Friday, January 15, 2010

You've Been Scraped. Now What?

In a prior post I discussed an uproar by some bloggers over their work being hotlinked by other sites. Because those bloggers raised a justified stink, the problems with certain sites have been resolved, i.e., the hotlinkers stopped appropriating material they didn't create.

But that doesn't mean it won't happen again. So if it happens to you, what are your options?

(Standard disclaimer: I ain't a lawyer. I'm just sharing some info I've found on the net.)

Steve O'Donnell, a patent lawyer over at the 3C Patent blog, offers his take on the issue in his post, How many copyrights does your blog infringe? He deals with pictures being scraped, including the use of in-line links or hotlinking, but what he discusses can be applied to other works.

By taking legal action against the infringer, the infringed party could win up to $150,000 per violation. O'Donnell says that what would most likely happen is the infringer could be nailed for $750 for a registered work plus attorney fees.

The key word is registered work, stuff on file with the copyright office. With unregistered work damages would be limited to actual damages and attorney fees for the infringed party.

(Note: You don't have to spend time and money registering your work with the copyright office for it to be copyrighted. As soon as you create a work in a tangible form, automatically you have copyright on it. Registration allows you to sue for damages from the day it was registered. With an unregistered work, you can only go back to the day the infringement was discovered. Or so I understand...)

O'Donnell says a more likely course of action is to sending a takedown notice to the infringer's ISP.

But regarding hotlinking images as a copyright violation, Mike Masnik over at disagrees in his post, Is Inline Linking To An Image Copyright Infringement? He states: "Technically, a hotlinked image is no different than a link to an image. The difference in code is minimal. The image itself is never 'copied' onto your server. All you are doing is telling a computer to go visit the original version of the image, which was put there on purpose."

So the issue isn't that cut and dry.

But keep in mind that Masnik has a different take on how to handle people who copy your stuff for their own gain. Recently a cartoonist complained that someone was republishing his web comic with an fee based iPhone app, making money from his work that he shares for free. In his post The Creator's Dilemma On Others Making Money Off Your Content Masnik said one option for the cartoonist was to approach the infringer and ask for a fair cut of the revenue. The cartoonist could tell the infringer that he would promote the app to his fans so that both of them would benefit.

Sorta like coming to terms with a tapeworm in your gut by feeding it.


Doug said...

Ray, aren't you concerned that O'Donnell and Masnik may misconstrue you referencing their material as something that will cause them to seek legal action?

I'm paranoid, sure, but they're still out to get me!

What we really need is some kind of internet mafia, wherein you some gorilla in a suit hunts down the offender and busts literal kneecaps.

That'll learns these scrapers...

X. Dell said...

Doug, there is the concept of fair usage. And law often follows practice.

Ray, scraping, it seems, violates fair usage for a number of reasons. For example, I've seen stuff from my blog published on other sites without my prior knowledge and/or permission (on occasion, they simply replace my handle with theirs--complete and utter plagiarism). Some of these sites have advertising on them. I haven't made one thin dime off of them.

Not that I mind. But I can imagine that someone who has put the time in to develop content necessary to keep such sites afloat wouldn't strike a deal with the tapeworm, as you say. After all, it's quite difficult to police the entire web.

Steve O'Donnell said...

Ray: Thanks for your post and for linking to me

Doug: I'm not out to get you or Ray. . . yet :)

X.Dell: I can imagine situations where scraping would be fair use, but for most occurrences it's not.

There might be business reasons to strike a deal, just as there might be business reasons to go on the attack. The trick is in evaluating all the variables and deciding how to move.