The “Grey” Realm of Copyright: Stick to the Basics

Copyright Infringement T-shirt“Copyright is for losers,” infamously proclaimed graffiti artist, political activist, and “Britain’s newest national treasure” Banksy in his book, Wall and Piece. Banksy’s artistic genius aside, we respectfully disagree. Very few things can incite more scorn, cause legal trouble, and get you ostracized by the blogging community than not giving your sources their due. Stealing just ain’t cool.

Internet entrepreneur Elliot J. Silver writes on his blog:

Every day, I see pingbacks to articles I write from websites I’ve never heard of that seem to be made for Adsense news aggregators… Although I have yet to file a lawsuit, I have sent plenty of takedown notices to frequent violators and their hosting companies… Similar to my situation are newspapers and websites that post daily articles written by professional journalists. This content is often ‘borrowed’ or used by bloggers and other websites without permission.

It’s important that bloggers and writers know the copyright law and be sure to follow it. I know there are plenty of people who think they’re safe posting all or part of an article as long as they link back to the source, but this certainly seems to be a false sense of security.

A good illustration of Silver’s point would be the recent onslaught of copyright-infringement suits brought by the Las Vegas-based Righthaven LLC (referred to by Steve Green of the Las Vegas Sun as the “legal attack dog“), and targeting online media outlets. Among the most recent developments were three more copyright-infringement lawsuits initiated by Righthaven against websites and bloggers at $75,000 apiece. According to Green, these cases brought the total number of lawsuits Righthaven has filed since last March to 86.

Green, who has been covering this story for the Las Vegas Sun, writes: “Righthaven LLC, the company suing over online copyright infringement of Las Vegas Review-Journal stories, may have hit the litigation jackpot when R-J Publisher Sherman Frederick posted a six-paragraph blog on May 25.” Apparently, the suits had sprung up after “the same four paragraphs from Frederick’s blog showed up on the defendant bloggers’ websites. In each case, there was a link to Frederick’s blog on the R-J website.”

Some defendants in the Righthaven lawsuits, such as the Democratic Party of Nevada and small, nonprofit websites fight back — it would be interesting to see if any succeed — but the issue is still filled with ambiguity. On one hand, writes Green, these lawsuits “show bloggers, nonprofits and generally small-time websites around North America for years have been cutting and pasting entire Las Vegas Review-Journal stories on to their websites without authorization.” On the other hand, as Green points out, “Righthaven’s claims don’t appear to be so cut and dried.”

Same could be said about the recent ruling under the Digital Millennium Copyright Act (DMCA) that gave iPhone users, among others, a green light to jailbreak. So, with the legal shakedowns and the law changing in front of our eyes, the realm of copyright could be the scary one to navigate. It is doable, however, to stay on the right side of the law — as long as one sticks to a few time-proven guidelines, and has a basic understanding of the concept of “fair use.”

Susan Gunelius, About.com Blogging Guide, advises:

One of the most important parts of the blogosphere is its existence as part of the social web wherein creating communities and engaging conversations is a top priority. With that in mind, most blog authors will mention another blogger’s content with an appropriate citation of the source and a link back to that source blog post… Providing attribution and a link back to the source is often enough to satisfy another blogger as long as you don’t copy their content at length verbatim.

According to the U.S. Copyright Office, the definition of “fair use” is confusing, so the one rule to stick to is, “If you’re not sure, don’t do it”:

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.

The safest course is always to get permission from the copyright owner before using copyrighted material…

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.

One of the useful tools is the Fair Use Evaluator, which could help you collect and archive data that might be necessary to support your fair-use claim. Another four areas to look at in your evaluation of the fair use of intellectual property, as defined by the Copyright Acts and outlined by the Electronic Frontier Foundation, are:

  • The purpose and character of the use: Transformative (criticism and parody included) vs. copying; commercial or not? (Non-commercial has more “rights.”)
  • The nature of the copyrighted work: Fact or fiction? Published or not? Creative and unpublished equals more protection, factual material is more fair game;
  • The amount and substantiality of the portion used;
  • The effect on the market or potential market (deemed most important and most decidedly “gray”): Does it substitute the original? Does it serve a different purpose? Target a different audience?

Georgina Laidlow offers her basic rules on “The Content Producer’s Copyright Checklist” at ProBlogger:

Only use content that’s identified explicitly as being available for reuse under the creative commons or open content licenses.

Always include a linked citation alongside the content I reference or reuse, identifying the creator and the URL of the original work.

Contact the creator to let them know I’m reusing their content and appreciate their making it available.

You may also choose to identify the license under which the content was made available for reuse in your citation.

When I include a quote in a post, I make sure I identify the individual I’m quoting, and I always include a link to the source document from which I’ve obtained the quote itself.

The main point to to be aware of — no cutting corners — could be summed up by Laidlow’s words: “We all know that information — including images, video, music, or words — published online is not there for the taking.”

Source: “Bloggers Beware: Lift Content and You May be Sued by Copyright Owner,” Elliot’s Blog, 07/23/10
Source: “Five more R-J copyright lawsuits filed,” Las Vegas Sun, 08/03/10
Source: “Copyright and Fair Use Considerations,” About.com: Blogging
Source: “Fair Use,” U.S. Copyright Office, May 2009
Source: “Intellectual Property,” Blogger’s Legal Guide, EFF
Source: “The Content Provider’s Copyright Checklist,” ProBlogger, 08/03/10
Image by eks, used under its Creative Commons license.

About Tatyana Meshcheryakova

Tatyana has been a journalist and editor for more than 17 years, including stints at AOL and a number of trade and consumer publications in Philadelphia, covering digital technology and the publishing industry. In addition to editing hundreds of articles and blog posts each month, Tatyana is responsible for training new journalists and editors that join our team. Tatyana has a B.A. in Journalism from Temple University, and is fluent in Russian.

  

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