberg told employees in a live-streamed town hall that he was changing the company’s policy to label problematic newsworthy content that violated the company’s policies as Twitter does, a major concession amid the rising tide of criticism. He also said in the most explicit language ever that the company would remove posts by politicians that incite violence and suppress voting. Still, civil rights leaders said his assertions didn’t go far enough.

Facebook, Reddit, YouTube, and other platforms should have stopped providing aid and comfort to hate-mongers a long time ago, just because it was the right thing to do. But in the absence of actual principles, market pressure will suffice. In a broad sense, it is a hopeful sign that major corporations, despite some stumbling press releases, have recognized that there is no financial future when their brands are associated with the lingo of hatred and division. Especially because there is no sustainable nation in that agenda either.

This does not mean, of course, that the major internet platform managers have learned much of anything about the free speech folly they have perpetuated for the last two decades. Silicon Valley may appear to have located its moral compass last week (because it happened to be sitting on top of its wallet), but the rhetoric they maintain suggests that they still do not understand how their platforms have profoundly blurred the lines between speech and conduct. Technology reporter, Julia Carrie Wong, in an article for The Guardian published July 2, writes this about Facebook and Charlottesville:

“[Heather] Heyer’s killer has been convicted and sent to prison, but how does Facebook evaluate its role in the event? Does the calculation change at all when you consider just a few weeks before Charlottesville, I sent Facebook a spreadsheet with links to 175 neo-Nazi, white nationalist and neo-Confederate hate groups that were using itsplatform to recruit and organize? And that Facebook had declined to take any action against the vast majority of them until after Heyer’s murder, when it belatedly cleaned house?”

For her efforts as a journalist (remember journalists?), Wong was of course targeted on the same social platforms, weaponized by the same people she had exposed to Facebook. As she very courageously describes …

“The neo-Nazis and white nationalists I had written about published articles with my photograph that described me as a ‘racial molotov cocktail’ with ‘the cunning of the Jew and the meticulous mathematical mind of a Chink’. They encouraged their followers to go after me too, and I received a steady stream of racist vitriol on Twitter, on Facebook and by email. I tried to ignore it as much as I could. I tried not to ruin Thanksgiving. The worst were the messages that referenced my family, or imagined my rape.”

For as long as I have been writing about these issues (since 2011), descriptions of harassment like Wong’s have either elicited an eyerolling mansplanation as to why we should not take these things so seriously, or an insincere empathy that boils down to “That’s the price we pay for free speech.” Bullshit.

As long as the major platforms are being financially pressured to shed toxic material from their sites, they should take the opportunity to drop all the “conflicting values” rhetoric while they’re at it. Nobody asked these constitutional dilettantes to be stewards of the speech right. It was arrogant of them to presume to play the role of public guardians of civil liberties, especially while providing resources to opponents of those same liberties. They run advertising platforms. And they have no reason to equivocate about, or apologize for, taking out the garbage.

Allen v. Cooper Revisited Part I: State of Play

Ever since the case Allen v. Cooper first appeared on my radar, and especially after the Supreme Court handed down its decision in late March, I have been admittedly a wee bit obsessed with the subject of state sovereign immunity (a.k.a. Eleventh Amendment immunity). What is Eleventh Amendment immunity? In a nutshell, it means you cannot sue a state (including arms of the state, like universities) in federal civil cases. So, if you like tilting at windmills, and mucking about in the dusty attics of American law, as I do, perhaps you will indulge the series of posts I plan to write on this difficult—and what may ultimately prove unresolvable—constitutional challenge to the protection of intellectual property. 

As reported in the post I wrote following the decision in Allen v. Cooper, the majority and concurring opinions, written by Justices Kagan and Breyer respectively, came unusually close to expressing regret that precedent led the Court to the only decision available—affirming that states are free to infringe the copyrights of private citizens and entities with impunity.

Further, the Court all but nudged Congress to have another go at resolving the statutes written in 1990 to intentionally abrogate state immunity in intellectual property suits. “[A] tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice,” writes Justice Kagan for the majority. And in his concurrence, Justice Breyer observed, “Whether a future legislative effort along those lines will pass constitutional muster is anyone’s guess. But faced with the risk of unfairness to authors and inventors alike, perhaps Congress will venture into this great constitutional unknown.” Only Justice Thomas, in his concurring opinion, averred, on separation grounds, that the Court has no business urging Congress to do anything.

In response to the Allen decision, Senators Tillis and Leahy of the Judiciary Committee, on April 28th, sent letters to the U.S. Patent and Trademark Office and the U.S. Copyright Office, stating their concern “about the impact this may have on American creators and innovators.” The letters ask both agencies to “research this issue to determine whether there is sufficient basis for federal legislation abrogating State sovereign immunity….”

Beyond the fact that I personally support the rights of authors and am, therefore, opposed to creative works being freely pirated by state entities, I find the challenge of overcoming Eleventh Amendment immunity an intriguing subject on its own. Perhaps most especially right now, when overlapping, turbulent events in the United States have, in various ways, highlighted the federalist model of the nation.

The concept of state sovereignty, embodied in the Tenth Amendment, though traditionally viewed as a favorite principle of conservatives, has lately garnered considerable attention from a broader swath of the electorate. With a President who likes to claim he has “absolute authority” to do just about anything his thumbs can tweet, we have lately been served a steady diet of legal analyses on the theme of federal versus state law.

So, because the response to Allen reveals a rare moment of synergy, when both the Court and Congress seem to want to prohibit the States from freely infringing intellectual property, understanding why this result was not achieved by three modern laws offers a unique, if frustrating, glimpse into the complex underpinnings of our federal system.

How We Got Here

Article I section 8 of the Constitution lists the plenary powers of Congress, and among these, paragraph 8 (the IP clause) grants the power to enact patent and copyright laws. As articulated in Federalist 43 (Madison), it was anticipated that uniform, federal IP laws would best serve the interests of the new nation; and although there is little record of any controversy about that principle at the founding period, pre-emption of state copyright laws did not occur as a practical reality until the 1976 copyright act.

Meanwhile, an inherent tension was already present with the passage of the first copyright law of 1790 because the jurisdictions for litigation would eventually (i.e. beginning in 1819) be the federal courts. And one aspect of the Constitution that was very controversial at the founding period was the establishment of the federal court system in Article III. Anti-federalists and skeptics of the Plan of the Convention, already anxious about the uncharted boundaries between states’ rights and the new central government, were especially wary that the federal courts might swallow a state’s sovereignty to make and enforce its own laws.

With the Tenth Amendment in the Bill of Rights of 1791, state sovereignty was affirmed as a general principle. But four years later, the South Carolina estate of one Alexander Chisolm filed suit against the State of Georgia, seeking monies owed for materiel provided during the Revolution. When the Supreme Court, in a 4-1 decision, found for Chisolm, it was a big We told you so moment for the aforementioned skeptics of the federal court system. Consequently, the lone dissent in Chisolm v. Georgia, written by Justice James Iredell, served as the predicate for the Eleventh Amendment, passed in 1795. It says:

The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

More about Justice Iredell—I think he’s an interesting cat—in a subsequent post. But for now, let’s just say that the Eleventh Amendment can be a troublesome little bug in the Constitution, and not only for IP law. If Congress can pass laws under Article I that are only justiciable in federal court, but states are immune from suit in federal court, a natural question any modern plaintiff might ask is whether contemporary justice is being confounded by antiquated precedent. And there’s an extent to which the answer to that appears to be, Yes, it is.

Not only is the historic lineage of sovereign immunity (i.e. English law dating back several centuries) anathema to democracy, but according to scholar John V. Orth, U.S. state immunity is a vague doctrine at best. He writes, “…the search for the original understanding on state sovereign immunity bears this much resemblance to the quest for the Holy Grail: there is enough to be found so that the faithful of whatever persuasion can find their heart’s desire. And … the object of the search may prove equally illusory.”

That quote was cited in the U.S. Copyright Office Report of 1988, presented to Congress by then Register Ralph Oman, examining the issue of state infringements and Eleventh Amendment immunity. At that time, five district courts had held that the copyright law did not anywhere clearly state that Congress expressly intended to abrogate state immunity from claims of copyright infringement.

Shortly after that USCO report was published, the Supreme Court, in the case Pennsylvania v. Union Gas, held that Congress, pursuant to its rights under the commerce clause in Article I, had the authority to abrogate state immunity. Based largely on the weight of that decision, Congress passed the Copyright Remedy Clarification Act (CRCA) of 1990, along with its sibling laws the Patent Reform Act (PRA) and the Trademark Remedy Clarification Act (TRCA). This trio of IP laws responded to the obstacles presented in those prior cases during the 1980s by expressing Congress’s clear intent to abrogate immunity in suits pertaining to its Article I powers under paragraph 8. But …

In 1996, in the case Seminole Tribe v. Florida, the majority opinion written by Justice Rehnquist overturned Union Gas, stating, “In overruling Union Gas today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government.” In other words, Seminole Tribe held that Article I powers are not sufficient grounds for Congress to abrogate state immunity, which meant that the three IP clarification laws of 1990 now rested on shaky ground.

In Justice Stevens’s dissent in Seminole Tribe, he argued that in overturning Union Gas, the Court “…prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy.” Then, in refuting the majority’s interpretation of Chisolm, he added, “For this Court to conclude that time-worn shibboleths iterated and reiterated by judges should take precedence over the deliberations of the Congress of the United States is simply irresponsible.”

What About Due Process?

“States…have a ‘specific duty’ not to infringe that [which] ‘is assigned by law’ and upon which ‘individual rights depend.’ One might therefore expect that someone injured by a State’s violation of that duty could ‘resort to the laws of his country for a,’ remedy, especially where, as here, Congress has sought to provide one.”  – Justice Breyer, Allen v. Cooper, citing Marbury v. Madison.

Three years after Seminole, in a pair of decisions known as the Florida Prepaid cases, both the PRA and the TRCA failed, subject to the Union Gas precedent that Article I powers were no basis for Congress to abrogate State immunity. But, also in Florida Prepaid, the question was presented as to whether Congress has the right to abrogate immunity pursuant to its powers under Section 5 of the Fourteenth Amendment, which says that Congress may pass laws necessary to protect citizens’ rights under Section 1 of that amendment, including this right: “nor shall any state deprive any person of life, liberty, or property without due process of law.”

So, again, any reasonable person might ask, if an IP plaintiff can only pursue a complaint in federal court, and state immunity bars access to that court, then isn’t the claimant being denied due process? Well ….  Justice Rehnquist, in considering whether other avenues of due process, like tort or unfair competition, might be available state court remedies, referred to the unlikely prospect of shoehorning IP complaints into those other legal doctrines as “inconvenient” for a plaintiff to attempt.

Further, it had been observed by the Copyright Office and others that even if those state remedies were viable, the resulting caselaw would be a thicket of common law IP precedents, growing like legal kudzu atop the already complex hedgerows dividing the federal circuits. But this difficulty Rehnquist dismissed as an “Article I problem.” The same Article I he opined does not give Congress the power to abrogate state immunity. Anyone who’s ever read Joseph Heller’s Catch 22 may find this passage in Seminole agonizingly familiar. 

Concurrent with the Florida Prepaid decisions, the case Alden v. Maine put another nail in the coffin of Congress’s Article I right to abrogate immunity and, significantly, reiterated that state sovereign immunity was not created by the Eleventh Amendment, but was affirmed by it. That seemingly moot distinction is actually a matter of considerable debate, about which I refer you to the “Holy Grail” comment made by Mr. Orth.

After Alden, a 2000 copyright case, in which author Denise Chavez’s work was infringed by the University of Houston, the Fifth Circuit dismissed on immunity grounds and officially doomed the CRCA to the same fate as the PRA and the TRCA.  In fact, after Chavez v. Arte Publico Press, many experts were surprised that the Supreme Court granted cert in Allen v. Cooper, assuming the questions to be presented were already answered and, for rightsholders, a dead issue. Allen presented a clause-by-clause argument, asserting that the IP clause is distinguishable from other Article I powers of Congress, and although that argument failed, I will discuss it a little further in another post in this series.  And that brings us to where things stand today.

Overcoming Eleventh Amendment Immunity

In 2003, in response to the 1990s defeats of the CRCA et al, Congress again took up the issue, seeking various rationales to abrogate immunity for IP claims against states. Among the arguments presented, one that should be especially irritating to creators, is the fact that a state may own intellectual property, and file suit for infringement, while it remains shielded from litigation, leaving it free to infringe. At that time, this injustice was seen as a possible avenue—to deny states the ability to litigate IP claims unless they waived their immunity accordingly. This was, and remains, a non-starter due to the strenuous objections of state Attorneys General.

Today, despite the Court’s apparent dismay with its conclusion in Allen, the so-called roadmap it drew Congress for abrogating immunity is actually a very narrow path through some pretty dense woods. Based solely on the Fourteenth Amendment, section 5 premise, the Court held that the only foundation for abrogating immunity will have to be based on a preponderance of evidence that there is a pattern of “intentional and reckless” infringement by state entities. This is no small feat. For one thing, nobody can say how much evidence of state infringement would constitute a pattern compelling enough for the Court to sustain abrogation. And the only way to find out is for Congress to pass new laws, and some party to litigate against a state all the way to the Supreme Court.

Further, the evidence needed to show a pattern of “intentional and reckless” infringement may not be available, particularly because the largest entities with the capabilities to obtain that data may not have it anymore. Chris Mohr, VP for Intellectual Property and General Counsel at Software & Information Industry Association, explains:

“We still get whistleblower reports of state entities that infringe, but we haven’t been tracking that information for 20 years because Allen reached the same end result as the Fifth Circuit did in 2000 [in Chavez].  As a result, it didn’t make sense to track and organize that information in the context of our enforcement program.  But that’s not to say this problem has gone away, and many of our members are concerned.  COVID caused an increase in the licensing of software and materials for distance learning, creating exposure for many of our members.  One of them is now in litigation against the state of Nebraska for copyright infringement.”

I will interject a comment here to say that the status quo seems wildly out of whack with fairness and the purpose of U.S. intellectual property law. It should not be the case that individual authors, exercising their constitutional rights as individuals, should have the burden of demonstrating that they are members of a protected class, merely because the alleged infringer happens to be a state.

On the contrary, a single state infringer, like a university or museum, can cause considerable harm to a single author by means of a single act of infringement. And copyright law is intended to remedy that one infringement for that one author. So not only might the scope and frequency of state infringements prove difficult to ascertain, it is truly unfortunate that it is necessary at all. The Eleventh Amendment leaves the individual author as a David, sans slingshot, facing a multitude of Goliaths.

So, this is an odd moment. The Supreme Court and Congress both seem to want the law to work differently than it does. But an amendment passed in 1795, the foundation of which is the subject of endless, circular debate, serves as a major obstacle to what most people would probably consider basic fairness for rightsholders, and beyond.

To date, almost the only successful abrogation of state immunity, pursuant to the Fourteenth Amendment, has been in the service of major civil rights disputes with states, like the Voting Rights Act (1965). Because that history is intertwined with racial disparity and the original predicate for the Fourteenth Amendment, my friend Steve Tepp is inclined to say that “So far, it seems that we can only abrogate sovereign immunity regarding any issue over which we fought a civil war.”  That’s setting the bar rather high I would say. But that’s how things stand.

What the Age of the “Hack” Teaches Us About Copyright Terms

(Originally published at Copyright Alliance as part its “Secret History of Copyright” series of blogs.)

“Students of the nineteenth-century drama come sooner or later to the realization that the most important dramatist of the period was Shakespeare.”  – Marvin Felheim, The Theater of Augustin Daly (1956) –

Most people are probably familiar with the word hack as a pejorative for a bad writer, or as a neutral colloquialism for a cab driver, but few may be aware that both connotations derive from the same source. Hackney, according to Merriam-Webster, is a 13th century term for a horse “suitable only for ordinary riding or driving.” Consequently horse-drawn hansom cabs were manned by hackney drivers, and the word hack for cabbie persisted beyond the invention of the automobile.

Meanwhile a hack writer was largely (if not exclusively) a phenomenon of the burgeoning American theater industry, especially in postwar New York. The Civil War transformed the city into an industrial powerhouse, and this spawned a new and growing middle-class, which meant that more Americans were suddenly at their leisure to attend theater performances. But finding a supply of new dramatic material was another matter. “There are no American works on American stages,” complained one critic of the period.

Due principally to the absence of international copyright agreements—a condition that lasted roughly sixty years from first debates on the matter to first adoption in 1891—a large volume of American theater production was based upon hastily adapted or translated literary and dramatic works from Europe. And the writers paid to do all that frenzied scribbling were called hacks.

What the copyright watcher may find interesting, though, is that this era for the American theater—a market largely predicated on a copyright free-for-all—resembled a world that contemporary public domain advocates seem to project as ideal for creativity. It was not. Least of all by contemporary standards.  

Most advocates for the primacy of the public domain espouse a general hypothesis that the duration of copyright protection fails to “promote progress” by draining the common well from which all authors must drink. This assertion endures, despite considerable evidence that contemporary authors (pandemics notwithstanding) have been producing new works much faster and more abundantly than the market can consume them.

Taking a very literal view of the author’s need to “build upon” precedent works, critics of copyright terms allege, almost as a moral imperative, that works must fall into the public domain more rapidly than they do. And this thesis is usually supported by hypothetical predictions that may best be described as the Who knows what might be done? school of copyright theory. But rather than gaze bewilderingly through a fog of possible futures, we can instead focus lucidly on the microcosm of mid-late nineteenth American theater, when the market conditions looked very much like the public domain paradigm that contemporary term critics believe should be restored.

Early Broadway was certainly an exciting market, if not a literarily sophisticated one. Centered around 14th Street in Manhattan, theater managers were constantly swapping out their playbills in a time when a month was long run for a show.  Audiences were more often drawn to see their favorite stars, or by on-stage spectacles like city fires and storm-tossed ships, than they were by playwriting itself.

It would not be accurate to say that all writers of the period lacked talent, or that some fine, original works did not emerge between the cracks. But even one of the best dramatists of the era, Dion Boucicault, complained that he could be paid more for a hack adaptation of an unlicensed “safe bet” than he could for a new and original play. This phenomenon mirrored the stifling effect that the lack of international copyright agreements had on early American publishing inasmuch as the theater industry likewise feasted, for a while, on a steady diet of transatlantic poaching rather than invest in new material.

The absence of international copyright agreements, between roughly 1865 and 1881, was undistinguishable from having a very large volume of works in the public domain—a condition that many of today’s copyright critics advocate rather strenuously. Yet for all the market activity theater managers derived from all that rampant appropriation, many of the dramatic works themselves were, in every sense, hackneyed retreads of works in the commons. Not surprisingly, hack work produced a lot of disposable plays, while the market forces of the time stymied development of more inventive playwriting.

Appropriation in nineteenth century theater was so constant that many authors (e.g. Dickens) found various workarounds to earn at least some revenue from play adaptations that they could not prevent or control. Meanwhile many dramatists were themselves such incorrigible pirates, that there were limits as to how much they could accuse one another of infringement. Not that litigation did not occur among playwrights—some landmark cases happened during this period—but the point is that nearly all dramatists of that era were very liberally drinking from a common well, just as contemporary public domain advocates would have them do.

But by the turn of the century, contemporaneous with the adoption of international copyright agreements, dramatic works authors turned their attention inward, rather than outward, for source material. Henrik Ibsen, usually credited as the father of modern drama, revealed how theater can explore the labyrinths of human psychology, that a play can be about the subtle dynamics of a family within the four walls of an ordinary home. Naturalism changed everything, including audience expectations, as the demand for subtlety in both subject matter and performance crossed into the 20th century.

Because the quantum universe of human drama is, in fact, a bottomless well of source material, it is no accident that as copyrights grew stronger, neither playwrights nor audiences suffered from a dearth of appropriation. On the contrary, not only does O’Neill’s Long Day’s Journey into Night not need to take anything (in a copyright sense) from A Doll’s House, but no modern audience would want it to. By the time we get to Pinter’s minimalist masterpiece Betrayal, or anything by Beckett, we recognize that a finite universe of common themes is infinitely divisible into an endless range of expression through dramatic works.

The aesthetics that molded creative expression throughout the twentieth century reveal that originality is as limitless as copyright’s protections are nuanced. The skeptics who claim that contemporary authors suffer for want of more works in the public domain not only tend to misunderstand the creative process of individual authors, but they also fail to acknowledge that history has, at times, shown us what their ideal paradigm would look like. And there is a reason why we still refer to those authors who rely overmuch on using the works of others as hacks.

Image: Street types of New York City: Hansom driver standing in front of horse and cab. , ca. 1896. Photograph. https://www.loc.gov/item/2002699101/.