Copyright (And Wrong)

I've always been a strong supporter of copyright.

That isn't to say that copyright has always been a strong supporter of me. Scott's Discount Foods in Fort Wayne Indiana, before they sold out to SuperValu, once stole some copyrighted work of mine. I'd offered it to them for $300; they told me they didn't want it, but they used it anyway, and refused to pay me.

If you were to shoplift a $1 candy bar from Scott's, that's a Class D felony, and you can go to prison for a minimum of six months. The state bears all the cost of prosecution. However, when Scott's stole $300 worth of work from a writer, the federal prosecutor said that she didn't bother with prosecuting infringements of less than $10,000. It just wasn't worth her time, she said.

The alternative was to hire a lawyer and sue for damages. It'd cost me $5,000 to get started, perhaps another $5,000 to get to the finish line, and it might be ten years before I would see my $300. I quickly calculated $5,000 at 6% interest for 10 years to be $3,000.

So if someone tries to enforce their rights as the owner of intellectual property, I tend to root for them.

As a web host, I get notices every so often about copyright infringement. Under the DMCA, I'm free of liability if I wasn't aware of the infringement, and I take the image down right away.

Sometimes, the people are nice. One of our customers offers fonts for free download on her site. A couple of times, Jan has posted fonts that weren't public domain. I know she's done it accidently, because she can always tell me where it came from, and by gosh, she's right, it appeared to be public domain. The notes I get from fontographers are polite, always provide evidence that the fonts are theirs, and it's easily handled.

Other times, the takedown notices are fraudulent. In one case, a user showed me work in progress, asking for my assistance in prettifying things. I made suggestions, and they were adopted. A few months down the road, a virtual duplicate of the site existed elsewhere - and the owner of that site sent me a takedown notice. I knew in that case who was the original, and who was the copycat - but there are times when I have to search The Wayback Machine.

I got an email today about an image on SleepingLady's site. A stock photo agency asked for our help in contacting SleepingLady, because one of the images on her site supposedly infringed their client's copyright.

Now, there's a good reason they were unable to contact SleepingLady. She's been sleeping really well for about 2 years now. Her site had remained up, despite the fact that no hosting fees had been paid, as a memorial to her.

It seemed pretty obvious to me that the image was theirs. It's the same image as the one above (although this copy is smaller, and I defaced it deliberately in order to make sure I was legal under the "Fair Use" provisions of the copyright law.) I archived the site, just in case there were any legal questions arising at a later date, and yanked it from the server.

However, it's not an infringement of copyright if one has received permission to use the image - and they don't know SleepingLady's identity. If nobody has ever received permission to use the image, that suggests that the stock picture agency is doing a pretty poor job. On the other hand, if someone has been granted permission to use the image, then they were libeling SleepingLady by indicating to me, a third party, that she was a thief.
Even if Alaska Stock has never given permission to someone to use the image, they aren't the only ones marking this photographer's work. He has his own site, selling photography at Alaska Net.

Still another possibility exists, in that the permission might not have been given in a commercial transaction. SleepingLady lived in the same city as the photographer, although Alaska Stock didn't know that. They may have been close friends, or perhaps even relatives.

There's a lot of controversy right now over "digital rights management". That catchphrase means "copy protection". I'm against DRM because it's so often poorly done. Most people against DRM, however, simply want to steal.

That's not a new concept. Forty years ago, I was hearing about "the new morality" and preachers were complaining it was actually "the old immorality" Of course, the preachers were plagiarizing when they made that complaint, but hasn't it always been a "do as I say, not as I do" world?

Abbie Hoffman, a "yippie" who was tried as one of the "Chicago 7" who disrupted the Democratic National Convention in 1968, wrote a book called, Steal This Book in 1970. Many bookstores refused to carry it, because people followed the instructions, yet it became a best-seller anyway. (It had instructions on everything from growing marijuana to starting a pirate radio station to getting a free buffalo from the Department of the Interior.) Hoffman said, "It's embarrassing when you try to overthrow the government and you wind up on the Best Seller's List."

I'm not sure why you'd want a buffalo. You can't just accept delivery and turn him into a coat and some lunch. You basically have to turn him into a pet, and prove that you have enough land for him to graze. Still, some people will spend exorbitant amounts to get something free.

For a long time, I tried to figure out how to get even with Scott's, but I failed to come up with a good idea. For instance, I could have grabbed a $10 steak from the meat case, and hidden it behind some boxes of cereal. It'd be ruined before they ever found it, and it'd have the added bonus of smelling bad until then. On the other hand, it's quite possible that someone would find it and return it to the meat case, before it looked unappealing, but long after it became unwholesome to eat.

That wouldn't have taken long. Only Hill's Meat Market had worse meats. I bought a 10-pound package of hamburger from Hill's once, with the intent of using the baby scales to make 10 one-pound packages, and freezing 9 of them. Turns out that there was exactly 9 pounds in that 10-pound package. Yes, baby scales can be off - but I checked the weight of a 5-pound bag of flour, a 10-pound bag of sugar, and an 8.33-pound gallon of water. Smack-dab on. And then I cooked up the hamburger. It smelled old. Even the dog wouldn't eat it.

Mark Cuban, the billionarie technology entrepreneur who owns the Dallas Mavericks, raised a lot of eyebrows recently when he suggested people upload their personal porn collections to Google's YouTube. He was trying to make a point, asserting that Google has the ability to automatically block porn, and consequently could use that same technology to automatically block clips that infringe copyright.

It turns out that he was wrong. When people see porn, they report it, and it gets handled appropriately. (And YouTube does have porn, in a separate walled-off area.) Even Justice Potter, of the US Supreme Court, pointed out that it's hard to define porn, but "I know it when I see it". For copyrighted material, though, it's hard to tell.

I found the same picture above, of Mark Cuban, on several different websites. I drew the conclusion that it's an official picture of him, freely distributed for publicity purposes. The YouTube logo is from their website. While both images are copyrighted, neither is infringing, because permission to use publicity stills is implicit, and the YouTube logo falls under fair use. But how do you know whether I have permission to use the buffalo's image?

In fact I do have permission. That buffalo comes from the Bureau of Land Management's website. You can get into serious trouble if you infringe on the government's copyright on money or postage stamps, but most of the government's images are OK to use.

I tend to stick a lot of images on my blog posts. As a former newspaper editor, I learned that short paragraphs and lots of images make it easier to read matter. Being a cheapskate, I'm constantly on the look for appropriate images that are free to use, or ones that I already own - but if I need something, I don't hesitate to head for iStockPhoto, where I can get something for a buck.

It's not all that difficult to stay legal. It feels good to know that you aren't sponging off someone who can't afford it. The average full-time freelance writer in the US makes less than $5000 a year, and by the time you figure their expenses, most freelance photographers don't even break even. "Do not bind the mouth of the kine that tread the grain," we are warned. "The workman is worthy of his hire."

But there's nobody to defend SleepingLady's reputation. I don't know if she had that image legitimately, or if she just thought it was a pretty picture, and she wasn't harming anyone if she "borrowed" it.

It's not "Speak no ill of the dead" that bothers me, for although she is defenseless, there's no way Alaska Stock could have known that. It's that bit about bearing false witness. Asking someone to show that they have permission to use copyrighted material is fair. Accusing someone of infringement without knowing is just plain wrong.