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|What constitutes content theft versus "fair use"|
Anyone know what fair use is when it comes to stolen web content?
|Anyone know what fair use is when it comes to stolen web content? |
If you do some research, you'll soon discover that "fair use" has no hard-and-fast rules, which is why what rules we have, such as they are, are referred to as the "Fair Use Guidelines". Some starting points for your research might include the following:
Hope that helps a bit.
What about someone stealing 16 sixteen unique phrases right off your homepage? Doesn't seem like fair use to me.
That doesn't SOUND like fair use, ownerrim - the best thing to do is check with a lawyer, but as a quick & dirty step you could try your own cease & desist letter.
|What about someone stealing 16 sixteen unique phrases right off your homepage? |
Define "unique". Then review the links provided. How does the use of the phrases relate to the four points of fair use? (I can't know, so I can't answer the question.)
theft (from dictionary.law.com):
|n. the generic term for all crimes in which a person intentionally and fraudulently takes personal property of another without permission or consent and with the intent to convert it to the taker's use (including potential sale) |
Involves personal property. What you are looking at is infringement:
|n the law of copyrights , the improper use of a writing or graphic without permission, without notice, and especially without contracting for payment of a royalty. |
Phrases are generally too short for copyright protection. If you put them all together you *might* have something if it represents the majority of your page.
If it is insufficient to receive copyright protection, then it isn't a question of Fair Use. Fair Use only applies if there is protection.
Now if it is protected, then there is little for them to claim fair use on if they are not meeting the requirements for fair use, which would require analysis bases on how they are using it.
"If you put them all together you *might* have something if it represents the majority of your page."
It represents a good part of the page, since all 16 phrases appear in an ordered list and the thief stole them all and listed them all in the exact same order with no change to my wording.
What's more, I have dated cd backups indicating the content was on my site as of 5/19/04. His site did not come into existence until 10/04.
Without the specific facts, there is no way for us to even begin to guess how a judge might view your situation.
On what basis is the copier claiming that his use is "fair"?
I would think that going after "16 sixteen unique phrases" could be tricky. We do that sort of thing all the time - and they to us. Are these simply keyword phrases or actual content that is somehow unique?
We look for infringement of our articles. When key phrases pop up, we check out the site. It's usually pretty clear whether they have reworked the text sufficiently or just ripped us off. Not too many people put in the effort to make the theft 'fair use'.
We've had ample opportunity to hone the C&D and put torpedoes in the water.
So far all of the serious infringers have been here in the US. We have yet to have a single instance where the content didn't come down inside the alloted time frame.
"I would think that going after "16 sixteen unique phrases" could be tricky. We do that sort of thing all the time - and they to us. Are these simply keyword phrases or actual content that is somehow unique?"
Unique content. Basically, these phrases, listed one after another, are a description---for users---of what can be found on the site. And they're very unique. All you have to do is line the two pages up against each other and it's pretty obvious the content has been stolen. He's also stolen a very unique block of text, also from the same page, and even copied a very weird typo that I made many many months ago.
I've already filed DMCA complaints with google and yahoo. It's up to them to decide if there's infringement.
|All you have to do is line the two pages up against each other and it's pretty obvious the content has been stolen. |
Then torpedoes in the water. I would have a hard time standing for it if I could get at them.
|All you have to do is line the two pages up against each other and it's pretty obvious the content has been stolen. |
Okay, but... How does his copy compare with the "Fair Use Guidelines"? In particular, what is the purpose of his copying?
You asked about fair use, but have only spoken of infringement. The difference between the copy being an infringement and being "fair use" is a matter of judging the copy according the four points of "Fair Use", as is discussed and illustrated in the links provided earlier.
Please provide feedback on the copier's claims and on your perception of how his copy might be viewed according to the Fair Use Guidelines. How did the issue of "fair use" arise? For instance, is his copy provided as part of a satire? Is the copying for educational purposes? What is the word-count, and what percentage of the total "work" has been copied? And so forth.
|It represents a good part of the page, since all 16 phrases appear in an ordered list and the thief stole them all and listed them all in the exact same order with no change to my wording. |
Then it is not 16 phrases that they copied, it is a list of phrases. That puts you in a much better position, but not out of the woods yet.
It largely depends on how unique those phrases are. Compare it to recipes, where the list of ingredients and the basic step by step instructions are not covered by copyright, but if you add some literary content to hose instructions, you will gain copyright over that expression of the recipe.
|I've already filed DMCA complaints with google and yahoo. It's up to them to decide if there's infringement. |
That isn't a good idea till you are absolutely certain that it is infringement! You can be held responsible for their lost income as well as punitive damages.
On the other hand, sending them a C&D is fairly safe even if you are not certain that it is infringement.
If it is in the gray area, run it past a good lawyer.
"Please provide feedback on the copier's claims"
I never said they claimed fair use. I was simply looking for an example of fair use. I'm not a lawyer, but it doesn't seem to me that copying whole blocks of someone's homepage text and using it target their search placement is synonymous with fair use.
"That isn't a good idea till you are absolutely certain that it is infringement! You can be held responsible for their lost income as well as punitive damages."
I understand I can be held responsible if I knowingly make a misrepresentation of infringement. I have not done that. I have simply reported to yahoo and google that content EXTREMELY UNIQUE (trust me, it is that) to my site, and content which existed on my site 5 months prior to the other site coming into existence (can be proven) is now on the front page of the competitor's site. It is up to google and yahoo to determine if said content equates with infringement and, if so, to take action in accordance with their own policies.
The DMCA provisions also state that if the infringer files a counter notification and deliberately misrepresents the fact that infringement took place, they can be held liable for costs and attorneys fees.
I'm not suing anyone. I'm not initiaing legal action. I'm just reporting to the search engines what I firmly, and in good faith, believe to be an infringement of my material.
If the infringer does file a counter notice, then I believe the burden is on me to file in federal court within a (don't quote me) 14 day deadline.
I think the WWW needs a set of fair use decisions, because right now "fair use" means "what you can get away with."
On the flip side, I see some fairly sizeable legal teams trying to strong arm people from even using the names of companies on their sites. No lie, I've seen threats of legal action if "all references to X, in page text, page titles, file names, subdomains are not removed immediately."
Usually I would just chalk stuff like this up to the big corporation litigious mentality, but on the WWW it seems that SERPs are everything, and if thousands of people (affiliates, bloggers) mention X then the real X could lose a lot of visibility. At risk here, of course, is the right of free speech. People should be able to voice their opinions on X. Unlike the real world, though, X can be hard to find if there's too much static. And unfortunately, there are plenty of people out there capitalizing on others' brand names.
"Widget Y" -- the site ranks highly for "Widget X" because it's stuffing its headers and alt tags with "Widget X." Kind of deceptive, no? Unfortunately there don't seem to be any hard and fast rules with regard to deceptive cloaking.
A better example, maybe, is what if somebody owning a big farm of sites decides to G-bomb their "Widget Y" site with the anchor phrase "Widget X." What fault is it of theirs if the SERPs don't understand that the site isn't really about Widget X?
Obviously these are intended forms of deception, but there are plenty of less obvious forms of SERP manipulation and general manipulation that cause real and intentional damage to companies, which in the real world would definitely be an open and shut case.
When G originally unveiled its plans to start scanning copyrighted pieces in addition to those in the public domain, I was baffled. You can't do that. Duh. And yet way too many people heiled it as the second coming, seemingly ignoring the fact that they were... copying copyrighted works.
We're long overdue on some hard rules... it's too hard for white hats to compete with all the black hats.
Google and Yahoo don't decide if it is infringment, they notify the other party who is given a chance to claim that your DMCA isn't valid or they have "fair use". If they do, the ISP MUST put the material back up on the other site and then you are backed into in a corner of having to go to court.
Google also tends to be more lenient with infringers, posting your DMCA on a "free society" web site which is anti-copyright in nature. They are the only ISP that does this that I know of, sort of puts you in the limelight.
If I was an evil malicious thief, I'd do that and force you to have to either lump it or spend a lot of money on legal fees. And, I'd start a claim that your DMCA wasn't in "good faith", but just trying to eliminate competition. That would put the legal ball in my jurisdiction, guaranteeing your costs to enforce the DMCA would be very expensive.
Now this is a very rare chance, but why take it? Be sure your work is registered with the Library of Congress. It is a $30 insurance policy that puts you in control.
The law isn't fair and the DMCA isn't perfect, so make sure you cover your bases.
"If I was an evil malicious thief, I'd do that and force you to have to either lump it or spend a lot of money on legal fees. And, I'd start a claim that your DMCA wasn't in "good faith", but just trying to eliminate competition. That would put the legal ball in my jurisdiction, guaranteeing your costs to enforce the DMCA would be very expensive."
I think this is what they'll do, to be honest. But maybe not since the theft issue doesn't seem to fit with the definition of "fair use" (it isn't parody, it isn't quoting for the sake of conducting argument, etc, etc). Also, there seem to be potential penalities for filing a counter notification that "misrepresents that infringement did not take place". I think their argument would be extremely weak, particularly since they went directly into my source code for the other body of text that they took and even copied my rather heinous typo/misspelling.
But, if they do counter the infringement notification, what next? In this case, I haven't reported them to their isp yet. So, no material will have been taken down from their site.
My take is that they can't come after me monetarily/legally simply because I have filed a DMCA with the SE's. They can simply, by counter-notifying, try to make the issue dead in the water if I am unwilling to pursue it in court.
If that's true, I could let the issue die for a while until I have my copyright established (disc is being expressed today to the library of congress) and then at a later date, assuming they haven't removed the stolen content, I could start the issue again, except this time with their host and registrar.
Am I on track?
Just wanted to add this: the msn dmca page states that when you submit a complaint to MSN Search about copyright infringement, the DMCA requires them to take the noncompliant site from out of the index until the site removes the content in question.
I assume that google will do the same, meaning that the infringer will be forced to file a counter notification. At that point, he is pushing me into a corner but also himself since there are costs associated with misrepresenting that infringement did not take place.
To me, the most cost effective option for the infringer is simply to remove the stolen content---or file a counter notification and make me either take him to court or drop the matter completely.
The google dmca page basically says this about filing a counter notification (paraphrased):
provide your contact information and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which you are located that you "will accept service of process from the person who provided notification"
They also require the counter filer to state the following:
"I swear, under penalty of perjury, that I have a good faith belief that each search result or message identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
My take: google is allowing them to state that, in their opinion, the material was removed by google as the result of a mistake or misidentification. They are basically saying in that statement that they did nothing wrong which can lead to monetary consequences if they misrepresent that infringement did not take place (which can only occur if it goes to court).
Again, they can change the page, or put up a new one. From my reading of it, the counter notification requires them to accept service of process from me in a federal court, but that is assuming that I actually sue them versus simply dropping the matter at that point. It doesn't seem as though they can actually "come after me" for having filed a DMCA.
The easiest remedy would seem to be that they comply and remove the stolen content.
“The easiest remedy would seem to be that they comply and remove the stolen content.”
In most cases that will happen. But, I have infringers who either repost after a while, or find another ISP to host the material. One actually changed his ISP from the US to one in The Grand Cayman Islands to keep the photograph up. Though he eventually took down the image after I contacted him and politely let him know he could still be sued in the US while his island ISP might be free and clear.
And there are the crazies out there who will argue "fair use" and that you committed perjury. Registration of copyright is your best protection. It covers you from the date the Library of Congress receives it, so get proof of delivery.
And since a lot of government mail is irradiated (post-anthrax), some CDs are damaged, so including an acceptable hard copy is not a bad idea.
I’m not a lawyer, in any situation like this, find a competent IP attorney. Not one who does “slip and falls” and ads © to his specialty!
|I was simply looking for an example of fair use. |
Then please review the links (provided earlier), rather than asking for a specific verdict in a sitution for which we have no specific information. Thank you.
|...copying whole blocks...[to] target their search placement... |
|...it isn't parody, it isn't quoting for the sake of conducting argument... |
See? This is the sort of information we need, in order to help you with your original question regarding whether this copying might be regarded as "fair use".
Using keywords as keywords isn't "transformative". And since your keywords serve a very specific purpose, his use of them could easily be viewed as damaging to the marketability of your original. The copying isn't for purposes of parody, review, or discussion (and it's not for educational purposes either, I would presume).
I don't know the nature of (the "copyright-worthiness" of) your "work" or the amount or proportion of the work he has taken, but you definitely have two of the four points of the Guidelines covered, and could probably make a good case for at least one of the other two. I don't see how he could prevail in claiming "fair use" as a defense to a charge of infringement.
This is *extremely* unlikely to happen, but the way that they can go after you for filing the DMCA with the search engines is to sue you for illegally interfering with his business by filing the takedown with the search engines. You could be responsible for any loss of income from search engine traffic as well as attorney fees and punitive damages.
And your only real defense against this would be to take the copyright claim to court and win it. This means being certain of where you stand ahead of time, which means going to a lawyer if you are not sure.
What is most likely to happen is that they will just go ahead and change it, and you will have been successful. But since you had to ask the question about Fair Use in the first place, you should anderstand the full ramifications to your actions if you file a DMCA takedown instead of oping for a C&D to them directly.
"And there are the crazies out there who will argue "fair use" and that you committed perjury. Registration of copyright is your best protection. It covers you from the date the Library of Congress receives it, so get proof of delivery."
I sent this off to the library of congress this morning. I sent two copies on two cds and used extra wrapping to protect it more. I forgot to send a printout of my main page, but maybe I can send this tomorrow separately and just ask them to attach it to the application?
I also sent this package overnight with a return-receipt so I will have proof of when it is received.
I don't think these guys can argue fair use. The theft does not seem to fall under any of the criteria that Eliz mentioned at all.
I also spoke to an attorney friend of mine today. It may be that these guys may want to come after by arguing that I filed in bad faith and mistakenly. Bad faith isn't possible in my opinion. They stole an ordered list of 16 of my own uniquely worded phrases (even down to the use of ampersands)
and copied them word-for-word without alteration. They also copied a huge block of text and managed to include a hilarious misspelling on my part. So, I don't think fair use is a good argument for them. As to "mistaken", I don't see that happening either. There's no mistaking anything when you line the two pages up. Or the fact that my content existed as of 5/19/04 and their site was created in 10/04.
I am thinking that the worst outcome is that they file a counter notification with google to get their site back on google and then wait for me to pursue them in federal court. Which, to be honest, I probably won't do since my attorney friend indicated to me that this would probably cost tens of thousands of dollars.
So, what then, is a DMCA complaint worth? I'm not sure if it's worth anything at this point.
"This is *extremely* unlikely to happen, but the way that they can go after you for filing the DMCA with the search engines is to sue you for illegally interfering with his business by filing the takedown with the search engines. You could be responsible for any loss of income from search engine traffic as well as attorney fees and punitive damages."
This is my concern. However, I think the guy would be on extremely poor footing if he tried this. No one in his right mind would argue that the theft wasn't deliberate, direct, and did not fall under the provisions of fair use.
For him to claim that I illegally interfered with his business, I think he would have to show that I misrepresented the infringement, that I filed a DMCA claim in "bad faith". I did not file it in bad faith. That is obvious to the two attorney friends I spoke with today and yesterday. Did I file in good faith, but "mistakenly". No. It's very clearcut where the content came from and who stole it.
I understand your points, though. DMCA is not a quick fix in any sense.
I'm intrigued by this.
ownerrim, I presume you've gone down the WHOIS route and attempted to contact the host and the webmaster directly? And have you had any reply from the offending website/webmaster?
I am in exactly the same postion as you - someone copied all the text off my homepage - links and all - and pasted them on some trashy page on his meds website. I've no reply from him or the host, so I'm not wasting my time with DMCA, (although I did record spam abuse with Google and Yahoo).
How about you? Any replies from the guy/host?
"ownerrim, I presume you've gone down the WHOIS route and attempted to contact the host and the webmaster directly? And have you had any reply from the offending website/webmaster? "
It was somewhat difficult to track down, actually. The whois shows that the infringer is registered in the name of one individual, who I learned is part of a marketing company. However, his partner in that marketing company is an attorney. In other words, the marketing company is more or less a front man for a law firm.
I spoke with this attorney two days ago and he was very surprised that I tracked him down. He said that he would have his partner in the marketing company contact me the next day, but he never did. And, on that same day, more content from my site wound up on his site.
Ah ha! Well, this brings up a slightly off topic discussion that I was having elsewhere in the www...
Why do we always assume to solve an online problem with an online solution?
You know where they live.... and in an ominous kind of way that puts you at a great advantage to try other "normal" offline solutions....
1. Write them a long letter stating your case.
2. (If no reply to 1.) Write his boss a long letter stating your case and pointing out what other actions you may take against his company if the employee concerned doesn't adjust his website, (such as contacting memebership organisations the company maybe a part of, regulatory organisations that the company is signed up to etc).
3. (If no reply to 1. or 2.) Carry out the actions detailed in 2. - and write a further letter to both employee & employer informing them of what you've done.
Forget DMCA etc - hit them where it hurts - the wallet! :)
I've thought of investigating what constitutes unethical behavior as far as his state's bar is concerned and then filing a complaint. Don't know if that would be too helpful
, but it might be worth looking into.
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