Yesterday, much to the relief of many who had protested the service, Digg announced that they are axing the DiggBar as part of their service once the new version of their site launches.

This move comes only days after Kevin Rose took over the CEO reigns from Jay Adelson, who resigned to persue other options, and as the widely anticipated new version of the site is still in beta.

The move is going to be widely welcomed by those who protested the original DiggBar for the way it handled content. It also closes a particularly ugly chapter in the history of Digg where its product has caused it several public relations black eyes.

Background

Last year, almost to the day, Digg introduced the DiggBar, its controversial tool that allowed users to Digg, favorite or share an article without leaving the site. It was introduced along with Digg’s then-new URL shortener, which used the digg,com domain.

The DiggBar created a great deal of controversy because of the way it worked, which was to display an iframe over the page itself, displaying the Digg buttons, logos, etc. over the content. This meant that the content appeared to be hosted on the Digg domain, unlike with other URL shorteners, the link was not simply redirected to the source.

This led to accusations of content theft against the DiggBar. Especially worrisome was the potential search engine implications as, at least theoretically, Google and others would not be able to see where the source of the content was and may rank the Digg URL above the original.

Initially Digg defended its product, saying that it wasn’t evil and that they had taken steps to mitigate against the SEO issues. However, a week after that they relented on several key issues, including having the URL simply redirect for non-logged in users.

Controversy once again arose a few months later when Digg, without warning, changed the way the URLs worked to redirect the short URLs to Digg’s landing page and not the source, this led to accusations of hijacking.

The latter issue was undone after Rose returned from vacation, he had said he was gone when the change was made, indicating that the two may have disagreed over the DiggBar and its place, thus making it one of Rose’s top priorities after taking over the CEO position.

Since then, the DiggBar has remained largely unchanged, until yesterday’s announcement.

Bottom Line

No matter the reason though, the DiggBar is dead, or at least will be once the new version of Digg launches shortly. This is a good thing for all the reasons that Rose mentioned in his post but also in that it puts one of Digg’s most controversial elements behind it.

As the new Digg seeks to open up more partnerships with content creators, including having them directly submit their own work, this move seems to be a means to make peace with the content creators who are still upset about the DiggBar and the way it framed their sites.

Hopefully, it will be a lesson other sites learn from. Though, judging from the way Hootsuite and other twitter-oriented URL shorteners are using a similar iframe, it doesn’t seem very likely.

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


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Though non-repudiation services, such as MyFreeCopyright, Safe Creative and Myows, are not replacements for the U.S. Copyright Office, they do provide a powerful stop-gap verification for the nine-month wait for a certificate. They also provide a potentially valuable verification service to copyright holders in other nations who have their primary copyright interests lie outside of the U.S.

Unlike the Copyright Office, these services have been in a race to make their services as easy powerful as possible, all while remaining free. MyOws has focused heavily on its interface, MyFreeCopyright with its integration with RSS and Safe Creative has struck partnerships with Jamendo and Magantune among others.

However, Safe Creative recently announced two more new features that many artists will likely find compelling. The first is multiple author support, which is aimed at creators of more complex works, such as audio and video files. The other is an application for bulk uploading, which is aimed at those with a lot of content they want to register at once, such as photographers.

It’s part of a new development push at Safe Creative that I expect will lead to even more innovations down the road.

Multiple Authors

If you’re a musician or video producer, one of the biggest hurdles in using non-repudiation services is that it can be difficult, if not impossible, to indicate multiple authors. Whether it’s two or three writers working on a book, multiple musicians performing on a song or anything else with multiple parties involved, most sites only support one creator.

However, Safe Creative, as part of their new professional services offers just that ability. To access this feature, you simply visit your list of works and, using the drop down, select “Add Rights Holders”

Once you’ve selected that, you’ll be taken to a screen where you enter the email address of the other party. They will, in turn, be asked to confirm their email address and sign up for an account if needed (thus providing their information). Once done, the work will be linked to both accounts.

The process is extremely straightforward and, in my limited testing, seemed to work very well. All in all, this is a very compelling feature for those who routinely collaborate on projects with other artists, which is especially commonplace with music, a key target group for Safe Creative.

Automatic Registration Tool

The other new feature that Safe Creative has been touting is an Automatic Registration Tool, written in Java, that bulk uploads works to Safe Creative and is compatible with Windows, Mac and Linux.

The tool itself is fairly bare-bones, you first have to give the tool access to your account, a largely automated process, and then all you have to do is select a folder of works to register and the application begins to upload and register the various items.

This application is ideal for photographers and musicians who want to register a large number of works quickly. The process itself is relatively quick, I registered about 140 images in under an hour, but the lack of features does hurt the application some.

For example, the app will blindly upload everything in a folder, including the thumbs.db file in my case, so it is important to make sure the folder is cleaned out completely before uploading (though you can always delete later). Also, the application just uses your profile’s default settings and there is no way to select a different license or even choose the content type, so all of my photos were listed as “Articles” in the service. However, there is no easy way, that I’ve found to repair that without changing the works individually.

Still, if you’re a photographer or some other artist in need of registering a large number of works with Safe Creative, this tool will be a godsend.

A Word About Professional Services

Multiple authors and the other features on the professional services page are exactly that, professional services. This includes versioning, private registrations, pseudonym in profile, etc.

Currently, professional services are free and you can “purchase” 30 credits (most services cost five per year) with the click of a mouse. However, this is only during the testing phase.

These services will, eventually, be charged for though it is unclear at this time how much they will cost.

Bottom Line

Safe Creative’s features are extremely compelling and, to my knowledge, they are two that are unique to the service itself. Whether you are an artist who routinely works with others or need to do routine bulk uploads, Safe Creative is now an even more natural choice.

In the bigger picture though, the USCO could learn a great deal from these upstart non-repudiation services. Built with relatively small budgets and either by lone developers or a small team of developers, each of them have features, simplicity and integration that the USCO has failed to do with a multi-million dollar budget and years of development time.

Best of all, since there is competition in the field, unlike the USCO that has a monopoly on registration through it, there is a constant push to add features, make the process faster and simplify registration.

If any of these services managed registration for the USCO, I don’t think users would mind the requirement nearly as much.

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


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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.


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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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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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Last week Google shut down a series of music blogs running on their popular Blogger service. All of the blogs were shut down for alleged copyright violations but at least six of the blogs were popular music blogs, including several that claimed they had obtained all of the music they were sharing legitimately.

This kicked off a firestorm of controversy and blame was quickly spread around. Many blamed the labels for sending such clearly false DMCA notices, others blamed Google for sending inadequate notices and others still blamed the laws themselves

The truth is that there is plenty of blame to go around. When you step back and take a look at the situation and how it unfolded, you can see that there are no completely innocent parties nor any one guilty entity. It was a perfect storm created by a series of bungles and missteps that, fortunately, is more rare than it seems.

However, to figure out how to prevent such takedowns in the future, let us take a look at what happened and what everyone can do better.

The Record Labels

The record labels initiated the whole situation. Their automated bots detected copies of their MP3s on various Google-hosted blogs and their staff filed takedown notices against those blogs. At least some of these takedowns, however, were against blogs that, according to their owners, had received permission from various agents to post the content. In fact, many had been pushed by PR firms to post the songs and promote them.

Why Blame Them: Though it seems likely the vast majority of the notices were legitimate as there are, or at least were, many unlawful music blogs on Blogger, greater care should have been taken to avoid sending notices to blogs that had been given permission to post the music files. In many cases, according to the bloggers, even a cursory evaluation of the actual page the MP3 was on would have shown it was a permitted use, something the record labels failed to do. Clearly, the record labels could have and should have done more to avoid filing against those they recruited to push out their works.

In Their Defense: Record labels are huge corporations, even today, and there are countless departments and third party contractors involved with the companies. It is very likely that enforcement team does not know what the PR team is doing, especially since both are likely outsourced to some degree. Furthermore, given the sheer volume of such notices that are almost certainly sent out and the relatively few that turn out to be mistakes, the record labels, overall, seem to do a decent job handling the situation under the circumstances. While there is clear room for improvement, I don’t think anyone would call these notices malicious, especially since they hurt themselves and their own PR efforts.

Google

Google’s role in this was more of a middle man. It received the takedown notices from the labels, removed or disabled access to the infringing works and notified the bloggers involved of the removals. Once the DMCA notices reached a threshold to be considered repeat infringers, Google then deleted the blogs, as demanded by the DMCA.

Why Blame Them: Google’s notices seem to be at the source of much of the confusion. Bloggers initially claimed that they didn’t always know what was being removed or why nor did they know how to respond. Others also claimed that they thought the removal of the content was the end of it and nothing more needed be done, much less that the notices had a cumulative effect and could result in an outright ban of their blogs.

In Their Defense: Simply put, Google has done more than most in this area. Google’s partnership with Chilling Effects, which has been deeply integrated into the Blogger takedown process, ensures transparency and as you can see in this sample notice links are clearly provided. Though Google may have some work to do in explaining the counternotice procedure, they still do more than the vast majority of hosts out there, especially since their overhauls in August.

The Bloggers

If we focus solely on the bloggers operating legitimate music blogs and not those using the service for unlawful purposes, the bloggers largely did nothing. They received permission to post MP3s, in some cases having them pushed upon them, and did so. They received takedown notices but, since the work was already removed, did nothing further.

Why Blame Them: Music bloggers, especially those who post MP3s, have to understand that they are very likely to run into copyright issues. They have an obligation, when using other’s copyrighted works, to understand the law and what their obligations are. Also, no response is one of the worst responses to any legal papers received. If they had read the notice thoroughly, researched the law behind it and then filed a counter-notice when appropriate, their blogs would still be open.

In Their Defense: The law is confusing and impossible even for attorneys to fully make sense of. Bloggers, for the most part, lack the time, resources and knowledge to fully understand copyright law. They rely upon their Web hosts and those filing objections against them to make what they need to do understood. Furthermore, those who did nothing wrong put their faith into the system, assuming that it would work without them needing to take any action but that was clearly not the case.

The Law

The DMCA safe harbor provisions require hosts to expeditiously remove or disable access to allegedly infringing material when they receive a proper notice. They also require that hosts ban or otherwise shut down the accounts of repeat infringers. Google, as a U.S. company, is bound by this law and it is the method that the record labels used to secure the removal of the files they viewed as infringing and it was under this policy that the blogs in question were shut down.

Why Blame It: The law doesn’t offer much forgiveness nor, at least initially, voice to the person who is the subject of the DMCA notice. When notices are filed correctly, the system works fine, but when mistakes are made it is often very ugly and unfortunate. Under the law, Google had little choice than to remove the allegedly infringing pages, even if they were marked in error, and put the burden on their user to respond.

In Its Defense: The DMCA provides very robust protection against misuse. There is a counter-notice system which restores works that were removed and the DMCA also provides very harsh penalties for those who abuse the law. If hosts carry out the DMCA correctly and users respond appropriately, a mistake in the system should be just an annoyance. Failures such as this one require a very rare set of circumstances to come together at once to compound the problem.

Bottom Line

So who is to blame for Musicblogocide 2010? Everyone.

For this type of disaster to take place, there has to be a very sizable series of mistakes and errors. There is a reason why incidents such as this one are very rare.

Simply put, the record labels need to do better when sending their notices, Google needs to better explain them (perhaps relying a bit less on Chilling Effects for that assistance), bloggers need to be aware of the law and respond accordingly. Also, the law itself could probably use a few tweaks to streamline the handling of errors.

For the most part, the safe harbor protections have been very good for the Web and, on the whole, have been used as they were intended. Though a few have used them maliciously, they have, for the most part, been dealt with. Though a few mistakes have happened, they are rare in the big scheme of things.

Still, when something like this does happen it is important to analyze it and see where the mistakes were made. This way, we can prevent them in the future and continue to make rare occurrences even more rare.

In the end, I hope that this will be a learning experience for all involved and those who were spared. If we move forward from this wiser, then it was not a completely useless experience.

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


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Google Reader, the most popular reader for those who subscribe to this site, added a new feature on Monday that allowed users to “subscribe” to sites even if the site doesn’t have an RSS feed.

Google Reader does this by regularly checking the page for changes and reporting the new content in an RSS-like format.

While this isn’t of much concern to bloggers, who already offer an RSS feed that Google Reader will prefer, many sites have intentionally steered clear of using RSS feeds for various reasons and they may be deeply concerned.

With that in mind, here is a quick look at how the service works and what it might mean.

How it Works

To use this feature, you open up Google Reader, click on their “Add a Subscription” button and input a URL that does not have a current RSS feed. Google will then look at the page, index it and check back periodically to see if there are any changes.

When Google Reader does detect a change, it will report it by providing a summary of the new text. This, hopefully, will tell you if the changes are worthwhile and then let you click through to the actual page itself to see the changes in context.

In short, it works in a very similar fashion to ChangeDetection.com but instead of emailing the results, it provides them in an RSS-style format. This list can be turned into an actual RSS feed through Google Reader by using the ability to subscribe to your own reading list.

For those who are interested, the original announcement, linked above, provides several examples of the feed in action, including Macy’s Special Offers page (new feed)

Why Some May Worry

At first blush, this sounds a lot like what Dapper was, a tool designed to make it easy to scrape content from static HTML pages that don’t provide RSS feeds. (Note: Dapper appears to be only doing dynamic advertising at this time).

Many who have shied away from RSS feeds have done so because they don’t want to see their content re-purposed on other sites and don’t feel that the value to visitors is greater than their own potential losses. However, service such as this one seem to force them to have an RSS feed by creating one for them against their will.

However, a closer examination of the feature shows that it really isn’t anything to worry about, at least in terms of content misuse.

Why Not to Worry

Though this feature sounds ominous, it is really not a major concern, at least in its current incarnation.

First, the snippets used in the RSS reader are extremely short, about 25 words in my tests, and the update seems to be fairly slow. In short, it isn’t useful for scraping, even with porting it into a true RSS feed.

Second, it seems unlikely that reposting content you’ve already passed through Google is a good idea. By doing this, you’re essentially ensuring that Google sees the source content first, making it less likely it would favor the duplicate version, though still not impossible.

Finally, the user has no control over what content is picked up. More advanced scraping technology is required to get an effective scrape of new content on a page and, considering it only works on one page, it isn’t likely to have much impact across the whole of a larger site.

All in all, page change detection systems, including ChangeDetection.com, have existed for quite some time with no perceivable negative impact on webmasters and it seems likely that this will be no different.

Bottom Line

If you are still worried about this, you can easily block it by preventing Google from archiving your site. Though I wish there were a way to block this specific activity without blocking all archiving, it seems to be a good way to handle it in the moment.

All in all though, there doesn’t appear to be much reason to worry about this particular service. Not only are the snippets too small and the update too slow, but Google itself is watching the content that passes through it. There are simply better and easier ways to scrape non-RSS content for reuse.

The bigger problem the feature has is that the uses for it are fairly narrow. Most sites with regular updates already have an RSS feature making it largely unneeded.

In the end, it is probably a feature that would have better served the Web 5 years ago, when RSS feeds were not so common.

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


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Microblogging service Plurk dropped a bombshell on its site yesterday when it accused MSN China of plagiarizing its service in the creation of its new product MSN Juku, which launched in November.

Plurk, a small startup in the Microblogging field, has not gained much traction in the U.S., especially when compared to Twitter, but has found success in Asia, especially Taiwan, which they consider their biggest market, and had been growing rapidly in China before being blocked by the nation’s firewall. With that in mind, the opening oif MSN’s Juku service was not just a competitor to Plurk, but competing with them in a market they had been doing well in but were removed from.

But what exactly happened in the case and is the fallout going to be? We’re going to take a look at this case, both sides of the story and try to find out just that.

Background

Sometime in November, Microsoft China launched its MSN Juku microblogging service. Almost immediately, technical bloggers in the area noticed the extreme similarities between the new service and the more established Plurk, as this automatically translated post shows (Note: Plurk provided the link).

However, as Plurk developers began to delve into the code of the new Microsoft service, they began to find that the similarities were not just skin deep. According to their blog post, approximately 80% of the client and product codebase appears to have been lifted from Plurk directly.

The story broke across the Web almost immediately. Plurk, though not widely used in the U.S., is well-recognized, especially in tech circles, and the David vs. Goliath struggle of a startup being victimized by a global giant like Microsoft made it all the more interesting.

But the story left a lot of unanswered questions, including “Why Microsoft would do this?” and “What is next fr MSN Juku?” answers I tried to get the answer to.

Plurk’s Side

I reached out to Plurk for their side of the story and received a lengthy reply from Dave Thompson, Plurk’s Asia Pacific Press Contact.

According to Plurk, the situation runs much more deeply than indicated in the post. According to Plurk, the code reusage wasn’t simply a “copy and paste” job as Plurk’s code is proprietary and not easily accessed. All of the code, both client-side and server-side would have needed to be decompiled and cleaned up to be ready for usage on MSN Juku. As Thompson put it, the process would have required someone to “spend some real effort” to obtain and use the code.

In short, this wasn’t a straightforward plagiarism job, but something requiring time and skill.

When asked how certain Plurk was about the allegations, Thompson said the following:

We would not be going out with this story if we weren’t fully confident in our allegations of willful intent on their part in taking our code.

Thompson also highlighted several other similarities between the two code sets including that both sets of intenal vars use short names on internal code (A, B, C, etc.) and long ones on client-facing code (variablename, username, etc.).

As of his letter to me, Thompson did also say that Microsoft had not contacted them regarding the incident and that they had not been in touch with Microsoft either. In short, the two sides aren’t talking to one another, apart from the public statements, and there has been precious few of those as well.

Microsoft’s Side

Microsoft did not return my request for comment but has issued a public statement regarding the matter.

According to Microsoft, the code was not written by developers working for Microsoft or their joint venture that makes up MSN China, but rather, by a third-party vendor. They say that they are working with MSN China “to investigate the situation.”

Without mentioning Plurk by name, Microsoft acknowledged that “questions have been raised about the code base comprising the service (MSN Juku)” and that they have disabled the service while they look into the matter.

It’s a very ugly, if temporary, end to a short-lived product but it is clear that Microsoft responded relatively quickly to the matter. Still, it may not be an end to the case.

Future Direction

When asked what their ideal conclusion to the case would be, “We were really just hoping they’d pull down the existing site and reevaluate their strategy in China.”

It seems now that the first half of that has happened already and the public black eye for Microsoft may force the second. However, with the two sides not actively talking, it appears likely that the case could easily go to the courts, something Plurk has begun exploring the possibilities of. However, the acknowledge that there are a lot of thorny issues for a small startup to overcome, none the least of which is venue. With at least three countries involved (Plurk is based in Canada, Microsoft in the U.S., MSN China and the vendor in China) it’s unclear what the correct venue would be and if it would be worthwhile.

In the end, Plurk will likely leave the decision up to their counsel.

In the meantime, on Microsoft’s side, it seems likely that this is the end for MSN Juku in its current format and it seems likely there may be legal or other action against the vendor involved, which has not been named yet. According to Microsoft, MSN Juku was only in beta but it seems likely that it will remain down until it can be rewritten, if nothing else than to be certain the code is clean.

The end results, as TechCrunch noted, is that Microsoft ends up looking very ridiculous and this may be the best thing to have happened to Plurk in some time, at least from an awareness standpoint. Though Microsoft seems to be fairly far removed from the alleged infringement, which was done by a vendor of a joint venture partially owned by them, it was their name on the service and their reputation to be hurt.

Whether or not this case goes to the courts, Microsoft has a lot of work ahead of them in regards to damage control and Plurk’s status received a huge boost on both sides of the Pacific.

How this will affect Microsoft’s reputation in Asia remains to be seen, especially if the “plagiarist” label will stick, but the short-term effects are very clear.

Bottom Line

Normally I am loathe to encourage shame tactics when it comes to resolving plagiarism disputes. However, it is hard to argue with the results in this case. Not only has Microsoft closed MSN Juku, but the company has taken a black eye over the affair and Plurk is back in the headlines in a relatively positive way.

That being said, this might have been a somewhat unique case. Not only is there no doubt as to the time frame of the two services, but Plurk was able to provide some convincing evidence and was able to be very certain of the infringement before moving forward, part of why it took them almost a month to say anything.

I don’t want to encourage anyone to use their blog as a tool to resolve plagiarism issues. Not only could it have been legally dangerous for Plurk if they had been wrong, but they would have been staring down the barrel of a much bigger opponent. Still, the evidence in this case seems to be fairly clear and public sympathy is on their side. There wasn’t much risk of being wrong or being thought of as a bully.

However, I still would have preferred it if Plurk had approached Microsoft privately about this matter beforehand. Though the results have been positive for Plurk, they come at the potential expense of burning bridges with Microsoft. Given Plurk’s issues within China, Microsoft could have been, or still could be, a powerful partner.

It seems odd to close those doors based upon a misstep, albeit a major one, by a vendor.

In the end though, we’ll have to wait until we hear more from Microsoft to explain what happened, where the failings were and what they are going to do to prevent it from happening again. Even if it is just a shady vendor, it raises serious questions about Microsoft and MSN’s vendor selection and oversight.

This is not a mistake Microsoft wants to repeat, especially if the next person infringed is far more litigious in nature.

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photo credit: Joi

Joi Ito, best known in copyright circles as the CEO of Creative Commons, has joined Picscout’s advisory board.

Ito, who is also the CEO of Neoteny, an Internet investment firm, and on the advisory board for Digital Garage as well as many other boards, is working with Picscout on their new Image IRC and Imagexchange tools, previously covered here.

The Image IRC is a database of fingerprinted images with their metadata (including licensing information) that is accessible via an API. ImageExchange is the end-user component for identifying images within that database and licensing them, currently used in the form of a Firefox extension (other updates, including an Internet Explorer extension, are reportedly in the works).

Ito brings with him a significant amount of clout to the project and a great deal of expertise. Though his role is vague at this time, there is little doubt that it is a major coup for Piscout as it tries to position itself as the go-to source for image detection and licensing assistance.

Ito’s Possible Role

As I said in my original article, two of the greatest problems I saw with the Image IRC/ImageExchange combination was the lack oif broad Creative Commons (and other licensing) support as well as the hurdle of reaching out to every day users. Ito has a great deal of experience with both of these areas and may be able to provide advice and support it both better integrating CC licensing with Picscout’s tools and educating the broader public about their purpose.

Ito’s involvement could be a great asset to the service as it works to both gain traction among visual artists and users. However, his impact may be felt further down the road as Picscout starts to integrate more and more CC-licensed images into the Image IRC and display CC-licensed images alongside stock ones.

It is worth noting that this does not indicate any formal partnership between Creative Commons and Picscout, as mentioned above, Ito works with many different organizations, nor will Ito be stepping down from his Creative Commons position, but there is little doubt that his knowledge and expertise can be of a lot of use in these areas.

Expanding Reach

In addition to bringing Ito onto their team, Picscout has been expanding the reach of their ImageExchange service, adding Dreamstime stock image library (over 7 million images) as well as Masterfile, Life, Alfo, Mauritius, Blend Images and Glow Images, creating a mix of microstock, royalty-free and rights-managed images.

ImageExchange has also integrated CC-licensed images through Flickr, though only non-commercial images at this time.

This is clearly a sign of momentum for Picscout and may be a sign of the role the Image IRC/ImageExchange solution will play.

Bottom Line

Though the news is good for Picscout, obviously it is still very early in the beta process and far too early to tell how successful its new products will be. Though these are clearly big steps in the right direction, it’s sill just speculation as to what will come of it all.

In the meantime though, I’m putting ImageExchange through some paces on my Windows computer and should have a report back to you later this week about its effectiveness and usability.

Until then though, this is clearly a company that visual artists of all stripes need to keep an eye on moving forward, especially considering both the existing orphan works problem and looking down the road to a potential bill on the subject.

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


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One of the other stories I missed while on hiatus involved and artist named John T. Unger who has found himself in the middle of a legal controversy.

Unger makes what he calls “firebowls”, which are decorative containers designed for placing a fire in. His bowls come in many different designs and range from very basic to extremely elaborate. Each bowl is hand made from recycled propane tanks and is for sale for anywhere from a little over $100 to almost $1500.

However, a competitor named Rick Wittrig, who operates the site FirePitArt.com began to make and sell similar bowls. Though it is debatable if they are infringing or are cases of parallel creation, the similarity was strong enough to confuse at least one of Unger’s past clients. Unger, who had registered all of his bowls with the U.S. Copyright Office previously, sent a cease and desist letter to Wittrig, who offered a flat denial and continued to sell the works.

It was then that, after some additional back and forth, Wittrig launched a pre-emptive strike and sued Unger. He sued to seek a declaratory judgment of non-infringement, a declaratory judgment of copyright invalidity (on the grounds that the firebowls are “utilitarian objects” and, thusly, are not subject to copyright protection) and for damages related to Unger’s discussions of the case, which, according to Wittrig, cost him at least one important client.

This prompted Unger to post an emotional plea for help on his site and launch a crowd-sourced legal fund, which is already over 190% of its stated goal. This also spawned a great deal of coverage including You Thought We Wouldn’t Notice, the Consumerist and TechDirt, which took a decidedly anti-copyright slant on the ordeal.

In the meantime, Unger has filed an answer to Wittrig’s complaint and also counter-sued, setting this case up to be one to follow for quite some time to come.

More to the Story

It is tempting to side with Unger, as the case has both a tinge of “David vs. Goliath” to it and a sense of unfairness as he was the one sued despite, by all accounts, being the original artist. However, the case isn’t as simple as that.

From Unger’s perspective, he is a legitimate artist who had his works ripped off by a company mass-producing very similar works that, when confronted, sued him to try and invalidate his own copyright claims. However, from Wittrig’s perspective, Unger is using a dubious copyright claim to threaten and scare away customer from his company, a legitimate competitor.

Who is right is a difficult question, but there are two key issues that need to be looked at separately.

1. Are the firebowls copyrightable at all?
2. If they are, does Wittrig’s bowls constitute an infringement?

The first question seems to be a likely “Yes”. Though Wittrig is right that utilitarian objects are not copyrightable (that bleeds into patent territory), decorations and flourishes added to such useful objects but not needed for their function can be. For example, a belt can not be copyrighted but a pattern on a belt can be. Wittrig further cuts into his own argument a bit by putting the word “Art” in his company name and both advertise their products heavily based upon the decoration and additional elements beyond just the “bowl”.

In short, it seems likely the decorative parts of the bowls can be copyrighted.

The second question, however, is much more difficult. For Unger to prevail, one has to first establish that his designs were original, creative and unique enough to warrant copyright protection, a separate question from if they can be protected at all. Then they have to show that Wittrig’s bowls are “substantially similar” to an “ordinary observer” to prove that they are unlawful derivative works.

This is not an easy task however, discovery, especially when looking at Wittrig’s process in designing the works, offer evidence for or against this.

As a result, though it is unlikely that Unger will have his copyright wiped out in this case, his victory seems to be much less certain than some feel.

I can’t really comment on the non-copyright issues too heavily as they deal mostly with what was said during the negotiation period and I haven’t read the content in question and these elements deal largely with local laws that I am not familiar with.

Bottom Line

As I look at both the complaint and the counter-claim, it’s clear that this isn’t a cut and dry case of an evil corporation trying to steal from a smaller artist and then erasing his copyright protection. Rather, it’s two sides with very differing views on how copyright applies to this case.

Though it is possible that Wittrig did lift elements of his design from Unger, the similarities certainly are there, that hasn’t been proved yet and any conclusions there should be held off on until after at least some discovery.

Though I find Unger’s situation sympathetic, both as the originator and as a small artist, legally this is clearly a more complicated case.

Lawsuits are rarely about good vs. evil and, in the end, this one really is no different.

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