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Creative Commons Licenses Fail To Protect Bloggers From Content Theft

Susan Cartier Liebel has a great post called "Shouldn't You Have To Ask Permission If You Want To Take A Blog's Feed For Your Profit?" She notes that:

This has been troubling me for a while.  And it just may go over like a lead balloon for some of you. We all work really hard on creating quality blog content, building our readership, creating trust in order to sell our legal services.  We publish it on our blogs, some under a creative commons license.  But when we started publishing did we automatically implicitly give any one person or company the right to gather our blog's feed and present our feeds in an aggregated format so they may profit off our reputation and work....without our permission?

The Creative Commons license which most bloggers choose is the "attribution non-commercial no derivatives work license 3.0."  However, this license is inadequate in several ways. First, commercial use is hardly the touchstone since most sites include Google adwords at this point.  It is the legitimacy of the web site which is using your content that is the core issue.  Illegitimate web sites which simply harvest thrid-part content are easy to spot.  In order to protect against sites which merely accumulate feeds or copy content, we reworked the creative commons license to include the following language:

c.    License Restrictions.  The license granted in Section II(b) above is expressly made subject to and limited by the following restrictions:
    i.    You may not republish the Work in full.  You may republish the Work in part or otherwise consistent with this License and these Terms of Use.
    ii.    You must include any and all links included in the Work with any republication or other use.

v.    You may not exercise any of the rights granted to You in this Section II above in any manner that is primarily intended for or directed toward commercial advantage, search engine optimization or private monetary compensation through advertising reseller, adlink, domain monetization or other advertising schemes.  Without express written permission, you may not publish this work on any site that simply publishes, without thoughtful and relevant commentary, the work of others, accumulates third party content or aggregates syndicated feeds. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.


Gordon Firemark

Isn't a commercial aggregator website creating a "derivative work", which is already excluded from the typical CC attribution non-commercial no derivatives work license 3.0.?

Isn't the real issue the problem of enforcement? Can a typical blogger afford to "go after" those sites that abuse the CC license? (even if the ISP will take-down offending content, the time and hassle of writing the takedown notice is a significant barrier to enforcement.

Enrico S.

Gordon: As you allude, a derivative works also require permission of the copyright owner. The owner of a copyright has the exclusive right to prepare derivative works based on that copyrighted item under 17 U.S.C. § 106(2). US Copyright Office Circular 14: Derivative Works further states that: "Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author."

Thus, one who creates an unauthorized derivative work violates the derivative work right.

It is unclear under copyright law whether use of an RSS feed is fair use. The point is that the license needs to be made as clear as possible that RSS feeds are not authorized to give yourself maximum leverage. The Creative Commons licenses are outdated given the reality of current technology including the ease of broadcast of your RSS feed on third party sites.

DMCA take down notices are as cheap, easy and fast as just about any other vehicle to assert IP rights. While going beyond a DMCA take down notice may start getting into measurable cost and time, a DMCA notice should be used to protect your content. Your content is at least that valuable. Remember, your site's affiliation with a spam site or blacklisted site could knock you out of the search database all together. So the consequences for failing to protect your rights against the most blatant habitual infringer's could be pretty severe.

Check out the link above for more info on copyright implications of using third party web site content.

Blacklisted !

Check out this link. Having your content copied can lead to getting your web site blacklisted.

Gordon Firemark

Enrico -

Yes, that was my point. Since the use of the ENTIRE article from the RSS feed for such purposes IS a derivative work, if done without the copyright owner's consent, it's a copyright infringement. So, the CC license isnn't the problem at all... it says "no derivatives". (e.g., no owner consent)
The only question then, is whether the Fair Use defense applies (I think not, since the amount and substantiality, nature of infringement, and impact on market for original factors all weigh in favor of the 'plaintiff'). (assuming, the WHOLE work is copied, of course)

Plagiarism Today

Having spoken with some of the heads at the CC organization, what I've learned is that the protection against RSS abuse is not in the commercial requirement, but in the attribution requirement.

CC Licenses have a very specific set of requirements for providing attribution, including providing a link to the license. If you do not include that in the text of the RSS feed, it is unlikely that a scraper will complete the terms of the license.

It certainly is not elegant solution to the problem, but it seems to be effective as a means of stopping automated infringement.

At the very least it is an interesting idea.

Enrico S.

Gordon: Unfortunately, no court has ruled that an RSS feed is derivative so there is no precedent on that issue. That is why the Creative Commons license should be modified. Without the clear language which we include, a scraper could simply respond to a DMCA take down notice by making the argument that it is not a derivative work. The scraper wins if there is an argument to be made and the blogger is left to spend tens of thousands to go to court to enforce their rights. The scraper loses if the language is clear. The Creative Commons license needs to be strengthened in order to give the author the leverage they need to protect their copyrights.

Enrico S.

Interesting approach. Most of the scrapers who grab content from our blogs provide a link back to our site and provide attribution. However, there is no commentary and the content is copied in full. Many scraper sites are obviously without legitimacy. Using the DMCA to take these sites down is becomming increasingly important.

Jonathan Bailey

Enrico: It is important to note that that the "attribution" requirement of CC goes well beyond just providing a link back. It requires linking and acknowledging the license that you are using it under, which is doubly important with share-alike licenses. Automated scrapers just can't complete the deal.

On that note, I do agree about the importance of using the DMCA against these sites. However, it is also important to target the advertising side of these operations. Dry up the money, kill the spam.

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