Affiliate sites sued over copyright infringement

[vinism]

I can ask Vin (Casino City Managing Editor) for his thoughts on the do's and don'ts of article linking. Vin runs into people everyday stealing his articles. I am curious from a publishers perspective which ones he goes after and which ones he feels are alright.

Would this be of interest to anyone?

I just wanted everyone to know that I've read this post, and I'm working on something that I'll post later today. For a variety of reasons, which I'll address in my post later today, this is a complicated issue -- and I want to make sure I take the necessary time to address these matters fully.

[Anthony]

Thank you Vin. I look forward to your post.

I hope you don't mind too much me volunteering your services to help clarify this issue.

[vinism]

Before I begin this, let me say that I'm sorry Mojo is going through this. Copyright lawsuits are scary things. And when you're well-intentioned, it makes it even harder.

For the sake of clarity, I'll be making three posts regarding this issue -- one on Righthaven's behavior, one on how publishers view content and copyright infringement and best practice tips.

Also, when I refer to copyright infringement in the Righthaven and publisher's posts, I am referring only to articles reposted in their entirety without permission. I'll deal with "fair use" in the best practices post. My post tonight focuses exclusively on Righthaven's behavior, how most media companies would have handled it, and my opinions on it. I'll make my publisher's post and best practices posts on Tuesday.

Please note: I am not a lawyer, so please don't construe any of this as legal advice. But I have spent more than 15 years in the journalism and publishing industry. What you'll read below is based on my experiences in the industry and the knowledge I've gained dealing with copyright issues.

Righthaven's behavior
As Anthony noted, I see content I've produced republished without permission on a regular basis. What he didn't mention is how infuriating I find this. There are actually times when I want to go on the warpath (and I'll explain why in the publisher's post) after discovering someone has ripped off my article to make sure no one ever does it again. But after a few deep breaths and a good night's sleep, I usually calm down to point where I can make rational decisions about it. Needless to say, my sympathies generally lie with the person who produced the content, not the person reposting.

That said, I find the tactics and behavior of Righthaven to be heavy handed. And I agree with the people suggesting this is nothing but a money grab. Then again, the CEO of Righthaven has admitted the same thing in press interviews. And unfortunately, Righthaven is well within its legal rights to act this way.

When most media companies see copyright infringement, the first thing they do is try to determine the nature of it.

If it's just a person posting a story about himself, most media companies/media people (including me) will ignore it. But if the copyright infringement rises to any level beyond that, either an e-mail requesting the story be taken down or a cease and desist letter will be sent out. If those are ignored, then it's lawsuit time.

Righthaven is taking a different approach. They're suing people for copyright infringement without notice, and without regard for why the copyright was infringed on in the first place.

And as Media Post reports here, the law doesn't require them to go through any notification or cease and desist procedure, so they're perfectly within their "legal rights" to do so.

But in my opinion, what they're doing is wrong. Filing lawsuits in many of these instances is the equivalent of using a cannon to kill an ant. It's overkill.

The same result could have been achieved with a quick e-mail or phone call, and that's the approach that should have been used.

[Renee]

I haven't read the article (due to having no time), just what people have commented on here, but can I assume they purchased the copyright BEFORE these people posted the articles?

If not, wouldn't it be an open and shut case? Surely someone who posted an article while it had NO copyright on it shouldn't be persecuted. Of course I'm assuming there was no copyright on the articles at the time of posting, and that this company has gone through and purchased copyright after the fact..

If this info is in the article, I'd be happy to go and read it.. Just send me on my merry way

[brean78]

But in my opinion, what they're doing is wrong. Filing lawsuits in many of these instances is the equivalent of using a cannon to kill an ant. It's overkill.

Vin, you make some very good points in your post, but I think that for the webmasters that have been caught up in this, they would be really keen to know what to do next.

I would hazzard a guess that this LV law firm have only one intention and that is to line their pockets by exploiting an antiquated law. The current copyright laws might be in their favour, but they are one law firm taking on many - their must be something that can be done. A Michael Moore style sit in, where all those affected agree to give this firm the same middle finger.

[thepokerkeep]

I haven't read the article (due to having no time), just what people have commented on here, but can I assume they purchased the copyright BEFORE these people posted the articles?

If not, wouldn't it be an open and shut case? Surely someone who posted an article while it had NO copyright on it shouldn't be persecuted. Of course I'm assuming there was no copyright on the articles at the time of posting, and that this company has gone through and purchased copyright after the fact..

If this info is in the article, I'd be happy to go and read it.. Just send me on my merry way

In most cases they purchased the copyright within three months of the articles being published which is acceptable within the law.

They tend to be going after webmasters who don't have the money or resources to fight them in court - they're banking on these webmasters settling out of court. That is what many of us are pissed off about... nothing but a cash grab!

They are happy to settle for a few grand. It costs them less than a thousand to obtain the copyright and file suit. Nice way to earn a living....

[brean78]

They tend to be going after webmasters who don't have the money or resources to fight them in court - they're banking on these webmasters settling out of court. That is what many of us are pissed off about... nothing but a cash grab!

This would be a great opportunity for the Gambling Affiliates Union (GAU) to flex its muscles and scare these toe rags away. But it needs all those caught up in it to get behind it.

It's funny how this firm have gone after a mob guy. I would think thats the last person you want to try and extort money from.

[Anthony]

Before I begin this, let me say that I'm sorry Mojo is going through this. Copyright lawsuits are scary things. And when you're well-intentioned, it makes it even harder.

For the sake of clarity, I'll be making three posts regarding this issue -- one on Righthaven's behavior, one on how publishers view content and copyright infringement and best practice tips.

Also, when I refer to copyright infringement in the Righthaven and publisher's posts, I am referring only to articles reposted in their entirety without permission. I'll deal with "fair use" in the best practices post. My post tonight focuses exclusively on Righthaven's behavior, how most media companies would have handled it, and my opinions on it. I'll make my publisher's post and best practices posts on Tuesday.

Please note: I am not a lawyer, so please don't construe any of this as legal advice. But I have spent more than 15 years in the journalism and publishing industry. What you'll read below is based on my experiences in the industry and the knowledge I've gained dealing with copyright issues.

Righthaven's behavior
As Anthony noted, I see content I've produced republished without permission on a regular basis. What he didn't mention is how infuriating I find this. There are actually times when I want to go on the warpath (and I'll explain why in the publisher's post) after discovering someone has ripped off my article to make sure no one ever does it again. But after a few deep breaths and a good night's sleep, I usually calm down to point where I can make rational decisions about it. Needless to say, my sympathies generally lie with the person who produced the content, not the person reposting.

That said, I find the tactics and behavior of Righthaven to be heavy handed. And I agree with the people suggesting this is nothing but a money grab. Then again, the CEO of Righthaven has admitted the same thing in press interviews. And unfortunately, Righthaven is well within its legal rights to act this way.

When most media companies see copyright infringement, the first thing they do is try to determine the nature of it.

If it's just a person posting a story about himself, most media companies/media people (including me) will ignore it. But if the copyright infringement rises to any level beyond that, either an e-mail requesting the story be taken down or a cease and desist letter will be sent out. If those are ignored, then it's lawsuit time.

Righthaven is taking a different approach. They're suing people for copyright infringement without notice, and without regard for why the copyright was infringed on in the first place.

And as Media Post reports here, the law doesn't require them to go through any notification or cease and desist procedure, so they're perfectly within their "legal rights" to do so.

But in my opinion, what they're doing is wrong. Filing lawsuits in many of these instances is the equivalent of using a cannon to kill an ant. It's overkill.

The same result could have been achieved with a quick e-mail or phone call, and that's the approach that should have been used.

Thank you Vin for taking the time to put this together. I look forward to the the other two posts. Especially the best practice tips.

[Caruso]

But in my opinion, what they're doing is wrong. Filing lawsuits in many of these instances is the equivalent of using a cannon to kill an ant. It's overkill.

The same result could have been achieved with a quick e-mail or phone call, and that's the approach that should have been used.

I have to say, I think you've missed the point of this. They're not interested in protecting the integrity of the posted material. They WANT the copyright breach, so they can leach off the lawsuit. There was never any question of notification, email or otherwise - they would only do this if the extent of their intent was to have the material removed, but this is no part of their objectives.

[vinism]

I have to say, I think you've missed the point of this. They're not interested in protecting the integrity of the posted material. They WANT the copyright breach, so they can leach off the lawsuit. There was never any question of notification, email or otherwise - they would only do this if the extent of their intent was to have the material removed, but this is no part of their objectives.

I do get that point. And you are right. It is a money grab. And as I said, Righthaven's CEO has come out and admitted that this is a pure money grab. But the Righthaven CEO also defends it as a way to protect copyright here in Reason.

But in my phone conversation with him, he also characterized his approach as the best way to discourage infringing activity. “There are these folks out there who say, ‘Oh, they should send out a takedown letter.’ But people have been sending takedown letters for over a decade now and it’s had little or no effect on infringements. Infringements continue to grow.”

I disagree wholeheartedly with that quote. Most of the people within the publishing community would disagree with him. But the level of frustration in the publishing community surrounding copyright infringement is high. And there are more and more people starting to share his viewpoint. And in my next post (the "publishers" post), I will try to explain why that is the case.

[WCD]

Hi, I thought some of you might be interested in this:

I found an interview with Stephen himself. Skip to 4:02 in the video to skip to the interview: lasvegassun.com/videos/2010/jun/02/4022
They are also going after domain names.

-Bernie

[vinism]

If I had to pick a word to describe the publishing industry's relation ship with the Web, it would be rocky.

When the Web first started to emerge as a publishing platform in the mid-1990s, many media companies took the early plunge and developed Web sites.

The decision to develop a presence on the Web was a controversial one in many newsrooms. "Traditional media" looked down on the staff that that ran their Web sites. They were not convinced the Web was here to stay. They were unhappy that the content they had worked so hard to produce was available for free on the Web. And they were extremely unhappy that just anyone could copy and paste those stories onto another site with little to no repercussions.

For the publishing industry, their content is their product. It is what they hold most dear. It costs a significant amount of money to produce good content. Their business model is to make money by selling advertising against the content they produce. And it views the reposting of entire stories without permission as outright theft.

In the early days of the Web, most of the sites reposting stories were small fan sites that generated no revenue. And media companies viewed the positive publicity they gained from allowing the stories to remain up outweighed the negative publicity that would be generated if they tried to enforce their copyright. So the stories stayed up.

But as the Web evolved from a collection of fan sites to a collection of money-making enterprises, so did the publishing industry's desire to protect their intellectual property.

When blogging and content aggregation became a viable business model on the Web, the publishing industry pushed back hard. It initially viewed bloggers and content aggregators as parasites that couldn't exist without the hard work of the mainstream media.

Here was their general line of thinking:

• Content aggregators couldn't exist unless the media produced news for it to link too. Bloggers would have nothing to write about or link to without the traditional the media.
• Everybody is getting rich off of our work, while we receive nothing.
• We have to stop letting people steal our content.

As time progressed and old media and new media began to converge, this line of thinking evolved (for the most part) into:

• Content aggregators couldn't exist unless the media produced news for it to link too. Bloggers would have nothing to write about or link to without the traditional the media.
• But they're really good at driving traffic to us. So as long as they're using our content fairly, we'll put up with it.
• And we have to stop letting people steal our content.

The legal concept and constructs of "fair use" have been around for quite some time. Stanford University does a great job explaining Fair Use, and its complexities here. I've quoted selected passages below.

Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist's work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.

Most fair use analysis falls into two categories: commentary and criticism; or parody.

1. Comment and Criticism

If you are commenting upon or critiquing a copyrighted work -- for instance, writing a book review -- fair use principles allow you to reproduce some of the work to achieve your purposes. Some examples of commentary and criticism include:

* quoting a few lines from a Bob Dylan song in a music review
* summarizing and quoting from a medical article on prostate cancer in a news report
* copying a few paragraphs from a news article for use by a teacher or student in a lesson, or
* copying a portion of a Sports Illustrated magazine article for use in a related court case.


The underlying rationale of this rule is that the public benefits from your review, which is enhanced by including some of the copyrighted material.

I'll return to this topic in my next post about best practices. But the larger point I'm trying to make is the publishing industry reluctantly accepted that quoting a few lines from a story and linking to it was OK (for the most part).But reposting their stories in their entirety was not. And they were going to vigorously protect their copyright in those instances.

But they soon discovered that the task of protecting their copyright was a daunting one. For every article they had taken down, there were dozens that remained undiscovered. A culture had grown that "if no one asks me to take it down, it must be OK." And copying continued to run rampant -- as did the industry's frustration with copyright infringers.

I have to admit, I share in that frustration. It's painful to see a piece I labored over just magically appear on other sites. A story as short as 150 words could have taken me two days to produce because of the effort needed to track down sources and information. And within minutes, it's reproduced all over the Web. It's very frustrating.

And I don't care if I get a link back. My content was still stolen.

And that's how the media feels in general. Their content is being stolen on a daily basis. And they're tired of fighting the good fight. They just want it to stop. They're reaching the point where they want to stop it -- regardless of what means are used.

[Anthony]

Thank you Vin.

I know you have several other projects going on and I do appreciate you stopping that for these posts.

I understand the publishers frustrations, but as a webmaster I want to know what I can do to keep publishers like yourself from coming after me. I await with anticipation for your third and in my mind the most important post.

[GPWA Dan]

Here's a quick and easy example of what Vin and those in the publishing industry deal with every day in terms of copyrights.

Vin wrote a piece on the Barney Frank bill last week that took him nearly 8 hours to complete. For my money, it is the most comprehensive article on what needs to happen for Frank's bill to become law in the United States.

After reading Vin's latest post on copyrights, I did a little experiment. I copied and pasted the first paragraph of his article into Google to see what the results would be. The FIRST result, above CasinoCityTimes.com and online.casinocity.com, came from the National Council on Problem Gambling:

http://www.ncpgambling.org/i4a/headlines/headlinedetails.cfm?id=646

This Web site copied and pasted Vin's article word-for-word. There is no link back to the original source of the article. Vin's byline is nowhere to be found.

[Caruso]

Of course, the source must be linked up.

I disagree wholeheartedly with that quote. Most of the people within the publishing community would disagree with him. But the level of frustration in the publishing community surrounding copyright infringement is high. And there are more and more people starting to share his viewpoint.

I'll hazard a guess that, after this, the "publishing community" will not have too many friends in the webmaster sphere - and there are one or two webmasters out there. I hope this really bites them in the backside.

[Caruso]

My site uses a lot of material from Wizard Of Odds - charts, stats, you name it. Of course, we got his permission first. However, Mike clearly forgot about giving permission, because a couple of years later I got an email from him. It said words to the effect of "thanks for actually giving me credit - most people just steal my stuff. Oh, and great site by the way". Then he linked ME up on his "recommended" page.

The exact opposite attitude, and it's how the internet is supposed to work. "Net" stands for "network", as in "linking". You can't link without quoting. It's a two way process. Kill the quotes and you kill the links. Voilà: no more internet.

These things need pointing out.

I understand the publishers frustrations, but as a webmaster I want to know what I can do to keep publishers like yourself from coming after me.

Yeah, no kidding.

[thepokerkeep]

At least they left Casino City's in-content links intact.

Here's a quick and easy example of what Vin and those in the publishing industry deal with every day in terms of copyrights.

Vin wrote a piece on the Barney Frank bill last week that took him nearly 8 hours to complete. For my money, it is the most comprehensive article on what needs to happen for Frank's bill to become law in the United States.

After reading Vin's latest post on copyrights, I did a little experiment. I copied and pasted the first paragraph of his article into Google to see what the results would be. The FIRST result, above CasinoCityTimes.com and online.casinocity.com, came from the National Council on Problem Gambling:

http://www.ncpgambling.org/i4a/headlines/headlinedetails.cfm?id=646

This Web site copied and pasted Vin's article word-for-word. There is no link back to the original source of the article. Vin's byline is nowhere to be found.

[TheCPA]

Intutitively, I think I have always just used snippets from articles, however, it's my personal belief that a good snippet with a link back to author's site is an asset to publisher, not a liability.

It brings people to their online site that would have never found them, and they might like the site enough to come back again and again which will increase the value to their advertisers.

That said, I appreciate and respect a true copyright, however, if a newpaper is going to publish on the "WORLD WIDE WEB", emphasis on world wide, LOL, then they should expect that there will be numerous violations for a variety of reasons. Many, if not most will be completely due to lack of legal knowledge concerning copyrights, and not because they are trying to make money indirectly from reproducing an article.

With that in mind, it seems to me that when it concerns an internet violation, the courts should EXPECT the offended party to give at least ONE written notice to cease, and remove the content.
If they don't comply, then sure,..sue em.

If they feel the World Wide Web is not a profititable income stream and they don't want to give one simple written notice on a violation, then they need to stick to their good Ole Hard Copies and park their domains!

[vinism]

The exact opposite attitude, and it's how the internet is supposed to work. "Net" stands for "network", as in "linking". You can't link without quoting. It's a two way process. Kill the quotes and you kill the links. Voilà: no more internet.

These things need pointing out.
.

I agree with you on this point. You need to quote and link for the Internet to work. I think it took "old media" way too long to figure that out (at least they're on board now). But quoting and linking is very different from reproducing the entirety of someone's work without permission.

[vinism]

As promised, here's the third of my three installments on copyright issues. This post will focus on best practices for affiliates.

As I noted earlier, I am not a lawyer. So please don't construe any of this as legal advice. These practices and recommendations are based on my experiences in journalism and the publishing industry.

1. Do not copy and republish any copyrighted content in its entirety without permission. It doesn't matter if the whole story is 3 paragraphs or 30 paragraphs. Don't do it. It is almost impossible to defend this as fair use and it will get you into trouble.

2. Don't assume providing acknowledgement through a link will protect you from copyright infringement. That is a common misconception. If you want to post an entire article, you have to get permission.

Under fair use provisions in copyright law, you can use a limited amount of copyrighted material for certain purposes without permission. The next few points are help guide you conform to these rules.

3. Limit the amount of quoted material you use as much as possible, and make sure you link back to the source.

The less you take, the more likely that your copying will be excused as a fair use. However, even if you take a small portion of a work, your copying will not be a fair use if the portion taken is the "heart" of the work. In other words, you are more likely to run into problems if you take the most memorable aspect of a work.



Source: Stanford Fair Use Web site

Three to four lines is a good general guideline.

4. Make sure you transform the nature of your quoted material. That means just don't quote material. Transform the material by commenting on it or criticizing it. Or add context to it.

5. If you are manually aggregating content, then use the original article's headline and write your own one or two line summary of the story, with the headline linking back to the original source.

6. If you are programmatically aggregating content, like Google News, use the original headline and the first couple of lines of the story, with the headline linking back to the source material.

7. If you want to discuss what someone else is reporting, just try summarizing it. Give the original source credit and link to the source material. But just "report" what they are saying by writing your own original summary. Make sure your summary is brief (4-5 lines) and to the point. Credit the original source within the summary. And make sure it's a summary, and that you're not just rewriting the original content.

There are other aspects to fair use, but these 7 items should get you through the day. Please remember that these 7 points are guidelines only.


What is and isn't fair use is a very squishy legal matter. As the Stanford University Fair Use Web site notes:

Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors in resolving fair use disputes, which are discussed in detail below. It's important to understand that these factors are only guidelines and the courts are free to adapt them to particular situations on a case-by-case basis. In other words, a judge has a great deal of freedom when making a fair use determination and the outcome in any given case can be hard to predict.