The other day I was thumbing though OK! Magazine taking care of some porcelain throne business. Aside from the fact that Lynne Spears is clearly not going to win any mother-of-the-year awards, I had an observation: photographers get no love.

As if bloggers using credit-less pictures wasn’t bad enough, even “legitimate” magazines are robbing photogs.

There ARE credits, the problem is you need 20/20 vision and a microscope to read them. In some cases, it was a tiny white font on a light background. Plus, the magazine has to be flipped to the side to see who took the shot.

Things aren’t much better on television. Shows take dozens if not hundreds of people to come together. Yet the stars, the people who make the most money and probably do the least, get their names flashed on screen for several seconds. The behind-the-scenes folks? Their names fly by in a blaze of glory.

Have you noticed that more and more channels are choosing to roll credits – in some cases – at 128 times the normal speed. Try reading the names of the best boy grip or craft services specialist. Impossible.

It’s a bird. It’s a plane. It’s credits!

So I ask you this: Is it more offensive not to be mentioned or to be given a worthless credit.

Bloggers and the “lawless” Web are often the first things mentioned when it comes to photo and article hijacking. What about the mainstream media? They are in essence eliminating credits. Yet, people are quick to go after bloggers (most of whom are not even profitable), rather then address this greater problem.

Jack of All Blogs purposes a bill, that with your help, we can get before Congress. It’s the Credits Must Be Readable bill. Who’s with me?

Managing an online service can be quite complicated. Not only do you have to think of the costs of bandwidth, servers, utilities, and even administrative overhead, you also have to worry about the legal implications. For instance, if you were to run your own blog or website, it would be your responsibility to make sure you do not post illegal or potentially damaging stuff on your site. But if you host millions of people, and let them have the power to put up just about anything they can then you can expect complaints to come left and right.

Take for instance MySpace and YouTube. These pillars of the user-driven content world have been snapped up by the big fish—in this case News Corp. and Google, Inc.—for billions of dollars. These allow multimedia uploads from just about any person who signs up for an account. MySpace was founded on the creators’ love for the indie music scene. YouTube, meanwhile, was designed from ground up for sharing of user-contributed videos (but the tendency is for users to upload television shows and movie clips).

However, with this is the very high likelihood that users will upload their favorite songs and videos that are copyrighted, and this is tantamount to illegal music and video sharing. It’s very easy to just rip all the songs of your entire CD collection into MP3 and upload them to your MySpace account. Before, there was no one stopping you from doing that, and MySpace would only remove your illegally-shared files upon request from the artists (or any authority). But now, we have news that they’re changing that.

MySpace’s policy, like that of YouTube, has been to remove copyrighted material when requested to, but the move to harness Gracenote’s technology marks a more active role in preventing copyright violations. It is tied to the news that MySpace.com will soon start selling songs from unsigned bands, with an eye toward eventually marketing songs from major record companies as well.

MySpace is thinking of banning the upload of copyrighted material outright, even as you upload them. While I think this is a noble effort to curb online piracy, I don’t think it will work in the long run. It seems like MySpace is kissing up to the music industry bigwigs and sacrificing their users in the process. And with user-driven sites like MySpace, it’s all about the users. If you start pissing off your clientèle by starting to become too strict, then you risk losing the best thing about your business, and that is its popularity and the freedom enjoyed by the users.

So can you really prevent copyrighted media from being uploaded and shared online? I’d say yes. But it would be a bit nasty.

[tags]copyright, news, myspace, youtube, video, music, file sharing, mp3, intellectual property[/tags]

We’ve been getting a series of complaint emails from Gawker over our Gaming Blog, in terms of the domain name “Kotaku” and, thus far, no agreement or settlement has been reached. When you look into it, there is some interesting case history in terms of trademarks vs. domain names. To see an excellent legal summary, visit the Harvard Law website.

One good case example, some time ago, was between eToy.com vs. eToys.com as it is, like many of these cases, a David and Goliath story. And, perhaps surprisingly, in most instances- the courts have favored David. If one searches through the Domain Name Handbook Dispute Diaries – most courts have found that the registering of a domain is simply the taking of an opportunity, unless the registrant is falsely posing as the company with a specifically registered trademark. In other words, based on case history, it’s an extremely cumbersome case to prove and the bar is set high.

And this is in the United States, where anti-cybersquatting laws have been passed by Congress and work in conjunction with ICANN’s UDRP. But when one starts getting into the foreign laws and less established TLDs- it becomes a maze almost impossible to unravel.

Let us deal with ICANN’s Domain Name Dispute Resolution Policies-:

The policy provides that all domain name registrants must submit to mandatory administrative proceedings if:

1. the domain name is identical or confusingly similar to a trademark in which the complainant has rights; and

2. the domain name holder has no rights or legitimate interests in the domain name; and

3. the domain name has been registered and is being used in bad faith.

There are four factors in the policy listed as evidence of bad faith registration and use:

1. circumstances indicating that the primary purpose is to sell or transfer the name to the trademark owner or competitor for consideration in excess of direct costs related to the domain name; or

2. history of registration in order to prevent the IP owner from reflecting their mark in a domain name; or

3. registration primarily for the purpose of disrupting the business of a competitor; or

4. intentional attempts to attract users to your site for commercial gain, by creating a likelihood of confusion as to source or endorsement.

If any of these apply, then the registration is in bad faith. However, if the domain name holder has a legitimate interest, then a trademark holder will not win under the UDRP. The policy lists 3 factors as evidence of legitimate interests:

1. use or demonstrable preparations to use the name in a bona fide offering of goods or services before notification of dispute; or

2. if the entity or person was commonly known by the name even if it has no trademark rights; or

3. legitimate, noncommercial or fair use of domain name without intent to misleadingly divert consumers or tarnish the mark at issue.

But here is the problem as pointed out by Harvard Law....

There is some question regarding the enforceability of the registrar agreements both inside and outside the United States. These agreements could be considered contracts of adhesion since registrants have no other options for registering a name in a gTLD.

In our case, the name “Kotaku” is actually in honor of a 17th/18th Century Japanese artist and we do have declared interests outside of the US. For example, see our Japan Blog and major Japanese website. Does a US trademark supercede a Japanese trademark or patent?

Furthermore, the UDRP requires not only that the domain name was registered in bad faith, but that it is being used in bad faith as well. Nowhere in our Gaming Blog do we claim to be Kotaku.com or anything to do with the “brand” developed under that trademark, by Gawker.

The fact is that, as “Goliath“, Gawker had ample opportunity to register the .net version of Kotaku.com. That they chose not to is their own oversight. It should not be incumbent on us, “David”, to lie down and be trampled on- just to protect the interests of those who have been remiss in their online business strategies. Are they seriously saying that by registering a trademark in the US, this gives them an immediate right to all ICANN domain names for that name? What a bargain that would make all trademark registrations!

By caving into demands that are beyond reasonable, one would open the door for corporations to be able to impose trademarks on a huge amount of words/phrases that might be otherwise considered as “generic” or part of the “public domain”. Should Johnsons have a trademark right over all ICANN domains for “Baby Shampoo“? The mind boggles…

This is not in any of our interests. Don’t the Goliaths have enough advantages already in the online marketplace?

And so, while we may lose this particular battle..it will not be without a fight.

[tags]gawker,kotaku,domain name disputes,icann,udrp,cybersquatting,etoys,harvard,gaming,japan[/tags]

The Recording Industry Association of America (RIAA) is the epitome of the copyright police in the western world. Imagine having the tenacity to uphold copyright strictly even if it meant suing 90-year old grandmas and 13-year old schoolgirls for downloading music free online (even if it’s sometimes not their fault). Imagine employing bully tactics even to the extent of suing a family that doesn’t even own a computer!

The RIAA has been hailed as the music mafia. But they’re here to stay, and it’s quite hard to fight the 900 pound gorilla with brawn. It seems, though, that the RIAA is flinching from its original stance that all free music downloads are bad. They’re finally willing to admit that people who share music online must be great music fans and probably a great market, too!

[I]t’s almost funny to see the Wall Street Journal with an article about how record labels are finally admitting that file sharing is a way to market to the biggest music fans (found via Broadband Reports). While it’s laughable that it would take the industry this long to even venture to admit what was obvious to most everyone else, it is a tiny step in the right direction. Combined with the recent admissions that DRM can be annoying, that you can make money without DRM and that you have to compete with free content, it seems like the entertainment industry is finally starting to put together all the little pieces that lots of other folks tried to tell them seven years ago.

And this is rightly so. I would tend to think the RIAA is still living in the stone age with how it views business. What can we expect from the same kind of people who opposed VCRs due to fears of movie piracy (that was the RIAA’s cousin, the MPAA)?

In fact, many in the music and recording industry—particularly the independent artists—are now turning to alternative business models, which take into consideration the popularty of online music sharing. Remember MySpace? This social networking site, which was bought by News Corp for a whopping $580 million (not as whopping as Google’s $1.65 billion purchase of YouTube, but still a big amount!) last year, started out as a place for new, unsigned bands to share their music. And it has proven to be popular. MySpace is said to be the site with the most traffic lately. And it would make sense for people in the music business to market their stuff on such a site. After all, if you’re a relatively unknown band, what chances do you have in competing with the big names that have contracts with the big record labels using the traditional methods?

As for the business model? I think free is the operative word here. While a lot of people would be willing to pay 99 cents per tune, a helluva lot more would be going for something free. And just how can one earn from free? Easy. There are ads and sponsorhips. And for artists, I think making one’s work available online would be a great marketing tool for getting signed on to gigs, concerts and other potentially revenue-generating activities.

Sure, a lot of sites that offer legal music downloads are popular—like iTunes and Yahoo! Music. But I think pretty soon, the world will be seeing free legal music downloads as the norm.

[tags]copyright, DRM, RIAA, music, downloading[/tags]

I’m a big fan of good writers. I especially admire bloggers who write exceptionally well. I mean, with all the crap out there that people try to pass of as writing, you could easily distinguish the good from the bad. Writing on a free, open platform such as a blog does not give one the license to throw grammar school lessons out the window.

Yes, some people are lazy, and write gibberish for all the world to read. Okay, they’re forgiveable. But when there are some people who are lazy and steal their way to riches, then that’s probably the time to ring the church bells and round up the people with their knives and pitchforks.

I didn’t realize blog content theft was so rampant until I visited the Stop Bitacle.Org blog.

The people behind bitacle.org steal content from other’s weblogs and place it on their own website. Their practices are criminal and/or abusive, because these people violate the copyrights on the original content, of their holders. Not only copyrights are violated, licenses such as those of the Creative Commons are not respected as well.

Stolen content from weblogs is placed on bitacle.org’s website, between commercial messages for which the people behind binacle.org are being paid for by advertisers. At this moment Google places commercial messages on bitacle.org, but this company is requested to reject bitacle.org as their client, because of bitacle.org’s criminal/abusive behaviour.

DMCA? They’re in Spain, for crying out loud. So a DMCA won’t be their silver bullet. There are other—legal—ways to fight back, like writing Google to cancel their AdSense accounts, or inserting notices on your blog posts (so people reading their site would know it’s your content. But it seems Bitacle is just the tip of the splog iceberg. Just checking my referrer stats, I come to stumble upon backlinks from doubtful sources. Guess what I see when I visit their site? My content, with AdSense splattered all over.

Lazy people. Tsk!

[tags]plagiarism,copyright,content theft,pirate bay[/tags]

As promised, I’m following up my previous post on the DMCA- trying to make sense out of the madness, as I perceive it. So I asked Jonathan Bailey of Plagiarism Today a question regarding my main concern-:

Are 3rd parties like this allowed to write to a host and request such drastic action without going through some sort of formal procedures? Otherwise anyone can just do this as an act of sabotage?

Here is his answer to this-:

“The honest answer to your question is yes, no and maybe.

The DMCA itself only allows two groups of people to file a notice. The copyright holder or a “designated agent” to act on their behalf. That agent is usually an attorney that has a legally signed document declaring them to be an agent on file.

So yes, it is possible for a third party to file a notice- but only with a valid contract to do so. Being a designated copyright agent is a fairly big deal and not something you can assume you have.

The exception to the rule is if your site happens to be in the EU. The EU has a similar notice and takedown provision to the U.S. but there is no specific requirement as to who can file the notice. Theoretically at least, anyone, even a perfect stranger, can file the

notice.

That, potentially, makes situations like this dangerous in the EU. You and I can reach a pact to allow reuse of some of my work, someone else notice the infringement and then file a complaint with your host, getting the work removed. This hurts both of us.

The only way I know to guard against that is add a tag line saying that it is “used with permission from” and then give the site name.

Still, even that is no guarantee.

This is something that the EU is going to have to work out.”

For those of you with sites in the EU that this may concern, I followed up with another question to Jonathan-:

When you say “in the EU”- would that mean where the site is hosted or the location of the domain registrant? And doesn’t this get confused with hosting resellers being located outside the US, while the main server is in the United States?

To which he responded-:

“EU deals with the host. The domain registrant has nothing to do with it.

Ponder a scenario here. If a Russian plagiarizes an Australian author but uses a U.S. Web host, the Australian man would use a DMCA notice to get the work removed. Similarly, if the Russian chose a host located in the EU, the Australian would go through those procedures.

It’s a matter of where the data is stored physical and which country “owns” the server. It is interesting when you get to matters of collocation, which can put a single site across many different countries, but in those cases you focus on the main one.

ThePirateBay has used that rub to keep their site alive, despite multiple copyright threats.”

This answer from Jonathan far from put my mind at rest!!

The laws in the US need reviewing now and the EU has to attend to their chaotic interpretations even more urgently.

Watch this space.

I tried to resist writing this. Really, I did. But the ramifications are just too great. Most of you will know the amount of time and effort that goes into building and sustaining a website- especially a blog, and the thought that it can all be taken away by some random absurdity is too much to bear. Welcome to DMCA Madness.

This all started when we purchased JOAB from David Krug last July. There was a running dispute between him and Dan Zarrella about the site’s ownership- and, more relevant to us, the content on the blog we had just purchased. The upshot was that Dan Zarrella threatened us with a DMCA if we didn’t remove all content written by him and we did a post “What’s the deal with a DMCA?” exploring the consequences as far such a threat was concerned.

One upside to that episode was gaining valuable insights from an expert in this area- Jonathan Bailey from Plagiarism Today. Apart from leaving a lot of useful comments, emailing me thorough explanations (& advising that we did indeed take need to take down Dan Zarrella’s content), he also authorized us to use his content on some new anti-plagiarism software coming onto the market called Blogwerx. These included posts like “The Need For Sentinel” and were posted under Jonathan’s own username “copyspy”, which was a link back to Plagiarism Today.

All well and good. Water under the bridge. And then what? Unbelievably, out of the blue- we get an email from Blogwerx:

There are several blog posts that seem to have the exact same content as other locations. This content has been scraped and I would ask that you take it down in accordance with the DMCA.

Okay…fair enough…you think that they might have been pleased with the plug, but they probably don’t know that we had Jonathan Bailey’s permission- so we’ll just write back to them and let them know. No harm done.

But here is where the madness sets in. We get another email from Blogwerx, minutes later (allowing no time for the “personal request” or “warning” to be responded to)- but this time it’s to our email at imandhost.com -:

All of the content located on www.jackofallblogs.com has been scraped from other locations. This is an infringement of US copyright law and the DMCA. I would ask that this site be removed from hosting or the entire account for this user be removed. If you need further information please feel free to contact me.

Notice the change in language. From “several posts”, we now have “all the content”. And “locations” in the plural…

So let’s just recap. Having received permission from an author to publish his content reviewing a particular product, we receive a request from the developer of this product to take the content down as it is “scraped”. And allowing zero time for a response to clear the matter up, this third party- who is not the owner of the content and has no rights or claim to it, is writing to our server- not only asking that this blog be taken down, but for our whole user account (what- 200 sites?) be removed?

Seriously dangerous stuff as a precedent. As it turned out, the matter was resolved quickly and amicably. Jonathan Bailey confirmed with the people at Blogwerx that he had given his permission for us to publish his content. He also confirmed that he had no knowledge of their threat and that he had not instructed them to act on his behalf in such matters. And kudos to Blogwerx, they came back with a sincere and genuine apology. So no hard feelings there.

Still, it completely freaked me out that, as a precedent, a third party- who does not own or have any rights to the content in question, does not act for or have the permission of the content’s owner- can issue a DMCA threat to a server (which must, by law, be acted upon) and that this be within the boundaries of the current laws governing the internet. Where the hell is the common sense there?

So I’m going to be revisiting this matter in the coming days to clarify exactly where one stands with this DMCA madness- as I’m sure that you, like me, would like to protect yourselves not just from plagiarism, but also baseless claims against your website which can, regardless of the merits, cause you a great deal of trouble.

Reading Dread Pirate Yarr’s articles here always makes me think about Pirates of the Carribean. I loved that movie and its sequel. I dig the great action scenes, the story twists and of course that charming Keira Knightley girl (who doesn’t?). There’s something about Pirates that the entertainment industry has romanticized. And to some extent, there is something about being a pirate of that kind appealing. Even one of my favorite literary characters, the Count of Monte Cristo, had dealings with pirates in his time.

But there’s another kind of piracy today that can be considered a real pain in the ass. And that’s piracy of software and piracy of content (a.k.a. copyright infringement).

Software companies are taking a hardline stance against piracy. But try as they may, pirates still get to find ways to work around copyright protection schemes. Microsoft, for example, has tried time and again to enforce restrictions on Windows, but each attempt has been foiled by patches that can be applied in 30 seconds and serial-numbers that are easily obtained from the Web. Music labels have been campaigning against music sharing, to the extent of suing everyone and his uncle for downloading “free” music online, and locking down their digital music such that people can only play them on a limited set of devices.

I hear Windows Vista will be so protected that the moment Microsoft detects you’re using a pirated copy, you’ll lose your OS’s functionality a bit at a time (like being automatically logged off after 60 minutes, or losing the ability to print a document, and the like).

The losers here in the end are the users.

Software makers keep prices high to compensate for losses, and this leads to users turning to bootlegged versions to save. Music sits put in too much copy restriction, and users will just find the “free” versions online so they can use it in more than one MP3 player or computer.

I think the best way to fight piracy of this kind is to look for alternative business models, like how some companies offer their products or services for free but ad-supported, or like how websites offer applications for free online, but with some ads. Therefore, even if a piece of software or content is distributed and redistributed, the author does not lose anything. In fact, the author (and the advertiser) gain with the advertising getting better mileage.

It’s not pretty, but I think it’s a good way to go.

We all love this concept of “Web 2.0” don’t we? Come on, even if the buzzword is overused, I am amazed by how much the Web today has empowered the user by letting individuals upload, publish, and showcase their content online.

And it’s not only about blogs, but podcasts and videocasts are starting to rise in popularity. Sure, it’s not as simple as blogging (given the costs and effort needed in producing audio and video content). But there are a multitude of tools today that let users upload their recordings and video for sharing with the rest of the world.

With most people, writing content for posting online would be all about self-expression. If one is passionate enough about writing (or speaking or making videos), then the fact that you’ve shared your art with the rest of the world is satisfaction enough. More so, if you actually get to have an audience!

However, it gets interesting when it comes posting about your interests online. You can be a fan of a certain actor or a certain show, and you might want to post videos online, such as on YouTube. Or you can be a blogger, and you might want to republish photos, images or snippets of text from another blogger. A big issue here is copyright.

Usually, it is within fair use to repost or link to others’ work on your own blog if it’s for personal purposes. A lot of people use creative commons licences, and many of these licenses allow derivative works and republishing as long as there is adequate citation. Even reposting parts of works with closed copyrights are generally still within fair use, as long as there is a citation, and as long as the original author’s work is not prejudiced.

But when it gets commercial, that’s when things get a bit messed up. When you infringe on a person’s capacity to earn from his work, or when you earn from another person’s work without giving his fair share, then definitely something is wrong. And this is one reason why you cannot always expect earning online to be easy. Once you go “pro” you would have to worry about all those copyright issues that can come about.

One example is YouTube. Right now, they don’t have a solid business model, but they’re the most popular video sharing site around. A lot of copyrighted material has been posted there, and most of the time, the copyright owners don’t mind, since it gives them exposure and potentially enhances their business. But once, actually- when, YouTube decides to cash in, they might have a bit of trouble when it comes to intellectual property.

As Jason Calacanis puts it:

The second YouTube starts putting ads in front of content they are gonna get sued. Howard Stern was talking about YouTube today and was upset that they had his stuff up there. The reason YouTube has dodged a bullet to date is because of three factors: low quality video, lack of monetization on their part, and the 10 minute length. They put a pre-roll ad in front of Lazy Sunday or the Emmys (which I watched on YouTube exclusively!) and they are done—like done, done.

The moment you start to monetize, people will be asking for their fair share of the cake. Lawsuits (or threatening emails, at least) will start pouring in. You’ll start spiralling down DMCA hell.

Fair use? When it comes to monetization, “fair” means $$$$$.

Many will point out that much of Sentinel’s technology overlaps already existing products. Copyscape already provides algorithm matching of text, Feedburner already helps detect RSS scraping and Google Alerts can provide automated checking for duplicate content.

It seems, on the surface at least, that much of Sentinel’s functionality has already been filled. However, the potential for Sentinel, and why I am excited about it, isn’t because it can replace those services, but because they can fill in holes that they leave behind.

First off, as I discussed previously, Copyscape is ill-targeted at bloggers. It’s reliance on the Google database gives it only limited usefulness in the rapid-fire world of blogging. Delays in updates to the Google database blunt its effectiveness. Also, since many splogs and scrapers are blacklisted from Google, some of the worst offenders may not show up in Google at all.

Though Sentinel will be limited in that it will only check for plagiarism once every so often, it’s checks will be for the content immediately available, using RSS feeds to pull the latest versions of all blogs. Also, Copyscape searches are not automated and will only provide the top ten results. Considering the high rate of false positives with the service, that could leave the vast majority of misuse undetected unless you pay for the Copysentry service, which only protects ten pages at the most basic level.

(Note: There is no Google API for its blog search tool so, as of yet, no outside service can search through it. There is, however, a Technorati API.)

Google Alerts, while automated, will share many of the same problems. Also, setting up a GA for each blog entry is a time-consuming process that doesn’t mesh well with the nature of blogging. Since the automatic generation of Google Alerts is prohibited at this time, there’s no way to integrate GAs into blogging products. Also, GAs only (reliably) detect full fledged copy and paste jobs and have no ability to detect partial reuse and/or modified content.

Finally, Feedburner, though providing valuable feed statistics and some impressive tools to deal with RSS scraping, has severe limitations. Since it can only detect reuse of your feed, it’s possible for scrapers to grab from other sources, such as Technorati watchlists and your site’s original, unprotected feed, without detection. I’ve noticed at least a few sploggers scrape some or all of my content without Feedburner noticing.

In that regard, Feedburner might be seen as a compliment to Sentinel. Feedburner detects most traditional scraping immediately and Sentinel, hopefully, will be able to pick up the rest.

The bottom line is that, while Sentinel may overlap existing technologies, it also fills gaping holes that they’ve left behind, offering a layer of protection unlike anything seen bloggers have seen before.

Conclusions

In the end, bloggers will have to decide whether or not they want to use Sentinel. However, since the basic version of Sentinel will be free, there will be little reason not to.

If it goes as it appears to be, it will likely service the merely curious, the protectors of copyright and the copyleft crowd alike. Anyone who is remotely interested, for any reason, about where their content is being reused will likely find something to smile about when using Sentinel.

But in terms of pure copyright protection, Sentinel will likely be very hard to beat. both for its brain and for its immediacy. It will be very interesting to see if and how Sentinel affects content reuse, both legitimate and illegitimate, after it is released.

Until then though, anyone who is interested in Sentinel should visit the Blogwerx site and add your email address to their list of potential beta testers.

It should be a very interesting launch.