Author Topic: [Policy Advisory] Copyright Violations  (Read 5609 times)

Offline Phillip Dampier

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[Policy Advisory] Copyright Violations
« on: September 20, 2007, 11:26:22 pm »
From time to time, we receive complaints from other websites or writers regarding content one of our residents may have used in their messages that violates someone else's copyright.  Sometimes these are animated signature graphics, avatars, photographs, or actual written content.

It is very important that residents take care not to intentionally make use of other people's art, photographs, or written works without attribution and/or permission.  There are "fair use" laws in place in the United States which allow quoting from brief passages of written material, preferably with  attribution.  If you want the reader to see the entire article, please include a link that readers can follow.

U.S. copyright law online is usually governed by the Digital Millennium Copyright Act, and that requires us to act immediately to remove infringing content, often with no advance consultation with the person who posted it.  Violating the DMCA can subject you to potential criminal and/or civil penalties, although the overwhelming majority of cases are resolved just by removing the offending message or graphic, or providing appropriate attribution.

In most cases, we realize the infringement was unintentional, and we can quietly resolve the matter.  But please do not put us in the position of having to deal with repeated infractions and complaints.  It creates a burden on the moderators and can potentially create liability issues for those of us who administer the site, and this could eventually put your status here in peril.

At the same time, our community is quite efficient at self-governing the site, so I would also appreciate it if those here who may discover potentially infringing content first address the matter with the moderator of the forum where the suspected violation is occuring before taking the issue outside of our community.  We are quite capable of addressing such issues in-house when they are reported.

All such communications should be done through Private Messages (PM's). 

I greatly appreciate everyone's cooperation and understanding on this sensitive matter.
« Last Edit: November 22, 2007, 05:28:05 pm by Phillip Dampier »
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Offline pettifogger

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Re: [Policy Advisory] Copyright Violations
« Reply #1 on: September 21, 2007, 12:12:38 am »
I agree completely with everything your have said.  One should never outright plagiarize another author or steal images etc.  And your suggestions are always the best way to proceed in an on-line forum. 

But Copyright and Fair Use are terms that are thrown around freely on the Internet these days and DMCA is making real attempts to untangle the mess.   Copyright laws are difficult to enforce on the Internet.  Every image, every word on the Internet has implied copyright that does not make it any easier to enforce.  Given the International quality of the beast it is a quagmire at best.  I’ll give you an example taken from Fred von Lohmann on The Patry Copyright Blog:  http://williampatry.blogspot.com/ (William Patry is the Senior Attorney for Copyright for Google)

Mr. Lohmann said:

Imagine the following: a work created in the US falls into the public domain in the US, but the author retains copyright in Canada. A US resident posts the work on a US server that is accessible in Canada. The author then sues in Canada, obtains a default, and attempts to enforce in a US court.

Or, perhaps more problematic, the author sues in US court over the infringement that occurs in Canada, and demands that the US court apply Canadian law to adjudicate that dispute.

To take another example, what if a EUR rights holder who enjoys protection for a collection of facts sues and obtains a default in Europe? Should a US court enforce the judgment because this is all the stuff of economic regulation?  It won’t happen.


Then there is the matter of what exactly does the blogger own.  Yes it is your intellectual property, but you did not patent it and you did put it on the Internet, and thereby essentially in the public domain, some would argue, where anyone can access it.   How reasonable is it to expect that your work has not been copied and disseminated before and do you have a right to expect that it will be kept sacrosanct when you or your blog service does not disable the right click feature on your web page.  It often comes down to what is the standard in the community &  what, exactly do you have a reasonable right to expect from your Blog service?  Since the community is world wide, how do you determine the reasonable standard?  When you send something out into the ether  when people from all cultures and all walks of life have virtually unlimited access to it at the click of a mouse, is it reasonable to expect it to remain untouched, unparaphrased, unquoted or uncopied?  Is it reasonable to think that no one will ever print it or share it or use it without your knowledge and consent?
 
Intent, and damage to the commercial value of the work are important considerations.   Was the intent to defame the original, or to claim the original as one’s own for commercial gain?  Is the paraphrasing of another online diary actually plagiarism?  Is the coping and re-posting of a photograph of an underwear model theft of intellectual property?  The courts would most likely rule not.  Courts have better things to do. This is a fairly new, untested concept. In one case an operator of a pirate BBS that didn't charge was acquitted because he didn't charge and therefore did not profit from the copy.

Copyright isn't an iron-clad lock on what can be published or paraphrased. It must be remembered that copyright has two main purposes, namely the protection of the author's right to obtain commercial benefit from valuable work, and more recently the protection of the author's general right to control how a work is used.
 
While copyright law makes it technically illegal to reproduce almost any new creative work (other than under fair use) without permission, if the work is unregistered and has no real commercial value, it gets very little protection. The author in this case can sue for an injunction against the publication, actual damages from a violation, and possibly court costs. Actual damages means actual money potentially lost by the author due to publication, plus any money gained by the defendant. But if a work has no commercial value, such as a typical E-mail message or random journal type blog posting, the actual damages will be zero. Only the most vindictive (and rich) author would sue when no damages are possible, and the courts don't look kindly on vindictive plaintiffs, unless the defendants are even more vindictive.

This kind of case is expensive to pursue and most prosecutors will not pursue it, they in fact typically, steer clear of intellectual property cases especially involving Internet blogs sites. Some find them too difficult, too murky,  some find them dull, but most just find their days so packed with run-of-the-mill criminal cases, they find no need to go looking for unusual cases especially since most blogs are glorified diaries and do not contain commercial viable published works of fiction or nonfiction, project facts figures and plans, trade secrets, advertising and business plans.  The law doesn't do much to protect works with no commercial value.

I would suggest a look at the DMCA (Digital Millennium Copyright Act) websites section on Blogging.  It can be found here: http://www.eff.org/bloggers/
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Offline louisev

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Re: [Policy Advisory] Copyright Violations
« Reply #2 on: September 21, 2007, 05:38:27 am »
the DMCA "safe harbor" provision states that if a person claims to have ownership (and therefore copyright) of online material, and it is hosted on a site, and another person or firm claims otherwise, then the web site must remove the offending content that is in dispute and let the two parties work it out amongst themselves (legally.)  This is how Livejournal deals with complaints under DMCA.  And there are also two legal concepts under consideration here:  plagiarism, which does not delve into the realm of commercial interest, and copyright fair use.   And make no mistake, an author whose name is on a work that is on the internet has not put it in the public domain unless he states it.  Copyright under DMCA is now implied for all authors whether in print or electronic media, internet content (yes, even blogs!) are NOT in the public domain unless that domain is made explicit with a statement from the author.

an interesting Livejournal community to explore on the issue of plagiarism is:  stop_plagiarism.livejournal.com  which attempts to provide protection for authors on Livejournal whose work is reused without permission.  It is moderately effective by using its Plagiarism Blacklist with offending LJ and ff.net users.

Here is the section in the DMCA regarding the Safe Harbor provision and service providers' responsibilities under DMCA:

Question: What are the notice and takedown procedures for web sites?

Answer: In order to have an allegedly infringing web site removed from a service provider's network, or to have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information:

    * The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]
    * The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials [512(d)(3)].
    * Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
    * A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].
    * A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].

Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed.[/i]

reference:  http://www.chillingeffects.org/dmca512/faq.cgi#QID125
« Last Edit: September 21, 2007, 06:20:26 am by louise van hine »
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Offline pettifogger

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Re: [Policy Advisory] Copyright Violations
« Reply #3 on: September 21, 2007, 06:40:32 am »
Well, Live Journal deals with a lot of fan fictions which are another whole story.  Interesting,  a site that thrives on fictions written by folks some legal experts feel are indefensible copyright infringers, defending those infringing works from their own plagiarism and copyright infringement...that could get confusing.   

Sadly a lot of fan fiction writers have come under fire of late.  Most never meant any disrespect, in fact quite the opposite, it was love of a story of character that drove them to take the story further.  But, you can't derive your work from someone else's work or copyright their work without their permission.  So technically, all fan fictions, which are derivative works are copyright violations. Many copyright holders turn a blind eye to such works, choosing to be flattered by the imitation and looking at it as free publicity, but they don't have to be so nice about it.

In the end, it's completely up to the owner of the copyright to decide whether or not to enforce their rights, and prosecute the infringers. Whether or not they will be successful would depend on the availability of the fair use defense to the infringer.

Some fan fiction writers use disclaimers that say "infringement not intended". Strictly speaking, for fan fictions, there is obvious infringement and the intention to infringe obviously exists. No disclaimer could exculpate that. It is smart however to make it clear that the characters were used without permission and there is no intent to attempt to copyright those same characters, or use them for profit.
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Offline louisev

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Re: [Policy Advisory] Copyright Violations
« Reply #4 on: September 21, 2007, 06:44:23 am »
This is not strictly true.  Fan fiction has not been legally tested through case law, and there is a legitimate argument for fair use as commentary.  The reason why this has not been tested in case law as yet is because fan fiction writers routinely give in to pressure from large media companies holding copyrights (who have deep pockets) and the fan fic writers do not have $100,000 to risk losing a suit.

Here is Henry Jenkin's article with the argument:

http://www.henryjenkins.org/2006/09/fan_fiction_as_critical_commen.html
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Offline Phillip Dampier

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Re: [Policy Advisory] Copyright Violations
« Reply #5 on: November 05, 2007, 07:42:39 pm »
BetterMost is now partnered with Copyscape, a web analysis service that monitors the content on our site and watches for the appearance of stolen content or plagiarism from our pages on other web sites.  We have had one recent occasion where a bottom-feeding website attempted to steal our content for their own site littered with advertising that they hope people will click on so that they can make money by creating sites comprised entirely of stolen content.  We have gotten this website shut down.

New tools are now available which will automatically monitor the content of our site and notify us if there is anything being plagiarised or stolen so that we can take more immediate action to stop this from happening.

We do not mind if people quote content either on or off this site, but proper attribution is very important to protect the hard work of others.

Additional Resources:

Article About Plagiarism
Preventing Plagiarism
Responding to Plagiarism
Copyright Protection for Websites
Legal Resources for Online Matters
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