Internet copyright law made simple

by Jen

Once upon a time, I found a blogger was reposting my entire articles, pictures and all, on her blog, as if they were her own. I couldn’t find a way to contact her, so – assuming she was one of the many “sploggers” who do this intentionally – I talked about it in a new article. It turned out she was just pushing a button in the Google Reader/Blogger interface that caused the article to post to her Blogger blog. Why Google would set people up to do such a thing unintentionally, I don’t know. But we discussed it in the comments thread, and I later removed the post (because it was rather harsh), and said one of these days maybe I’d write a post about internet copyright.

Whether you’re a serious blogger or just someone who surfs the net and wonders what that “share” button in your feedreader might do, here are a few things you should know about internet copyright law. I’m going to keep this as simple as possible, and link to articles that go more in-depth on the legal stuff, for those who want to read it.

Posting is copyrighting

The instant an article or comment is posted online, it’s copyrighted by its author (according to the Berne convention). It doesn’t need to have a copyright notice on it. No matter where you find something online, it is copyrighted and you may not republish it without permission. It doesn’t matter whether or not you charge money for it, either. Except…

Fair Use

From the tradition of academics needing to be able to cite sources in order to write papers comes a doctrine called “Fair Use.” On the internet, this means you may republish a quote from someone’s article, as long as you make it clear the words are not yours. Using blockquotes (or some distinguishing HTML markup) and providing a link to the original article is considered sufficient online. There’s no hard and fast measure of a “quote”, but it’s generally 2-3 sentences, or a small percentage of a very long article that doesn’t give everything away. The way to think of it is: so long as your quote could make people want to click the link and go read the original article, the original writer is benefiting from increased traffic, so no harm done. In fact, these links are how websites get better search engine rankings and higher traffic levels over time, so you’re actually benefiting them.

Please keep in mind, if the short citation you choose gives away the whole article so there is no need for your readers to click the link to the original, this could be considered not fair use. So don’t quote an entire recipe from a 60,000 word article, and don’t give away the ending of an online novel. The exception to this rule is opinion pieces. Sometimes the only bit it makes sense to cite is the bit that gives it all away. But in this case, I like to add a parenthetical, “Check out the rest of the article – it’s all really good” to encourage my readers to benefit the original site.

What about images?

Images are also automatically copyrighted, but let’s take a look at LifeHacker. They routinely republish photographs from other bloggers, write about the blogger’s article, then post a link to the article. No one complains because LifeHacker can send you insane amounts of traffic, and webmasters like that. I often grab images from someone’s tutorial when I feature it with a link and a quote, and no one has complained so far because they’re benefiting. But if they ask you to remove an image, you should. There are plenty of places to get free images online to replace them.

Oh, and never ever “hotlink.” That’s when you republish someone’s image by linking to it on their server, using up their bandwidth that they’ve paid for every time the image loads on your site. Always download the image and save it to your site (or your Flickr account, or whatever) and serve it from there.

Comments and forum posting

If you’re posting a comment on a blog or forum that’s owned by someone else, they have the right to determine whether or not they will publish the comment, edit the comment, etc. It’s kind of like you’re the author (and in that sense, you’re the copyright holder) and they are your publisher. Smart bloggers will spell this out in a Terms and Conditions or “commenting policy” page. But even if a website owner has not spelled this out, it’s generally understood to be how things are done.

Some people think “free speech” means a website owner must allow them to publish whatever hateful, offensive or irrelevant comments they want to make, but this is not true. Freedom of speech doesn’t mean you have a right to come into my home that I pay for anytime you like and insult my guests, right? Think of other people’s websites as a party you’ve been invited to, and behave like a well-mannered guest.

But… fan fiction!

Yes, fan fiction (in which people write original stories based on the characters and situations from a TV show, movie, book, etc.) is a strange one. Technically, it violates copyright law and you could be sued. But since it boosts the popularity of the works it’s based on, causing the creators to make more money, the US Supreme Court has ruled that so long as fan fiction authors do not profit on publishing their fan fiction, no harm, no foul. Fanzines must be sold at cost, and fan fiction websites may not profit the authors. So if you don’t profit from fan fiction, then under US law, the copyright holders couldn’t recover any damages from you, so suing really wouldn’t be worth their time or expense.

Can I email my friend a whole article?

Generally, yes. In fact, some sites have links inviting you to “email this article.” But this must be personal – you can’t make any money off this. You can’t republish someone else’s article as part of your newsletter (though a Fair Use citation and link would be just fine). And I would advise against sending a whole article to an email list because you never know what someone else on the list might do with it, and the list could get shut down.

Can someone post my personal emails?

Not really – emails are copyrighted, too (though if it’s your work email, they technically own it). If someone posts your email as if it’s their work, that’s not okay. If they post your email in a malicious way and identify you – say, post it to Facebook with your Facebook name to make fun of you – that could technically be a suit for defamation, though unless it cost you your job or something huge it probably wouldn’t be worth pursuing.

So what if I break copyright law?

Well, the first thing the site owner can do is send you a Cease and Desist order. No lawyer required – there are templates online. It’ll order you to remove the content immediately or suffer the consequences. Site owners can also report all your stolen articles to Google as spam, and that will get your Google traffic killed in no short order – trust me, I’ve done this to people who really were deliberately stealing my work. The owner can also file a notice of infringement of the Digital Millennium Copyright Act with Google. They can also inform your host what you’ve done, and any reputable host will suspend your site immediately. They can even notify your domain registrar and, in theory at least, cause you to lose your domain.

If none of this works, they can sue you, and you will lose. No matter how you doctor things on your end to make it look like you published it first, there are internet archives that track this stuff. You will lose your case, have to pay up, and probably have to pay their attorney’s fees, too.

And in the US, if a copyright violation involves more than ten copies and a value over $2500, it is considered a felony. You could be sued not just in civil court, but criminal as well.

Someone’s unfairly accused me

Once upon a time, I linked to a blogger using a Fair Use citation and a clear link (I even encouraged readers to click the link). She went ballistic, having no idea how Fair Use works and threatened me. I tried to explain how I was sending her traffic and boosting her rank in Google, but she was determined I was cheating her. I removed the article – no big deal. This is what I recommend you do: if someone wants you to remove one quote, one link, or one image, why not just comply?

Another situation: you merely link to someone’s Blogger blog or Facebook, and suddenly you’re sending them hordes of angry commenters who disagree with their position. Technically, under Fair Use, you can do this. But if this person asks you to please remove the link, why would you not just do that? Some of this is not so much a matter of law as just basic decency.

But if someone’s claiming you stole all your articles or is threatening to sue you, and you’ve broken no copyright laws, they can get themselves into serious trouble. If you read the above-linked DCMA Google page, you’ll see that a company who sued someone for using “fair use” citations ended up having to pay the defendant’s legal fees, and it came to six figures. But since lawyers only like to sue people with money, I don’t think this is something most of us need to worry about.

I hope this has been helpful!

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Posted in Technology on February 4, 2010
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