Copyright and Intellectual Property

June 3rd, 2007 by Steve Pavlina

As a blogger and a former software developer, I must frequently deal with copyright issues.  For most of my adult life, intellectual property has been my primary source of livelihood and remains so to this day.  While some people take issue with the concept of intellectual property and believe that all content should be free, I don’t count myself among them.  In fact, for the most part I consider the anti-copyright fanatics rather juvenile and intellectually immature.  Too often their utopian language is merely a hollow shell around the desire to get something for nothing.

Overall I happen to think that modern copyright law is extremely fair, balanced, and wise.  I think it’s perfectly reasonable for the creator of an original work to retain control over his/her creation while at the same time providing the means for others to benefit from that work, to reference it, and to discuss and debate it without undue restrictions.  Creating an original work can take considerable effort, and even though the digital age has stretched some copyright analogies beyond their useful life, I believe the basic premise that creators are entitled to manage their own creations is still sound.

I’m speaking strictly about copyrights here — trademarks and patents are separate issues and are beyond the scope of this article.

Ideas vs. Expression

Mere ideas are not copyrightable.  What’s copyrightable are the unique, tangible expressions of those ideas in forms such as articles, books, or podcasts.  You’re always free to write about the same ideas someone else does, but you must express those ideas in your own unique way.  For example, if you created a site that simply rephrased the same content from another site paragraph by paragraph or translated it into another language, in my opinion that would be a pretty cut-and-dried case of an unauthorized derivative work, and therefore illegal if done without the copyright holder’s permission.

Fair Use

New bloggers are often confused about what they’re legally allowed to do with someone else’s content in terms of republishing it on their own blogs.  The doctrine of “fair use” gives you the legal right to reprint portions of someone else’s copyrighted material for the purpose of commentary or parody.  The permitted size of this portion isn’t precisely defined, but a good rule of thumb (and fairly standard blogging practice) is that it’s acceptable to quote a paragraph or two from a larger piece.

Fair use, however, does not give anyone the right to republish a substantial portion of someone else’s original work without the permission of the copyright holder.  It makes no difference whether you provide proper attribution and/or a link to the original version.  The practice is still illegal.  For example, unless I grant you permission to do so, you couldn’t legally repost an article from StevePavlina.com on your own site — whether or not you provide proper attribution and a link is irrelevant from a legal standpoint.  This is a common mistake made by first-time bloggers… and it often backfires when their ignorance causes them to build a reputation as a content thief, alienating other bloggers who might have otherwise been helpful allies.  So as a practical matter, if you want to share someone else’s content with your own audience, just quote a brief excerpt, and provide proper attribution with a link to the source, but don’t republish the entire article without permission.  It will save you a lot of trouble down the road.  This is a fairly standard practice on popular blogs.

Keep in mind that even lists and other compilations are copyrightable, so if a blogger posts nothing but a list of links to other sites, that list is still likely protected by copyright.  This is something of a gray area though, so it depends on the nature of the list.  A few links may not qualify as an original compilation, but a lengthy and unique list that provides added value probably would.

The intent of fair use is to allow people to share ideas and comment on copyrighted works in ways that most people would consider natural and reasonable.  It would be really lame to read an article and not be able to quote it, reference it, or discuss it.  So that sort of behavior is perfectly legal, as well it should be.

Fair use has limits, most of which are common sense.  Unrestricted republishing of another author’s work is not permitted, unless of course that author explicitly allows such sharing.  And again, it makes no difference whether or not you provide proper attribution.  Republishing and distributing copies of Harry Potter without permission and then claiming it’s OK because you properly credited the work to J.K. Rowling just doesn’t fly, even if you give the books away for free.

Whether you agree or disagree with the doctrine of fair use on a personal or practical level is a separate topic from the legal issues.  As a practical matter though, violating copyright law, especially if you do it repeatedly, entails some risk.  All it takes is a few minutes for the copyright holder to fire off a DMCA template to your web host.  While some web hosts are gracious enough to give the web site owner a chance to remedy the situation, many will react by taking the site offline and/or canceling the hosting account, since such behavior almost invariably violates the host’s Terms of Service.  Since lawbreaking customers aren’t often deemed worthy of retention, hosts can be rather harsh in dealing with them.

Commercial use

Although generating a profit from someone else’s copyrighted material has legal ramifications, from a practical standpoint of dealing with infringement in the world of blogging, it makes little difference whether or not someone generates a profit by violating an author’s copyright.  A profit motive can make a big difference if things wind up in court and the author sues for damages, but that’s rare.  In most cases it would be rather stupid for the copyright holder to retain a lawyer and sue the copyright thief.  No blogger in their right mind would want to do that except as a last resort for an egregious violation.  Instead there are much faster and easier ways to tackle copyright thieves.  For example, in a few minutes you can email a DMCA notice to the person’s web host.

If you ever find a copyright thief generating income from your content, a few emails to their income providers will usually get their accounts banned and their funds seized.  For example, if you see someone using Adsense to monetize your stolen content, you can just report it to Google to get the thief banned from Adsense and their existing funds seized.  I sort of wonder what Google does with the money that’s been seized though — they certainly don’t give it to the original copyright holder.  Do they refund it to the advertisers, donate it to charity, or just keep it?  What about the money already paid out?  In any event you’ll have to decide whether you want to go that route.  I only recommend going after income sources when infringement is clearly deliberate and the person doesn’t respond to a direct request.

In most cases all you need to do to remedy a copyright violation is to expose the copyright thief to such a degree that they realize it’s in their best interest to go legal.

As a practical matter, you must intelligently weigh the importance of enforcing your copyright vs. the effort involved and the possible repercussions of doing so.  Often when I see a small violation and it’s clear that it’s done out of ignorance more than anything else, I’ll simply ignore it, or I’ll send the person an informal email with a request to remove the content and/or replace it with a brief excerpt and a link.  Some bloggers are even grateful for the pointers, since it’s usually the people who are just starting out that mistakenly repost copyrighted material.  I’m not particularly concerned with newbies who don’t know any better; the bigger issue is dealing with the deliberate wrongdoers.

Handling copyright violations

Some blogs employ strict enforcement of their copyright, not allowing republishing of their content anywhere.  Others are happy to let anyone repost their content freely.  Most bloggers seem to fall somewhere in the middle, wanting to retain ownership of their content while still encouraging sharing under certain conditions, such as those provided in a Creative Commons license.

On the one hand, I want to encourage people to openly share ideas from this site.  It’s perfectly reasonable for someone to share an article they find worthwhile.  After all, this type of behavior is precisely what built up StevePavlina.com’s traffic.  It’s totally win-win.  This pattern is to be encouraged.

On the other hand, there’s the dark side of content sharing, something I know to be an issue for many popular blogs.  Sploggers illegally republish other people’s original content via practices such as feed scraping (i.e. using a blog’s RSS feed to automatically republish all new posts from that blog).  Material from other blogs is republished en masse for the purpose of spamming search engines and generating ad clicks.  Sometimes these splogs include ads for adult web sites and other potentially objectionable material… not the sort of thing many bloggers would want associated with their content.  It’s been said the practice of splogging may even hurt bloggers’ search engine rankings by making their duplicated content appear less unique to search engines (and therefore less worthy of a high ranking).  While SEO experts haven’t seemed to reach a consensus on this issue, splogging can cause a variety of other problems as well.  For example, if images are republished (which usually happens by default), a splog will steal bandwidth from the original blog.

Dealing with sploggers has become fairly routine for many bloggers I know.  Normally it just requires firing off a DMCA notice to their web host, which will often get the site taken offline within a few days.  Contact info for a site’s web host is easy to find — I use Complete Whois to perform these lookups.  DMCA templates are easy to find online as well (you can find one on Wikipedia here).  And then you can also contact the splogger’s income providers (Adsense abuse is the most common).  So in practice dealing with a splogger normally only takes a few minutes.  Even so, it can be a bit of a hassle.

In addition to sploggers, there are a variety of other ways people abuse copyrighted content.  Once someone informed me about an off-the-shelf self-help book that included unauthorized reprints of two of my articles — he recognized the content as being written by me.  This was clearly deliberate, as the author copied several pages of original material from me verbatim.  Then he slightly modified details of my personal stories in an attempt to pass them off as his own.  I contacted the publisher directly, who was naturally shocked and dismayed at this author’s behavior, and we arranged a fair settlement.

I’ve often been surprised at the lengths people will go to avoid the process of original content creation.  It reminds me of a favorite quote by Bertrand Russell:

Many people would sooner die than think; in fact, they do so.

Crafting a fair policy for content sharing

Among the most common questions I receive are requests to republish and/or translate content from StevePavlina.com.  These include requests from other bloggers, authors, newsletter publishers, and trainers.  All StevePavlina.com articles are copyrighted by default, so legally anyone who wants to reproduce them must request (and be granted) permission first.

Coming up with a reasonable policy for handling reprint requests isn’t easy because such requests can be made for many different reasons.  Most requests come from other bloggers, but there are also requests from authors writing books, newsletter publishers, and even corporate trainers who want to use articles in their training programs.

I’ve always been fairly generous in allowing people to reproduce articles if they request permission in advance, as long as they don’t overdo it.  But it’s not a great use of my time to continue handling the same routine requests.  So for those who can agree to honor a few simple conditions, I’m now automatically granting permission to republish up to 5 articles from StevePavlina.com without having to contact (or even to inform) me about it.  Those conditions are explained in the FAQ.  If those conditions can’t be met, people can still make custom requests, but most should be able to meet those conditions with ease.

Translating a blog into other languages

Making my content more accessible by translating it into other languages is, in principle, an awesome idea, and I’m all for it.

I get frequent requests from people overseas who want to create a non-English version of StevePavlina.com, such as in Spanish, German, Russian, Japanese, and other languages.  Many offer to split the revenue with me.  I’ve already addressed this topic in the FAQ, but the short answer is no.  In my opinion, granting site-wide localization rights to people I’ve never met just because they’re eager to do it just isn’t the right direction for me.  Just to intelligently evaluate the suitability of a potential partner would take considerable time.

Machine translation still has a way to go to be practical, and if I’m going to use human translators, I’d like there to be a reasonable degree of quality control, consistency, and centralization of multilingual content.  For now I’m happy to offer free permission to translate up to 5 articles, but I’m not in a position to authorize anyone to clone the whole site in another language and to promote it using my name.  Recently someone decided to go ahead and do this without permission, translating and reposting a significant number of my articles on their own site.  Within hours of firing off the standard DMCA notice, their web host took the site offline for violating the Terms of Service.  I don’t like having to do this, especially when it seems the person’s intent is generally positive, but I think it’s kinder to do it sooner rather than later.

I have to weigh a lot of variables in considering the best localization strategy, my primary concern being what is the best way to serve the greater good.  I’ve given this a lot of thought, and I genuinely believe that in this case, people will best be served by a localization strategy that is well-planned, well-implemented, centralized, of consistently high quality, and intelligently maintained, even if they have to wait a bit longer for this to get going.  While getting something up and running immediately may be better in the short run, I’m taking a long time perspective here, thinking a few decades ahead.  Consequently, I’m willing to accept a bit of flak for my decision now, confident that this is the right long-term decision.

In terms of the ready-fire-aim approach, in my opinion localizing this site falls squarely in the aim category.  Once hundreds of articles have been translated into a variety of languages, it will be difficult to alter course mid-stream, and early mistakes can produce major headaches down the road.  This is a situation where I believe careful planning trumps hasty action.

I’m grateful for the existence of copyright law, since it gives me the legal right to control how and when my content gets localized into other languages.  While some people may feel stifled by my current decisions in this area, this is one area where I’m unwilling to settle for a half-assed approach.  Without undue vanity or ego, I can safely say that such an undertaking is likely to impact millions of lives down the road, and that’s a responsibility I take very seriously.  Few other projects on my plate offer as much long-term leverage for ongoing contribution as this one does.

Copyright redux

Granting creators legal control over their creations is, in so many ways, a truly elegant and beautiful mechanism.  Having control over a valuable body of work can be an awesome responsibility, one that in my opinion most people are not equipped to handle.  While you may consider it common sense that a creator should retain control over his/her own work, what if that creator is totally irresponsible?  In my opinion the hidden elegance of the current solution is that we can reasonably assume that someone who has the genius to create a work of real value probably has the sense to manage that work intelligently.  While there are plenty of exceptions, on balance I think this is a fair solution.

Where trouble often arises is when the copyright holder behaves irresponsibly.  This often happens when control over a copyrighted work is wielded by someone other than the original creator, such as when a record company controls the work of a singer.  There are people who will rampantly pirate music produced by major record labels with nary a twinge of guilt, but they have mixed feelings about pirating the work of independent artists who control their own work.

This is an area where I too must intellectually parts ways with modern copyright law.  I’m not a big fan of treating copyright as intellectual property that can be transferred to someone other than the original creator.  I definitely need to give this more thought, but my gut feeling is that it would be best for at least the derivative rights to a copyrighted work to automatically fall into the public domain upon the death of the creator, even if the creator wills otherwise.  For example, on balance I think that this would have been a better thing for Star Trek after the death of Gene Roddenberry.  While it’s reasonable for Paramount to retain control of the specific episodes they own (and paid for), I think the world, the characters, and all derivative rights would be better off in the public domain.  But overall I still think copyright law is extremely reasonable.  If a creator wants their work to fall into the public domain upon their death, they can arrange to make it so.

I think that as human beings, we intuitively want to see our collective creative work intelligently cared for in a manner that serves the greater good.  How would you like your own creative work to be managed after your death?  Would your primary concern be that your successors exploit it for maximum financial gain?  Or would you be more concerned with seeing others benefit from the legacy you left behind?  Would you prefer to see all evidence of your existence dissolve into obscurity, or would you want to see ongoing ripples of your contribution long after your earthly departure?



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