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What If Copyright Law Were Strongly Enforced in the Blogosphere?

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43 Responses

  1. Boing Boing says:

    What if copyright law were more strongly enforced against blogs?

    Snip from a post today by Daniel Solove, a professor at George Washington University Law School: Suppose the mainstream media, fed up with the buzz bloggers keep getting and with bloggers criticizing their stories, decided to exact revenge. They initia…

  2. Boing Boing says:

    What if copyright law were strongly enforced against blogs?

    Snip from a post today by Daniel Solove, a professor at George Washington University Law School: Suppose the mainstream media, fed up with the buzz bloggers keep getting and with bloggers criticizing their stories, decided to exact revenge. They initia…

  3. Lot 49 says:

    Enforcing Copyright Law Against Bloggers

    As noted at Boing Boing, George Washington University Law School professor Daniel J. Solove poses a provocative question: What If Copyright Law Were Strongly Enforced in the Blogosphere? It’s an interesting supposition, and Solove makes some good point…

  4. NeXus says:

    What If Copyright Law Were Strongly Enforced in the Blogosphere?

    …asks Daniel Solove, of George Washington University Law School. Short answer: bloggers would be screwed, just like the mp3 downloaders who are unlucky enough to get sued by the RIAA….

  5. Simon says:

    Well, in a directly-related story, there is a concern that the music publishing industry wants to shut down websites which reproduce song lyrics and guitar tablature. See http://www.techspot.com/news/19729-song-lyrics-on-websites-needs-jail-time-says-mpa.html; http://news.bbc.co.uk/1/hi/entertainment/4524086.stm. The internet has largely existed in a parallel world where laws have barely applied, because of its transnational nature. Inevitably, the explosion in internet use was going to end that sense of “anything goes.”

  6. Bruce says:

    Dan, you’ll be interested to know that I used CO in class to ask precisely these questions, which I think are fascinating. But there’s several different issues here that need to be teased apart.

    First, there has not yet been a large number of copyright lawsuits against bloggers, so this is mostly hypothetical. You start off with the potential for copyright owners to use infringement claims to silence pesky criticism — but this would only occur if the copyright owner was the target (or closely related to the target) of the criticism. (E.g., Fox News, Bill O’Reilly, and Al Franken.) That’s an infrequent occurrence, and in any event, the fact that the appropriations occurred in the course of criticism would provide good fodder for a fair use defense. LA Times v. Free Republic involved the copying of entire articles, as did Diebold v. Online Policy Group in its own way. You’re right that the “qualitatively substantial portion” theory has troubling implications — one of the more extreme cases involves short quotations from J.D. Salinger’s letters — but my sense is that the courts implicitly look at the commercial nature of the use in determining whether the portion is substantial or not, even though that’s not really part of the test. See, e.g., Harper & Row. (On the other hand, it would seem unfair if a competitor could avoid an infringement claim on a 900-word article by reprinting only 449 words from the heart of the piece.)

    I don’t think that sort of litigation is likely, however, because all litigation is expensive, and it would be particularly foolhardy to sue where the law is so murky unless there’s a substantial economic threat, which mere criticism on a blog seems unlikely to present. (There’s always outliers, of course, who cannot be persuaded to listen to reason.) The more likely and trickier issue, I think, is the one you move to later in the post, and the one I really focussed on in class: bloggers’ use of images as illustrations. It’s more likely because with the appropriation of images from sites that sell those very same images, there’s an incentive to bring suits even where substantial damages awards are unlikely, i.e., to prevent lost sales by reinforcing the need to take out a license. It’s trickier (for bloggers at least) because the fair use argument is more attenuated than it is for the news clips; in rare instances the images are actually what is being commented upon, such as in your courthouse discussions, but usually they’re just decoration. If they’re thumbnails, you should be able to cite Kelly v. Arriba Soft for some support, but that wouldn’t help for full-sized but small images. Also, the noncommercial nature of most blogs should help — but of course the definition of “commercial” is also a bit tricky. Do Google Ads make a site “commercial”? What about linking to commercial sites? Still, I think it’s unlikely to generate litigation unless the images are coming from a purveyor of such content such as Corbis or Getty Images or Leslie Kelly.

    A final note on licensing — you’re right that in most cases it’s cumbersome. But this seems like a problem the Internet and digital technology in general would be ideal at solving. I think the high price of most licenses is predicated on poor ability to discriminate among both licensees and content and also to enforce the license. (Check out the Washington Post republishing license for this article in today’s paper about the weather — $400 for a nonprofit site for 1 year.) Again, this seems like something technology should be able to solve.

  7. Dan: Can you comment on the legal risk for a blogger who copies a random picture off the web and posts it for decorative purposes without investigating ownership? My understanding is that even if the blog is non-commercial, the risk goes beyond merely receiving a cease and desist letter from the copyright owner. The owner could seek statutory damages of $750 or more per infringement without having to prove any actual damages or profits to the infringer from the infringement. Is this true even if the blogger has a good faith but erroneous belief that the posting of the picture constituted fair use? Would failure to investigate ownership constitute willful infringement?

  8. Simon says:

    The owner could seek statutory damages of $750 or more per infringement without having to prove any actual damages or profits to the infringer from the infringement.

    Another question: in teh case of a blog, what constitutes an infringement – each time the image appears on the blog, or each time the blog is viewed. Especially since a web page does not really “exist” in any real sense until it is viewed – decoded and compiled into a coherent whole by a web browser?

  9. Bill — I believe that you’re right that there is indeed a risk even if the images are being used non-commercially. Right now, however, the lawsuit risk seems to be low unless images come from particular companies such as Corbis, etc. I’m very uneasy about the use of images, and have been trying to use more clip art images (from purchased clip art collections) or copyright-free images. Nevertheless, Google image search images remain quite alluring, and it is hard to resist using these. It still is much much faster just to do a Google image search for an image than to find images on public domain image sites or in clip art collections. I’ll probably stop when I either get burned once or when I feel that the climate is getting more ominous.

    Anyway, as to your remaining questions, I’ll leave them to the copyright experts among our readership.

  10. “What if Copyright law were strongly enforced…”

    I can’t tell you how strongly tempted I am to just steal Daniel Solove’s “What If Copyright Law Were Strongly Enforced in the Blogosphere?” It’s a great article, and it would be deeply, deeply ironic for that article to be…

  11. Adam says:

    Dan,

    I’m curious what you mean by “copyright-free” images? Is there such a thing? I thought that any digital image was a new work for copyright purposes, and thus even a picture or a scan of an image long free is newly copyrighted and protected?

  12. Mike says:

    I have less fears than you, because I think the big companies are smart enough to know how risky attacking bloggers would be. Putting aside the bad PR, the MSM would be in a for a major fight. Imagine how many really smart litigators and law professors would chip in to help out. It was be total warfare. The MSM would risk not only losing the individual cases, but also creating bad caselaw.

  13. Free Idea

    Very interesting article over on Concurring Opinions about a potential backlash (of sorts) against bloggers from the mainstream media. Can the MSM use copyright to put the smackdown on folks who are criticizing the living hell out of MSM articles? Ca…

  14. Adam — By copyright-free, I mean either public domain images or images in which the copyright holder has indicated that they are free to use without limitation.

  15. Greg Lastowka says:

    Dan, I’m not going to give you any legal advice on this one. :-) But if you want to put yourself more at ease about being sued and establishing some interesting and helpful legal precendent one day, you might try using Flickr images with CC attribution, no-deriv licenses and providing a “photo by:” credit. And this blog feels pretty non-commercial at the moment to me, so that probably opens up the pool a little wider.

    [link to Flickr CC]

    The thought here: if the blogosphere wants to be about amateur creativity and sharing, it has the means to accomplish that not just by challenging the scope and reach of existing copyright law, but by contracting out of it, ala the GPL.

    Dan Hunter and I have some thoughts on this here — apologies for the self-promotion.

  16. Paul Gowder says:

    I’m with Mike. If they’re gonna do it, they better do it fast… as blogs grow in influence, their p.r. strength will increase. And they’re bipartisan. What a fight that would be, Kos AND Fascist.com (or whatever the republican blogs are) versus the press.

  17. Bruce says:

    Well, I’m no “expert,” and none of the following constitutes legal advice, so rely at your own risk. But here’s my take on the questions above:

    Assuming a copyright owner was motivated to take action, the likely first step would be a cease & desist letter or a DMCA takedown notice to the blogger’s ISP. Both are far cheaper than filing a lawsuit. If a lawsuit is subsequently filed, the copyright owner could seek statutory damages of between $750-30,000 per work, no matter how many times it was infringed.

    Copyright infringement is a strict liability offense; intent is irrelevant. However, under Section 504 of the Copyright Act, an “innocent infringer” — someone who “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright” — can have the statutory damages reduced to $200. However, that defense is not available if the infringed work had a copyright notice on it as it was originally made publicly available, e.g., on the copyright owner’s own website (which may or may not be the site where the blogger got it). (See the recent BMG Music v. Gonzalez opinion for details.) There may be some issues with where the notice is placed on a separately copyrighted image in a website archive — does it have to be in the image itself? — but I don’t know offhand that that’s ever been ruled on. See 37 C.F.R. sec. 201.20 for more. Again this is all assuming liability and no fair use defense.

    Willfullness usually applies when the infringer has actual knowledge of the infringement, such as by receiving a cease & desist letter; I don’t think merely failing to look for indicia of copyright ownership would be sufficient, but I have not really looked into that question. I just checked Nimmer quickly and there’s no easy answer.

    Simon raises an interesting theoretical issue (theoretical because actual damages are unlikely to be proven, and the statutory damages are the same): How many separate infringements does an infringing web page create? Clearly there’s at least one reproduction in uploading a copy to the web server. In addition, each transmission to each visitor could be considered a public distribution. Furthermore, when copies of the image or page are made on the visitor’s RAM or hard drive, that could be considered a reproduction for which the site owner could be contributorily liable.

    Adam’s issue is really complicated but I have to get back to work.

  18. Thomas says:

    With blogging getting bigger and more profitable every day, will copyright suits become the wave of the future?

    What relevance does the intrinsically globalizable nature of blogs have here? Would increased litigation in the States make our bloggers simply lose ground to foreign bloggers, who would be able to report more freely? Would the hardcore pirate blogcasters just all move to Amsterdam?

  19. Bruce says:

    One postscript, my “theoretical issue” is a little less theoretical for employees of nonprofit educational institutions acting within the scope of their employment. If you’re one of those, and you have “reasonable grounds for believing” your use is fair, you are totally exempt from statutory damages for reproductions — but not distribution or public display.

    Again, this isn’t advice and you can’t rely on it.

  20. Eric Goldman says:

    Dan, your analysis is 100% correct, but you’ve identified the wrong “antagonists.” As other commenters have pointed out, the risk of copyright infringement lawsuits from mainstream publishers is relatively low. Instead, the real risk is from the small-time copyright owners–the Kellys or the Perfect 10s of the world. They have a lot less reputation to lose by suing, they are often meticulous about registering their copyrights, they look at lawsuits as a profit-generating strategy, they often overestimate the value of their work, and they don’t settle cases easily. As a copyright infringement defendant, I’d MUCH rather face a Corbis or a Getty as the plaintiff than a freelancer plaintiff.

    Eric.

  21. Overthinking

    Found on del.icio.us (where it concerns me that this sort of paranoia is getting enough traction to count as “popular”): What If Copyright Law Were Strongly Enforced in the Blogosphere?: I think that the development of looser copyright norm…

  22. Overthinking

    Found on del.icio.us (where it concerns me that this is getting enough traction to count as “popular”): What If Copyright Law Were Strongly Enforced in the Blogosphere?: I think that the development of looser copyright norms in the blogosph…

  23. your copyright conscience says:

    This post from Prof. Solove will one day be Exhibit A to prove WILLFUL copyright infringement has been taking place everyday on this site. How is your blog any different from a website ripping someone else’s images without permission? The Volokh Conspiracy proves that you don’t need pictures to have an informative legal group blog. The claim of fair use is very thin, if not frivolous, when your pics aren’t even the subject of your commentary. Sorry, I really don’t mean this to be accusatorial, and I’m very sympathetic to your comments, but the law would need to be changed for you to be right.

  24. Mike says:

    Dan, how, if at all, does linking to the quoted stories impact your fair-use analysis. It seems that actually hot-linking to the stories gives the MSM outlets a gain, that is, they have more readers and thus suffer less harm because of the story. If you merely said, “This story is so wrong,” without discussing the story or placing it in context by use of quotes, I wouldn’t like read the article.

    I would thus think that a court would look favorably on hot-linking to the article, since a link to the article actually helps the “victim” of copyright infrigement.

  25. Simon says:

    Thinking more about this, I have two images that appear over at Ninoville on practically every page; they are, one could say, incorporated into the graphic layout design of the page. There’s a picture of Our Hero (I have no idea where it came from, and I have no idea how I would seek permission to use it), and a photograph of the steps of the Supreme Court that has been manipulated in Photoshop. Presumably, had I taken the photo of the steps from the web (which, for ass covering purposes, I’ll say I didn’t), I would be fairly safe from suit for that picture? Or not, I don’t know? I would think safe, because it’s hard to make a case that the original is a creative work (I pointed the camera at the steps of a public building; sure, that constitutes art) and in any instance, the image has been manipulated such that it is only a contributory part of another work (perhaps analagous to the use of samples in rap music). So I don’t know, maybe there’s the possibility of trouble in all this. It just seems to me that this entire line of thought runs completely contrary to the entire purpose of the internet, as I percieve it, which was always to facilitate the open sharing of knowledge and information, and the pooling of creativity. There should be a law that any picture posted on the internet which does not include a specific copyright notice embedded within the image (as Getty does) is thereby GPL’d by the owner.

  26. Gervais says:

    Just a quick thought….

    If large corporations decided to take action on bloggers copyright infringement (which it is, in my humble opinion), they would definitely have a case, the rest would be up to the courts to decide…

    The purpose of media is to inform the public in a way that is useful to society. Most businesses can judge their success with the traditional economic view of supply and demand – if the product is worthy than people will buy it and vice-versa – pretty self explanatory. But this doesn’t work with media. They must be judged by the Public Sphere model, a model that looks at what the media is giving to people to benefit society, basically the amount of useful, and I stress useful, information, because for people to work together we must be able to communicate our ideas and thoughts together.

    So…we know that our current day media seems to have a hard time following the Public Sphere model. Now, I am new to the ‘blogosphere’, but this place seems to allow for complete freedom of speech and expressing of ideas. But to do so this requires other information and since consumers are forced to pay for news more than say, hmm, a week old this doesn’t really leave the public sphere model fulfilled, namely the part that says all this useful media should be available at a fair rate to all of society.

    Now from what I can tell there are a few blogs that seem to be more of a commercial venture, but most seem to be people writing their ideas about… well, just about everything. Since it costs money to have a website, there is a need for some ad revenue. BUT this revenue is not like what a television or radio station gets for ads where they get paid just to let people hear/see it, but this ad revenue usually comes from evidence that people are actually interested in the product/service in the ad. Not to mention that website ad profits are about 1/1000000 of what a single ad on TV costs.

    I guess this wasn’t really a quick though but whatever, I don’t think anyone is going to spend the time to read this, but if you do, the point I am trying to get to is that if the court ruled in favor of the corporations in such a case, it would be silencing the publics opinion. All bloggers are doing is taking social means to the internet. I mean, if your friend came over with a newspaper clip (from a newspaper you didn’t purchase) and a few of you discussed it, is that copyright infringement? Since money seems to make the world turn, I would vote that, if presented to the court right, they would side with the corporations.

    Well I will shut up now.

  27. Jeff says:

    Nothing I love more than people that essentially advertise suggestions to corporations about ways to be more evil. Thanks for loudly advertising that there’s another pointless avenue of corporate lawsuits in this already increasingly Big Brotheresque age. We really needed MORE ideas out there for how they can help inhibit freedom of speech even more. There’s more than enough stuff to worry about – adding more suggestive ammunition doesn’t help anyone.

  28. Gary Crabbe says:

    As a professional, and as owner of Enlightened Images, one of the most popular individual photogapher web sites on the Internet, I really appreciate your article. It is important to spread the word that “Hey, if you use something that someone else made without proper permission, you run the risk of being sued”. Options: use only original content that you make yourself, or use works in the public domain. Small text links pointing in reference to something somewhere else (picture / article) is almost always Ok. You don’t need to swipe a photo; put in a text link.

    Simple fact is that if one of my photos is adding value to your site or blog, even if it only in aesthetic design qualities, it’s still representatitive of value transfered. I spend my money to make it, you should pay to benefit from using it. I never understand why that concept is so hard for people to grasp across the web.

    Of course, creative common licenses and variations like flicker are great options, but for professionals that make their living providing content, people will have to learn that that content is protected. And that the protection has been around for awhile, and is meant to encourage creative works in commerce, and not stifle free speech. You are FREE to use YOUR CONTENT for YOUR SPEECH. If you want to use MY CONTENT for YOUR SPEECH, ask first, and depending on the use, be prepared to compensate me.

    Happy Blogging. Happy Holidays.

    Gary Crabbe

    Owner, Enlightened Images

  29. Simon says:

    Gary,

    Going back to the point earlier – how do you calculate how “often” one of your images is used whe posted on a blog – each appearence on a page, or each time the image is reproduced (i.e., every time the page is viewed)? Or do you approach licensing from a different angle?

  30. Greg says:

    I wonder why bloggers feel it necessary to paste such long snippets of articles in their blogs. A reference link would often suffice along with their comment/opinion/additional info. In the end, the blog world would be stronger. As those with original thoughts, research or investigation would come out stronger.

    \\Greg

  31. Joe Clark says:

    While I read the one million comments on this interesting posting, note that Canadian law is different (we have fair dealing, not fair use), which has implications explored in the handy-dandy guide to quoting someone without infringing copyright in Canada.

  32. Simon says:

    Greg,

    It seems to me that one excepts enough of the article that one links to to either a) capture the gist of the article and/or b) capture the interest of a reader so that they actually do click the link.

  33. Karl says:

    I’m no “expert” either, and none of the following constitutes legal advice, so rely at your own risk:

    The non-commercial use tends to weigh heavily in favor of “fair use.” And I would think the Chaplin case would have to be reconsidered after the case in which 2 Live Crew was sued for sampling the riff from Orbison’s “Pretty Woman.” The Supreme Court found fair use, even though the sample was arguably the heart of the song and the rightsholder had refused permission to the band.

    Jeff’s point about swiping photos is well-taken — posting such photos carries litigation risk. However, I would also suggest that smaller outfits (as opposed to say, Getty) might consider adopting a policy of allowing noncommercial use with a link credit, perhaps with a condition on the size of a reproduction (e.g., thumbnail only). Then it’s more like an unpaid ad for your site than theft. If an unpaid blogger thinks a photo or gallery is cool, there is no better way to convince vistitors to go to a photo site than a sample image — worth a thousand words, so they say. This aspect isn’t legality so much as it would be good business practice.

  34. Peter Wayner says:

    If bloggers are already learning just how time consuming it can be to create content, then they should think for a second how much work the photographer or the reporter puts into creating that image or that text.

    Do you realize that some photographers risk their lives in war zones to bring home photographs? All you have to do is watch a movie like “The Killing Fields” to see what Dith Pran went through to bring you these images. Not all assignments are shooting the swimsuit edition of Sports Illustrated.

    I think bloggers should treat all content creators as they themselves would wish to be treated. Do you wish that someone else would quote sparingly and offer a link back? Then offer the same to the mainstream press. The distinction is really disappearing. Some blogs gross more than small newspapers and many newspapers already offer most of the innovations offered by blogs. It’s just a question of scale. We’re all content producers now.

  35. RGS says:

    I’ve worked as a magazine photographer in the UK since 1987. As far as I know, there is no ‘fair use’ of a photograph because the image is a complete work in itself.

    In the UK we have the Small Claims Court – a very cheap method to get payment. Trace the person (not that hard with a personal blog), issue an invoice to the person. Say for 10x what you would normally charge. That could be $1000. When they don’t pay, go to the Small Claims Court which will undoubtedly find against them. The Court has the power to freeze their bank account if they don’t pay up.

    A site that has Google ads is most definitely a commercial site. The Creative Commons licenses are being widely abused. Other sites have no ads but use content under the guise of non-commercial or fair use to build a business which they then sell. I would say that constitutes commercial use also.

    Why should a site make money off the back of my hard work and creativity? I have struggled to earn a living. If anyone gets to benefit from my work it should be me.

    I think there is going to be a massive crack-down on this in the future. All the signs are there and any site that is built around stolen content is actually built on sand.

  36. What if…?

    What If Copyright Law Were Strongly Enforced in the Blogosphere? by Daniel J. Solove. [via #37] Bloggers would then need to hire someone to tell them to go to hell….

  37. What if…?

    What If Copyright Law Were Strongly Enforced in the Blogosphere? by Daniel J. Solove. [via #37] Bloggers would then need to hire someone to tell the enforcers to go to…

  38. Andrew S says:

    This is unlikely to happen. The mainstream media is not run by a cartel as the music industry is. News sites which are overly restrictive and lawsuit-happy would gradually become ignored by bloggers (and eventually, by many readers), and more traffic would go to news sites which are blogger-friendly.

  39. It never ceases to amazing that the simple concept of not using something unless you are licensed to do so evades people.

    Don’t have license to use an image? Don’t use it. Where it came from is irrelevant.

    As to massive crackdowns, that’s hard to say. Normally you don’t sue someone with no assets (IE the poor blogger). However, the trend has been to set examples to curb violations and by all accounts, it appears to be working–at least to some degree.

    I am not sure how the music industry is a “cartel”, but going after violators of copyright is not a bad thing.

  40. Keep on Suin’–Crumb v. Amazon

    By Eric Goldman Crumb v. Amazon.com, Inc., No. CV5-2113 (W.D. Wash. complaint filed Dec. 21, 2005). LA Times story on…

  41. Copyright and Fair Use on Your Blog

    Unauthorized use of other people’s images or text on your site is theft. There is not really a nice way to say it any differently. In a past life I was a photographer for a number of years so copyright