Modern Software Experience

2010-09-03

the cost of copy

copyright

Copyright is a fairly simple concept. Your words are yours; you own what you write. The right to copy is yours. Likewise, their words are theirs, they own what they write. The right to copy is theirs.

The copyright concept is simple, copyright law less so. It is fairly easy to stay out of trouble; just write your own words. It is fairly easy to get into trouble: just copy & paste whatever you like.
The fair use doctrine is that limited use of copyright content without permission is fair. The doctrine allows it, but allows only limited copying for limited purposes. Whether some particular use is indeed fair, is up to the courts.

copy & paste

Most newspapers have a web site and post their stories online. They make money from the advertisements on their site. Many webzines and blogs operate the same way; the advertisements shown with the freely accessible content generate income.

Web content is easily copied and pasted, and readers are doing so. A lot of that is fairly innocent, but then there are the copy & paste bloggers. They copy & paste interesting content to attract readers to their newsletter - a popular euphemism among copy & paste bloggers. Once those readers are on their site, they make money from the advertisements.

press releases 

Copy & paste bloggers love press releases. Press releases are poor but keyword-rich content. Moreover, many companies love to see their press releases copied verbatim, and are more likely to advertise with or otherwise sponsor you when you do so. Press releases are easily added filler to make an otherwise inactive blog seem active, and each one is yet another blog post in support of the newsletter euphemism.

A typical copy & paste blogger fills their newsletter with press releases and articles copied from newspapers and webzines. They mix in a few hastily written superficial reviews and rewritten opinion pieces to detract from the fact that most of the content is copied & pasted. If they ever created some general background text, they keep recycling that content say once a year; they don't update and link to it, they repost it and present it as a new post.

superficial appearance

Copy and paste bloggers do try keep a superficial appearance of fair use. That is partly to pretend they did not know better, but largely to deceive their readers into thinking they are reading an honest newsletter.
Often, they copy and paste two or three paragraphs and then include a link. They conveniently forget to quote those paragraphs; they present the content as if it is theirs, and then present a link for more information. Often, their blog post does not mention the author of the copied content even once. It is only when you follow the link that you notice that were not reading some summary and are now reading more detailed information, but that you are reading the rest of a copied & pasted article.

Sometimes their blog posts are partly rewritten articles presented as original content, without a link to the original, yet still contain entire paragraphs that were copied verbatim. These paragraphs often stand out because they are much higher quality writing than the rest of the blog post.

copy fine

Copy & paste bloggers act as if continually copying content is fine. Content owners want to fine those copies.

One newspaper owners has had enough of it, and is going after them. In Copyright theft: We're not taking it anymore, Sherman Frederick, the publisher of the Las Vegas Review Journal writes that we at Stephens Media have decided to do something about it, and he adds that I hope other publishers will join me.

Righthaven

They set up a legal firm called Righthaven, which is going after those who copy their content. Frederick notes that about 22 lawsuits have been filed already. He claims that their primary hope is that Righthaven will stop people from stealing our stuff, and their secondary hope that Righthaven will find other clients. He seems to be calling upon newspapers and webzines to join their initiative, in the hope that Righthaven becomes the legal firm protecting all their content from unauthorised use.

If you are not a little bemused by what you just read, you did not read carefully; Mr Frederick mentions 22 lawsuits, he does not mention 22 cease & desists letters or take-down notices. Righthaven does not like to bother with cease & desists letters or take-down notices. Most sites would immediately comply with a cease & desist letter, leaving Righthaven with the cost of the letter, but without a case. Righthaven prefers to take alleged offenders directly to court. Most defendants will want to settle out of court, but Righthaven gets to collect its legal fees and a sizeable copyfine.

Infringe their copyright just once and they will demand your entire site.

Righthaven Racket

It is hard to feel much sympathy for copy and paste bloggers, but Righthaven apparently lacks the social smarts to focus their legal actions on copy & bloggers.

They are not only going after competitors, they are not only going after commercial sites, but they are going after every mom & pop site, non-profit organisation and discussion forum that dares to post sizeable chunks of their copyrighted content.
That, and their preference for taking offenders directly to court, has rubbed many people the wrong way. One of the commenters on Frederick's article calls it a shakedown. In Righthaven's Brand of Copyright Trolling, Electronic Frontier Foundation staff member Richard Esguerra describes Righthaven's mode of operation thus:

The basic pattern: Righthaven has brought over a hundred lawsuits in Nevada federal court claiming copyright infringement. They find cases by (a) scouring the Internet for parts of newspaper stories posted online by individuals, nonprofits, and others, (b) buying the copyright to that particular newspaper story, and then (c) proceeding to sue the poster for copyright infringement. Like the RIAA and USCG before them, Righthaven is relying on the fact that their victims may face huge legal bills through crippling statutory damages and the prospect of paying Righthaven's legal fees if they lose the case. Consequently, many victims will settle with Righthaven for a few thousand dollars regardless of their innocence, their right to fair use, or other potential legal defences.

Oh, and one of the things that Righthaven demands when it starts a full-fledged lawsuit without any warning whatsoever? - that courts freeze and transfer the defendant's domain name. Infringe their copyright just once and they will demand your entire site.

legal innovation

The Electronic Frontier Foundation is far from the only organisation taking issue with Righthaven's modus operandi. On his Blog Law Blog on the law of blogs, law professor Eric E. Johnson has posted about the Righthaven more than once. His particularly incisive blog post Righthaven’s Innovation? Stooping Lower uses a few choice words to describe Righthaven:

I think what the Las Vegas Review-Journal and its thugster stooge Righthaven are doing is completely obnoxious. It reeks. It also makes the Las Vegas Review-Journal look like a pack of feral alley dwellers instead of an earnest news organization that is deserving of the public trust.

legal loophole

If you have ever had anyone steal content from your site, you know what a royal hassle it is to deal with unscrupulous figures that copy your content, and make them understand that you will send a take-down notice to their web host if need be. They drain your time and energy, and once you are done, you have literally nothing to show for it.
It is not hard to understand that Righthaven wants to skip all that and prefers to go straight to court, but that still doesn't make it the right thing to do.

safe harbour provision

How is that possible anyway? Why doesn't the court throw their case out because they failed to send cease & desist letter and take-down notices first?
The Las Vegas Attorney's detailed blog post Avoiding the Wrath of Righthaven explains that the so-called safe harbour provision of the Digital Millennium Copyright Act (DMCA) only applies when you have registered an agent with the Copyright Office, and links to the official forms for doing so. Only when you have done so, will Righthaven have to provide a take-down notice and allow you to remove the content. Without that registration, Righthaven can go straight to court.

Righthaven Victims

Several sites have sprung up to assist defendants in Righthaven lawsuits, and to help you avoid becoming an defendant.
The Righthaven Victims blog contains lists of defendants. They offer a Newspaper blacklist; a list of all newspapers associated with Righthaven. They link to Clayton Cramer's How To Make Sure You Don't Accidentally Visit Organizations That Don't Want You, which provides instruction for making sure you do not browse to any Stephens Media websites. Their How do I avoid a lawsuit page links to the Avoiding the Wrath of Righthaven blog post.

There is a Facebook group called Stop the LVRJ/Righthaven With hunt, and the website Righthavenlawsuits has posted many documents from Righthaven lawsuits on Scribd. The website itself maintains links to articles about the Righthaven lawsuits, and The Bottomfeeder Chronicles does the same.

Avoid Righthaven's copyfine by make sure your copy is fine.

some advice

Avoid Righthaven's copyfine by make sure your copy is fine.

Here are some suggestions to avoid having to deal with the Righthaven Righteous.

Keep within fair use

Try to remain within fair use. Do not engage in copy & paste blogging. Copying just three sentences may not seem much, but if that paragraph is your entire blog post, that post is still nothing but copied content. Consider posting or tweeting a brief description with a link to the original article instead.

Acknowledge the source

When you quote an article, do not try to pass it off as your own text. Do not try to claim copyright on what isn't yours; do not copy content and deliberately omit quotes, and then assert copyright to that blog post or your entire blog. Use quotes, and link back to the original. Mention the site, author or article. Make it clear why you are quoting. Let them earn money from their content by directing interested visitors to their full article.

Do not rewrite articles

Copyright is about content, not ideas. When you rewrite an article and pass it off as your own, you are not violating copyright, but you are still guilty of plagiarism. Keeping one two or particularly well-written sentences from the original while not even mentioning that original is both dishonest and stupid; people do notice the change in writing style.
Do not rewrite articles by others. Do not pass their ideas of as your own. Post some remarks about why it is a worthwhile read, and link to the original.

Avoid Stephens Media and Righthaven

Do not quote from Stephens Media or any other newspaper associated with Righthaven. Configure your browser to avoid visiting their sites accidentally. Do so to err on the side of caution, by avoiding all contact with these litigious organisations, not because you are under the delusion that unlimited copy & pasting from other sources is fine. Always consider whether what you are doing is really fair use.

Remove advertisements

Being non-commercial does not place you above copyright law, but it does affect fair use decisions. Judges do take the profit motive into account.
If you decide to remove advertisements, be thorough about it. Host your webstore full of affiliate links on a separate domain, and do not forget about that affiliate link in the blog post encouraging your readers to click through to Mozy.

Register with the Copyright Office

Last but not least, if you blog in the United States of America, make sure the safe harbour provision of the Digital Millennium Copyright Act (DMCA) apply by registering yourself as an agent with the Copyright Office. That forces Righthaven to send you a take-down notice and allow you to remove the content before engaging you in court.

links

Righthaven coverage

technical and legal advice

defendant groups