A Cause For Concern For Bloggers
Copyright law is complex and poses the ability to confuse anyone with a need to use intellectual property, with the possibility to incur penalties if used incorrectly. In pursuit of information from the U.S. Copyright office specifically regarding the use of copyrighted intellectual property in blogs, I was transferred numerous times from expert to expert, each of which specialized in the most intricate detail of copyright law in online media.
The average blogger, with a desire to have their voice heard but limited or no knowledge of copyright law, can face penalties they may be unaware of if using intellectual property incorrectly.
With the rise and rapid growth this new form of digital media, new, complex questions arise. How can today’s blogger avoid facing penalties and use intellectual property correctly? What penalties can a blogger incur if someone’s copyright is violated? Are there any preventative measures copyright holders and media outlets could take to not have their intellectual property infringed upon?
“I don’t know if anything can be prevented with the Web, the way it works,” Assistant Managing Editor at Newsday Mary Ann Skinner said in regards to online copyright infringement. “Everybody can just cut-and-paste. You can enforce it; you can try to police it a little bit more.”
Newsday, as stated in their Terms of Service, explained what they consider “content,” which is news articles, reviews, photographs, images, audio clips, video and much more. What are stated in the Terms of Service are the allowances of the content usage, which is solely for “personal, non-commercial use.”
“In the past we would see some of our stories being copied and put on other people’s Web sites,” Skinner said. "No one is supposed to use our content without our permission. It’s not just an entire article, it’s the substance of the article; it could be a paragraph that’s basically the substance of the article and that would be as much of a problem for us.”
The openness of the Internet, the availability to quickly and easily create a blog and the rise of popularity of blogs poses new, complex issues to where, when and how frequently copyrighted material will be used.
“In terms of the internet which speaks to the broader issue of blogs and why something like a blog is problematic is because everyone in the world has access to a Web site,” Martin Cribbs, founder and president of Cribbs Consulting, said. “On the internet, you’re not necessarily buying media, it’s just automatically available to everyone in the world to see.”
Although there are difficulties with practices to prevent or control copyright infringement online, legal action against blogs and bloggers from copyright holders that have been infringed upon has been taken.
Mario Lavandeira, better known as Perez Hilton, was sued by paparazzi photo agency X17 in November 2006. The complaint claimed that Lavandeira committed copyright infringement when he posted at least 51 of their photos on his blog, PerezHilton.com. A Notice of Settlement was filed in January 2008 and the two parties settled out-of-court in April 2008.
The action taken by X17 for Lavandeira’s use of photographs is representative of action taken by other media outlets and individuals that own copyrights against those who have infringed upon them.
“First course of action, we could contact them and say, ‘look, you’re using our content, have you got our permission?’" Skinner said. "We usually know about that ahead of time but just for the off chance they don’t, they either have the choice of taking it down or contacting our permissions agent and get permission to use it.
"We would contact them first and hope that they would cooperate with us. We could go as far as bring legal action against someone."
Fair Use, Liability and the DMCA
Today’s blogger should be aware that not all use of copyrighted material that doesn’t belong to the user is considered copyright infringement. There is justified use of copyrighted material know as “fair use,” which is listed in Section 107 of copyright law. This section, referred to as the “fair use doctrine,” sets forth guidelines where the use of copyrighted material doesn’t violate the rights of the copyright owner.
Criticism, comment, news reporting, teaching, scholarship and research are all considered usages not infringing of a copyright, as stated in the doctrine. Elements which determine if the use is in compliance with fair use guidelines include the purpose and character of the use, including whether such use is of a 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 and the effect of the use upon the potential market for or value of the copyrighted work.
“If you write an article about Andy Warhol and you use Andy Warhol artwork to illustrate that article, it’s very possible that you can argue that it’s fair use because it’s a news article about Andy Warhol referencing his artwork,” Cribbs said.
“If, for example, you are a fashion magazine and you’re doing a spread on spring and you use Andy Warhol artwork of 'Flowers' to illustrate the theme of spring but has nothing to do with Andy Warhol, then it can be argued that it’s not fair use; it’s a commercial use of an artwork that has nothing to do with the actual subject matter.”
Fair use, however, isn’t an automatic allowance to use copyrighted material.
“Fair use doesn’t give you the right to use the copyright,” Betty Tufariello, intellectual property attorney and founder of IntellectuLaw, said. “What fair use does is gives you a defense to get you out of an accusation of copyright infringement.”
Blog service providers, such as Blogger and WordPress, refer to the Digital Millennium Copyright Act (DMCA) in their Terms of Service in regards to user copyright infringement. Section 512 to the Copyright Act specifically refers to the liability of an online service provider.
Section 512 created limitations on the liability of copyright infringement for the online service provider contingent upon its conduct. According to the section, the service provider must meet two conditions to be eligible for these limitations, which include the creation and use of a termination policy for the accounts of subscribers who are repeat infringers and to comply with “standard technical measures,” or measures copyright owners use to identify or protect copyrighted works available to anyone on fair and unbiased terms that do not have ill affects financially or otherwise on the service provider.
If followed, the section reduces the liability of the blog service provider.
“It has the potential to limit liability for the service provider,” Principal Legal Advisor at the United States Copyright Office Robert Kasunic said of the DMCA. “It’s essentially a legal mechanism to efficiently limit the harm that the Internet can pose in terms of the ease someone can put infringing material online. It has the potential to have things removed rather quickly.”
Although adherence to the section and removal of copyrighted material would limit the liability of the service provider from a users copyright infringement, the service provider is not required to adhere.
“Part of the requirements for Section 512c if they want to limit their liability is that they have to upon receipt of a takedown notification they have to remove any material that’s alleged to be to be infringing by a copyright owner who sends a takedown notification,” Kasunic said.
“There’s no requirement for the service provider to do that but if the service provider wants to take advantage of the limits of liability in Section 512 then they would have to do that.”
Blogger, a blog service provided by Google, immediately makes compliance with the DMCA known, as the name of the act is written in bold letters atop the Terms of Service page.
The Blogger copyright infringement policy stated that upon receipt of copyright infringement notices they may remove or disable the allegedly infringed material, and attempt to contact the blog owner or administrator of the notification. Also stated is the possibility that they may terminate the subscription of the infringer. Blogger also may document the alleged infringement and send a copy of the notice to Chilling Effects, an organization that “collects and analyzes legal complaints about online activity, helping Internet users to know their rights and understand the law.”
Video service provider YouTube, a Google subsidiary that allows users to “upload, share and view videos,” adheres to the same copyright infringement policies that Google provides for its blog service, Blogger, with one major, noticeable adjustment. YouTube will allow the user to change the audio selection in an uploaded video if the audio is infringing upon a copyright. To substitute for copyrighted music in the video, YouTube has enlisted a feature called “AudioSwap,” which allows the user to change the audio from the copyrighted music to a song in an authorized music library.
Popular blog service provider WordPress, created by Internet development corporation Automattic, also lists its adherence to the DMCA in its Terms of Service.
In the Terms of Service in regards to copyright infringement notices it is stated that they “will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material.” The statement also includes the WordPress policy on repeat offenders, which include possible termination of usage and the denial of future access to WordPress, and the denial of any refunds of anything paid to WordPress.
Potential Action Against Infringers and How You Can Be Caught
Bloggers today can face various penalties and be approached in different manners from copyright holders if their copyright is violated. Media entities and copyright holders do not necessarily follow the same course of action when being pursued for copyright infringement.
Established mass-media entities and media wire services have detailed policies that explain the process of content removal from the infringing user of the copyrighted content. These detailed policies are generally written with stern language, include references or links to copyright law documents and include specific courses of action against infringers, which commonly begins with an official takedown notice.
Getty Images, the foremost source of digital media in the world, created a document available to view online titled, “Copyright 101: Copyright and Content Licensing.” The document provides an overview of copyright law as well as an explanation about their own copyright infringement policies.
Although the only course of action specifically stated in the document refers to letters sent to copyright infringers demanding payment for the use of the content, Getty Images makes it clear how protective they are of their content. The document said, “customers are not permitted to use imagery for any purpose without agreeing to a license.” The document also sternly stated, “Getty Images will continue to pursue payment of the settlement amounts until the matter is resolved.”
“The majority of our business and the majority of our revenue is copyright enforcement,” Executive Vice President of Business and Corporate Development of Attributor Matt Robinson said. “We identify copyright infringement on behalf of 50 or so major media companies we work for, most of the top-20 book publishers, all of the global news wires, 80-percent of the U.S. newspapers and we’re just launching into magazines.”
The service creates “digital fingerprints” for different portions of your work to create what Attributor refers to as “DNA.” This DNA can be recognized in a search of the Internet and will provide a report of where your content was used and if the usage followed the parameters you set forth.
Three products are offered to the clients of Attributor. One of these products is called FairShare, which has your work distributed over the Internet and allows it to be used by people everywhere, wherever they want to use it. This free service will allow the creator of the work to track their work and make money off of it whenever the user of the work does. FairShare Insight is another product offered by Attributor, which gives details to where and how frequently your work is being used. The final product available from Attributor is FairShare Guardian. This product monitors and identifies the infringed upon material, facilitates the removal of the material and documents the infringement in a report ready for legal action to be taken if necessary. This product is backed with an “enforcement team” that works to have the material removed quickly and ensures the anti-piracy requirements of the company are adhered to.
FairShare Guardian is the service geared mostly towards the mainstream media outlet.
“Large and sometimes small book, news and magazine publishers employ our tracking product and then use our professional services team to manage some of their policies,” Robinson said. “We do that through a graduated response system where 90-pernect of the removals occur happen before we have to send a take-down notice, pursuant to a dialogue that begins between the content owner and the people that are using the content.”
Although the services provided by Attributor track the usage of the client’s content, the company does not get involved with litigation when the copyrighted content is being infringed upon.
“We wouldn’t do the enforcement work for them, but we can give you a sample of when and where your copies are being used,” Robinson said.
The Associated Press (AP) announced via a press release in July 2009 that they are building a “news registry” to “monitor use of AP and member content online.” The registry, as stated in the press release, “will tag and track all AP content online to assure compliance with terms of use.” As reported by PaidContent.org in April 2010 in an article titled “AP News Registry Gets Antitrust Pass From DOJ,” the news registry, upon business review by the Department of Justice, was told that the news registry, “will be not likely to result in anticompetitive harm and may provide pro-competitive benefits to participating content owners and users.” PaidContent.org also reported that the news registry would be in effect as soon as July 2010.
The Future of Copyright in Blogging
Not all bloggers have a budget to pay for licenses to use copyrighted material. With the risk of a penalty for using copyrighted material not belonging to you, but a need or want to express yourself, what options do you have?
An option for the blogger on a budget is to utilize Creative Commons, a nonprofit organization that provides free licenses for copyrighted material, with set parameters from the creator of the material that doesn’t violate copyright law.
“Our licenses are free, they’re free for anyone to use, and they make it really clear how they can use someone else’s work,” office manager at Creative Commons Ani Heung said of the licenses.
“If a blogger were to run across a photo they like and they want to use it on their blog under one of our licenses it’s very clear to them how they can use it without upsetting the photographer or getting in trouble with that legally.”
“We have six different licenses that have different combinations of terms on each license,” Heung said.
“People can go on our Web site and read about them and then decide what license makes the most sense. Basically they (the licensor) can mark their work however they want to with a CC (Creative Commons) license and make it really clear that its under a specific license and then if its an online work that they’re marking they should link through to our licensee which will explain all the terms of our license."
Free licenses provide the blogger with an opportunity to use material, within the given parameters, without the risk of a penalty.
“It gives them more options,” Heung said of bloggers. “Most of the content that’s online is under full copyright, so they don’t have access to use that without potentially getting in trouble from the copyright owner, but Creative Commons licensed works that are out there are saying, ‘look, we want you to use us, go ahead, use us under the terms of our license.’”
The benefit of Creative Commons is mutual; the benefits do not stop at just the user of the content.
“Before Creative Commons there was an option either to do a full copyright on your work and then anyone who ran across it would not be allowed to copy any portion, would not be allowed to reuse it or remix it,” Heung said. “Now they (the creator of the work) have the option to say, ‘you can use it this way, you must give me attribution, if you do copy my stuff you need to put my name on it,’ and they can say, ‘you can or you can’t use it for commercial purposes,’ and give them options.
"It also can benefit them (the creator) in other directions; they can use other Creative Commons licensed work. They know exactly how they can use it legally, and there won’t be a legal ‘gray space’ by just copying someone’s work without being sure.”
