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The People’s Court Addresses Content Theft by Bloggers

Stealing content from bloggersI am big fan of judge shows. I DVR The People’s Court and Judge Judy every day. My family tells me that I really should have pursued a law degree since I love debating and arguing so much (er… thanks guys) so maybe that is why I love these shows. I just love seeing the real life drama unfold and hearing why something is legal or illegal and watching the average Joe make his or her case.

Today though I was rather disappointed in Judge Marilyn Milian of The People’s Court and I am normally a very big fan of hers. The first case on today’s show was about a topic that is very near and dear to me…content theft. As a blogger and owner of several web sites I am all too familiar with how easy it is for people to take the words you have painstakingly written and commandeer them for use on their own web sites/blogs. It happens to me ALL THE TIME. I write an article or tutorial for one of my blogs and then BAM a few weeks, months, or years later I see that someone has taken my article and copied it word for word onto their own site, along with my original photos. Sometimes they only take a portion but they are still “taking” something that belongs to me and not asking for permission. Whether or not they give credit to me as the original author (many times they don’t) it still bothers me that they don’t ask for permission.

Would they feel comfortable just walking into my home and taking a cup of sugar? No? Well, why is it okay for them to take my words, which are my intellectual property, and use them to make a profit for themselves? It’s not okay. Yet anyone watching The People’s Court today will think that it is okay.

The case revolves around the author of a printed book and how a blogger stole seven short stories from it and reprinted them on her for-profit blog. The book is Wedding Days: When and How Great Marriages Began, which I totally want to buy after seeing the show. I love the concept!

Anyway the judge went through the four criteria used to determine fair use of copyright infringement, one by one. They are:

1) Purpose of the Use – Was it used for non-commercial or commercial use? If it was used for commercial use, such as on a for profit blog or a blog or site used to attract customers then it is not fair use. In this instance the judge recognized that it was NOT fair use because the blogger was using the stories to draw traffic to her blog and make money as a local wedding officiant.

2) The Nature of the Copyrighted Work – Is it fiction or nonfiction? If the work being stolen is non fiction and more factual in nature it is harder to prove unfair use than if the story was all made up in your head. Because the book contained true stories that don’t entirely belong to the author the judge said that reprinting could be considered fair use. Also because the work was published this case leaned towards fair use. The author put it out there for the public to enjoy. Though I would add a NOT FOR FREE right after that.

3) The amount of the work used – How much of the article/site was reprinted? The blogger in this case reprinted 7 stories in a book of 365 so the judge ruled that it was a small enough amount to warrant fair use. I find this rather incredible. If another web owner reprints a paragraph in a long article AND credits you then yes that is fair use. But to say that 7 stories amounting to 4000 words or more is small enough to be considered fair use because it comes in the context of a book is crazy. By that logic someone could copy 20 articles from my site word for word and get away with it because I have over 2000 articles total. That is nuts! The judge really missed the mark on this one.

4) The Effect of Use on the Potential Market or Value of the Work – Did the use of your content cause actual damages or are you just mad that someone stole your content? The judge decided that the author suffered no damages or harm and I agree with her. I detest when web site owners steal from you and then sell you a line about how they are doing you a favor by sending you traffic. They may be right, though usually not so much, but they should still ask for permission. In this case the blogger should have asked for permission but in the end she did direct traffic to an old book that was published 15 years ago. Any mentions on the Internet are beneficial in my mind though the way the blogger went about sharing the info was not so good. Still she didn’t damage the author in any way.

Taking these 4 things into consideration the judge sided with the blogger and awarded no damages. Though she told the blogger not to put the content back up. If what she did was perfectly legal, then why not put it back up???? Yeah, something stinks there. I think that if ANY of the above four criteria show that it was not  fair use then the case must be settled in favor of the copyright holder.

So because the first criteria clearly demonstrated unfair use then the judge should have sided with the plaintiff (the author). There were no damages though so the penalty should have been small, maybe $100. We have to send a message that this type of thing is in fact illegal and keep bloggers and site owners from going lawsuit crazy by making them prove damages. This ruling was not only wrong IMO, it sends a bad message to content thieves that they can get away with stealing the hard work of others. I still love Judge Marilyn though. :)

Did you see the case? What did you think?

Comments

  1. Marijke says:

    Thank you for addressing this growing problem. I had heard about the episode but not seen it. As a writer whose bulk of work is for online clients, I have found my work posted by other people. I don’t understand how or why people think this is ok – but with a nonsensical “ruling” like this, more people will feel justified in their theft.

  2. Both the judge and your excellent post left out one important consideration in evaluating #3. Whether the amount used is fair has to be considered in terms of whether it makes up a large proportion or all of a complete entity. If I quote more than 2 lines of a poem I have to ask permission, because the 2 lines represent a larger proportion of the poem than a long paragraph does of a book. Similarly the defendant in this case took seven stories from Susan Gordon’s book that were complete entities in themselves. They enhanced the value of her website in a way that a short quote wouldn’t have done. As the Chicago Manual elegantly puts it, the criterion is whether the quoter is “taking a free ride on the first author’s labor.” Here the defendant clearly was doing just that.

  3. Thank you, Tiffany, for your fine post and clear explanations of copyright law, It really isn’t such a difficult concept, especially when the US Copyright Law office plainly states, it’s always best to ask permission *first* before using anything written by someone else.

    I was quite upset when I first discovered my stories on the defendants’ wedding web site. It’s quite professional looking, with gorgeous photos of brides, grooms and ceremonies, along with photos of couples such as Bogie&Bacall, the future King George V of England and Elizabeth Bowes-Lyon (parents of today’s Queen Elizabeth), and other “greats.” Whether or not the web site had 154 or 10 million hits is irrelevant. If you own a retail store and many or no customers enter, it’s still a retail store

    True, my name was cited after each entry. But adding insult to injury, my stories were posted with many typographical errors; even the word, “April,” was misspelled! It looked as if I, the author, couldn’t spell.

    As you point out, and as I said afterwards, “Judge” MIlian’s poor decision will encourage other “writers “of online or hard print copy to take the hard written works of others and use it as their own. What a shame!

  4. Thanks, Tiffany for your thoughtful blog piece about this problem. One addition to the comments here: Under #3, while it’s certainly true that nonfiction is likelier to be fair use than fiction, the fact that it was published does NOT lean toward fair use. Actually if anything, it does the opposite because it bolsters the argument that there is a market for this material, therefore the possibility of economic harm. Seems like that judge was just making things up with that one.

    Minda Zetlin
    President
    American Society of Journalists and Authors (ASJA)

    P.S.: ASJA is writers’ organizations that provides support for self-employed nonfiction writers and we and others are involved in the court cases against Google and others who trample writers’ copyrights.

  5. After more than 20,000 “views” on YouTube in barely a month since my copyright infringement lawsuit aired on “The People’s Court,” my segment only (not the other two suits presented on the same show) has been removed. Click on the site now, and you’ll see a dark screen, a frowning red face, and these words: “This video is no longer available due to a copyright claim by ‘The People’s Court.’ Sorry about that.”

    Ironic, isn’t it?

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