Thursday, January 12, 2012

Copyright and the Hobby Blog

A little over two years ago I wrote a couple of posts about a particularly nasty round of GW copyright policing.    Lots of people were quite irate with the Workshop at the time and the message boards and BoLS posts of the day were so full of vitriol, hate and misinformation that I considered reformatting my hard drive just to ensure my temporary internet files hadn't preserved any of it.

An average argument on the internet
At the time, I was trying to help edumacate people on the actual nature of copyright and how it played into what GW were doing at the time.  I think it went over well and I know I reached at least a few people.

Games Workshop, Copyright, IP and Bullshit (PT.1)
Games Workshop, Copyright, IP and Bullshit (PT.2)

The information is still pretty accurate and relevant, so I've linked them as part of the larger conversation I'm wanting to have today.  Also because:  please go read them!

A few days ago, the whole issue of copyright reared it's malformed head again.


Obviously, I'm a human being, so I'm bound to have an opinion here.  I'm just going to acknowledge that.  But that opinion isn't all that relevant to what's at hand.  I don't feel that publicly taking a side is going to do anything other than harm the discussion I want to have about the nature of fair use (fair dealing to all the other English speaking nations) and copyright as it pertains to the hobby blog.  So I am not trying to vilify anyone or assign motive.  It's all business today.

Speaking of business:

+NOTICE+  Nothing I am saying here constitutes legal advice.  I am not a lawyer. All discussion is mostly based of US laws and precedent.  + END NOTICE+ 

So... the Frontline Gamer noticed that his posts were showing up in their totality on the Blood of Kittens Blog hub.  Not mere links, but full on reproduction (probably via RSS feeds).  This was the source of numerous problems for Frontline.  Emails were exchanged and posts were removed.

You can almost taste the understatement.

Then I ran into a comment from a friend.  He was of the opinion that since full attribution was given nothing illegal was happening. Well.... no, actually.

And this is where I begin in earnest.

Most of the people who make up the TTG hobby blogosphere are going to be familiar with copyright as it pertains to a business trying to protect/horde it's intellectual property.  We all know I'm talking about Games Workshop and it's semi-regular rounds of cease and desist orders.

However, copyright law protects EVERYONE - not just companies and profitable ventures.  If you create something you have the same legally enforceable and exclusive rights as GW does to it's own stuff.  The words on this page (but not the cat GIF)?  Mine.  I have the right to determine when, how and where they are reproduced.  Not you or anyone else.

But the word exclusive is a bit misleading thanks (and I do mean thanks) to the existence of a legal doctrine called fair use.

Taken to an extreme, copy right law would grind art, science and education to a halt. But just as the laws claims a responsibility to protect ideas, it claims a responsibility to promote them as well.  Which means that copyrighted material needs to be useful to the public.  Enter Title 17 of the United States Code, Section 107.  (The whole FAQ I just linked to is useful and is relevant to this post in more ways than just the text of the law - actually the whole chilling effects site is great too.)

Important Note:  the idea of fair use contains a pretty vague set of broad guidelines because it is not so much an outline of your legal rights, but a legal defense made in a trial. Originally, it existed as judge-created case law.  So it's gonna be different every time it's invoked.  Also remember, that failing even one of the 4 'tests' can be enough to lose fair use.

For the other English speaking nations out there, your similar concepts of fair dealing are much more limited in scope, but are, essentially, the same idea.  Limited use of copyrighted material for the public good.  Luckily, there are enough similarities that the I can make some broad strokes. Now, you can certainly go ahead and do your best to stick to whatever guidelines you may have, but know that they aren't a guarantee.

So, lets get to some of the thorny issues that face us as bloggers.

Copyright Law is enforced with Civil Lawsuits
Which means it's decided in court cases between two private parties.  The government isn't all that involved beyond providing the rules and court.  This means it's that copyright holders have a fair bit of responsibility in protecting their own copyrights and seeking damages.

Full Reproduction with Attribution is not Fair Use/dealing.
Copyright gives the owner of copyright the exclusive publishing rights.  Remember - where, when and how are all up to the copyright holder.  Give proper credit all you want but unless you have some kind of permission to do so, you simply cannot (legally) republish things.  Further, Copyright doesn't generally make distinctions of format or method.  Something that is vitally important to understand in the face of all the complications the internet creates for enforcing copyright.

The Exchange of Money is not always a Factor with Copyright Infringement
Obviously, situations where one side is taking in money are going to be a lot more clear cut.  And remember, even if you're in the red, any money you take in is still considered profiting off another's copyrighted material.  However, while the issue of money may be one of the most important factors for copyright, it is not the only one.  This is where a lot of people get into trouble.  Just because you aren't financially harming someone can often times turn out to be irrelevant.

The Cease and Desist Letter is not Magic
A cease and desist letter (C&D) is essentially a threat to take legal action unless certain activities are suspended (copyright infringement for our purposes today).  It's also dirt cheap to do (unlike actual litigation)  which is why it's the usual first step - but it's not required.  However, the threat of a C&D is an empty one unless you have the capacity and desire to follow through with legal action in some way.  Simply sending out a C&D does not force anyone to do anything on its own as a C&D does not hold legal weight unless it is coming from a judge. If you send someone a C&D you had better be prepared to follow through with your threat... or be prepared to be laughed at if your fear tactic falls flat.  The reason these letters work for GW is because GW will certainly follow through with legal action and everyone knows this.

The RSS Feed May Complicate Things
And here's the sticky situation I didn't expect to get into when I was researching this.  RSS (really simple syndication) feeds are actually a murky issue for copyright and blogging at the moment.

1) RSS feeds may or may not imply a license to reproduce your works.  The argument for RSS as a license  is based on the idea that if you make your content available in this way then you're giving up some of your copyrights. I'll admit it's a thin argument (and one you'll see a lot) as permission is not explicitly granted, so it doesn't seem like an open invitation for infringement. However:

2) This issue has not been definitely dealt with by the courts.  Which is important since most copy right law is based on court-doctrine.

3) RSS feeds make blogging work as a social media.  It automatically comes with your free blog.  You're dynamic blog list update based off of those feeds.  A ton of your readers may actually use the feed for or notification of your new posts.  A ton of them may even use the feed for their private RSS readers.  In some capacity you kind of have to use it to function and get the word out.

*I am by no means telling you what your RSS feed means in a legal sense.  My personal opinion is that reposting content via RSS goes against the spirit of what was intended with RSS and counts as infringement under copyright law.*

The Big Take Away Points
If there's anything you should walk away from this post knowing, its that you your opinions on copyright are largely irrelevant until they stand the challenge of a court case.  You can boast and bluster all you want- you may even have a leg to stand on.  But so long as copyright law is civil law, nothing happens until you go to court.  This cuts both ways - infringer or victim.

Also important to remember: fair use is, ultimately, a legal defense.  And one I hope I/you/we don't have to use.

Now this isn't to say that you should just ignore everything I wrote and hope for the best.  You just need to be aware that copyright and fair use are very case specific and not as hard and fast as we'd like. At the same time, you need to be aware of what your copyrights are and what you can do to comply with fair use/dealing and to protect yourself.  That's the real challenge of self publishing on the internet - you're an actual publisher now and you'll be interacting with copyright laws more deeply than you expected.  Do you have a layer?  Probably not.  That's why it's a challenge.  So play it safe, play it somewhat conservatively and protect yourself as best you can both ways.


Supplementary Material

A Simple, but partial, RSS Feed Fix
Now, while re-posting content from an RSS feed is probably technically infringement, it doesn't mean it won't happen.  Since you need an RSS feed to make your blog accessible, you can't just simply turn it off. But you can turn it down.  Go into your blog settings and change the RSS feed from full to short.  That way the full post isn't being transmitted and if your content does end up on an aggregator site, it won't be complete.  People will have to come back to your site for the full story.

Oooh, but I said partial fix.  Feed expanders are a real thing and they suuuuck balls.  What they do is look at your short feed and then use internet magic (following the URLs back) to make a new feed. So the short RSS feed will deter the casual RSS pirate but not everyone.  Still, the short feed is a step in the right direction.

Sources
A post on copyright wouldn't be complete without the sources of the information I used today.  Plus, if you follow the links, you'll get a clearer picture of what your copyrights are.  Sadly, this is mostly geared towards the US.

Chilling Effects Clearing House:  Pretty much the best source of information on copyright for us as bloggers.
The Fair Use FAQ is particularly useful.  Actually, the whole damn site is useful, so check it out.

Fair Dealing at Wikipedia:  Ah yes... Wikipedia. I needed basic information.  It's a starting point at least for you non US folks.  If anyone out there cares to expand, send me some links and I'll add them.

About.com - Is Using an RSS Feed Plagiarism? I can't verify the accuracy of the information, but it supports a lot of the other, less well written bits I'd seen on the matter.  There's also a ton of good advice on how to protect yourself.

Feed Expanders On Rise, End Short RSS Advantage:  This is that thing about the RSS fix I told you about.

8 comments:

  1. Heya Lauby, interesting read. I can't speak for other nations but here in the UK copyright law is incredibly similar to that of US law. Not a huge surprise given the similarities between the two legal systems.

    Lets just hope certainly individuals take heed of what is being said in some of those links you've posted. Plus lets hope they don't do it again to some other poor sod!!! Good and balanced post by the way.

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  2. I heart you. If I was not already obligated and I didn't think SpecialLadyFriend would kick my ass, I'd be very inclined to --- well, let's edit that, shall we?

    Hurray for thinking. And research.

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  3. Excellent article. As an attorney, I'd like to compliment it by saying it's written better than most of the crap legal writing I get to read from other attorneys on a daily basis. Nice work.

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  4. Great Blog!

    IM following you!

    You can follow me too ! I got a painting Blog!

    http://malditoduendeminiatures.blogspot.com/

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  5. Excellent article! Very relevant this week.. some of the arguments have been flat out humorous. (Paying attention Dethrone?)

    As for the RSS copyright issue... that is a fuzzy area... I make my feed fully available so people can read it in an aggregate form. Google reader is ad-less, but what if there were ads.. or other sites just built all their content from other sites work, and maybe threw on some ads.

    To me, BoK is more than an RSS Reader. It'd be like CNN copying articles from FOX. When I noticed it, it bothered me, but not enough to make anything out of it for now. (especially since I wasn't contacted about having my content rebroadcast there)

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  6. Good little discussion. A good way to look for people republishing your stuff is to feed an original photo from your blog into the google image search.

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