|A suggestion about copyright questions|
A change of habit is in order
People, as a lawyer, I've got to tell you: This practice of asking in forums "Is it okay if I do this with someone else's workproduct?" really needs to stop. Really. Stop! No kidding.
I don't know if it's the lazy man's approach, the fearful man's approach or the scoundrel's approach but if you know enough to raise the question in a forum then you equally know - intuitively or otherwise - that the right approach is to ask the copyright holder - not a forum - if "this is okay?"
I'll risk predicting that the benefits of asking the rights holder, or at least making a bona fide and documented attempt, are likely to outweigh the disadvantages in the long run.
Here's the possibilities on the positive side of asking the right(s) person:
1. Your answer will be authoritative. You can sleep at night, assured that your assets are not at risk. The owner or the person with apparent authority granted you permission. Even if there's a flaw in the permission a judge or jury will find it hard to penalize you after making the bona fide effort and relying in good faith on the answer from the real or purported rights holder.
2. You might establish a relationship with the creator. Who knows? He/she might be taken by your interest and offer you additional works to republish.
3. Your new friend may suggest other sources or ideas. He/she might hook you up with his/her friends. Might put a link to your site on his site.
4. This might lead to new connections.....
Get it? It's good karma. You have doubts. When in doubt go to the source. If you could talk to God would you ask your friend Sally 'should I do X'? Likewise, what good will it do when John, the rights holder, learns that you asked Sally and not him for permission? Would Sally, who has no relation to John, have the right to authorize you to take John's car for your own?
Here's the downside of asking the rights owner for permission: He/she might say 'no' or might say "okay, but pay me $X", or "okay, but give attribution as follows", or "okay, but only use this much and then link back to my site".
Puleezzzzzz, stop asking the wrong people 'for permission'. That is essentially, no in fact what you are doing when you raise the question in forums.
The downside of asking here - the wrong place - is that the answers you get will be no defense when you are confronted by a lawyer who asks "Whose permission did you need? The forum member's or my client's permission, and since we know it was my client's permission that counts, and you didn't ask, then let's call it the way it really is: You're a thief."
This is the wrong place to ask "is it okay". Totally. Ask the rights holder.
And DON'T assume you will get off with a cease and desist letter if you are found out. Your account at your host could be cancelled. You could be sued from the outset without further warning. There is no requirement of 'warning' in the copyright statute.
I'm am not generally a SOB but I feel no obligation to exhibit kindness to the thief that steals my car, takes my stereo or lifts my wallet. The government doesn't issue cease and desist letters to thieves. It arrests them and puts them in jail.
In my case, once I go live with my content on my sites, I will not be issuing cease and desist letters. The first notice you will get from me that your actions will result in harm to your financial interests will be the delivery of lawsuit papers with a demand for payment.
I know this type of reality rankles some people, probably the same people who would tell the police officer "Hey, no problem. I don't mind people stealing my car, riding for a month and parking it in their driveway. That's cool. Here, take my bicycle and watch and the shirt off my back too." No, on second thought, anyone that gracious would also be the last to criticize anyone for anything - including my approach.
And I won't be the only one proceeding in this - sue first, talk later - manner in the future. Things have gotten out of hand. It's 'steal first, profit and remove later only if asked/demanded'.
If you steal without asking then I won't hear you complain when I sue without asking.
Rights holders who are violated will start to send a message to those who take without asking: If you don't ask first you will pay.
I agree with your premise, Webwork. I think people have come to get so much good, free advice here on WebmasterWorld about non-legal things they come here out of habit to ask questions that would be better asked of the rights holder, and/or a lawyer.
And when Joe Webmaster sees so much copyright infringement happening on the web, isn't it natural to start to wonder, "Is this okay?" And so they come here and get pointed in the right direction. That's what we're here for. "Nope, it's not okay without permission of the rights holder."
Well said, Webwork. As a writer, I'm rabidly protective of my intellectual property rights. I'd expect that web designers would feel the same way. If we all kept the golden rule in mind, my guess is these questions wouldn't pop up quite so frequently. :) But it is a problem. I had a Client from Hell a few months ago who asked simply for some "minor rewrites" and "edits" on material he supplied, which was already posted on his web site. I got suspicious, googled key phrases, and discovered he'd hopped all over the internet, stealing a page from each of his industry competitors. I refused to do the work, and told him I'd turn him in to the rightful copy owners if it stayed posted on his web site. He threatened to sue me (not sure for what), but that's the last I ever heard of him. And his web site is no longer up, either. (Maybe I need a cape that flows in the wind with a slogan on it, like "intellectual property rights crusader!")
People are suffering the delusion that the worst that will come of it is a request to have the material removed. Big mistake.
Those that flaunt the law likely also think there's nothing that can be done about the infringement. Bib mistake.
Rights holder sues, locally, for that is where the infringement occurred. Rights holder claims statutory damages, not having to prove actual damages. Rights holder takes a judgment since the thief won't be bothered hiring a lawyer.
Rights holder turns the judgment over to a collection lawyer, both here and abroad.
Collection lawyer serves a discovery subpoena on every affiliate network that was channeling revenue to the thief. Collection lawyer is, by now, well acquainted by the market targeted by the thief, so when the thief attempts to morph his/her enterprise by changing names, etc., the collection lawyer knows it's time to go back to court for an Order to Show Cause why 'company B' shouldn't have to disclose facts about where the money is going.... and so on.
Collection lawyer also makes the affiliate company a party for the purpose of discovery, leaning of the affiliate company a bit to clean up its relationships. When company A and company B and company C look strangely similar affiliate company decides 'We don't need this aggravation. Good-bye.'
Collection lawyer also serves a writ on Network Solutions, the final resolver of dot com and dot net domains, seeking the turnover of various associated domains as a form of satisfaction of the judgment.
After awhile the companies running the affiliate programs begin to act a little more circumspectly. It's no longer 'take all comers'.
This is the future. There's more to come. The Vandals are pounding at the door. Grandpa is reaching for his shotgun, but the Vandals don't appreciate that quite yet.
Well said, Webwork. One of the challenges is to convince people that even having the law on your side doesn't mean someone with unlimited resources can't sue the heck out of you. A small business is unlikely to come out ahead financially if they pick a fight with a much larger firm.
Historically, the vast majority of content ripoffs have been handled with cease & desist letters. The situation is changing, I think. I really believe we will find more people who want to sue first and ask questions later.
When I was in the mail order business, I went to uneconomic lengths to prosecute frauds. It would have been easy and cheap to just delete the orders, but I felt I was being a good citizen by assigning a person to contact local law enforcement agencies with full details. Sometimes nothing happened, but we got quite a few arrested and sent some to jail. It's easy to imagine a site owner feeling sufficiently aggrieved to file suit for copyright infringement even if the probability of collecting monetary damages is low; the site owner will derive satisfaction from having caused untold grief to a ripoff artist and from putting that person out of business, at least for a while.
|I'll risk predicting that the benefits of asking the rights holder, or at least making a bona fide and documented attempt, are likely to outweigh the disadvantages in the long run. |
Exactly. Case in point: I use copyrighted and ENTIRELY ORIGINAL graphics from a well-known fantasy artist on one of my sites, with MY OWN POETRY superimposed in several cases. This is WITH HER EXPRESS PERMISSION - because I asked nicely (several different times, for several different paintings) and gave her the link to "vet" the use beforehand, as well as putting up HIGHLY VISIBLE links to her own marvelous site.
This is not just so much dreck, people. Her originals sell and sell well for MANY HUNDREDS OF DOLLARS apiece. I am very very fortunate that she allows this. However, had I never asked, I would never have received that permission. And like Eileen C, I write, which means I am SERIOUSLY anal about copyright. Had the artist denied my request, I WOULD NEVER HAVE CONSIDERED POSTING HER WORK ON MY SITE.
Oh, btw. I think Webwork needs to be added to the mods for this forum....
Thanks for the nod vkaryl but I can tell you - I've met rogerd and I'm no rogerd. He's a total class act with brains, talent and humanity. I also met ghost at PubConf but didn't get to spend nearly as much time in his presence. I can tell you he is a savant. All I can say about engine is that I may have seen his shadow at PubConf and, from what I hear, he likes it that way ;-)
On the ship called WW I'd have to say I'm still learning to lash my cannon to the deck. Not quite yet mod material, but thanks for the kind words.
Lol, thanks, Webwork, but let's not be careful to overpromise lest I underdeliver. I'd add that well-informed opinions offered here by Webwork, Mgream, and others are what make WebmasterWorld such a valuable resource. Many forums are populated by posters with an opinion on everything but little actual knowledge. Not so here... Webwork's the real deal, so pay attention when he posts!
Oh, I DO, rogerd, I DO!
So do I. This thread should be the first one in the library (in big bold letters).
It's there now, Photon, thanks!
This always comes up because of Google. eg: put your branding banner at the top, and link to it with the word "cache":
While I certainly agree that we should discourage and educate people about using other people's content, I think a couple caveats are in order.
1. We shouldn't assume that the webmaster or site owner is the actual owner of their content. They may have copied it from somewhere else themselves! And, if they copied from a source that's not online, a Google search may not find a match. Granted, asking permission gives you an electronic paper trail that may give you some protection against an infrigement claim, but I think this is still something to be cautious about.
2. The apparent owner of the image or article may not give you the *right* answer. For example, public domain works are often redistributed or resold, and the new publisher puts their copyright all over it. One eBook I have has a copyright notice on every page. And, they'll frequently include a big scary-sounding disclaimer warning you against copying it, etc. But, in order to qualify for new copyright protection, they have to have made substantive changes to the work. You may not be able to redistribute the eBook in and of itself but, if they have not made substantive changes from the public domain version of the work, the text is in the public domain and you can use it. Granted, you might not be able to tell if they made substantive changes or not. And, the better option would be to look for an original version or a copy that clearly states it is unmodified from the original text. But, my point here is that the "owner" may deny you permission to use the work, when that "owner" may have no basis to do so. In that case, the answer you get can not be said to be a definitive one.
So, even when asking for permission, I think you still need to be cautious for those instances in which the "owner" is not the actual owner and may give you permission to use content they don't actually own, or may deny you permission to use content that we all own.
My wife likes to make web pages using artwork. When she finds art she likes, she hunts down the artist and asks permission. 9 times out of then, they say yes. Sometimes they have offered her help, support or praise. It all works out fine. Those that say "no" usually have excellent reasons, and sometimes they even take the time to explain why.
Webwork ....Just in case I have ever offended your good self by any of my comments about lawyers ..I would hereby like to simultaneously apologise to you and congratulate you on a superb post ..( I don't say I won't make the same comments as previously about some of your confreres ...but never will you be included )...
Like most of the other posters here I make my living and my life around what I create ..and have done for nearly 50 yrs now ...I've been ripped off by copiers and been to court and won ..and done it again and again to the point of now being considered an "expert witness" and appeared as such in court in the UK ...the one thing that comes to mind when reading the fora on this subject ..and replying harshly ( and I consider that stealing or encouraging stealing merits harsh replies )....
Is that in the main those who "interpret" the law or require "guidance" or "advice" or argue that "where I live etc " are always the commercial types ....
And like the rest of the posters here I can get violent when I'm stolen from or when someone is authorising such practices under "fair use" ....
As I actually go 120 kgs and 6'6" i can usually "hang onto" my property ...or get it back if the thief is near to hand....and I have no problem with doing so ..
but it does get tiresome keep hearing or reading " if you publish it I can "fair use" copy it " ( sorry about quotes in quotes I only got English A level ) ...
To keep this thread at the top of the active list would save a lot of arguements ....I 'm in the middle of the usual type at the moment with "BigDave" who has accused one poster of being a ""troll just because he ( not Bigdave ) and I would like him to respect our and others intellectual property...for the Zillionth time!
googlecache ...we wont even go there ..don't get me started ...
I hate having to do this to my site and to the browsers that come in ...but the other choice is worse..!
I even tried giving away "unprotected images " for screen savers etc ....they showed up 3 days later as paid for images on anothers site ...they refused to take it down ...
so I broke their server
...two wrongs etc I know ..but a "cease and desist" or a "lawyer threat" just gets laughed at in some countries ...
Why should I have to do this to protect what is my property?
( rant over ) til next time ....
PS ..can someone sticky this thread to "BigDave"
BTW ..agree totally with the praise for the mods here : )
Leosghost: could you PLEASE provide me the name and web addy of that js? I've got such problems of that nature on various sites....
As you point out, it's not (or not ONLY) the theft of the works - it's the bandwidth!
I have published hundreds of articles on my site since 98 and have often seen my work copied on other websites.
When I first saw it I contacted the webmasters and asked the to remove it. It was a lot of work: First finding the right contact, then trying to reach them and have them respond. Some of them removed the content but a few started to question if it was realy mine. I soon got tired of wasting my time on this for no pay at all, so I changed strategy.
What I do now is that I reguarly scan the web for violations (I basically search various engines for long quoted phrases from popular articles on my site, and then verify possible violations manually). Whenever I find something I collect as much documentation about the violation(s) as possible, incl. screen dumps and electronic copies. Then I turn it over to my lawyer, including a short description and references to my original work.
I have a good local legal firm (Denmark - the site in question is in Danish) that I use, that have specialized in Internet related legal issues. They handle everything from here keeping me informed about the progress.
My lawyer starts out by finding out exactly who have published my material - then he basically send them a bill that is made up as follow (acording to Danish law): The time it took me to write the article X my hourly fee + 100% if they did not ask (which they did not) and another 100% if they did not credit me as author (a few did, but some actually quoted themself as author!). Standard artciles are normally one days work - more speilized articles can be up to 3. So, as you can imagine this can end up being a pretty large bill for a handfull of articles stolen.
Last time my lawyer processed 5 cases for me - only in one case did we have to actually "threaten" the violator to take him to curt - in the other 4 a reduced settlement was made.
I never made any money from it - the settlements paid for the lawer (I think there was a few hundred in profit but not much). But, I got the violaters stoped, hopefully i scared them from doing it again (also to others) and I did not have to waste my own time doing it.
You could do this very easy in other ways if you want to keep spiders out and stop people from referencing to your image files from their own servers.
One way would be using mod_rewrite (if you are on Apache) or a similar ISAPI filter for NT.
Another way would be to cloak. Usually cloaking is used to send uptimized content to search engines but there is nothing that stops you from using the same software to send "nothing" to the search engines but everything to normal users.
I'm sorry if you misinterpreted what I said.
I never claimed that fair use covers any use. And I never recommended violating fair use laws. the only relation my post had to fair use, is that I want publishers to understand that fair use is not taking from them, but it is a withholding of the rights that were granted in copyright.
And I also pointed out (or intended to) that at least in the United States, fair use is a very big grey area in copyright law.
At no point did I get into arguing whether or not the quoting of a site constituted fair use.
Nor did I intend to get in an argument with you about fair use as far as taking pictures of art. Which arguing over is especially pointless as we are in different countries with different laws of what is fair use.
My point was simply this:
By publishing your work, you are giving your work to the public. (at least in the US)
In exchange for giving your work to the public, you are granted certain rights. These rights in fact go beyond simple property rights.
You do not own the content, you only own certain "rights" to the content.
Violating copyright is still violating copyright. It is still a violation of the law. (by the way, it is not stealing, it is copyright violation. They are VERY different things)
If you get it through your head that I am not suggesting violating copyright, and reread what I wrote, you might actually discover my real point that publishers should understand the true nature of copyright and what they "own".
Unlike what Leosghost seems to think of me, I actually agree with most everything you say.
The only problem I have is your analogies with stealing, and even referring to jail.
While in some ways the analogy is valid, the problem is that it confuses many of the rights holders into thinking of copyright as something other than what it is.
Copyright infringement is a different creature in the eyes of the law than theft of real property. In very few cases is it a criminal matter. It is almost always a civil action.
I did notice that you correctly referred to the "rights holder" instead of owner in your post, so you obviously understand the difference, but the vast majority of the public doesn't.
Just out of curiosity, are you an IP lawyer?
I did verify my interpretation of copyright (and patent) law with Lawernce Lessig, and he agreed with me.
While I admit that I am not an attorney, I am very well versed in reading laws and legal documents. The law seems very clear to me that there is no "intellectual property" in US law other than trade secret. Once something is no longer trade secret, there are only "intellectual property rights".
DaveATIFG ( ADMIN )moved the other "parallel" thread here for those wondering whats going on ...http://www.webmasterworld.com/forum44/772.htm
Webwork ...sorry for the intrusion on your thread but if you read the link above you'll I guess realise why these two are linked ...