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June 18, 2008

The 21st Century Version of the Copyright Notice

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Posted by Alan Wexelblat

I had a nice chat last week with Mike O'Donnel of iCopyright about their new service for small and independent publishers. The company has a large for-pay service that is used by large publishers, including news wires, to track the digital progress of copyrighted materials and they're reusing some of that technical infrastructure for the new offering.

O'Donnell noted that previous attempts to let individuals control how their intellectual property is used, particularly Creative Commons, lack a number of useful features. iCopyright is promoting itself as an alternative that is free to small-scale creators, and supported by advertising and partner revenue.

But back up a step - what's wrong with CC and how can it be fixed? Well, some of the lacks are that there is no loopback to the creator. If I put a CC license on my works I have no way to track how those works are being used, or to confirm that something is in compliance with my CC license terms. CC also has no enforcement system and if I wish to charge a fee for use (a term specified in CC licenses) there's no mechanism to help me collect these fees.

iCopyright addresses each of these. When you use their service you build a ©reator tag and use that as part of your copyright notice on your writing, artwork, photo, etc. The tag links back to the iCopyright servers, which track clicks and loads so you can find out who's viewing your tagged material, where it's displayed, and so on. Separately, iCopyright has a scanner technology similar to Attributor, which attempts to find places on the Web where tagged content is being used, potentially without permission.

As the owner of the ©reator tag you get a profile on their site that you can use to publicize yourself and to set the terms for use of your work. Unfortunately, the free service doesn't allow you to vary permissions by item - you need to pick one model for sharing all content associated with that tag. For example, if you wish to charge a fee for use of your photos, iCopyright will give you a Paypal link so people can give you the fees you set. If, however, you also want to give away your blog entries for free you can't use the same ©reator tag - you'd have to create another one and attach the free license to the second tag.

As a free-to-creators service this seems like a step forward - we definitely need more active and more powerful tools to turn copyright flexibility and fair use ideas into actionable entities. It's far from the last word, I'm sure.

Comments (10) + TrackBacks (0) | Category: Tech


1. Jayel Aheram on June 19, 2008 7:46 AM writes...

What's wrong with CC and how can it be fixed?

The problem with Creative Commons is that it derives its power from a very broken copyright system. It is a mere patch on an increasingly untenable system.

And not all Creative Commons licenses are created equal either. Some are in direct conflict with Fair Use doctrines. The No-Derivs licenses, for example, might be unenforceable. Plus, why even include it in a system that is meant to further creativity? If people not using CC cannot stop others from creating derivatives that are sufficiently transformative, what makes people think that slapping a "NoDerivs" license on their work will prevent derivative of their original work?

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2. Cory Doctorow on June 19, 2008 9:55 AM writes...

These folks are also providing the backend for the totally CRAZY AP $12.50-to-license-5-words program. Their FAQ includes a lot of scare talk about how you can earn $1,000,000 for finking on your friends for infringing on copyright, how fair use means asking the rightsholder before you make any quotation, how you're never supposed to copy things from the web by using cntl-c/cntl-v (you should only copy through their licensing engine), and how you should never paste articles into emails to friends or co-workers.

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3. Tyson O'Donnell, iCopyright on June 19, 2008 12:25 PM writes...

Hey Corry,
I’m a product marketing intern for iCopyright and I just wanted to clear up some information referenced by your comment. iCopyright provides the technology; were not the publisher. We provide the means for publishers and bloggers such as your-self to allow people to instantly license materials for commercial use. What the prices are, the word intervals are, and what licensing options are available is all customized by the publisher.
A new tool we just launched for publishers, soon to be released for individual creators through ©reators is ACID (automated content infringement detector). This technology allows content creators to find all uses of their products on the internet. It is a good tool to hunt down and eliminate blog scrappers, copy scrapers, and other blogs purposefully stealing content for commercial purposes. iCopyright however does not dictate to the publisher who is infringing and who is within fair use, or who to send take down notices to. That is to the publishers discretion, were just the technology.

Kind Regards,
Tyson O'Donnell
Product Marketing Manager

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4. Mike ODonnell on June 19, 2008 1:06 PM writes...

Yes, iCopyright is the licensing and permissions backend for lots of content. Please keep in mind that creators and publishers set the services, rules and prices for their content. See our blogpost on this topic:

The "honor copyright" page and FAQ is not a scare tactic, it is designed to reinforce the idea that the owner of the content should receive attribution and links back when their works are used in whole or part. Unfortunately, when works are cut and pasted, that often does not happen. The iCopyright links ensure that it does. The iCopyright system currently processes more than 5,000 FREE use permissions each day, so people can use the content they want, but give the owner attribution.

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5. Tyson O'Donnell, iCopyright on June 19, 2008 5:18 PM writes...

Just a side note of courtesy…

I have google alerts which alerts me of anything regarding the company I'm interning for, iCopyright. I just went to a site and thought it sounded oddly familiar. Then it hit me that it’s this article. Your contact page is not working so I figured I’d just give you a heads up on your comments log.

I AM NOT A LAWER but I would bet this does not fall into fair use. These are the types of sites that iCopyright's new technology, ACID, can find for Creators, instantly. However, like I said in my earlier post, it’s up to you on what to do with this information.

Best of Luck,

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6. Cory Doctorow on June 20, 2008 12:05 AM writes...

Not scare tactics? I man, that page FEATURES A PICTURE OF A GUY IN HANDCUFFS!

Fair use is the right to use work without permission: you page tells people that if they don't get permission, they're probably violating fair use, and what's more, that you're recruiting an army of snitches (incentivized with a $1,000,000 bounty for turning in their loved ones -- what are you, the Stasi?) to catch them.

Automated Copryight Infringement? Really? Will it be capable of distinguishing parody from satire, criticism from copying, educational use from commercial? Have you managed to simulate the Supreme Court in your vat of ACID?

As to attribution, I'm just as much in favor of it as anyone, but implying that I could be liable for millions in fines because I didn't use *your* tool (which, presumably, logs IPs and all manner of other information, presents a single point of failure for vital discourse, and allows for easier interception of communications) you're not helping people stay on the right side of the law, you're trying to scare them into making you more money. And you're putting their personal information and privacy at risk in the process.

If you don't validate rightsholder claims on your site, then how can you present any kind of claim to presenting valid copyright licenses? Copyright is a strict liability doctrine -- it doesn't matter if you believe in good faith that you've got the right to sell a license -- if you're wrong, you're still on the hook. So if the AP (who have quoted me hundreds of times, at lengths of more than five words, without ever securing a license from me) violates my copyright and you sell Alex a license to quote it, Alex and you are both liable to all those fines (and presumably the handcuffs that you feature so prominently on your site).

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7. Mike O on June 20, 2008 12:31 PM writes...

Corey, that's a fair comment and I understand why it appears hypocritical. The ad banner you refer to was created by the Software & Information Industry Association (SIIA), of which iCopyright is a member. It is part of a larger campaign to crack down on corporate theft of information, where content is often taken wholesale for commercial purposes and often for resale. The "snitch" program you refer to is a whistle blower program run by SIIA, not by iCopyright, and has been successful in getting employees to blow the whistle on corporate piracy of software and information. It is not a "fair use" crusade.

Let me hold off on commenting in-depth about ACID. It is still in beta. Suufice it to say that it was developed at the request of both publishers and bloggers, and the associations they belong to, because many see their posts republished without attribution and taken out of context. Some sites republish the entire blog and article, with their own ads.

The rest of your comments are opinions of law and purpose of copyright. I respect your opinion, but I don't agree with it. I believe copyright is an important constitutional principle that has many benefits beyond a liability doctrine. It does not exist to fine or penalize people. It exists to honor creative works.

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8. Cory Doctorow on June 20, 2008 2:30 PM writes...

"It is not a "fair use" crusade"

No? Then why is it on your fair use information page?

And what abou tall the OTHER stuff on your fair use page? That stuff about how fair use means you should ask for permission before you quote? The stuff about how if you think a use is fair and you're wrong, a snitch will turn you in for $1,000,000?

"I respect your opinion, but I don't agree with it."

You think that the idea that fair use is the right to copy without permission is "opinion"? You think that the idea that copyright is a strict liability doctrine (this is a legal term, you should look it up) is an "opinion"? And you don't agree with them?

Jesus, Myk (I'll spell your name correctly when you learn to spell mine), these aren't opinions, they're first-year copyright law *facts*. I've lectured high-school seniors who know this -- you're the founder of a company called *ICOPYRIGHT* and you don't know what "fair use" or "strict liability" mean?

"I believe copyright is an important constitutional principle that has many benefits beyond a liability doctrine."

You think that my post is about how the point of copyright is "liability doctrine?" Did you read it?

My point was that copyright is a strict liability doctrine: a doctrine that apportions liablity whether or not you intended to infringe (you say as much on your site). You state that you simply offer the licenses that "creators" want to put on offer.

But you *also* state that you don't have anything to do with the licenses or terms, don't validate that the person offering the license is entitled to do so, don't verify that the terms of the license would pass muster as conscionable or enforceable.

Yet you *also* state that people who are worried that they are in danger of infringing copyright can reassure themselves that they're on the right side of the law, just by paying you for a license.

So: here's my non-hypothetical question: the Associated Press quotes something I write (they do this a lot). Alex licenses that AP quote from you and reprints it here and, in so doing, infringes my copyright -- even though he's paid you for a license. How does your service -- which does not indemnify licensees nor vet licensors -- provide *any* assurance that one is not violating copyright?

"It does not exist to fine or penalize people."

Straw man. I did not say this, nor imply it. But it's kind of you to mention it -- I guess that I might have failed to appreciate that in all the years I spent negotiating copyright treaties at the UN, teaching PhD students about copyright, lecturing around the world on the subject, etc.

"many see their posts republished without attribution and taken out of context. Some sites republish the entire blog and article, with their own ads."

Rilly? Gosh, how terrible for them. I had no idea this was going on -- but then, how would I have known it given that all I have to do with blogging is co-owning and -editing one of the oldest, most popular, most profitable blog on the Internet, with a readership of 3,000,000?

99% of this activity (at least) is splogs: automated, robot-generated fraud sites (spam-blogs) created by software agents running on botnets, transferring funds to Western Union transfers into the former Soviet Union. Several million are created every day. What, exactly, is ACID going to do to enforce copyright claims against these people?

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9. drwex on behalf of Cory on June 21, 2008 11:38 AM writes...

[posted for Cory while we try to fix whatever anti-spam parameter is hosing things]

One more thing: "It exists to honor creative works."

Where, exactly, in the constitution, does it say this?

The constitution gives a strictly utilitarian purpose for copyright, "For the promotion of the useful arts and sciences." It's very, very clear on this: copyright doesn't exist because creators deserve "honor" (I say this as a guy with a novel currently on the New York Times bestseller list), nor because it's morally right.

The framers put copyright in the constitution because they believed it was one kind of incentive to creativity (remember, the constitution doesn't say "Congress SHALL create monopolies of limited times," it says "Congress MAY create monopolies of limited times," IOW, "Hey Congress, if you think a copyright law would result in more works being made, go ahead and enact one, but if that's not the case, don't bother"). They did not characterize copyright as a property right (they called it a "monopoly") and they didn't see it as necessary to "honor" anything. Indeed, Jefferson was a notorious skeptic who was full of airy sentiment about how glorious it was that when knowledge was shared, everyone got a copy of it without diminishing the others.

The copyright you're speaking of, the "honor creative works" copyright? That's not constitutional. That's Continental, Frenchified droit moral talk straight out of Victor Hugo's playbook. It was exactly that kind of presumptive creation of perpetual monopolies over knowledge that the Constitution opposed.

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10. walkerp on August 4, 2009 11:01 AM writes...

Another major flaw with this iCopyright service is that it is a giant hassle for the end user. I discovered it when trying to forward an article to a friend from the website. Now instead of a simple click, I have to go through a bunch of steps, with a bunch of copyright propaganda that seems to have a few hidden agendas behind it. One of the points of copyright legislation is to preserve author recognition and ownership. The iCopyright software makes it such a hassle to forward an article, users will just end up copying and pasting the article into an email, which has a greater chance of losing the byline.

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