Though there are many Web sites where one can find free, legal and high-quality images for their own use, stock.xchng (SXC) is easily one of my favorites.

SXC is a free stock photography site where users find images for use in blogs, presentations and more. The images are free to use and, typically, do not require attribution or notice. The standard restrictions pretty much opens up the images for all non-pornographic use that isn’t going to be sold directly or, in the case of photos with people, used to endorse a product.

However, if you surf the site long enough, you’ll eventually find copyright notices like the one below. Where the user has selected that they want additional restrictions on the work, including in many cases attribution and to be notified before any public use is made.

While these are perfectly reasonable requests, they are being asked on a site where such requests are seldom made. Furthermore, given the location of the terms below the image, most users likely miss the special restrictions altogether and use the image in violation of the license.

With so much deliberate infringement taking place on the Web, there is nothing gained by setting oneself up to be infringed like this. After all, the first step to protecting your work is sensible copyright licensing and part of that is making sure that your terms are clear and easily understood.

Doing otherwise not only invites those who intentionally infringe, but also those who simply make a simple mistake and that only creates headaches for everyone.

The Problem with Special Licensing

The problem with the cases like the ones on SXC is that they are exceptions to the rule. If one goes to SXC, they generally expect free stock photos and don’t even look for additional licensing information. After all, the standard restrictions are called “standard” for a reason.

When one licenses their content under different terms, they are changing the default rules and, if the user doesn’t notice the change or, even worse, know to look for them, they can infringe the copyright without intending to.

As copyright holders, part of our responsibility is to clearly state our licensing terms. Whether they are all rights reserved, Creative Commons or even a public domain dedication, it is important to always be clear about our rules and make sure that our readers/viewers understand them.

Making sure those terms are understood also includes being consistent with them. When people visit a site expecting one set of rules but get another, it often creates a problem.

Though I am picking on SXC in this article, somewhat unfairly, bloggers and other artists often do something similar on their own sites by either:

1. Having a different license for some of the content on their site. This can include either having a difference license for a few of your works or licensing a few individual items under a different set of terms.
2. Changing their license.

These are two very common problems that people who use Creative Commons and similar licenses often face.

The problem is pretty simple. A Creative Commons logo on a site does not always mean all of the content on the site is under that license. It could be just that one article, just the text, just the images or some combination of elements. It all depends on what the blogger has licensed.

It can be very difficult for an average visitor to tell what is licensed under which set of terms and, as copyright holders, that creates a very severe problem for us. We turn from dealing with spammers, plagiarists and intentional infringers to everyday people who simply made a mistake.

How to Avoid Problems

If you’re a publisher on the Web, obviously you want to keep the total amount of unlicensed use to a minimum, especially accidental misuse. With that in mind, here are four tips to ensure you don’t give people the wrong impression.

1. One Site, One License: Make sure that all of the work on your site is under the same license. If you must have an exception, make it extremely clear and only do so if it is absolutely necessary. In general though, it is best to make sure that your site has one license for everything posted to it. If you want to have some content under a difference license, set up a either an exclusive section or, even better, a different domain.
2. Be Consistent with the Norms: If you post your works to another site, such as SXC, make sure you license your work in a manner consistent with the norms of said site. Some sites, such as Flickr, have a lot of variance, others, such as SmugMug, focus more on all rights reserved, still others, like SXC, focus more on free use. Understand the community you are posting to and either follow their norms or choose a different site.
3. Use Clear Licensing Terms: Trying to draft your own copyright notice usually ends in disaster. Use either all rights reserved, a Creative Commons License, a GPL license or another license that was both professionally written and well-understood. CC licenses also have the benefit of being machine-searchable, making them useful for those actively seeking content to use.
4. Make Licenses Prominent: Finally, whatever terms you chose, place your licenses prominently on your site and in a place where people would expect to find such information. An inclusion in the footer is a must, but another inclusion in the sidebar is also a good idea. Licenses at the end of the text itself or below the image, on the other hand, is easily overlooked.

While there is no sure-fire way to prevent people from making mistakes with your license, especially with the misunderstandings many people have on matters of copyright, taking a few simple steps and thinking about licensing from the user perspective will do a great deal to keep those misunderstandings to a minimum.

Bottom Line

Perhaps it is time to look at licensing from a customer/store model. If a person walks into a store and tries to walk out with the merchandise without paying, there is no question the person is a shoplifter and needs to be treated as such.

However, if a customers routinely try to purchase a product and end up paying too much or too little for it because of confusion surrounding the price, the store has to take at least some of the responsibility.

As content creators, we owe it to our audience to try and be clear about our terms. Though mistakes will always happen, we should do everything we can minimize those cases.

Doing so not only saves us a lot of work on enforcement, but also prevents unneeded conflict and headache on the part of our readers.

Have a copyright question? Need some advice? Visit CopyByte.com for information on how we can help you.

jonb1324cdr

Note: EmbedArticle is enabled on this content when viewing it on the site itself. If you are viewing this article in the RSS feed and wish to see EmbedArticle in action, please click through to the site.

For copyright holders and content creators. one of the most difficult they face is finding ways to share their content while encouraging a symbiotic relationship with those who use it.

The problems with sharing content are legion. Content that’s reused too widely becomes duplicate content and that can hurt the original site in the search engines. This is especially true if Attribution is removed or applied inadequately, another common problem. Finally, many simply do not know how to properly attribute content or do so in a way that the original author does not approve of.

To that end, Kristofer Minkstein, CEO and founder of EmbedArticle.com hopes to fix that problem. For inspiration he turned to sites like YouTube that offer easy embeds of multimedia content, and devised a solution that he thinks will help content creators and those who wish to use their creations work together.

The question, however, is whether the system will be adopted by publishers and if those copying content will be willing to put up with what it requires of them.

How it Works

EmbedArticle works by having the publisher either install a snippet of JavaScript code into their template or use a WordPress Plugin that embeds it for them. The code then sits idle on the site until a user attempts to copy and paste a modest portion of content (anything greater than about 10 words) or clicks one of the buttons (if used).

When a user makes a copy, either via keyboard press or right click, they are greeted with an overlay on the site, similar to the “Lightbox” effect for images, that asks if they are copying the text for use in a site or blog. If so, they are given the option of copying a snippet of JavaScript code for easy embedding.

The embed code contains four different elements, the first is an “in the clear” link to the source page, the second is the actual copied content, the third is an advertisement and the fourth is another link back to the source. The first item is outside the JavaScript embed, meaning it can be viewed by search engines. The other three are parts of the embed are all contained within the Javascript and are not visible to search engines and can not be altered.

To be clear, this code does not actually prevent people from copying content on your site and it is not DRM. If the user closes the popup notice, the content is on their clipboard as is and can be pasted anywhere it would be available normally. If the user doesn’t choose to copy the new code, then it will not be used.

That being said, EmbedArticle does feature a “kill switch” that lets the content creator disable any embed that they do not want. Publishers can also set a word limit for the maximum amount of content they want to allow to be embedded (though they can not set the minimum). The system also provides tracking and statistics for embeds that pass through its system.

However, perhaps best of all for publishers seeking to turn embeds into money, they get a 50% share of the advertising that is displayed along with their work. This allows publishers to earn at least some revenue off of sites that reuse their content.

Sample Embed (Screenshot)

The Good

The process of installing and using EmbedArticle is pretty simple from both sides. If you’re a content creator, all you have to do is either install the WordPress plugin or add a single line of code within your body tags. Even the “Advanced” setup, which adds badges to your site, is trivial to do manually but can also be implemented with the WordPress plugin.

The process is equally simple for the user. They can either click the buttons, if available, or the tool will be automatically triggered by the action of them copying the content. It works equally well in Mac and Windows (I haven’t had a chance to test Linux) and across all the browsers I tried (Firefox, Chrome, Safari and IE).

The prompt is friendly and non-accusatory. It simply asks, as you can see in the screenshots above, if you are using the copy for a site or blog and asks you to use the code below if you are. If not, you’re invited to close the prompt out.

Everything is simple and transparent, there is no trickery, no hidden elements and everything seems to be out in the open. The influence from YouTube is clear as EmbedArticle clearly tries to make the process of embedding text content as much like embedding video as possible.

Still, there are a few limitations to the service that need to be acknowledged.

The Bad

My biggest gripe with EmbedArticle is the ad. Though I have no problem with the fact that there is an ad, the only size that’s available is the 300×250. This ad size takes up about half the width of the content area of Plagiarism Today and is often out of proportion for a lot of content that will be copied.

While that size might be reasonable for a full article that’s copied, it also shows up when you copy just a paragraph or two, as with my example. The ad, in those cases, literally takes up more screen real estate than the copied text. Though the JavaScript won’t be triggered unless the user attempts to copy more than ten words or so, there are still plenty of cases where the ad size is out of proportion with the amount of content used.

This could be fixed easily by adjusting the ad size displayed based on the number of words copied but that is not the case right now. Update: This is something that is being worked on and may be available shortly.

Of course, the system appears to be geared in nearly every regard for copying whole articles. For example, clicking the button embeds the entire article into the site (up to the user-defined word count limit) and that seems to largely be the goal. However, the prompt appears after any copying that is longer than the minimum required, including many that would likely be a fair use.

Another problem is that the longer the quote copied, the more unwieldy the use of JavaScript becomes. Though EmbedArticle uses the original formatting when copying, including links, it always looks a bit out of place when its brought into the site, in my case it’s because the border around the image (ad) is off and there is no way to adjust it.

Still, the system does work overall though there are sill lingering questions to if it will be used.

My Thoughts

My biggest concern has less to do with the system itself and more with if and how it will be used. If someone comes to my site to copy a quote, I don’t see them being pleased about the popup or the request to run an ad along a short snippet of text. The need to set a minimum for activation is clear. Update: Minkstein says that this feature has already been implemented for some sites they work with and may be expanded to all if the demand is great enough.

But more to the point, I’m not sure why someone copying content would prefer this over just pasting the work as normal. Though it adds attribution, it also hides the text from the search engines, forces an ad and the layout can’t be changed. It is easy for the user, but that doesn’t make it a great deal for them.

A good example of this problem is with EmbedArticle’s nearest competitor, Tynt. Though the two products have different goals, Tynt is more about tracking what is being copied and where it appears rather than embedding content, both work by altering the copy/paste functionality of users and asking them to include additional code.

Most, it seems, do not.

I, when copying headlines for my 3 Count columns, have to routinely cut out Tynt-added content because I want to add my own link to the headline. Others I’ve talked to have similar experiences.

This isn’t to say that this technology is useless, even if only a percentage of users actually participate it can do some good. But the question is whether the annoyance it bestows upon users is worth the benefit? For that I have no easy answer.

Bottom Line

Even though this service has several limitations compared to Tynt, the biggest being that it doesn’t work with images EmbedArticle does work with images but only if they are selected along with the text and the publisher approved the use, I actually find myself liking EmbedArticle better.

The main reason is that it is out in the open and transparent. The system, rather than altering your copy/paste functionality without warning, as with Tynt (at least for users that enable that option), EmbedArticle gives users the option to participate or continue as is.

However, if you’re using Tynt solely to see what is being copied and not to track where the content ends up, that is a different matter and Tynt is fine, but it also gives it a very different purpose, namely analytics as to what text on your site was copied. For tracking and controlling attribution, I prefer Embed Articles.

Still, I am not extremely optimistic about this kind of text tracking as it requires those who do copy the content to participate in the tracking. Neither Tynt nor EmbedArticle can track or prevent copying from RSS feeds (IE: Scrapers) or copying by users who refuse to use the provided code.

Though I can see some uses for EmbedArticle, especially news sites eager for a share of the ad revenue, it should never be your only content protection system. Then again, neither should anything else.

Note: If you’re eager to play around with EmbedArticle, I’ve added it to this post, both via the button below and via copy and paste. So feel free to try it out.

Have a copyright question? Need some advice? Visit CopyByte.com for information on how we can help you.

jonb1324cdr

Article Updated: See Below

It is well-known that, if you are a U.S. citizen and wish to sue for copyright infringement in a U.S. court, you have to first register your works with the U.S. Copyright Office (USCO). If you wish to collect statutory damages, you need to register either before the infringement or within three months of publication.

However, for a time it was very murky whether this element also applies to foreign authors who wish to sue within the U.S. This is because, in 1989, the U.S. became a signatory to the Berne Convention, over 100 years after the first countries signed on, which states, under article five, that “the enjoyment and the exercise of [rights under the Convention] shall not be subject to any formality.”

The theory was that. while the U.S. could do what they wanted to their own citizens, including subjecting them to the 9-month delay for a registration certificate, but they were bound by the Berne Convention to grant full rights to foreign copyright holders.

However, a decision by a U.S. District Court paints a very different picture, saying that the Berne Convention does not preempt U.S. copyright laws and that the treaty is not self-executing. This essentially means that all copyright holders, regardless of where they are located, need to register their works with the USCO before filing suit in the country if they wish to seek statutory damages.

Needless to say, considering that most nations have no formalities at all for copyright protection, this decision is going to cause some major headache for foreign copyright holders as they try to enforce their rights within the U.S.

What Happened

The case in question is Elsevier B.V. et al v. UnitedHealth Group, Inc.. Elsevier holds copyright in a collection of science books that they make available through their paid database ScienceDirect and they claim that at least one of the defendants, Ingenix, allowed others to access that database unlawfully.

However, many of the works in Elsevier’s portfolio are foreign and lack copyright registration. Elsevier sought statutory damages for those works, claiming that the Berne Convention should allow them to do as such. The judge, however, ruled that the Berne Convention is not self executing, primarily because the Berne Convention Implementation Act of 1988 said so explicitly.

The result is that, even though the U.S. is a signatory to a treaty that forbids formalities in the “enjoyment and the exercise” of copyright, foreign content creators still have to register their works with the USCO to collect all the potential damages and, most likely, to sue at all.

What Changes?

The long and short of this is that, if you are a foreign copyright holder and think you might ever want to sue in the United States for infringement, you should register your works with the USCO and keep those registrations up to date.

Failure to do so could result in you being unable to claim all the damages you would otherwise be entitled to.

To be clear though, lack of registration does not prohibit you from filing DMCA takedown notices nor does it prevent you from sending cease and desist letters, this only restricts your rights when you go to file a lawsuit. Also, you may still be able to sue and collect significant damages for the removal of copyright management information if it is an element of the case.

Still, the point remains that, regardless of where you are located, if you are considering filing a lawsuit in the U.S. at any point, it’s probably worth your while to register your work with the USCO.

My Thoughts

The decision is legally sound, of that there is no dispute. However, it is fascinating when looked at in the broader context of global politics and intellectual property.

The U.S. is one of the first nations to criticize other countries when we feel their copyright laws are lacking. We even have a “Copyright Watch List” of nations we feel are encouraging piracy through either lackadaisical laws or enforcement.

However, this ruling clearly illustrates just how dated and out of touch our own laws are in many ways. Though we are a signatory to a treaty that bars formalities in copyright enforcement, we require copyright holders to register with the USCO to enjoy the full protection allowed under law.

To make matters even worse, the USCO is a notorious mess. This includes delays 9 months and longer for receiving certificates, even after the use of the electronic registration system. Subjecting U.S. citizens to this is already inexcusable, but to force its use internationally is simply mind-blowing.

Sadly, even as we negotiate treaties that seek to push various elements of the U.S. law on other nations, we are not making any push to change our own laws and harmonize them with the rest of the world. The USCO copyright registration system is a dinosaur in many ways and should be done away with.

Especially since we signed a treaty almost 25 years ago that said we would do away with formalities.

Bottom Line

In the end, the result of this is pretty clear, if you are a copyright holder not in the U.S. but may want to sue for copyright infringement in a U.S. court, you need to register your works and keep those registrations up to date if you want all of the damages to be at your disposal.

It is a huge pain and a hassle that most copyright holders outside of the U.S. will be uncomfortable and unfamiliar with, but it is a fact of life at this time.

Hopefully we will begin to see some changes in the law that will make this unnecessary but, in the meantime, it is a reality that we all most adapt to and live with.

Update

Commenter Terry Hart pointed out that there was a previous case on this issue, in the same court, that slipped under my radar and answered this question previously. He also clarified that the issue of registration only affects the ability of the foreign copyright holder to collect statutory damages, not file suit, an element I was admittedly unclear on. I’ve updated the article to reflect these changes.

Have a copyright question? Need some advice? Visit CopyByte.com for information on how we can help you.

jonb1324cdr

If you are launching a new site, especially a new blog, there are several things that you can do to make sure that your copyright is as protected as possible.

Simply put, when you are starting from scratch, you have a rare opportunity to get things right from the start and many of the best tools to protect your work function at their best when you use them from day one.

So, if you’re preparing to launch a new site, whether it is a static one or a blog, here are the steps you need to take today to protect your work or, if you’re not interested in enforcement, track it and encourage its sharing.

1. Register with the U.S.Copyright Office

Registration with the U.S. Copyright Office is both slow and expensive. It’s also hopelessly out of date with the current Web and can take some nine months get your certificate.

Still, the fact remains that, if you want execute your full rights in the U.S., you need that registration. You need it both to file suit in a Federal Court and you need to have either registered before the infringement or within three months of publication to be able to collect statutory damages.

If you think you might ever want to sue for copyright infringement, you will want to register your work promptly. It’s a pain and it costs $35 but it can be invaluable down the road.

Likewise, as you add content to your site, you will likely want to re-register every 3 months to ensure that the registration is up to date and all content is protected.

2. Register with FairShare or Use Google Alerts

If you have a site where most of the content will be in an RSS feed, set up an account with FairShare so it can begin tracking the content in your feed from the first post. The service is free and only requires you to subscribe to the provided RSS feed where it will list where matches of your work were discovered along with some basic information.

If your content is largely static, you can use Google Alerts. I’ve covered Google Alerts before, but basically you just find good, unique phrases within your content and have Google search for those phrases and email you with any results it finds.

3. Set up an RSS Footer

If your site will put a large part of its content into an RSS feed, add a footer to the feed. You can use a simple WordPress plugin to do that if you’re a self-hosted WordPress user or, Blogger users can simply use the option in their admin panel.

Ideally, it should include a copyright statement, a link back to your site and, possibly, a digital fingerprint to make the tracking of your content even easier.

Since RSS scraping is one of the biggest problems content creators face, this can make sure that such use is at least attributed and trackable, even if it won’t put a stop to it.

4. Set up Your Site’s Footer

Though you don’t technically need to include any copyright information for your work to be protected, it is a very good idea to do so as many have the misconception that, if it is not marked, it is free to use.

Make sure your footer includes all the basic copyright information including the year, which you can configure to update automatically, the copyright symbol, your name and the license information for the work (All Rights Reserved, Creative Commons, etc.)

5. Add Contact Information for Permissions

Finally, as you’re setting up how people will contact you, make sure to have a means for people to contact you to ask permission to use your work.

This is a good idea even if you use some form of blanket licensing, such as Creative Commons, as people will still contact you about these issues. This happens both because they don’t understand or see the license and because they want to use the work in a way that goes beyond it.

If you offer a clear path to contact you about these issues, even if it is just through your regular contact page, you’ll find people to be much more likely to ask permission than they would otherwise.

Bottom Line

When starting a new site, whether your first or your hundredth, it is a chance to get things right and avoid mistakes that you made with the other efforts. Copyright is no different in that regard.

If you value your content, its worth taking some time before launching to make some adjustments and make sure that your work is protected. Doing so will not only help you enforce your copyright, but also track where it appears on the Web, legitimately and unlawfully, letting you better understand your audience and reach.

So take the opportunity and spend a few minutes making sure your work is adequately protected.

Have a copyright question? Need some advice? Visit CopyByte.com for information on how we can help you.

jonb1324cdr

Update: Minor corrections to the article to remove the name.

When it comes to matters of image protection, one usually has to think about shifting gears. Where text nearly impossible to protect but can be trivially tracked and monitored for reuse, with images it is more important to be proactive, including watermarks on images, adding appropriate metadata and being sure to register your work with services that help identify you as the author.

However, the owner of Bellenza.com recently contacted me about an unusual kind of visual plagiarism that actually defeats even visible watermarks, but at the cost of ruining the image. The site, which sells wedding accessories, party favors and decorations, had several images from its decorating blog used on a WordPress.com blog but the ever-present watermark was gone.

Instead, where the watermark should have been, was words and instructions overlaid on top of it. This covered up the watermak and all indication of where the image was from.

Bellenza was able to get the entire blog taken down by filing DMCA notices with WordPress.com’s staff, but the case highlights an unusual and rare danger, but one that visual artists should be aware of.

Image Watermark Hijacking 101

A well-placed and well-done watermark on an image is almost impossible to beat. Removing it requires a great deal of time and skill with image manipulation, well beyond the effort or skill the average plagiarist has. However, that is only necessary if you wish to leave the original image intact.

What the plagiarist did in the Bellenza case was simply ad another image over the watermark, in this case it was simply an instruction to go along with the image. However, there is nothing that says it can’t be another logo or company name.

The problem with this, however, is that the plagiarist has to use an image that is more opaque than the original watermark. This means, as in this case, that it essentially covers up that part of the image and looks very ugly. It’s also trivial to prove that the mark was covered up and done so deliberately.

However, the damage is still done. The image is now unattributed (or misattributed) and that can impact the work’s status as an orphan or result in it being used elsewhere without proper license.

So what can a photographer or visual artist do to stop this kind of plagiarism? Fortunately the law provides some very good suggestions.

Watermark Hijacking and the Law

From the legal perspective, watermark hijacking is one of the worst kinds of infringement you can possibly engage in.

First, there would be almost no fair use argument that could be reasonably made. Removing a watermark shows a great deal of bad faith and can greatly harm the potential market for a work. Even if other elements of the use were fair, that would be two major strikes against it in any such argument.

However, the biggest problem would be that, in the U.S. under the DMCA, hijacking a watermark would constitute removal of Copyright Management Information (CMI) and such infringements can accrue significant damages, even if the work is not registered. This makes it a very practical infringement to sue for.

In short, anyone who would engage in this behavior is setting themselves up for a very bad day in court, in addition to the simple fact that the copying and reposting of the image is by itself an infringement.

But even with the legal ramifications of such infringement, a lawsuit will very often be impractical and that, in turn, raises the question of what a visual artist should do to prevent it.

Steps to Take

If you’re a visual artist reading this and worried, don’t be, at least not too much so.

The good news is that this type of plagiarism is still very rare, this being is the first case I’ve seen first hand in almost five years running this site. It is rare because most plagiarists, upon seeing a watermark, will simply try and find an un-watermarked image that fills the purpose, it is only when there is a specific need that it would even be considered.

If you are concerned and have images that might be subject to this, such as demonstration images (as in the example), news images or other targeted content that good replacements are unlikely, it’s worth a moment to reflect on your watermarking strategy and do what you can to mitigate the risk.

1. Focus on Larger, Not More Visible: A watermark that is larger is more resistant to this kind of plagiarism. A relatively transparent watermark still has to be covered completely so it is unlikely a plagiarist would be able to cover it with anything less than an opaque image. The larger the mark, the more useless the image becomes without it.
2. Multiple Marks: Another solution is to use a much smaller mark, but place multiple ones on the image, making it impossible to cover up with a simple stamp.
3. More Emphasis on Matching: Finally, consider regularly searching for your images on Tineye to see if it detects any potential matches. Though the database is limited, the matching is very good, even in cases where elements have been changed. It will be useful in these cases.

None of these steps should take a great deal of time, save perhaps the last one if you have a very large library, but they can all go to great lengths to prevent and track this kind of misuse.

Bottom Line

While this is a type of plagiarism that I think visual artists should be aware of, it isn’t extremely common and can be mitigated against pretty easily if one is prepared.

Fortunately, Bellenza was able to detect and stop this use of his content with relative ease but it does make me wonder if there are, perhaps, more cases of this kind of infringement taking place than I’ve seen. With it being so difficult to detect, it is very likely.

Still, I wouldn’t say there is a cause for alarm. If you watermark your images, take a moment and see how resistant your images are to this kind of misuse and make adjustments as necessary. I wouldn’t recommend any drastic action.

In short, this is something to be aware of, but not worry too much about, that is, unless I am wrong about the amount of misuse taking place.

Have a copyright question? Need some advice? Visit CopyByte.com for information on how we can help you.

jonb1324cdr

When a big part of your job has you visiting both spam blogs and pirate Web sites, ad blocking software is not option, it is a requirement. Not only do I not wish to give money to those sites, but the ads are often so intrusive as to interfere with whatever I am doing. As such, ad blocking software, quite literally, makes it possible for me to do my job on many projects.

But what about ad blocking on legitimate sites?

Ars Technica recently raised the issue by conducting a brief experiment on the matter. The site altered their code so that anyone running ad blocking software would also strip out the site’s content, essentially making it useless. Anyone who either A) Whitelisted the domain or B) Paid for a subscription would be immune to this effect.

However, this caused a great deal of controversy among Ars Technica’s readers when it was discovered. Many leaped to the site’s defense, others whitelisted the domain, but still a sizable mob vented anger and frustration at the change, many vowing never to return.

Ars Technica eventually backed away, undoing the changes. This came after AdBlockPlus updated itself to defeat the protection but Ars Technica staffers said they could easily rotate the code to defeat the reversal, essentially playing “cat and mouse” for all eternity.

But Ars’ goal wasn’t to shut the ad blockers away permanently but rather, to start a dialog on the issue and to educate users. A dialog I am hoping to continue here.

Ad Blocking as a Form of Piracy

With rampant piracy and a swell of free, legal content hurting nearly all content industries, many view ad-based distribution as one of the few possible business models that can still work. Furthermore, it is one employed by countless Web sites, including Ars Technica.

However, ad blocking essentially short circuits that model. Since the ads are never loaded, the site pays for the content, bandwidth and server costs to deliver the material to the reader but never has a chance to recoup the costs. In short, every person who blocks ads on a site is a mathematical loss for the site, albeit a small one.

Since many Web sites, especially larger ones, are paid on a per impression basis, simply saying “I wouldn’t click on them anyway” is no consolation. Refusing to look at the ads or be subject to the impression deprives the site of revenue.

Patrick O’Keefe, both my co-host of the Copyright 2.0 Show and the operator of many advertising-supported forums, agrees with this, “I say this as both a publisher and an active website user and reader: If you love a site, you should view their ads or, if they offer it, subscribe to their ad-free version. You should not block their ads because, if you do, you are contributing to the end of that site.”

As a result, many, though not necessarily O’Keefe, view this as a strange form of piracy. A situation where the viewer is trying to obtain content for “free”, without taking on their share of the burden. The only difference is where traditional piracy involves obtaining a normally paid creation for free, ad blocking takes a work that was available at the “cost” of viewing ads but removes that expense.

As with any other type of piracy, this shifts the cost of the work to the paying customers, in this case those who view the page normally, and forces creators to squeeze more revenue from them in order to stay alive.

With that in mind, there is little doubt that ad blockers do hurt legitimate sites, but the question is how much and, more importantly, why do people use them in the first place.

Why Block Ads?

Given that everyone seems to want to support the site they love, the question becomes why do so many people go out of their way to block ads?

On that front, there are many reasons given, below are just a few:

1. Annoyance: Many ads on today’s Web are animated and even contain sound. Not only are these distracting but may be inappropriate to view in certain environments, such as computer labs. They may also interfere with other programs, such as music players.
2. Bandwidth Issues: Many consumers are paying for the bandwidth they use and ads, especially animated or large image advertisements, can cost them money, essentially showing them advertisements that they have to pay for.
3. Privacy: As ad networks have consolidated and have spread across more and more sites, they are able to track user’s surfing activities all over the Web and many intentionally do so to serve better targeted ads. Mix that in with the dubious privacy history of some ad networks and many feel uneasy about loading ads.

The problem is pretty simple. As advertisers have become more and more aggressive about selling their ad space, out of necessity, they have used tactics that have made visitors less and less happy, so much so that many have installed ad blocking software, including 40% of Ars Technica’s audience according to their research.

But is ad blocking a copyright issue? It’s an unfortunately dubious area of the law.

Ad Blocking as Copyright Infringement

One area of contention with ad blocking software is whether it is illegal or not. There are several legal theories that may offer an avenue of attack for those who wish to seek recouse against the creators of such tools and, possibly, their users.

The biggest is that ad blocking software infringes the copyright of the sites they filter by creating an unlawful derivative work of the site. It is an interesting theory, by which the Web page, as it is intended to be displayed, is a work that is unlawfully altered by the application.

The problem is that it would, at least theoretically, also affect a slew of other Web page moderation tools, including those that add search links or notations for bookmarks. Anything that displayed a Web site in its non-intended form, could be bit.

Another theory is that, depending on the site’s terms of service, that the use of such applications could be a violation of that contract. This one would be targeted more to the users of ad blocking software rather than the makers. However, this would be a dubious path to go down in the courts as the PR backlash would inevitably do more damage than ad blocking.

Instead, it would more likely be used as a tool to flag user accounts and even ban repeat users. While still dangerous from a PR standpoint, it’s better than filing suit.

However, none of these theories have been tested and, to date, marketers have been trying a more conciliatory routes. The Ars Technica “experiment” marking the first time in recent history a major, well-respected site went against ad blockers head on, even calling them freeloaders.

But that begs the question: Are ad blockers freeloaders? If so, is it worthwhile for sites like Ars Technica to turn them away?

Are Ad Blockers Freeloaders?

On the surface the math seems pretty simple. A user with ad block generates zero revenue and consumes bandwidth, server resources, etc. As such, they operate at a net loss.

The reality, however, is not that straightforward. Ad blockers often contribute to the site in other ways, including posting comments, submitting links to social news sites, sharing URLs with friends and helping build a community that others, including those who don’t block ads, will want to visit and partake in.

The challenge for Web sites is determining if these visitors are valuable enough to welcome. Would a site make more money blocking those with ad blockers and swapping the decreased traffic for some users whitelisting the site? Or do those who block ads add enough value to increase the site’s revenue without seeing ads? There’s no sure-fire way to tell.

The better solution, it would seem, is to find a way to reach the ad blockers without turning them away. In short, find a way to increase the number who view ads while not completely blocking the ad blocking crowd.

Seeking a Better Solution

The path Ars Technica chose seems likely to be the best. Though it initially blocked ad blockers, it instead chose to educate those users about the harm they were doing and ask them to either disable their plugins or whitelist their domain.

There are even WordPress plugins that can help achieve this goal, replacing ads with pleas to disable ad blockers for those who use them.

This is something that O’Keefe agrees with saying that, “Ad blockers are scary. I think that some people don’t realize the damage they can do. In which case, it’s good to try to reach those people and educate them. Displaying a message to people who run ad blockers, asking them to turn them off, and explaining why, sounds like a good way to do that.”

Though these methods won’t convince everyone, or even a majority, to turn off their ad blockers, they will convince some and do so without turning away those who won’t or can’t.

Bottom Line

There are no easy answer to the ad blocking puzzle. The ethics and legality of ad blocking are going to be debated for a long time to come. Where traditional piracy fits more neatly into existing copyright law and social norms are becoming somewhat more settled, ad blocking is still relatively new and untested both in courts and in society at large.

However, as the Ars Technica ordeal illustrates, it is starting to get to a level that impacts Web sites enough to take action. It will be interesting to see if, in five years or so, if we look back on Ars Technica’s play as something of a “Napster moment” in the war against ad blocking.

What is clear is that this issue is growing in importance and it is only going to get more divisive and more heated in the future. What we saw this weekend was, almost certainly, just a mere taste of what’s to come

This issue is about to blow up and in a very big way.

Have a copyright question? Need some advice? Visit CopyByte.com for information on how we can help you.

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Nick Simmons is the son of Gene Simmons, who is famous as co-frontman for the band KISS.

In August of 2009, the younger Simmons released a manga-style comic book entitled “Incarnate” that focused on a character named Mot, who is a Revenant, or a creature who can regenerate his body and is nearly immortal.

However, last month many began to notice similarities between Incarnate and other works, most notably “Bleach” a Manga series that got its start in 2001. Fans of Bleach and other Manga series immediately began going through Incarnate and finding similar panels and posting comparisons, including this very lengthy selection on LiveJournal.

Simmons initially denied any plagiarism, even taking to Facebook to demand an apology from his accusers (though there is some debate if it was actually Simmons posting). However, in late February, Radical Comics, the company that published Incarnate, announced it was ceasing production of the comics.

Even Simmons’ idle DeviantArt account has not escaped criticism, with his first post warning that “If you steal my artwork, you will pay. In cash.”

Simmons has since issued an apology on the topic, saying:

“Like most artists I am inspired by work I admire. There are certain similarities between some of my work and the work of others. This was simply meant as an homage to artists I respect, and I definitely want to apologize to any Manga fans or fellow Manga artists who feel I went to far.”

This, however, has not done a lot to appease his critics, who believe his copying went well beyond homage and into outright plagiarism, making his apology far less complete.

But how serious was this plagiarism case? The answer is fairly clear once you take a look at the images.

The Problem with Visual Plagiarism

Cases of visual plagiarism are very difficult to perform a good analysis on. Unlike with text plagiarism, there are no strings of matching text that you can cite as suspicious or prove actual copying. With images, unless the work was directly copied (IE: Traced, photographed or otherwise duplicated) you have to base your analysis on more subjective elements.

To make matters worse, Manga comics, by their very nature, share many stylistic elements that are simply part of the genre. To an outsider, such as myself, many of the comics may look alike simply because we are not familiar with the nuances that separate the different artists and series. These elements have to be taken into account too when performing any such analysis.

Still, the hard work of the Manga community actually makes this case much easier to look at and draw conclusions from and looking at the fruits of their effort I think the results are pretty clear, regardless of whether or not you deal with plagiarism issues on a daily basis.

My Analysis

When you look at the side-by-side comparisons, it is pretty clear that this is a case built upon quantity, not quality. Though many of the matches are very similar to one another, many are not. If it had just been a case of one or two panels it would have been very easy to write off the plagiarism as coincidence or homage.

After all, it is not unheard of for comic book authors to pay homage to one another by using similarly structured panels. It’s often a scavenger hunt for comic fans and a way to pay respects to past inspirations. However, usually those homages are acknowledged, either directly or slyly, and these were not.

However, even if we assume that Simmons’ intention was homage, the sheer quantity of similar panels is staggering. There are dozens of examples of heightened similarity between Incarnate and Bleach, many of which are too striking to have been just coincidence. This issue is compounded by the similar dialog that exists in many of the examples, taking the similarities out of the visual and into the textual as well.

When you put all of the similarities together, it’s pretty clear that this goes well beyond what can be defined as chance or a simple homage. If homage was Simmons’ true intention, then this was a very poor execution of it. Not only were the similarities far too widespread, but there was no clear indication A) That the work was an homage or B) What it was an homage of.

This is a big part of why it took so many months for the similarities to be detected, even though Bleach is one of the most popular Manga series in print. Homage finds a way to tip a hat to a previous source without taking too much from it, it is a difficult art and clearly one Simmons has not mastered.

In short, this is not coincidence or homage. Though only Simmons knows his true intentions, he either missed the mark badly with his homage or is being half-hearted with his apology.

Bottom Line

There are ways to provide homage to past inspirations without being accused of plagiarism. The best manage to pay their respects without actually attempting to imitate those that came before them.

That is where Simmons crossed the line.

Imitation may be intended as the sincerest form of flattery, but it is rarely received as such by either the person being imitated or the audience receiving it.

On that note, the publishers of Bleach as well as the series author, Tite Kubo, are looking into the matter and may be considering some form of action. At this time though, no lawsuit has ben directly alluded to, much less filed, so it remains to be seen what will come of their interest.

No matter what though, rest assured that I will be covering it when and if it happens.

Comparison image by Cuddl

Have a copyright question? Need some advice? Visit CopyByte.com for information on how we can help you.

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Though many of you might have seen this article last week when it hit the front page of Digg, I wanted to share it with the readers here.

Recently, I penned an article for brainz.org about the DMCA Notice and Takedown system, including how the law was developed, why it was seen as necessary, and how the system works (including counter-notice).

It’s a very basic primer on the law and how to use it that many readers of this site will probably find too basic, but if you’re interested in a thorough overview of the entire law, the article should suffice. It might also be good to send to friends and family who are a bit confused about the law.

So definitely check out the article and if you have any comments or questions definitely leave them. I’ll be checking there regularly to respond to any questions it might get.

Will return tomorrow with a full update!

Have a copyright question? Need some advice? Visit CopyByte.com for information on how we can help you.

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Victoria Espinel, the United States Intellectual Property Enforcement Coordinator, sometimes referred to as the “Copyright Czar”, has announced a round of public comment on copyright and copyright-enforcement related issues.

Specifically, Office of Management and Budget (and the Executive Office of the President) are seeking feedback on the following topics:

• “Identifying the costs to the U.S. economy resulting from infringement of intellectual property rights, both direct and indirect, including any impact on the creation or maintenance of jobs.” As well as health and safety issues created by the infringement of copyright, both in the U.S. and abroad.
• “Recommendations for accomplishing one or more of the objectives of the Joint Strategic Plan.” Those objectives include, among others, reducing the supply of infringing goods, reducing the number of countries that fail to enforce intellectual property, disrupting infringement networks and increasing the efficiency of U.S. enforcement.

The requests also lists some 20 supplemental topics for comment, including many that deal with ways to improve IP enforcement coordination between various government agencies and information about new technologies that may help the government enforce intellectual property better.

The deadline for comments is March 24, 2010 at 5 PM. Submissions should be sent via email to intellectualproperty at omb.eop.gov. Please note that all submissions will be published online so do not provide any confidential information in any submissions you file.

You can view the full call for submissions here (PDF) and for further information you can call Thomas L. Stoll, Office of the
Intellectual Property Enforcement Coordinator. His contact information is in the full PDF.

Personally, I am debating whether I should submit a comment or not. Though much of the information requested lies outside of my particular area of work, there are some questions, including many of the supplementary questions, that I have thoughts on that might be of use. If I do file such a submission, I will post it here as well.

In the meantime, I highly encourage anyone who has something to say on these topics and can provide the required information to consider writing in. This is a very rare moment for U.S. Copyright Law where public opinion is being so openly sought and I encourage those interested in these topics to take advantage of the opportunity.

Have a copyright question? Need some advice? Visit CopyByte.com for information on how we can help you.

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After several weeks worth of work, I’m proud to announce the launch of the brand-new CopyByte.com.

CopyByte.com is the new home base for the consulting services I offer and serves as a replacement for the old consulting page that was here at Plagiarism Today (the page simply redirects now).

Specifically, there are links to the services that I and those I work with provide. This includes services for content creators, content users, Web hosts, Schools and more.

Some will recall that in August of last year I joined CopyByte as the company’s manager. Vortala, the company’s previous owner, decided to separate CopyByte out to focus more on their core products and I’m taking over as the new owner of the company. However, Vortala is still very close to CopyByte and will remain so for some time.

However, I’m changing CopyByte from a narrowly focused content detection and resolution agency to a full-featured consulting firm that offers a wide variety of services related to copyright and plagiarism issues in the digital world.

The one focus of the agency is practical, realistic advice. We won’t promise to eliminate misuse of your content, to stop all future plagiarism in a school, but rather will focus on effective strategies that can deal with copyright and plagiarism issues without getting mired in many of the pitfalls that can often come with these issues.

Also with the site is a new Twitter account, this one solely for CopyByte. I’ll be using this one primarily for links to industry news and will continue to use my PlagiarismToday account for both personal use and to update to matters as they relate to Plagiarism Today.

On that note, I don’t expect Plagiarism Today will change much, if at all. Since I started working for CopyByte, Plagiarism Today has been exclusively my personal blog and it will continue to be as such. I’ll use the news section on CopyByte for occasional updates about services offered and industry-related news though the bulk of the analysis and news items will still be here.

So, if you’re enjoying Plagiarism Today now, you shouldn’t notice any changes moving forward but those of you who are interested in my consulting services now have a new home page and a wide new selection of services to choose from.

On that note, if you think you might be interested in any of the services I offer, please feel free to check out the new CopyByte.com and feel free to contact me through there.

Have a copyright question? Need some advice? Visit CopyByte.com for information on how we can help you.

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