Are You a Digital Thief?
The web is full of thieves.
You probably knew that. What you may not have known is that you may be one of them.
No, I’m not talking about outright piracy. I’m talking about copyright infringement. Using someone else’s intellectual property without their permission. And yes, it is not only possible to do this without being aware of it, it’s easy. Even when you actively try to avoid it.
I’m going to give you some examples of how that can happen, and some things you can do to help prevent it. Before I get into those, though, I need to remind you:
I am not a lawyer. Nothing in this issue should be taken as legal advice. Even if I were a lawyer, you’d be foolish to treat anything in an email sent to tens of thousands of people as legal advice. Consult an attorney if you need, or think you may need, specific advice for your unique situation.
And that’s your first lesson. Do not treat the comments of random strangers on the net as being anything like well-informed opinions regarding the law. That is the second biggest cause, after plain old ignorance, of people unknowingly infringing on the copyrights of others.
As you’ll see, that can become rather expensive.
So, let’s look at some examples.
You hire a designer to create a web site for you. A few months later you get a letter from a stock photography site, demanding payment for use of a copyrighted image. You look and find that the site does, in fact, own and sell that image.
This happens all the time. It is especially common when you hire the job out to a designer with little experience, or from a country with lax attitudes about copyright.
While custom graphics are occasionally a source of this sort of problem, the real trap is in the use of photos. Stock photography is big business, and the photo houses can be very aggressive about protecting their property.
Ranting and raving that it’s all the designer’s fault may feel good, but it doesn’t absolve you of liability for the infringement.
Your site, your fines.
So, how do you avoid this problem?
First, don’t ever use a photograph on your site(s) – of anything – unless you’re sure you have proper permission. That means asking your designer to provide you a receipt for any stock images they use in the work they do for you. Better yet, buy the images you want to use, and provide them to the designer.
Also, be very suspicious of packages of “royalty-free” photos, especially higher quality pics.
I saw one package being offered recently that included resale rights to a bunch of pictures. Problem: The seller didn’t even have the right to use those photos, much less sell rights to them. Anyone buying that offer and using the pictures is infringing on the original owner’s copyright.
Trying to save a few bucks on high-quality images can get expensive, fast.
Don’t assume that “common” pictures are somehow exempt. I went looking for a photo of a beer glass recently, and was mildly surprised to find that even very simple pics with no background could go as high as $250 for a license.
Is it any wonder the stock houses want to protect their copyrights?
We’ve all heard of people scraping articles or blog posts and re-posting them on their own sites without permission, and often without attribution.
Here’s one that really surprised me.
I saw a discussion recently in which the creator of a checklist found his document included in another person’s product. Originally, the second seller claimed the document was completely original. When presented with undeniable proof that the document was copied, the seller claimed his staff had found it online and had assumed it was “open source.”
Yes, he said open source.
There are a couple of problems with that. The first is that he was selling a product created by “researchers,” without verifying the origin of every part of the product. Sloppy and dangerous business, that.
The second is more disturbing. The seller stated publicly that he had assumed he had permission without any positive statement to that effect from the creator of the document. Not only did he make an assumption that was 100% wrong, he tried to “sell” that assumption as being okay.
Here’s how the default really works: If you aren’t sure you have the necessary permission to use someone else’s content, don’t use it.
You don’t assume permission.
By the way, no matter who tells you otherwise, it is generally not okay to reprint someone’s articles or blog posts without their permission, even if you do give proper attribution and a link back to their site(s).
Some folks will tell you you’re safe, under the assumption that the owner won’t sue. Even if they’re right about that last part, your web host may shut down your account for copyright violations. And, if that isn’t enough deterrent, keep in mind that some registrars will actually take away a domain used in this fashion.
Don’t believe they can do that? Go to wherever you registered your domain(s) and read the terms of service.
And yet another pitfall you’ll want to avoid…
If you contract with writers or programmers to create content for you, make sure your agreement regarding who owns the copyright to the resulting product is clear and enforceable.
I have seen a lot of people pay for what they thought was original work, only to be given a slightly (if at all) modified copy of another article, report, book, or piece of software. In some cases this is legal, as neither the first customer nor subsequent buyers specified their terms clearly.
In the case of software, this often results in arguments and public allegations of product theft. ANd, since either side could be lying, people tend to lose trust in both.
Be certain that your contracts specify that the work will be original, not derived from previous products, and that the creator will transfer exclusive copyright to the product to you upon payment. Make sure your lawyer understands what you’re doing with the product when they draw up the documents. This isn’t a complicated area of contract law, but it’s something you want to pay close attention to.
Also, keep in mind how difficult it can be to enforce a contract with someone living in another part of your own country. Then think about whether you want to try and enforce it when dealing with someone on another continent.
Keep in mind that the underlying code isn’t the only potential problem area. I encountered a situation recently in which someone created a desktop application to handle a type of online automation. The programmer was accused of infringing on a product that was web-based, but included the same functions.
The code was entirely different, but the interfaces were so similar that there was clearly a problem.
The functions are defined by the service this particular type of software interacts with. It was strictly the visual layout and labelling that created the problem.
Ask an intellectual property attorney to explain “look and feel” to you. It’s a much more interesting conversation than many matters of law.
Here’s an interesting myth you’ll want to remove from your belief system: The idea that taking someone else’s work and re-writing it in your own words makes it safe for you to sell.
It doesn’t matter if you change every word in the product. If it’s too close to the original in structure, concept, and message, you may be guilty of creating an infringing “derivative work.”
And those “article spinners?” If you’re taking someone else’s articles and running them through software that just exchanges a bunch of synonyms for the original words, you are almost certainly guilty of copyright infringement.
Yes. Really. But don’t take my word for it. I’m not an attorney.
Ask your lawyer.
Now, let’s look at something that’s a bit murkier. Real “open source” code.
There’s an interesting legal discussion that’s been going on for quite a while regarding WordPress and related plugins and themes. WordPress is released under the GPL (GNU Public License), version 2. The simple version of the argument goes like this:
WordPress is covered by the GPL, which allows anyone to modify and distribute the code, subject to certain requirements. Anyone meeting those requirements may freely distribute the original code, or their own modifications of it, whether for a fee or at no cost.
The good folks at WordPress.org claim that any code which relies on the core WordPress code is, by extension, also covered under the same license. GPL v2.
I have heard logical arguments from credible and well-informed people on both sides of the debate. There are a few things no-one who pays attention will argue, though. One is that any product which is specifically released under the GPL by its creator(s) may be modified and/or distributed, for free or a fee, by anyone who fulfills the license requirements.
The other is that if a WP theme or plugin is not specifically released, as a complete product, under the GPL, there are parts of it that CAN be subject to the usual copyright restrictions. Meaning, just because it’s a WP theme or plugin, you shouldn’t assume you can do whatever you like with the whole thing.
The creator can, and often does, retain strict copyright control over included CSS, HTML files, images, and documentation.
Every month I see more and more clueless people playing with that particular box of matches. And, like blue tips, you really need to be careful where you strike them, since even the smallest brush with the wrong “surface” can light you up.
You long time readers know, I create a lot of content of my own. Still, I use a lot that’s created by other people. The trick to that is simple: You get permission.
All that’s needed is to ask. Use what gets a yes, and skip the rest.
A lot of the products I sell were created by other people. In those cases, the permission results from a simple transaction: I pay for the right to sell it.
I don’t believe you need to be an expert in a topic to add a product on it to your line. Just buy the expertise from someone who is. Or trade for it. There is a whole world of people out there who know things you don’t, and they all want something you can provide.
You need to be careful when buying the rights to other people’s products, though. Specifically, you want to make sure you’re buying from the creator, and then check the products yourself to make sure they’re original.
Both parts of that are important. There are a lot of sites out there offering “resale rights” of various kinds that don’t have a valid license to resell said rights.
A few years back, a lawyer friend of mine went after a whole herd of people who were selling one of his products. They’d paid someone for resale rights, only to find out later that the guy they bought from was essentially pirating the product. That cost them, if memory serves, around $3000 each for the mistake.
Buying directly from the source isn’t always a lot safer. In an example that’s a bit closer to home than the rest here, I recently bought a graphics package that was pretty sweet. It included a number of fonts, which I checked out after downloading it. They were all copyrighted by various type foundries and big companies. Including Microsoft.
Despite the guy’s protests that the actual graphics were all original, there’s no way I’d consider using that package for my own sites, much less re-selling any part of it. Anyone who’s that careless about copyright is dangerous to work with.
Know who you’re dealing with.
If you’re looking for graphic design elements, there are two people whose products stand out, and who I can recommend as offering truly original and high quality products.
No affiliate links there, folks. I’m just a happy customer.
Some of you know the problems I had trying to find a designer who could give me the spartan look I wanted for one of my sites. No matter how many times I emphasized “simple, black and white design, reminiscent of a newspaper or letterhead,” they handed me stuff that looked more like a comic book than the evening news.
Until I went to Thomas. One demo and a minor revision later and I have what I was looking for.
We like that.
Here’s the thing: If you pay other people to do work for you, you will never be 100% certain that you’re not using infringing material. Taking sensible steps can reduce the chances of problems to close to zero. And, if you document those steps, you can reduce the potential liability significantly, even if you’re not 100% successful.
Given what it can cost to infringe on the property of another person or company, it’s just not worth the risk. Even if it weren’t Plain Old Theft.
Be careful out there…
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“100% of the shots you don’t take don’t go in.”
– Wayne Gretzky