Bad Things Really Do Happen to Good People
A local newspaper in Las Vegas, Nevada, was so fed up with the problem of copyright infringement they contracted a company to seek out and sue website owners who copied their content in an unauthorized manner. As many as 276 lawsuits were filed. (Source: righthavenlawsuits.com via archive.org) Defendants included hobby bloggers, forum operators, and commercial website owners.
One of the more controversial lawsuits was filed against the publishers of a noncommercial blog about cats. (See Las Vegas Sun story, “8 more websites sued over R-J copyrights.” )
Some critics say the tactics used by enforcement firm, Righthaven, LLC, were predatory. Here is how it worked:
Righthaven focuses on news: it trolls by (a) scouring the Internet for newspaper stories (or parts thereof) originating with the Las Vegas Review-Journal that have been posted on blogs, forums and webpages, (b) acquiring the copyright to that particular newspaper story, and then (c) suing the poster for copyright infringement. Righthaven demands sums up to $150,000, and uses the threat of these out-of-proportion damages to push defendants into quick settlements. (Source: Electronic Frontier Foundation, “A Field Guide to Copyright Trolls“)
No warning or take-down notice was sent to offending websites to allow for removal of the material before court proceedings ensued.
In addition to money damages, the lawsuits sought to have the domain name of offending websites seized by the court and forfeited to Righthaven. (See Las Vegas Sun story, “Righthaven pressing for right to seize website domain names.”)
In many cases, the defendants thought they had fulfilled copyright attribution requirements by linking back to the original article but the citations were not in accordance with the method specified in the newspaper’s copyright notice.
I am all for copyright protection rules and penalties for violators whether it involves independent bloggers or major media organizations. A well crafted narrative takes time, effort, writing skills, subject knowledge, and usually some level of experience depending on the topic. The finished product has real value, especially if it attracts lots of readers. No one should be allowed to come along and simply take it without permission.
In addition to the intrinsic value of good content, publications such as newspapers and magazines incur overhead and production costs which significantly add to the value issue.
An article in the Las Vegas Review-Journal titled “Copyright theft: We’re not taking it anymore” explains the genesis of the Righthaven campaign while drawing a parallel between car theft and copyright infringement. The Review-Journal is the newspaper involved in most of the Righthaven lawsuits.
What was wrong with the Righthaven Campaign?
Its clear that the approach taken by Righthaven was unreasonable. Filing lawsuits without any warning whatsoever to an alleged copyright infringer is too harsh, especially if attribution was given including a link back to the original material. The link shows an intention to do the right thing. Many of these folks simply made a mistake by posting too much of the cited material. My guess is most of them, if not all, would have corrected the situation had they been informed of the copyright violation. Repeat offenders, of course, are a different story.
The real criminals are the ones who intentionally plagiarize. They copy the content of others and represent it as their own in a premeditated, dishonest fashion. They do not provide proper attribution and certainly don’t link back to source content. Those are the sites that should be targeted by a Righthaven campaign.
Interestingly, Righthaven wound up having legal troubles of its own. Court decisions eventually went against them. In some cases, contrary to the lawsuit claim, use of the content in question was found to be consistent with the “fair use” doctrine. The bigger judgment, which led to Righthaven’s demise, was the determination that Righthaven LLC did not have the legal authority to file the lawsuits.
While Righthaven made some strategic blunders (see VegasInc.com article regarding “lack of legal standing”), they represented a sentiment that still exists today for many content providers. Given the lawsuit oriented society we live in, others will likely come along and try to perfect the process.
Attention Online Content Providers: A basic knowledge of copyright law can help you protect your assets
The Righthaven lawsuits illustrate the need for all publishers, including online entrepreneurs, to have at least a basic understanding of copyright law. This article discusses the basics and suggests ways to avoid being a victim of a Righthaven campaign. Links to main topics:
Three Ways to avoid unintentional copyright infringement and the lawsuits it can trigger:
- Never reuse copyrighted content simply because you are giving credit or linking to the source
- Always read the copyright notice before copying content
- File for DMCA safe harbor status if your site qualifies
Penalties for Copyright Violations
Before getting into how to avoid being the target of a copyright lawsuit, here are some compelling reasons why. (These are, of course, in addition to the ethical reasons one should not plagiarize or infringe the copyright rights of others.) Under U.S. copyright law, a person found guilty of copyright infringement can be held liable for:
- Statutory damages from $200 to $150,000
- Actual damages and lost profits attributable to the infringement
- Court costs and attorneys fees
- Infringing material and equipment used to create it may be impounded and destroyed
- Criminal penalties which may include jail time depending on the gravity of the violation
What is “Copyright?”
Given the penalties for copyright violations, it is important to be clear on exactly what copyright is…
Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Exhaustive lists of works covered by copyright are usually not to be found in legislation. Nonetheless, broadly speaking, works commonly protected by copyright throughout the world include: literary works such as novels, poems, plays, reference works, and newspaper articles; as well as computer programs, databases; films, musical compositions, and choreography; artistic works such as paintings, drawings, photographs and sculpture; architecture; and advertisements, maps and technical drawings.
Copyright protection extends only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such. Copyright may or may not be available for a number of objects such as titles, slogans, or logos, depending on whether they contain sufficient authorship.
Creators of original works can prohibit or authorize reproductions, recordings, broadcasts, public performances, translations, or adaptations of those works.
(Source: WIPO, World Intellectual Property Organization)
Copyright protection exists from the moment the work is created. It does not need to be registered. However, to bring a lawsuit for infringement of a U.S. work, the work must be registered with the U.S. Copyright Office. (Source: U.S. Copyright Office website.)
Other types of intellectual property include trademarks, patents, and trade secrets.
The Difference between Copyright Infringement and Plagiarism is a Legal one
Plagiarism occurs when an author’s work has been reused in such a way as to make it appear as someone else’s work. Infringement occurs when an author’s work is reused without the author’s approval/permission, even though full author attribution might have accompanied the reuse. (Source: IEEE, Institute of Electrical and Electronic Engineers.)
While both terms can apply to a particular situation, plagiarism is a moral offense and copyright infringement is a legal offense. Plagiarism can result in the loss of a job for a journalist or failing grade for a student. Copyright infringement can result in statutory and criminal penalties.
An example of plagiarism without copyright infringement is copying a work for which copyright protection has expired (i.e. public domain) without giving credit to the creator of that work.
An example of copyright infringement without plagiarism is copying an entire article of a newspaper or magazine whose copyright notice prohibits reproductions or reuse of any kind, with attribution specified in the reproduction.
How to Avoid Unintentional Online Copyright Infringement and the Lawsuits it can Cause
The term “Righthaven campaign” as used in this article refers to the actions of any person or entity that files a lawsuit for copyright infringement without first giving the alleged offender an opportunity to remedy the matter. To avoid being a target:
1.) Never reuse copyrighted content simply because you are giving credit or linking to the source
“Acknowledging the source of the copyrighted material does not substitute for obtaining permission.” (Source: https://irsc.libguides.com/copyright/fairuse)
Fair Use vs. Infringement – Sometimes it’s a Tough Call
Some might say the “fair use” doctrine gives publishers the right to reproduce the works of others regardless of restrictions set forth by a copyright owner. This can be a risky position to take since it can result in costly lawsuits when there is a difference in opinion about what constitutes fair use.
Fair use, as defined by Section 107 of the Copyright Act, limits the rights of a copyright owner when the copyrighted material is used for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. The law goes further to say that four factors should be considered in determining whether or not a particular use is fair:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
Regarding the first factor, commercial or nonprofit nature, it is important to understand that websites and blogs that generate income from advertisements, affiliate links or other monetization methods will likely fall into the commercial category. While I have not taken the time to research outcome trends in copyright court cases, it seems to me that people who generate income from copyrighted material owned by others probably do not normally prevail.
The main point here is the distinction between fair use and infringement is not always easy to make. If you are the target of an infringement claim, a court decision may be required for a determination and that will involve attorney fees at a minimum and potentially more expenses if you are found guilty. For an interesting compilation of court cases involving fair use claims and their legal outcomes, check out this blog article at stanford.edu, authored by Rich Stim: Summaries of Fair Use Cases.
When it comes to copyright law I believe it is better to err on the side of caution. Before copying someone else’s content, even for a glorifying excerpt, read the owner’s copyright notice. In many cases reuse is permitted albeit typically with stipulations.
2.) Always read the copyright notice before reusing content
Some might say they are too busy to read wordy legal agreements but the reality is it does not take very long to find the pertinent copyright information once you get accustomed to spotting it. Generally there will be a sentence or two that clearly expresses the owner’s requirements regarding reuse or reproduction (see examples below) and let’s face it, considering the risks involved its time well spent.
For most websites and blogs, this information can be found by clicking a link in the footer. The link text can vary. Here are some examples:
- Terms of Service
- Terms & Conditions
- User Agreement
- Copyright Agreement
- Copyright Rights
- Copyright, Trademarks, & Restrictions
- Reprint and Usage Rights
In some cases an abbreviated version of the copyright agreement may simply be spelled out in the footer of each page to maximize visibility.
Examples of types of copyright agreements found on websites and blogs
These examples illustrate how varied copyright owners can be in terms of their willingness to share content. More important, if you have a commercial site (fair use doctrine may not apply) these examples demonstrate the importance of reading a website’s copyright agreement before attempting to copy/cite someone else’s content – if your goal is to avoid being the target of a Righthaven campaign.
- Reuse or reproduction of any kind is not allowed without written permission. For example, see ConsumerReports.org, section 3, Copyright and Trademarks.
- Personal and noncommercial use only. For example, see msnbc.com, Terms & Conditions, Restrictions on use.
- Excerpts are allowed with restrictions. For example, the website of the Las Vegas Sun newspaper allows text from their stories to be quoted as long as the excerpt is not more than one-tenth of the total word count of a story or 100 words, whichever is less. The quoted content must contain a direct link to the story from which it is taken. See lasvegassun.com, Reader Agreement, Trademarks, Copyrights, & Restrictions.
- Commercial and noncommercial re-use is allowed with no limit on the amount of text as long as material is cited. For example, see EFF.org, Electronic Frontier Foundation, Creative Commons Copyright Policy.
The above short list does not cover all the different flavors of copyright agreements, of course, but it does show how varied they can be and why they are worth reading before reusing copyrighted content.
If a copyright agreement is nowhere to be found on a site, your best bet is to contact the owner and ask for permission. As indicated on the U.S. Copyright Office website:
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. If there is any doubt, it is advisable to consult an attorney.
If attempts to obtain permission are unsuccessful, I do not recommend using the material. Personally, I prefer to move on and find a site that clearly permits reuse. However, if you decide that fair use clearly applies in a particular situation, you should
- Limit the amount of copied content to only a portion of the original article. Some say 40 percent or less of the original text in a source article is appropriate when creating an excerpt; others feel it is prudent to limit copied material to 10 percent of the original piece. There is no hard rule here.
- Integrate your own thoughts (commentary, criticism) regarding the excerpted content in your literary creation.
- Cite the source and link back to it.
- If your site generates income from advertisements, consider whether or not a court could construe that ad revenue is directly attributable to the copyrighted material. If so, you should refrain from using material or consult with a qualified professional.
Finding photos and graphics for your website or blog design
As you probably know, most images across the Internet are protected by copyright law (except those in the public domain). Just like textual content, as soon as a photo or graphic is created and saved to a hard drive, exclusive rights belong to the creator. While it may be tempting to simply copy and reuse images you find on the Internet, that is not a good option because it is illegal (not to mention unethical) if it violates the source’s copyright notice.
If you are like most busy online entrepreneurs, you have undoubtedly struggled with the challenge of procuring free or low-priced images for your site. While there is a plethora of photos and graphics available for viewing on services like Flickr and Google Images, most are covered by copyright agreements which prohibit use on commercial sites. And as previously mentioned, if your site generates income from advertising, it falls in the commercial category.
So here is a little tip. Consider 123RF at https://www.123rf.com (🡰 *affiliate link.) I have wrestled with this challenge myself and scoured public domain (free) sources as well as many fee-based websites. The best solution I have found (once Fotolia was scooped up / acquired by Adobe) is 123RF. And it is now the one I use exclusively.
123RF has a great selection of images and an excellent search tool which expedites the process of finding the perfect photo or graphic. Image resolution options include high quality with reasonable pricing (considerably less than comparable sites, based on my research). Most important, images are properly licensed and photographers and artists earn income for their hard work.
*To be clear, the above link to 123RF.com is an affiliate link, meaning, if you use that link and make a purchase at their site, I will receive a small commission at no additional cost to you. The small commission come from the company. I am willing to promote them because they offer reasonable prices while most other stock photo sites charge excessively high prices, in my opinion. If you need a good source of images at reasonable prices, consider 123RF.com.
3.) File for DMCA safe harbor status if your site qualifies
If you allow third parties to post content to your site but you do not have DMCA (Digital Millennium Copyright Act) protection, you may have an increased risk of being a target of a Righthaven campaign. This includes forum sites and most blogs.
The vulnerability is the fact that someone could post copyrighted material to your site (which they copied in violation of a copyright notice) and you could be held liable for the infringement even though you had no knowledge or direct involvement.
The purpose of the DMCA, in part, is to limit copyright infringement liability for Internet service providers (ISPs) and other intermediaries while providing copyright owners a process for issuing infringement claims.
Chat forums and many blogs qualify for this protection because they host the content of others in the form of reader comments, photos, links, guest articles, etc. This effectively makes them intermediaries or online service providers (OSPs). To benefit from the liability limitations provided by DMCA, operators of these types of sites must complete certain steps which include:
a) Designate an agent for notification of claimed infringement. This involves filing a form with the U.S. Copyright Office along with a filing fee (download PDF copy of form here). Your DMCA agent can be you, your attorney, or whomever you choose. It is important to understand that the contact information you provide will be publically available on the Internet. The U.S. Copyright Office will post it in a directory on their website and, as discussed in the next step, you will need to post it on your site.
b) Conspicuously post your DMCA agent information on your site. In addition to providing the contact information of your designated agent to the Copyright Office, you must post it on your site as well. That is, on the comment blog or chat forum being covered by the DMCA.
Subsection 512 (c) (2) of the U.S. Copyright Act currently states that the following minimal information be posted:
- Phone number
- Electronic mail address
As I am sure you have surmised at this point, the intent of the DMCA designated agent requirement is to make it easy for claimants of alleged copyright infringement to find and notify the online entity unlawfully hosting their copyrighted material.
c) To ensure limited liability under DMCA, you must be willing to expeditiously remove or block material claimed to be infringing. As soon as you (or your designated agent) are notified of claimed infringement you need to remove it reasonably quickly to maintain safe harbor status. Additionally, membership sites and forum operators need to be willing to terminate access of repeat offenders.
That said, it is important to note that there is no legal requirement to remove allegedly infringing material when a DMCA notice of infringement is received. However, once a notification is received, the online service provider (forum, blog, ISP, etc.) will be considered to have been placed on notice. Then, if the allegedly infringing material continues to be hosted, the liability limitations of the DMCA no longer apply.
d) Adopt a policy against repeat copyright infringement by subscribers and account holders.
As a condition for eligibility, the DMCA requires service providers to reasonably implement and inform users, subscribers and account holders that services will be terminated for repeat offenders of copyright infringement. If your site does not support subscriptions or memberships, simply create and post a policy that makes sense. For example, the Electronic Frontier Foundation suggests:
If you have no subscribers or account holders, that policy can be as simple as “If we become aware that one of our users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate them.” (Source: EFF.org)
Listed below are two examples of websites that subscribe to the limited liability benefits offered by the Digital Millennium Copyright Act. These links point to the DMCA notice and guidelines section of their websites. In particular, see the designated agent disclosure for each site.
For current filing fees and an overview of the DMCA process go to http://copyright.gov/onlinesp/. To read the section of U.S. Copyright Law dealing with limitations on liability relating to material online use this link. To access a downloadable PDF copy of The Digital Millennium Copyright Act, click here.
Filing for DMCA safe harbor status is not necessarily worthwhile for every site that hosts the content of others. For example, if you have a blog with a low volume of reader comments and you moderate postings closely, the cost may not be worth it to you. The filing fee at the time of this writing is $105 for a single website domain name.
Tools for Finding Infringers
Duplicate content on the Web can be found by simply doing a Web search using exact strings of text (enclosed in quotation marks.) For a more comprehensive approach to identifying duplicate content there are numerous services available. Here are a few examples:
- Copyscape.com – Offers free and paid services.
- Plagiarism checker from searchenginereports.net. Free service.
- Plagiarism checker from dustball.com. Free service.
- Dupli Checker – Free service.
- PlagiarismChecker.com – Free service.
- DMCA.com – Free and paid service. Also watermark service for website photos.
- IdeeInc.com – Various products for image tracking and monitoring services.
- Guardlex.com – Paid service, multiple professional packages.
- Digimarc – Paid service; a digital watermark or QR code, and a cloud-based, digital record of its journey and interactions.
I will not go into the merits and differences of each. That is a topic for a future post. But I will tell you that I use Copyscape’s premium service because it’s user-friendly, reasonably priced, and gets the job done. The main point here is there are many ways for content owners to check for copyright infringement on the Web.
Maintain a “Value Mindset”
Most web site operators strive to generate visitor traffic. The related goal for commercial sites is to maximize income through ad revenue, and/or sales of products and services, either directly or as an affiliate. The goal for most noncommercial sites is to build an audience and promote a message.
Regardless of site type, the most effective strategy for generating visitor traffic is to provide engaging content. “Content is king” as they say. This includes informative and/or entertaining text, imagery, audio and video. These things have real, measurable value.
If you are an online entrepreneur looking to minimize your exposure to copyright infringement lawsuits, consider the value issue when you copy/cite content from a copyrighted source. The value is essentially drained (as far as the content owner is concerned) if you duplicate so much of it readers have no incentive to click the attribution link to read more at the source.
In the context of fair use, in its Legal Guide for Bloggers, EFF.org acknowledges that “Copying nearly all of a work, or copying its ‘heart’ is less likely to be fair.”
There you have it. Three ways to avoid unintentional copyright infringement and shield your site and yourself from aggressive tactics like those of Righthaven.
- Never copy copyrighted content simply because you are giving credit and linking to the source
- Always read the copyright notice before reusing content
- File for DMCA safe harbor status if your site supports third party content
The first two are best practices that apply in all cases. The third, if your site qualifies, is better than costly insurance because you can avoid getting sued in the first place.
And remember, the courts do not always uphold fair use claims – especially if the use is of a commercial nature. Pay-per-click ads, affiliate links, and similar monetization methods generally invoke a commercial standing.
So, do a little homework before cutting and pasting other people’s intellectual property. Respect the copyright rights of others. It could wind up saving you lots of time, money, and frustration in the end.
Note: The definitions and legal requirements cited in this article are based on United States law. From a global perspective:
The United States has copyright relations with most countries throughout the world, and as a result of these agreements, we honor each other’s citizens’ copyrights. However, the United States does not have such copyright relationships with every country. For a listing of countries and the nature of their copyright relations with the United States, see Circular 38a, International Copyright Relations of the United States. (Source: U.S. Copyright Office, FAQs)
I hope you found this article useful.
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