Yesterday I was watching a comedian on HBO doing a routine that was both politically incorrect and hilarious. The audience seemed to enjoy it, which is not surprising, since they self-selected to be there. If any in the audience were offended, I'm guessing they blamed themselves for not doing their homework before buying tickets to the show.
Now imagine if someone recorded the comedian's act and decided to play it at the next church meeting. All hell would break loose because the x-rated material would be offensive in that context. My question is this: Who is the author of the material at the moment it is replayed at the church meeting? Is it the comedian who created it, or is it the person who moved it to a new context? I say it's the person who moved it to the wrong audience.
I believe authorship - at least in terms of responsibility, not copyright - should transfer when a person moves material from one context where it is appropriate to another where it is not. The same should be true whenever moving material from one context to another changes the message.
Tracey Morgan recently got in trouble for saying in his act that if his son announced he was gay, Tracey would stab him. If we presume that this was one of fifty outrageously inappropriate things Tracey said on stage that night, all within character as the absurdly ignorant and selfish guy he likes to portray for laughs, it means a comedian was trying to be outrageous and funny and missed the mark. That's all it means, since no reasonable person believes Tracey would stab his own son or love him less if he came out. But reported out of context, as it was, one has trouble seeing the statement as anything but the worst kind of hate speech.
I would argue that Tracey was 100% responsible for whatever psychological or social harm he caused to the audience that heard his remark live, and zero percent responsible for the harm that was caused when others spread the story. The spreaders became the authors (as far as responsibility) when they changed the context. They became the Authors by Relocation, a term I just made up.
Most people would agree that you shouldn't shoot the messenger. But that rule only applies if the messenger delivers the right message to the right person. If the king's messenger stops at the local inn to share the king's message before delivering it, someone is going to get beheaded.
Prior to the Internet, this transfer of authorship was a smallish problem. An unscrupulous or clumsy newspaper journalist could take out of context something from a book or a speech and write it up to make the original author seem ridiculous. But most professionals would be aware that moving material from one audience to another will change the message, and they would self-regulate to maintain the reputation of their publication.
Then along came the Internet. Now any idiot with a computer can move material from one context to another and totally change the meaning. Sometimes this is done by taking quotes out of context. Sometimes material is paraphrased incorrectly. Sometimes the person moving the material has low reading comprehension and makes an honest mistake. Sometimes a problem arises because an author has taken shortcuts with his regular audience, leaving out information that would be necessary for a new reader.
As a writer, you recognize that a huge part of your job is choosing your words to fit your intended audience. When a third party introduces a different audience to your writing, it destroys the audience-matching element of your craft. In a real sense, it changes the product.
An author has no legal recourse when his work is changed by the act of moving it. Libel laws are intentionally weak, and we're probably better off if they stay that way. But I recommend a solution that makes sense in the Internet age. I propose that responsibility for the impact of content (but not copyright or royalties) should be with the person who delivers material to an unintended audience.
By this model, you can blame the author for anything objectionable if you see the work in the channel he or she intended. But as soon as that work appears on some other website, including a link to the original, any anger it sparks should be directed at the person who invited an audience that the original author did not intend.
On the Internet, anything written for a particular audience is instantly available to the entire world. That's a wonderful thing, but it makes it too easy for the author and the audience to become accidentally mismatched. Pay walls would be a solution, but they aren't generally economical. And we don't want authors writing to the least common denominator, trying to please everyone while offending no one. We want writing that is appropriate for the intended audience.
My proposal is that we leave things exactly as they are, technology-wise and business model-wise. We need no new laws. All we need is a name for the phenomenon: Author by Relocation. It's the literary version of "You break it, you bought it." If a piece of writing causes little or no harm for its intended audience, we can assume the original author did his job. But if the work is relocated, and/or carved into quotes out of context, that becomes a case of Author by Relocation, and the carver/mover takes on responsibility for the message at that point.
This model maintains complete freedom of expression, including freedom to quote material and to criticize. It simply recognizes that moving and changing a message makes you the Author by Relocation.