Busting Myths: Intellectual Property and Blogging by Mark Patterson
Bus$ng Myths: Blogging and Intellectual Property Mark J. Pa;erson Waddey & Pa;erson, P.C.
The Fair Use Myth • Fair use of a copyrighted work – e.g., cri$cism, comment, news repor$ng, teaching, scholarship, or research, is not an infringement. • Fair use factors to be considered shall include: • the purpose and character of the use, including whether such use is of a commercial nature; • the amount copied in rela$on to the copyrighted work as a whole • the eﬀect of the use upon the poten$al market for or value of the copyrighted work. .
The Fair Use Myth [Copy of another author s en$re ar$cle with link] Blogger s fair use commentary: Can you believe this? I disagree!
The Fair Use Myth Hot oﬀ my piece on how pos$ng online can harm your job prospects is this ar$cle which says it can also mess up your chances of geRng an insurance claim ﬁlled. The details: Your friends arent the only ones interested in what youre saying on Facebook and Twi;er. Insurance companies are exploring how to use social media to learn more about you. Does that mean your car insurance rates will go up if you post about your interest in drag racing? Will your home insurance premium rise if you tweet about your vaca$on and let everyone know that no ones home? No -‐-‐ not yet, anyway. But insurance companies already check social media sites to inves$gate suspicious or expensive claims. And technology companies are building tools that will help insurers mine social media data to improve marke$ng and perhaps one day help price policies.
The Fair Use Myth Theres not much cause for worry now (the insurance companies are trying to ﬁgure out how to ﬁnd the informa$on), but it could be in the future: With millions of such car insurance and home insurance claims ﬁled each year, "insurers cant check everybodys Facebook page," says Peter Foley, vice president for claims administra$on for the American Insurance Associa$on. "Its not a very eﬀec$ve tool." But they may check social media sites if there are signs of fraud, he says. "Its now common prac$ce to use social media for inves$ga$ng suspect claims," says Craig BeaRe, a London-‐based insurance analyst for Celent, a research and consul$ng ﬁrm. So, the lesson here is that if youre trying to rip oﬀ your insurance company, dont post it on Facebook. No, wait, thats not the lesson. The lesson is actually the same as the previous conclusion when we discussed careers: BE CAREFUL WHAT YOU POST ONLINE. Assume everyone can see (or ﬁnd) what you post and consider this before you comment, submit photos, and the like.
The I Gave Credit Myth • Rules apply equally to all content -‐ videos, images, and text • Don t rely on lack of copyright no$ce • A;ribu$on and links are nice but ……..
Clueless About Copyright Dear [Awesome Journalist Blogger]: I discovered this evening that you have copied the en$re content of my ar$cle "Eight Baby Boomer Money Mistakes You Should Avoid." This was published ﬁrst on my blog Tough Money Love. I also gave Karen Datko at the Smart Spending blog permission to use it. You have neither requested nor obtained permission to use it. Please explain ASAP.
Clueless About Copyright Mr. Pa;erson, Clearly, you are not familiar with the interac$ve online world of sharing, where one blog builds audience through connec$ons with another blog and thus, grows audience. You did not "discover" the link to [My Awesome Blog] because we openly linked to your blog and included a permalink which would help grow your audience. [My Awesome Blog] has a much larger audience than your site. Furthermore, we are not one of your children to bully so we do not owe you an explana$on. We have completely removed the story so you may be content in living alone on your li;le island, completely clueless about the world around you.
Clueless About Copyright Mr. [Awesome Journalist Blogger]: I am quite familiar with the ways of the blogosphere. I enjoy and appreciate links to my site and my ar$cles from other bloggers. Some$mes por$ons of what I write are quoted with a;ribu$on in the context of another bloggers original wri$ng. However, one prac$ce that I know is not tolerated is wholesale copying and publishing of another bloggers en$re post without permission. That is what you did which is quite surprising because I am a regular reader of content on your site. Indeed, imagine my surprise when my en$re ar$cle appeared in my feed reader from your feed. Google frowns on this ac$vity as well, both with duplicate content penal$es in its search engine and as a viola$on of terms of its Adsense service.
Clueless About Copyright Mr. [Awesome Journalist Blogger]: (cont d) Surely you also know that publica$on of anothers work in that manner is copyright infringement. If you didnt know that, perhaps you should consult an IP a;orney. I can refer you to one since that is what I do in my day job. I am sorry that you consider my gentle contact with you to be bullying. It could have been a lot worse. Given your surprisingly hos$le aRtude in response to my contact, next $me it will be. Anyway, thanks for promptly removing my content. If you would ever like to re-‐publish any of my wri$ng or would like me to submit an original piece for you to publish, feel free to contact me.
Clueless About Copyright Mr. Pa;erson: Dont preach to the guy who has wri;en a leading book on social media and blogging protocol, especially when you are just making up stuﬀ. Proper credit, links and permalinks were given. Thats how you "discovered" the link. And, dont ra;le around things like "copyright infringement," when credit has been given. By the way, if you want to internalize and protect your material, you need to so specify. Your manner was neither polite nor "gentle" in demanding "explain ASAP." We will never reference your blog again so live in peace.
Clueless About Copyright Mr. [Awesome Blogger]: Let me give you some free advice before we go our separate ways and before you get yourself in more trouble. Copying with credit is not a defense to copyright infringement. Moreover, although use of a copyright no$ce is not required under the law, you will ﬁnd such a no$ce in the footer on each page of my blog.
Clueless About Copyright Go bully your kids, not people who repost your material as a courtesy. We have taken a close look into how material from your blog was posted on our blog. The ar$cle in ques$on was delivered by Google Alerts. Google delivers what are called permalinks of news stories. We thought your material was of interest and posted it, carefully and prominently a;ribu$ng the source and providing links back to your blog, called Trackbacks.
Clueless About Copyright We have taken a close look into how material from your blog was posted on our blog. The ar$cle in ques$on was delivered by Google Alerts. Google delivers what are called permalinks of news stories. We thought your material was of interest and posted it, carefully and prominently a;ribu$ng the source and providing links back to your blog, called Trackbacks.
Clueless About Copyright In nearly ten years online with our site and pos$ng thousands of stories, we have never before had any objec$on because most people like the publicity, and sharing material is the style of Web 2.0. Nonetheless, we sincerely apologize for any aggrava$on caused to you. When we read your email this morning, the piece was immediately removed completely. We might respecjully suggest that you deac$vate the permalink func$on from your blog because it is simply promotes your blog pos$ngs through Google and other search engines. We also note that you are using Google Analy$cs, which aside from providing you with traﬃc informa$on, is Googles method for broadcas$ng each and every one of your pos$ngs to the blogosphere.
The Corporate Shield Myth • Corpora$ons and LLCs can protect you but not against all IP liabili$es • Piercing the corporate veil • Liability for personal ac$ons – contributory or inducing infringement
The Branding Myth • Publishing is a service than can and should branded • Your brand can easily be protected by trademark law – if the rules are followed • Brand extensions – books, downloads, product licensing, speaking engagements • Valuing your blog can mean much more than content or Page Rank