More On The Copyright Dilemma….
I have continued my discourse with Jonathan Bailey on the topic of copyright issues in relation to blog content- because I believe it to be of crucial importance, especially going into the future…..
Some of the comments made on this topic seem to treat this subject with disdain- but the fact remains, if one is going to put so much time and effort into creating and maintaining a blog, there sure as hell is nothing wrong with checking exactly where one stands as far as your blog’s content is concerned, based on existing laws.
With his permission I am publishing Jonathan’s email to me-:
“As I see it, there are two cases one could make in favor of keeping Zarrella’s work on the site. The first is that it the blog was a work of joint authorship. However, for a work to be considered a joint work, the contributions must be inseparable. Clearly, with a blog, that isn’t the case. The fact you can remove one person’s contribution without taking down the whole site shows that.
Second, what Duncan seemed to hit at, was the idea of an implied license. Though some implied licenses do exist in copyright law, they are licenses that only go so far as what is required to use the work in the manner intended. Implied licenses are rarely, if ever, indefinite and are certainly not transferable. The courts limit implied licenses as much as possible. The classic such license is the license to cache a Web page, which is considered an implied license of posting a work on the Web. Without caching, the page would be almost unusable so the courts figure there is an implied license for the user to “copy” the page temporarily to their computer.
It would be an uphill battle trying to show that Zarrella gave an indefinite implied license that could be transferred to third parties via an agreement he was not a part of. A good contract, however, would have handled these potential problems gracefully.
It’s a similar issue that comes up when one posts a comment to a blog. The commenter effectively “owns” the comment though there is an implied license to display the comment. However, most lawyers seem to agree that if a commenter returns later and objects to the comment being there and requests its removal, that is his or her right. This would be a matter for the courts to resolve, most likely after a long, expensive and bitter legal fight, but all of this can be resolved by either
A) Requiring one post their work underneath a CC license when posting or
B) writing another TOS and requiring posters to heed to that.
It directly relates back to the problems with guest bloggers. One thing you need to consider is what you’re paying for when you acquire a blog. If you are actively paying the blogger to write, then its probably that the blog entries would be considered a work for hire. If that’s the case, then copyright of the work reverts to you, the person who paid for it. However, if you aren’t paying specifically for the work and they aren’t under your ongoing employ, there could be problems.”
So, if I’m reading this correctly- if one pays someone to write posts on one’s site and you have a written contract in place, all is hunky dory. But if you’re dreaming up one of those pyramid schemes based on revenue share and you do happen to hit the jackpot, then things could get very nasty indeed….
two r’s kthxbye
Dan Zarrella said this on August 24, 2006 6:32 pm
Love it Dan, funny.
Loren Feldman said this on August 24, 2006 7:23 pm
I understand what you are saying, however I come back to the DMCA, in that it can only be an issue of copyright if it was published elsewhere first, after all, how can you prove a copyright if it was published here? Indeed I come back to what I wrote earlier, this is a contractural dispute between Dan and David, not a copyright issue as such. Indeed, I’d suggest that this is probably a case of Caveat Emptor, but changed to poster beware: posteri caveo.
Duncan said this on August 25, 2006 2:09 am
Who is this Dan Zarrella? What a creep. When I read his stuff, I have to side with David Krug and the new owner of this blog. They’ve been gentlemen and businessmen in all this.
Carl said this on August 25, 2006 6:35 pm
Duncan,
Just an FYI, there are many, many ways to prove copyright ownership of a work that exists solely in the digital work. Copyright law protects any creative work of authorship that is fixed into a permanent medium and, yes, courts and the law have found that writing it to a hard drive is an example of that.
Since posting content to the Web involves writing it onto a hard drive somewhere in the world, it counts as fixation and is a copyright protected work.
A work does not have to be published elsewhere first.
Jonathan Bailey said this on August 26, 2006 4:41 pm
Under U.S. law, copyright is owned by the creator, period. The original writer owns the copyright, except in some very specific cases where the work-for-hire principle applies, and writing for a blog is not one of them.
You not only need to have “something in writing” to be safe, you need to have an explicit transfer of the copyright to you, in that writing. The best thing to do is in the agreement to explicity acknowledge that the writer owns the copyright, with a license to you to use it on the blog, and then state that the copyright will be transfered to you upon payment of the writer’s invoice.
By the way, you cannot file DMCA complaints without owning the copyright. In theory the owner could appoint you as agent for enforcement of copyright or give you a limited power of attorney, but it’s easier to just get the copyright transfered to you.
Mark said this on August 27, 2006 3:18 am
The US Copyright office on work for hire:
http://www.copyright.gov/circs/circ09.pdf
The key point is the requirement of a specific written agreement acknowledging that it’s a work for hire.
Again, explicit transfer of the copyright upon payment of consideration is much safer than relying on work for hire.
Mark said this on August 27, 2006 3:23 am