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Today, Michael Arrington made a lot of hay about the AP sending mutliple DMCA takedown notices to the Drudge Retort, a collaborative politics blog. Retort founder Rogers Cadenhead summarizes the matter. To summarize: Users of the Retort copied small snippets (~50 words) of AP content and linked back to the content. The snippets were there to give an introduction to the full article, and also to spark a conversation hosted at the Retort about the facts being discussed by the article. The AP responded by sending takedown notices to the Retort for seven of these alleged infractions.
In response, Arrington, in his well-commented blog post, calls for a boycott on quoting and/or linking to AP stories. Why? Because in part, he claims, the AP “do[es] not want people quoting their stories, despite the fact that such activity very clearly falls within the fair use exception to copyright law.”
But as a professor of mine used to joke, it is almost axiomatic that, when a lawyer or judge makes a naked assertion that a law or legal theory “obviously”, “clearly”, etc., the matter is anything but clear or obvious. That is not to say that the use of the content on the Retort was not fair, but simply that the question is closer — a lot closer — than Arrington and the parade of commentors suggest. In other words, the AP may be wrong on the law, but they may also be right.
Before I continue, let me make clear that I think the AP is acting uncommonly silly by fighting against this tide — they can’t win, and even if they do, they may be doing themselves more harm than good. But that does not mean they are, legally, out of bounds. With that aside, let us look at the four fair use factors.
17 USC 107 sets four fair use factors:
(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 first factor is arguably the most important insofar as fair use jurisprudence is concerned. But over the course of decades of judicial gloss, really has little to do with the “commerical” or “nonprofit” dichotomy. Now, the question focuses more on to whether the use is “transformative”. The Stanford Copyright & Fair Use page asks two questions to help determine if a use is transformative
(a) Has the material you have taken from the original work been transformed by adding new expression or meaning?
(b) Was value added to the original by creating new information, new aesthetics, new insights and understandings?
I can’t imagine either is the case. Contrast the use on the Drudge Retort itself with, ironically, the use on Cadenhead’s wrapup blog post. The latter one discusses the allegedly infringing use in the context of discussing how uncommonly silly the AP is being. The words are given new meaning and new insights are being drawn, as the value of the words is to discuss the validity of the AP’s claim. On the other hand, the original copying of the words lacks transformation — the author was, mostly if not entirely, simply relaying the news as discussed in the AP’s article. That was what the AP was trying to do, to.
In my book, this factor goes to the AP.
Number two — “nature” — deals mostly with whether the copied work is factual in nature. This goes to the Drudge Retort submitter, as the AP is reporting (we hope) the facts of the matters discussed in their articles. Note that this factor not dispositive, as “facts” and “content which is factual in nature” are not synoynms. Facts in and of themselves earn the author no copyright protection, but the expression of facts does deserve protection de jure
I’m going to skip #3 for a bit and turn to #4. So bear with me for a moment.
The fourth factor asks whether the use “deprives the copyright owner of income or undermines a new or potential market for the copyrighted work” per Stanford. This one should be easy — AP, hands down. First, local newspapers often use snippets of AP articles in lieu of the full article — sometimes, as few as 50 words. (If you are in New York, pick up an amNY or Metro near a subway stop. You’ll see 10+ per issue.) Second, the AP could very easily — and probably should — create it’s own Digg/Mixx/Retort/etc. for AP stories.
Unfortunately, some bloggers flip the test on its head, stating that “little quotations posted by bloggers are not stifling demand for the AP’s product. Bloggers are creating demand, not decreasing demand by creating replacement supply.” That is a great point and I would guess that it is also the reason why Arrington et al are rightfully up in arms. But it does not help the Retort’s case as much as my argument above hurts the Retort. The AP would likely argue that the blogger quoted above is simply wrong, and that the Retort’s use does, indeed, stifle demand for the AP’s product. After all, why should the small-town newspaper or other AP subscriber pay for the content that the Retort uses for free? The AP has every right in the world to limit the supply — that’s exactly the point of the monopoly power of copyright. They do so, in theory, to increase revenues. While they may be doing a bad job there, I can’t imagine that the Retort would be able to use that fact as a way to triumph on factor four. So, this one goes to the AP.
So let’s hit the third factor.
The analysis under the third factor is both quantitivative and qualitative. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218 (1985). Harper is not directly on point, but the tenet of law holds — if you use the “heart” of the content, this factor is not going to favor you.
The quantitative analysis helps the Retort — at most, the clips were 79 words long. No argument there. But whether the Retort users took the “heart” of the content is up in the air. Here’s the test I propose: Let’s say that there are two Retort posts dealing with the same story. One copies the AP headline verbatim and adds no other description. The other uses the first 50 words of the article as well. Which does more page views? Which does more click-thrus? Which has more comments? Using these three metrics, we should be able to tell if the user hit the heart. If the latter does more page views and comments but proportionally dramatically fewer clicks, that is good indicator that the “heart” is there on display. After all, why bother reading the whole thing if you already read the good stuff?
My formula may be off — but that’s OK. The point is that the third factor is more in play than we would facially believe. So unless one is willing to adopt a bright-line rule that a quantitatively small uses of content which is factual in nature is an ipso facto fair use, the AP has a claim. It’s not necessarily a winner, and it’s foolish for them to pursue it, sure. But it’s there nonetheless.
Ok, so after posting my bitchy rant about people stealing my videos and watching the fallout, I’ve decided a few things about how Internet friends should use and share content.
First of all, any blogger has to be grateful that her content is compelling enough that others want to share it. It’s awesome to be part of the big conversation known as the Internet, and having a share of that voice is an intensely powerful experience. Life-changing, for many.
Traditionally speaking, any content I create belongs to me, and I am the only one who has the right to publish it. That’s from freshman year media law back in, like, 2000. And although it still applies online, it doesn’t really work, does it?
Copyright exists for a lot of reasons, most of them involving or related to money. However, ways of measuring money online are vastly different from ways of measuring money in traditional media. Site traffic, diggs, retweets, and dofollow backlinks are all part of the new currency. So, suppose a video of mine pops up elsewhere; how am I getting paid? The views alone count for something, I rather think. A link back to my site? That’s awesome, too. Drop my name in the tag and surrounding copy, and we’re gold. If none of those things happen, however, somebody’s got to fix the sitch. A bitchy video and a cease and desist letter are not how I prefer to handle my Web issues, but what else is a blogger to do?
Another important aspect of traditional media copyright law is permission. With permission, even if no one’s getting paid, you can do just about anything with content. ‘Member the Woody Allen/American Apparel debacle? Dudes, if they’d simply gotten permission, they could’ve Photoshopped a dildo to his forehead and run the ad at a porn convention in Cuba. Seriously. Sans permission, it’s lawsuit time.
However, the shareability of online content makes ganking text, pics, and videos so fluid and simple that permission is a total afterthought most of the time. I’ve ganked, you’ve ganked… Anyone who’s written a college paper has ganked content from someone who’s either smarter, cooler, or less lazy. Most of the time, no one gets caught, so no one gets hurt.
Asking for permission is scary. “It’s better to ask forgiveness than permission” is a popular glibism for a reason. No one likes risking rejection; and if rejection means you have to create your own content with your own time, money, mental effort, etc., ganking seems much simpler.
So, here we have a big, contradictory mess: Traditional copyright law requiring permission and (usually) payment for use of content is a nightmare when applied to the Internet. The Creative Commons folks make the excellent point that sharing and reusing content should be fairly simple and usually free, considering that the creative economy is often more about share-of-voice than U.S. dollars. They ask content creators to state expectations at the outset with a set of icons symbolizing whether or not the creator wants the content to be used commercially, whether he requires to be credited, whether the content can be altered or remixed, etc. That’s awesome. But I, personally, am scared to release all my traditional copyright for my online content, as are many others.
Here’s a thought: Why not have a page or section on your site stating exactly what you expect when people want to share your content? Me, I’m cool with any kind of sharing as long as you contact me first and link back to me. There we have both permission and payment in Internet currency, satisfying me as a creator and copyright law, as well.
I’m going to go make that page right now. You should, too. Let’s keep it simple and friendly, dudes! After all, the Internet was created so that people could watch free pr0n, not sue one another over ganked content.
Jolie O’Dell blogs, vlogs, tweets, and runs RAMPAGE, a new media ad agency.
A few months ago, I started work on ArmchairGM’s New York Mets entry. My own knowledge stems back only until about 1983, but as one could imagine, the Web is a treasure trove of information, including stories about the early Mets teams. A quick search yielded this result — an entry from an old Geocities site. “Dave’s Mets Page”, in fact.
It immediately occurred to me that “Dave” would be a great contributor to ArmchairGM. After all, he had written excellent historical sports content to the point where I was able to base my writing almost exclusively off his. Scrolling down on his page, I found his email address, and sent him an email. It bounced.
Dave’s page admits that it was last updated on May 15, 1999. A quick look at his yearly summaries buttresses this fact, as the last summary written is 1998. And there’s one other interesting thing on Dave’s page: a copyright notice.
So here I have:
- Content I want to use
- An author who I can’t (easily) locate
- A clear indicator that the content is unavailable without permission.
That last bullet is, legally, meaningless, but anecdotally important. Web culture wrongly tends to assume that, in absence of a copyright notice or the equivalent, all content is available so long as due attribution is given. In this case, even that assumption is clearly false. Unless I have the author’s permission, I cannot use the content. And getting permission is, at best, difficult, as the author’s email address is inactive. (As it turns out, I probably could track the guy down. But let’s assume he had a more common last name; say, like, “Lewis.”)
The side effect of all this? Even if I were willing to pay for rights, I cannot, because there is no one to which I can write the check. In a very real sense, the content is held captive by an absent rights-owner, and the cost of me either (a) tracking down the rights-owner or (b) ignoring his rights and re-publishing in violation thereof probably exceed the value of the content altogether. Per a press release from Senator Pat Leahy, "Potential users of orphan works often fail to display or use such works out of concern that they may be found liable for statutory damages, amounting to as much as $150,000."
If you find this silly, rest assured you are not alone. In 2005-06, the U.S. Copyright Office studied the issue — called “orphan works” — and released its report in early 2006. Since then? A whole lot of nothing. A few bills and hearings in Congress, but no final action. Senator Leahy introduced his bill only last months, so there is some hope there, but call me skeptical regarding its odds of passage.
Even if it does pass, it only solves half the problem — that is, it removes liability from those who use “orphan” works and the rights-holder appears, but it does not remove the burdensome cost of seeking out the rights-holder. Indeed, the bill would require the republisher to “perform and document a good faith – but ultimately unsuccessful – search for the owner of the copyright in the work being used prior to such use.” And even then, “[i]f the owner later emerges and provides notice of infringement to the user, the user must negotiate reasonable compensation in good faith and render any such compensation agreed upon in a timely fashion.” Basically:
- I spend time finding some content I want to use
- I can’t locate the author easily, so
- I have to spend time and/or money to locate the author or risk significant statutory damages, and
- If the author emerges, the author has significant negotiating leverage that he’d not have held if he were easily locatable in the first place.
Wow! The words “perverse incentives” pop into mind. So do the words “not really a solution, Senator Leahy.”
A Better Idea: The Duty to Maintain
In the digital age, with content available over the Web, why put all the burden on the subsequent user of the content? Instead, let’s shift the burden on the rights-holder to, in the very least, maintain his content and/or contact information. Here are my givens and, therefore, the rubric for the idea:
- It is unreasonable to require that the author divulge his or her identity or contact information in order to receive copyright in the work
I would be surprised if there is anything controversial about that. Necessarily, the author would need to reveal his or her identity in order to enforce the rights associated with the work, but that’s a distinct question.
The corollary to that given is that a work is not considered an orphan merely because it, in the words of Leahy’s bill, “lacks identifying information pertaining to its owner[.]” That seems self-evident; otherwise, anything anonymous or even accidentally unsigned would be immediately available for republication. In short, without this tenet, copyright is eviscerated to a meaningful degree in many cases where it should not.
- If the author is unknown or unreachable, a certain amount of time must pass before the work is to be considered an orphan.
To a large degree, that is a restatement of the bullet item preceding. Using my Mets history example, though, here’s a distinction — let’s say that today were May 30, 1999, and I sent the same email to the same juno.com email address, and, again, the email bounced. The author is unreachable, sure, but he worked on the content in question (or some related content thereto) just 15 days prior. Would it be acceptable for me to declare the work and orphan and republish it? Hardly.
In the context of blogging, this point is even more meaningful. Imagine an anonymous blogger who posts once every three days. He goes on vacation for two weeks. His last post should, by no means, become succeptible to re-use as an orphan. On the other hand, say he stops blogging for two years. Different result? I think so. Similarly, apply the same logic to a known-but-unreachable blogger — in the case of a two week vacation, it’s unfair to claim that the work is an orphan, but in the case of a two year hiatus, it’s fair game.
That seems right to me. The conclusion, then: If an author is unknown and/or unreachable, and he fails to maintain his work, his works are considered orphans, and thereby are available for use by third parties without prior permission.
And, per the problem that Senator Leahy’s bill aims to address, those works should be available for use by third parties. Maintenance can be something as simple as writing an occasional blog post or, in the case of Dave’s Mets Page, changing the date to say “Last updated January 1, 2008?, or something like that. (In this case, pleas bear in mind that I am really only discussing compilations of Web-based content, such as blogs and other continually growing websites. It’d be more difficult, by leaps and bounds, to continually “maintain” a photograph, for example.) Or even more simply? Make sure you, the author, provide an easy and reliable way for others to contact you. You know, like keeping your email address current.
The question then becomes: How do we effectively put the burden on the rights-holder? My solution: a time-lapse Creative Commons license. For the first n months of unmaintained, anonymous work, the copyright holder would retain all rights. Another n months after that, the content becomes available via a non-commercial, no derivative works (NC-ND) license. And another n months after that, the content becomes available under a pure attribution license — basically, a link back. Perfectly tailored for the Web, as the default way to give attribution is via a hyperlink back to the source of the content. And for our purposes, it meets the initial goal, by shifting the burden onto the original author and not onto the subsequent user.
Could this be done legislatively? Probably, although the details would be murky and, again, I am skeptical that Congress will ever act on Leahy’s proposal, let alone my admittedly more controversial one. I would not consider Congressional action to be a realistic goal here, or, for that matter, in regard to copyright reform in any meaningful sense.
However, this rubric could be achieved socially. Already, many authors choose, of their own accord, to use “copyleft” licenses such as the Creative Commons menu or the GNU Free Documentation License (used by Wikipedia, for famous example). I believe that many authors who do not subscribe to the copyleft dogma would find the time-lapse Creative Commons licensing scheme less controversial, as so long as they maintain either (a) the content itself or (b) their contact information, the copyleft scheme will never come into play. As the risk of losing rights to one’s work only comes from sloth, it would be very hard for an author to socially defend their refusal to adopt this time-lapse license. In short, what appears controversial legislatively should be less so socially — and an effective solution to Web-based orphaned works.
Sure, there are details that need resolution, such as how the hypothetical license would define “maintain,” but those definitions are more for edge cases than the core problem set caused by orphan works. One hopes that the eventual solution for orphan works will include a duty on behalf of the rights-holder to maintain their work — or allow for licensing which permits re-use.
We originally covered DEMO-presenting company Eyealike last November when they launched what I call the "hottie search". This was the tool that let you upload a photo of the hottie you want to date and Eyealike went out and found matches on the various dating services. Today Eyealike is back with a copyright tool called Eyealike Copyright which they claim will help media content producers quickly eliminate massive amounts of online copy infringement that result in losses of millions of royalty dollars everyday.
Greg Heuss, Eyealike president said, "Our goal is to help make copyrighted material ‘scarce’ to benefit producers like Viacom and offer ‘insurance’ to content expediters like YouTube/Google that need to more quickly determine ‘fair use’ content and distinguish between what’s legal and what’s not."
The Eyealike solution they say is unique in its ability to automatically analyze every aspect of video content simultaneously by image, motion, and face. Could this type of functionality be added to the image protection that Keibi currently does?
Pricing is based on a variety of factors and is available now. We need tools like this to help people maintain the works they create. It would be great to see a tool like this for bloggers, writers and journalists to find copied content along with photos and videos.
Photo and video-sharing site Twango has alerted its members that within the next week they will implement a new copyright protection system for the files uploaded and shared within the Twango network. Nokia acquired Twango last July and since they we haven’t heard much from Twango. Not only will they enforce this new policy on new uploads, they will also scan the current system.
Could computer-powered image and video detection software Keibi be their partner on this new copyright enforcement?
Here is the message they sent to members today:
Sharing personal content is at the core of what Twango is all about. From inception, Twango has been focused on our members’ sharing needs. We respect the copyrights of amateurs and professionals that post content on the service. One way we can continue to keep the community focused on real media from real people is to make sure copyrighted material is not uploaded without the consent of the owner. Over the next few days we will be implementing an automated system which will identify and remove copyrighted commercial content. You may notice some existing content will no longer be available. Accounts affected will receive an explanatory note in their inbox. This automated system will remain in place to identify copyrighted media and notify members if their uploads are affected. This process will take place in parallel to the upload to ensure upload speeds will not be impacted.
Thank you for using Twango for your personal media sharing needs.
Let me start by saying that I love getting links. Yes, they are great for SEO purposes, but I like them because it makes me believe that people are actually reading what I write and then linking because they either agree or disagree. I check my stats hundreds of times during the day and check every single referrer to try to participate in the discussion no matter which side the author is on. Now let’s talk about copyright and the potential for a referee to call a foul.
I authored an article on Saturday morning, “True cost of an iPhone“. It was well received overall, hit the Digg home page for 14 minutes before being buried (as usual) and has received a bunch of links. Technorati shows 5 links (which isn’t complete) as of this post.
What I struggle with is how much copy should be lifted from the original post to the sites that link in? My policy is (except in very rare cases) when companies send me their releases to lift 1-2 paragraphs of importance and then link back to the original release and site. I understand the penalties for duplicate content and I also understand the time and effort the author put into their content. I have already debated the need for Digg to change certain functions of their site to make the author rewarded for creating the content to which Digg survives on, but Digg is not part of this story.
Let’s look at some examples of sites that are linking to my article and I will provide my thoughts about whether they have stepped over the line or not — but more importantly I want to know what you think! Do you agree or disagree with me?
Here are the links:
- Added 10pm Jan 14 – Mriphone – stole the entire article
- Afstyles – they lifted my entire article. I consider this too much to lift.
- Web Strategy by Jeremiah – just a link and added his own comments – Perfect! (btw Jeremiah, that new pic is great!)
- Voice out your view point – This one seems to have lifted the exact post from Consumerist below – and then linked to CN as the “source” – I don’t get this type of deal at all. They really only posted my math which I think is ok as a blurb.
- Beta Alfa – a blurb and a link – perfect!
- Consumerist – They lifted the math which I think is reasonable plus a link to CN. I like this as it goes along with what I said above, 1-2 paragraphs of importance plus a link.
- DuggMirror – takes a copy of the page at the time of the Digg and shows it in a frame with their information plus a DuggMirror advert. Not sure what to think of this one as the links all point back to CN, the ads and so forth too. I guess overall, this should probably be considered just like Google Cache is.
- Technically Speaking – this is probably the best way to link perhaps. Write an article about your views and then provide a line or two about the initial content and a link back. I like this method as well.
As we have a huge expansion of bloggers across the world, perhaps we should look at creating standards for what is and is not acceptable. It would be great to get a roundtable (virtual or real) discussing this topic. I wonder how the major news organizations take copyright issues in terms of sites like the afstyles who lifted the entire article from my site. If I lifted an entire NY Times article and promoted it on my site without authorization, I am guessing they would come down on me hard.
Are you finding a lot of lifting from the content you create whether it is for a blog or for a news organization?