In Which I Explain My Copyright To New Media Professionals

I’ve had two abnormal spikes in traffic on this blog since it’s inception. The first came when an entry on parboiling ribs was picked up and heavily ridiculed on a competitive BBQer message board. The second came on Monday, for reasons I only now figured out.

Before I give the anecdote, here’s some important background information about me and this blog:

  • I am an intellectual property attorney, so I at least kind of know a little bit about copyright law.
  • I understand the Fair Use Doctrine of copyright law.
  • I have an exceptionally liberal copyright policy.
  • I consider myself an above-average critical reader.

Here’s the quick story, a lesson for would-be Search Engine Optimizers or aspiring “new media gurus”. Names have been redacted to spare the incompetent:

On a typical day this blog gets anywhere from 30-60 unique visitors. Half are looking for instructions on making a 55 gallon drum into a smoker, and another quarter want to par-boil ribs. The other quarter search for all kinds of crazy things or came here through Facebook or a WordPress subscription.

Monday, though, showed a huge spike in traffic (at least for me), with well over 100 people suddenly visiting my site in a few hours. In particular, one post (for a place or product… I don’t want to name names) was getting the vast majority of the traffic. I also had a back link from a site I’ve never heard of. (When someone posts a link to my site on some other website, and somebody clicks through to get here, I get a daily report of that “other website” as a referring link.)

I clicked that link and was taken to a “new media” company’s website. (Wikipedia considers New Media to be a broad term, but let’s just say this is a company that does internet-y stuff for clients.) There I saw the first 1/2 to 1/3 or so of my blog post, lifted and reposted with no attribution but a screen clip of the SimpsonBBQ title from the blog. No commentary, just a repost. In fact, the repost included hyperlinks, photos, etc. They even took my unique post’s URL and pasted it on the end of their own TDL. It was annoying and confusing.

Scrolling through the new media company’s website, I used my critical reading skills to determine that someone had barfed unintelligible SEO/internet buzzwords all over a commercial website, leaving me with no flippin’ idea what, if anything, this company does. More frustratingly, I couldn’t figure out why my post was on their site. (Ideal customer: “You can helps me with internets? I give you money now?”)

Barney the Simpson BBQ Copyright Bear was getting pissed off.

Roar! Who's stealing my content?

Roar! Who’s stealing my content?

I did what any sensible person with a restrained personality would do: Send the same message to the WhoIs administrative contact as well as through the “contact us” page on the offending website.

Hello –

It looks like you scraped one of my blog posts and placed it on your website.

My post: [date]/[my unique URL]/

Your post: http:// [don’t understand copyrights] .com/[my unique URL]/

Reading your site, I have no idea what you do (and, yes, that’s after reading the “What We Do” page). Lots of SEO buzzwords and other nonsense, but nothing substantive.

My copyright license is quite liberal, but it does not permit such brazen use of my content. Please remove it.

Thanks, and have a great day.

– Dan

[my phone number]

See how kind and restrained I can be? (And yes, I know “scraped” isn’t the technically correct term. I was full of Schlafly AIPA at the time. Give me a break.)

I truthfully expected no response at all.

Within FIVE MINUTES, I received two emails. The administrative contact (incorrectly) said that I was credited, but he would remove my content from their site if I wanted. The other emailer seemed a little more panicked. She asked if I needed the post removed from Facebook and the [place or product]’s website. I didn’t even know about those last two.

I responded:

[Naive new media ace] –

This sounds like an honest mistake. I actually happen to be an intellectual property attorney, so here’s what I’m cool with: actual fair use.

Putting something on Facebook or the [place or product] site that says something like, “Here’s a blog post reviewing our [place or product]” and using an excerpt here and there, followed by a link to the site. That’s within what’s considered “fair use”. What I saw was just an unattributed copy with no comment, and that isn’t “fair use”.

I hope this helps.

– Dan

I must have confused the high hell out of her with the magical phrase “fair use” because she simply deleted the shared link post on Facebook for the [place or product], and from the [place or product]’s company website. I didn’t get a response to that or a subsequent email. Calling out that I was an intellectual property attorney is what probably sealed the deal for her as far as taking everything down and not responding to me anymore.

A Quick Primer on Fair Use:

There are two kinds of copyrights. (Before I get into this too far, this is NOT legal advice. If you seek legal advice from a BBQ blog, you’re either exceptionally far below average intelligence or a new media kingpin.) I’m paraphrasing and dumbing things down for the pork-and-beer readership.

The first is a common law copyright that comes into being the moment an author puts a creative work into a fixed medium. What’s that? Artwork, music, photographs, literature, etc. The author owns the work and may assign or sell it as he or she sees fit. This is overly complex, but it’s a BBQ and beer blog.

The second is the federal copyright registration, whereby authors of creative works in a fixed medium may register their work with the federal government and put the rest of us on notice of their rights. The real benefit, in my opinion, to this system for the copyright registrant is statutory damages.

If someone steals your common law copyrighted work, then you have to prove damages either as loss of income for you or improper gain for them or something like that… I don’t file copyright lawsuits.

But, if someone steals your federally-registered work, you have statutory damages that can wildly exceed the lost profits. Why do you think someone who pirates a few dozen $0.99 songs gets hit with thousands and thousands of dollars of damages in an infringement suit? Statutory damages! Lots of money per copy adds up fast, even if you make nothing off of pirating the music.

There is an exception, however, to copyright infringement: Fair use. There are basic rules, but in the end it’s completely subjective. Certain things are considered fair use, such as “criticism, comment, news reporting, teaching, scholarship, or research”, and that’s right out of 17 U.S.C. 107 (federal law). There are factors that will determine whether or not any of those is a fair use, including whether it’s commercial or not, the nature of the copyrighted work, the amount of the work copied, and the effect of the copying on the market value of the work.

So, looking to my case, the copying was maaaaaaaybe a news reporting in that they reposted it with other articles on their site that included some press releases (which is another issue… they copied works of other publishers. I’m a schmoe with a hobby blog, not a huge newspaper conglomerate.) In the end, I don’t think it falls into any of those categories. The use was purely commercial and a significant portion of the article was copied. I was in my rights to gripe, as explained above.

Interestingly, when I was ripped apart by the BBQ bloggers for parboiling ribs, that WAS fair use! I licensed my non-people photos to the world royalty-free, their reposting was limited in scope and for the purpose of criticism and comment, and it was purely non-commercial. Bravo, BBQ purists/haters!

Back to the conclusion of my story:

What I later learned was that my father (god bless his little heart) went to the [place or product]’s website, clicked on the “contact us” page, and submitted my blog post review. He just wanted to share my review of their [place or product] and meant no harm. There’s no way he could have known that the fillable contact form doesn’t go to the company owners, but instead it goes to the internet wizards who fumbled the ball by reposting my blog entry to their own new media superstar company website.

Share my blog on Facebook – great. Put a quick blurb and backlink to the blog on your place or product website – huzzah! Hell, ridicule me on a BBQ message board – have a great time! Just don’t copy and paste my content onto your unintelligible new media site.

Condescending Protips for New Media Gurus:

  1. Know the difference between Fair Use and Copyright Infringement.
  2. Consult an intellectual property attorney or, at a very minimum, some kind of corporate attorney with IP experience sometime before you begin to work with other people’s content.
  3. Say what the hell you actually do on your website. Below is the most specific thing I could find on the new media guru site.
  4. These buzzwords suck, say nothing, and were probably originally written by a subliterate gravel-knuckled mouth-breathing barely-sentient smoldering garbage fire of a human. They have been and can be rearranged in any way to make a paragraph that conveys no information or idea and is meant to confuse the internet-illiterate: ideal nexus; alternative media; measurable results; reach the subconscious minds; HTML email blasts; out-of-the box marketing; cost-effective methodology; latest technologies available; cost-effective marketing plan; website optimization; social media; SEO; etc.
  5. This is great, and I wrote it in under two minutes: We will take your input and build you a kickass website, and then manage that website so you can focus on running your business. We will try to write that website in such a way that search engines find it particularly relevant when a potential customer is searching for [whatever you do/sell]. We will also set up a Facebook page and Twitter account for you, and manage those as well. We know you’re busy running [place or product] company, so we will take care of your online image at a reasonable price. If there’s ever a customer concern, we’ll forward those to you and work with you to get your customers satisfied. Also, don’t worry about us violating copyrights, because we have a basic understanding of copyright law and fair use.

NB: Any comments that speculate about the identity of the new media company and/or the [product or place] company will not be approved. Those that are auto-approved will be deleted. I’m not looking to Name and Shame.

3 thoughts on “In Which I Explain My Copyright To New Media Professionals

  1. paradiselost79 says:

    Check for Ukranian hits. Those are the most common, they are actually using proxies and are sometimes just US companies slamming your site for all kinds of reasons. A site I recently transferred was using Joomla and their database was some astronomical size for their site (over 1GB for small business). Turns out whoever designer their site left a backdoor (on accident I hope) that allowed commenting without approval. So something like 15000 comments from India, Ukraine, etc and it was actually kind of funny (except for them, they were getting kicked off their host due to the amount of crap that was hitting their server). SEO is a tricky business, that is why I only do two sites right now, they were some of my first customers and I kind of feel “dedicated” to them. It takes a lot of time and patience, and honestly since I charge so little not worth my time.

  2. Have you considered placing a Creative Commons badge on the index and post pages? That tends to settle the argument…

    Also, you should use the WordPress tag in your posts… it will make your index page easier to read. It drops a Continue Reading link at the end of each. For example:

  3. simpsonbbq says:

    You assume I want to make copyright simple for people (I don’t) and that I want to append my posts (I don’t). I have my own overriding copyright policy and I like having the entirety of my last five posts on the front page. Go back to making super cookies and harvesting my personal information for sale and profit.

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