ZachL/AspieWeb - Copyright and Fair Use

Post Reply New Topic

OP note: this was split from the moderator attention thread

A certain member was kind enough to tell me what it was Zach claimed was a violation of the DMCA (basically, his trolly blog post was quoted on WP), and I have two words to say on the subject: Fair Use.

Not only is the quotation of a blog post highly unlikely to damage the business of the copyright owner in question, but it was posted to educate the forum of it's existence and to criticise what it said. Fits snugly in Fair Use under many different criteria.

There is therefore no way Zach's case would hold up in US court, because the quotation of his blog post is allowed under Fair Use and is therefore not copyright infringement and is completely legal.

-the unqualified WP lawyer (I quite like that title, actually)

Last edited by Asp-Z on 31 Aug 2010, 7:53 am, edited 2 times in total.

Title 17, U. S. Code Section 107

read subsection 3

Copying and pasting an entire work is not fair use... further see subsection 1



Wrongplanet is a commercial website operated by Alex Plank. Furthermore it gains substantial profit from hosting of my complete work through advertising.

Oh yay, even more fun.

The amount of work is only one aspect, mate, and Alex didn't post your crappy blog trolls on himself and the member who did post it stands to gain nothing finally by doing so (each forum post is the responsibility of the member who posted it, not Alex) so that argument is already out of the window too.

But get this - Fair Use makes allowances for posting copyrighted content in order to educate and criticise. Ka-pow. And guess what else? You can't prove that the use of that copyrighted content damaged you or your blog financially, either, so Fair Use works in favour of WP once again. Ka-plunk go you.

Fair use is not as clear cut as many people think. As a rule, direct copying and pasting of another's work is a bad idea all around. Paraphrasing too closely can be a problem too. It is usually better to paraphrase loosely and provide a link to the original page.

As for images posted directly in forums, they are not uploaded to WP servers. They are "hotlinked" and served from the originating web site. Technically, it's not a copyright violation, but the practice is often questionable, mainly because it uses bandwidth of the originating server to display the image on another site. Bandwidth is often limited for the hosting server. Serving images on one site from several other sites is a common way for webmasters to avoid using their own bandwidth, and is considered stealing bandwidth by most webmasters.

Hotlinking can be fairly easily prevented by webmasters of the original site on which the image is hosted.

http://altlab.com/htaccess_tutorial.html

I keep code in folders with images I do not want appearing on other sites. Some images I don't mind being hotlinked, so I keep them in a different folder lacking this code.

Heres an example of someone who properly used fair use while quoting a post of mine.

http://www.itbusinessedge.com/cm/blogs/ ... /?cs=41431

That depends entirely on what the use of it is and what financial effect it has on both parties, and as I described, that leans in WP's favour.



If anything, you have more of a case against them because they stand to directly profit off of it, while the WP post generated no income for the member who posted it. The quote posted on WP also included that it was from AspieWeb, BTW.

Legally WP is responsible for content hosted on its servers if they are notified by copyright holders of infringement and continue to host it irregardless of who posts it

USC TITLE 17, CHAPTER 5, § 512



Wrongplanet received knowledge or awareness and received financial benefit. Even though a user posted it, they are responsible for the content once properly notified.

Furthermore third party advertisers are also liable once notified as they make financial gain off the advertising on wrongplanet. If wrongplanet were to fail to remove it Google Adsense, Paypal and any other advertisers could be held liable as well. Usually with adsense and paypal all it takes is proof that they were notified and a reasonable period of time with inaction to have your domain banned from using their services.

"There is no specific number of words, lines, or notes that may safely be taken without permission.

Acknowledging the source of the copyrighted material does not substitute for obtaining permission."

http://www.copyright.gov/fls/fl102.html

The question of financial gain, or financial harm is separate from the issue of legality of outright copying of a work. It's a civil matter. Copying outright is illegal unless you can prove fair use, which is a lot harder to do than you might think if you aren't working in an educational position, or as a reporter or researcher researcher. Individuals posting on a public forum aren't likely to be considered to fall under any of those categories. Criticism is a bit more ambiguous. However any owner of a web site is a lot better off erring on the side of caution by not allowing direct copying and pasting of entire articles or sections of articles. Getting into questionable areas of the law can lead to problems. The simplest way to deal with it is to not allow it unless permission is gained first from the author, and it can be proven.

Zach's example above of fair use is a good one, however the only reason it is fair use is because he's aware of it, and doesn't object to it (unless, of course, he was asked permission and provided it).

Fair use can be ambiguous, as the copyright site itself points out, but even they recommend erring on the side of caution. The entire copyright law is in favor of the author of works. If you write something original, you own it the moment it's written. The burden of proof over fair use is on the person claiming fair use, not on the author. Authors, if they can prove authorship, are considered by default to have total control of their works. They don't even have to be registered to be protected by law. They already are.

All I'm saying is that it's far smarter for WP to NOT allow blatant copy pasting of any works from other sites. Linking to them is perfectly fine.

This part is important, because Alex does not receive any financial benefit directly attributable to your blog's content being available on the forum.

Fair Use law also takes into account losses made by the owner of the content. You have zero evidence that the WP post has lost you any money.

And, as I stated before, the purpose for which the content was posted is also important, and as it was posted to educate WP about the existence of your libellous content and criticse said libellous content, Fair Use is once again in WP's favour.

Quit clinging to your one defence when WP has many.

Now, on the subject of the content being libellous... It describes WP in no kind terms, and even goes so far as to describe it as "an embarrassment to the human race" and, most importantly, you claim that WP promotes the idea that Aspies are superior to NTs, despite it doing no such thing. In fact, that along with all the ridiculous hyperbole present in your trolling gives Alex a strong libel case against you.

Now, I have important things to do, so I will now sign off. If the moderators haven't closed this thread or removed these posts by tomorrow, I'll respond to whatever else you have to say then. For now, though, I bid you farewell.

Theres more to why that example is fair use.

It does not contain a substantial portion of the written work
It is properly attributed and linked to
It does not negatively affect the value of the written work.
It comments on the work

Now the post I complained about did not constitute fair use because:

It contained 100% of the orriginal written work
It was not properly attributed
It caused a significant decrease in the value of the written work
Wrongplanet had financial gain on the full content of my written work

The way it caused a significant decrease in the value was when search engines index the internet if they find exact duplicates the search engine causes those search results to go lower then what they would be if it were just a portion of the work. This causes less traffic to the original work thus decreasing the value. And yes Google will deindex domains that violate copyright law as they are liable for it as well because it decreases the value of the original work to have the violation pages listed. On the web value is measured in traffic because to put it simply traffic is revenue.

Exclusive right means the author is the only person who has these rights, until he assigns them to others. Financial loss to the author or gain for those copying it has nothing to do with whether or not it is legal.

Monetary considerations have nothing to do with whether it's legal, they only apply if a law suit for damages is being considered, in which case damage has to be proven. If an author demands his copied work to be removed, by law it must be removed, unless fair use can be proven. I highly doubt criticism on a public forum by an individual would be legally considered "fair use." The problem with allowing it to be considered fair use is that once you allow one person to use it in this way, it opens the door for anyone to copy anything, pretty much anywhere they want to, which renders the copyright laws as they currently exist pretty much useless. We may as well let anyone copy anything they want to anywhere they want to if we take that road. it isn't much of a leap from that to people copying entire books and putting them online for everyone to read for free. Pretty soon, nobody is making anything from writing, and there is no such thing as a professional writer. Lines have to be drawn somewhere, and they are, though some are kind of "gray" and those are only where fair use comes into play.

Does a blogger have the right to copy anything? Probably. But how much? And for what purpose? Those are questions the bloggers themselves need to consider and be very careful with. Simply put, it's ALWAYS a better idea to get the author's permission before copying any more than a line or two. There's no need to copy an entire work or even large parts of it on the Internet when it's even easier to simply link to the work.

We can all easily criticize anyone's works without copying them. A simple link is all that's needed, and that's easier and quicker than copying the work itself.

It just seems much more prudent to me not to mess with an author's rights to his own work and where it appears. Copying to a forum is not fair use IMHO.

I think the fact that the author himself in this case is complaining about it is evidence enough that it is indeed a problem. If this were my site, which it isn't, I would remove it in a heartbeat. But then, i am a writer myself, so I suppose I'm a bit biased. Copyright law us also biased in favor of authors. That's what its purpose is. The protection of author's rights.

Yes. This is true too.

I just find it incredibly ironic a mere two years ago zach was fighting autism speak's copyright trolling his t-shirts yet immediately moves to make legal threats at wrongplanet. Didnt even provide the courtesy ask kindly or bothered to really discuss it, just came right out and started threatening with a DMCA takedown notice as though we would be so unreasonable we wouldn't talk with him. Threatening one of our users to remove the content within 5 minutes, who checks their PMs every 5 minutes? He couldnt cool his jets for more than 5 minutes?

seemingly he has done this only because he is mad with certain members of our community, I certainly cant imagine hes really suffering damages for a blog that nobody reads enough to leave any comments on hardly. If anything hes getting a search ranking boost out of it. So whatever his motives they can only be personal and out of spite.

All of this after agitating specific users moreso who were already not behaving in a manner that I would deem acceptable, I wont name names, you all know who you are. It doesnt help to agitate the situation just because you are angry.

You will find zach, that being demanding and threatening often doesnt get you what you want.

This is true; however copyright infringement is not a criminal offense, so if no damages were incurred, there would be no point in complaining.

Blog posts and articles are copied onto Wrong Planet all the time and as far as I know, no one else has ever complained before. If anyone should complain I would think it should be Alex for waisting his storage space for something that is already on the internet.

No, it's not a criminal offense, but it is still illegal. The point in complaining is the defense of the author's right. A lot of sites will quickly remove copied material simply on he basis of a complaint, so there is good reason for an author to do so if the author finds his material posted on another site without permission. It's happened to me, and all it took was a brief email from me to get it removed.

The fact that most don't complain doesn't mean no one should. I would dare say most bloggers have no idea how to even tell there material is being copied. Some use sleuthing software to locate improperly posted material, and do complain.

The plethora of reposted material points to the fact that most whose material has been copied don't even realize it has been, not that they do know and simply aren't complaining. I would hazard the guess that if they all knew, a lot would lodge complaints. I would also guess that most, even if they knew, would not complain at all. But that's fine. If an author knows their work is on another site, it's his their choice as to whether to let it go or complain. The law affords them that right.

In this case, his work was copied, WITHOUT his permission, and he did take exception to it and complain. He has the right, and it should be removed. He OWNS it. It's that simple.

I'm going to point there arguments have nothing to do with the matter at hand and more to do with my stance on issues such as Gary McKinnon. All I can say now is that adsense and paypal have begun investigations into this matter for profiting off stolen work.

Its okay though, no sweat off my back.... apparently alex thinks he can bully me into allowing theft of my work. The problem with that is if he continues on this path I can take over this website as part of the damages in a court ruling plus collect quite a boatload of money as well. Is being stubborn worth it? I don't think so.