The new policy, which is much longer than the first, no longer attempts to claim copyright ownership of the submissions, but rather, says the following regarding works submitted to the site:

you hereby grant Fark.com a non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Submissions in connection with Fark.com and Fark.com’s business

Though the new license was an attempt to appease the critics of the original policy, it has created at least some controversy of its own. Many are simply worried that the new policy simply grabs too many rights and goes well beyond what is actually necessary for Fark to do business.

Upon close inspection, it appears that those fears are not necessarily unfounded but are most likely unnecessary.

What the License Says

The new license has several key points to it that need to be taken individually:

1. Non-Exclusive: The license is non-exclusive, which means that you can give the same or similar rights to others. The result is that, in this case, you are free to post the work anywhere else that doesn’t demand an exclusive license.
2. Royalty-Free: The license does not involve any payment on Fark’s part. They obtain their rights to usage for free.
3. Sublicenseable and Transferable: All of the rights that Fark retains from the license it is able to sublicense or transfer those rights to another party. This enables Fark to create a book, make a video, burn a CD or license the material on their site for viewing pretty much anywhere. You, of course, have those exact same rights with your own work.
4. Use, Reproduce, Distribute, Prepare Derivative Works of, Display, and Perform: This basically covers all of the rights a copyright holder has with a work that he or she created.
5. In Connection with Fark.com and Fark.com’s Business: Finally, the license gives Fark the right do any of those things in connection with Fark and its business. This could mean many things and it is “without limitation” but the license also specifically mentions promoting and redistributing Fark in “any media formats and through any media channels/outlets.”

When it is all said and done, Fark winds up holding, more or less, all of the same rights as a copyright holder, just not an exclusive right to the content. In short, the submitter and Fark wind up with roughly the same rights to the content and neither is able to press those rights exclusively.

This isn’t the same as attempting to grab the copyright, which the old license did, but it does grant Fark a great deal of rights. The big difference, for submitters, is that they no longer lose any rights by submitting to Fark, just the exclusivity of their rights.

This is definitely a step forward and a drastic improvement to the policy, especially since the original one was almost certainly invalid, but many are wondering if Fark is grabbing more rights than they need.

Though that definitely appears to be true, the reason isn’t because Fark is looking to rip off submitters, but because they are simply trying to cover all of their bases and prevent future problems.

The Headache of Licenses

When deciding what rights to ask for in a copyright license, most sites tend to overreach. The reason isn’t because they have any intention of using the powers that their license grants them, but because they want to be prepared for all possible problems and changes that could come up in the future.

Generally speaking, discussions about what rights to grant oneself in a copyright license don’t center around questions about what the company is doing today, but hypothetical future changes that could necessitate more rights be secured. For example:

• What if the company were purchased?
• What if the revenue model changed?
• What if a work needed to be modified due to size, clarity or an unrelated legal issue?
• What if the layout were changed in a way that altered the display of the works?
• What if a court case or new law severely altered the implied license on submitted works?

Even this site requires more rights on comments than are technically necessary. The implied license that takes effect when posting a comment should, in most cases, be adequate. However, all comments posted to Plagiarism Today are licensed under a Creative Commons Attribution-NoDerivs 2.5 License.

This is admittedly excessive because there’s no need for commercial rights, the site displays no ads at this time (though some will be displayed on the feed soon) and the site itself is not a commercial entity. Still, I felt it was important to include commercial use rights in case A) I changed my mind about ads later or B) The definition of commercial use change and other activities, such as my consulting services, could be seen a commercial use of the comments.

I have no intention of exercising that right in the near future, but if I didn’t have it available and the situation changed, I could be in a position where I would either have to remove all of the old comments, or ask permission from each of the authors.

Neither outcome is practical or desirable, thus, the license has to be more broad than absolutely necessary.

Conclusions

Though it is important to read a copyright policy and know what rights you are giving up when you submit a work, post a comment or contribute to a site, it is also important to know that those licenses are generally not written with common practices in mind, but with worst-case scenarios.

As important as the license is the company or site behind it. An honest company with a broad license is far safer than an unscrupulous site with a very narrow license. A company with evil intents is just as likely to ignore or twist a targeted license as it is to follow a more liberal one.

The truth is that, even if it is within the bounds of the copyright license that the site works under, if a company like Fark were to use the submitted content in a way that ran against the desire of the submitters, it would almost certainly spell the end for the entire company.

No amount of legal protection can protect a company in the court of public opinion and, at the end of the day, that’s the court that counts the most.

You can’t turn a profit when your customers are rallied against you and a court victory does no good when you are filing bankruptcy due to lack of business.

The article detailed a case involving the site Celebrity Hack, a celebrity gossip blog. The site had one of its articles, entitled “37 Famously Stupid Celebrity Quotes” submitted to Digg only to be buried for unknown reasons. Then, a few weeks later, a lower quality copy was submitted to the site and reached the front page without being buried at all.

It is obvious that, in that case, the traditional notion of social news failed. The usual means of preventing duplicate failed to stop the advancement of the plagiarized story. It would seem that, in that light, there is very little that a site such as Celebrity Hack can do to prevent scraped and plagiarized content from being promoted on social news sites. If the crowd fails to see the duplication and pushes a duplicate article forward, there is little a lone Webmaster or blogger can do.

However, the DMCA may provide the answer to that problem. It gives individuals who have had their content ripped off and posted to social news sites the ability to have those links removed. It can help webmasters mitigate against the damage that such plagiarism can do and even stop thieves before they see any benefit from the stolen work.

Why Digg has a DMCA Policy

The DMCA carves out safe harbor protection for many kinds of online service providers. One of those service providers, found under section 512(d) in Title 17, is what is called an “Information Location Tool”.

The law goes on to define an “information location tool” as one that is:

referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link

That section covers search engines such as Google, directories such as DMOZ and any other site that links to Web pages where infringing material may be found.

The law grants those sites safe harbor, meaning they are not liable for the infringement, so long as they have no knowledge of the infringement, remove access to the material once notified and register a DMCA agent with the United States Copyright Office (USCO).

This is one area where the DMCA has done a great deal to assist the development of the Web. By eliminating most of the gray area that existed before the law was passed, the DMCA made sites like Digg easier to found without the fear of being held liable for linking to infringing material. In short, it removed a great risk factor from starting this kind of site.

However, because of this, social news sites have had to develop copyright policies and work to comply with the DMCA. Most larger social news sites have designated DMCA agents and processes in place to handle complaints of copyright infringement.

Here are just a few examples of that.

Digg

Format: Email
Email Address: abuse at digg dot com
Location of Policy: Item Five, Terms of Use
Registered with USCO: No
Comments: Overall, Digg’s DMCA policy seems very well-rounded. It offers the necessary links to information for filing both a notice and a counter-notice under the DMCA. However, Digg’s contact information is somewhat lacking. Digg handles all DMCA-related matters through their abuse email address, which is normally the best way to handle such matters, but offers no additional contact information including name, phone number, fax number or physical address. Sites that list their DMCA agents with the United States Copyright Office have to include such information. Digg may need to see about expanding their policy to include this information and formally registering with the USCO.

Reddit

Format: Email, Fax, Snail Mail
Email Address: copyright at sbandg dot com
Location of Policy: Item Four, User Agreement
Registered with USCO: Yes
Comments: Reddit apparently has taken on the services of the NY law firm Sabin, Bermant & Gould to handle their DMCA notices. It seems likely that the policy was written by them as well. The policy is both succinct and thorough, covering all of the required elements of a DMCA notice and offering multiple means of contact to get in touch with the agents. However, the policy completely lacks any mention of a counter-notice, which is relatively unusual. However, that information may be included in the contacts sent to users that have had DMCA notices filed against them.

Slashdot

Format: Email, Snail Mail
Email Address: dmca at ostg dot com
Location of Policy: Item Thirteen, Terms of Use
Registered with USCO: Yes
Comments: DMCA complaints to Slashdot are handled by their parent company, the Open Source Technology Group. Their policy is very lengthy and covers all of the information needed to both submit a DMCA notice and file a counter-notice. The contact information is complete, though it is unclear if the number listed is a phone or fax number, and the policy itself spells out the steps needed, without referencing other sites. Users unfamiliar with the DMCA will likely find this policy very helpful.

Netscape

Format: Email, Snail Mail
Email Address: See Form
Location of Policy: Own Page
Registered with USCO: Yes
Comments: Netscape’s policy, which is handled by their parent AOL, is probably the most mature out of all of the copyright policies. Not only do they have a well-written policy that provides all of the needed information to file a DMCA notice, they even provide an easy form to submit it. Lacking from their site is any information about filing a counter-notice, once again, information likely included when notifying a user that has been the subject of a DMCA notice, and a fax number for sending in complaints that way. Still, they have the easiest and most robust policy overall and, in my experience with their Web host, have a very respectable reputation for handling infringing material.

Fark

Format: Email?
Email Address: See Form
Location of Policy: None
Registered with USCO: No
Comments: Of all the social networks I looked at, Fark is the only one completely lacking a formal DMCA policy. Though the contact form can be used to ask a “legal question” or report a bad headline, there is no clear place to file an abuse report nor is there an actual policy for receiving DMCA notices on the site. This isn’t the first time Fark’s copyright policy has been questioned, but the first time was easily explained by poor writing and it seems likely that this is also an issue with a poorly-written terms of use. Hopefully, as Fark works on their copyright policy, they will also work on their DMCA policy as well. Otherwise, they risk losing protection under the DMCA safe harbor act.
Update From Fark: I heard back from Drew earlier today, he said that he is going to work with his new attorney on this matter shortly after correcting the current copyright policy, which is now in final draft stage. Hopefully, this matter too will be cleared up easily.

Conclusions

Of all of the DMCA policies I reviewed, Netscape’s procedure was far and away the most robust and the most user-friendly. However, this is understandable as AOL has been a Web host for over a decade and has a lot of experience working with the DMCA. Also, they probably have the largest volume of complaints.

After Netscape, Slashdot and Reddit both have very solid policies, both are registered with the USCO and both provide all of the needed information. They are definitely both excellent role models in this area. Digg is also more than acceptable, however, their lack of registration with the USCO is worrisome since it is a requirement of the DMCA and their safe harbor status may be in jeopardy because of that. However, these are all easy things to fix.

At the bottom, right now, is Fark. Their lack of a formal policy not only puts their safe harbor status at risk, but also, can confuse and hinder anyone reporting links to any infringing material.

However, since I have not worked with any of these companies personally, save AOL, I can not make any judgments on them for the host report, all of this is based purely upon my evaluation of their stated policies and information I have heard from others.

The bottom line, however, is that social news is supposed to be about rewarding people who produce high-quality content. That can’t happen as long as plagiarists are able to steal that content and promote it as their own.

When the crowd fails to catch a thief in time, as will happen sometimes, it is important for a site to have an effective and copyright policy and a strong will to enforce it.

Otherwise, social news sites risk becoming an even darker element of the “echo chamber” that some feel blogs already are.

Note: All of the above networks were contacted for this article and, as of this writing, had not responded. I will update this article should any reply after it is published.

Note 2: This story is in no way related to the HD-DVD story that has consumed Digg over the past 24 hours or so. That story, apparently, did not involve a DMCA notice, but rather a cease and desist letter, and this story was underway well before the HD-DVD controversy began to draw much attention. This was intended to be a follow up to the story mentioned above.

Needless to say, traffic was extremely high yesterday and remains very high today. However, I wanted to welcome all of the new readers of the site and encourage those of you interested in Web-related copyright issues to subscribe to this site’s feed. There will be a lot more coming on these issues, especially as they pertain to social news, very soon.

Second, I would like to thank my host, Media Temple, for keeping this site alive during the storm. I moved to MT after my last host crashed twice under similar burdens, once following a Slashdot, the other following a Digg. MT kept swimming right along, exactly as designed, and hopefully won’t hit me with too much of an overage.

Finally, a thank you also has to go out to everyone who helped with the article, especially Drew Curtis for writing me back so promptly despite his busy schedule.

It was a crazy day yesterday and I’ll be recovering much of the day today. But I am looking forward to returning to my normal schedule this weekend.

Ryan McGinnis of Backing Winds posted an article detailing copyright policy of news aggregator Fark, which just underwent a major redesign.

According to McGinnis, when the site was redesigned a new legal policy was introduced one that lays claim to the copyright of all works posted to Fark.

Though it appears that the policy is nothing new, the Web Archive shows the text being on the page as far back as December 2005, his analysis of the current policy is correct. Fark does claim the copyright of any and all material posted to the site.

This is a stark contract to most other sites that only take what the implied license grants them, the right to republish the posted material on their own site. It’s a very powerful rights grab that may be caused by poor wording but, nonetheless, could have very strong impact on copyright holders posting their work on the site.

What the Policy Says

If you read the Fark legal policy, under the header of “Copyright Notice” it says the following:

Fark.com is the legal owner of all copyright interests of Fark.com content. Each and every submission to Fark.com carries with it an implied assignment of the entire copyright interest in the submission. In exchange for the content and publication of that submission on Fark.com, Fark.com grants back to the submitter a non-exclusive, non-transferable and royalty-free license to republish that submission in any and all forms.

Compare this, for example, to the Terms of Use for bulletin Board service ezboard (see item 5).

ezboard.com does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials (collectively, “Content”) that you post to the ezboard Services. After posting your Content to the ezboard Services, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose. By displaying or publishing (“posting”) any Content on or through the ezboard Services, you hereby grant to ezboard.com a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content solely on and through the ezboard Services.

It becomes clear that Fark’s copyright license, as it is written, is actually reversed. Instead of giving itself the limited license to reproduce the work, which it needs in order to display the work, it takes the entire copyright and then gives the user the limited license.

However, that isn’t the only problem with Fark’s policy. It makes several missteps when it comes to copyright law at large.

Problems with Fark’s Policy

Fark’s policy, as strong as it may appear to be, is most likely invalid. U.S. Copyright Law makes a policy such as this completely impossible.

See Title 17, Chapter 2 § 204(a) – Execution of transfers of copyright ownership

A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.

In short, a copyright can not be transferred without a written and signed contract between the two parties. Simply having a policy that states “You are signing your copyright over to us” does not meet that requirement. You can have people give up certain rights, and many are given up by the implied license, but you can not force someone to give up their actual copyright without a signature.

However, there are also issues with the notion that there is an “implied assignment of the entire copyright interest in the submission”. Though the exact extent of the implied license of comments, forum posts and other submitted works, is up for debate, most agree that it does not extend to full copyright ownership.

It is clear that, at the very least, the text needs to be rewritten. Fortunately, Fark has already expressed an interest in doing exactly that.

What it Would Mean

The question remains, if Fark’s policy were found to be valid and remained unchanged, what would it mean?

First, you would not be able to sell your work or give anyone else the right to post it. If you posted a work to Fark, you could not legally sell it to a publisher, to a record label or to a movie studio. You could include it in a book that you yourself made, but you could not sell the copyright or even your right to republish to anyone else. You and Fark would be the only people allowed to publish the work.

Second, Fark can do pretty much anything they wish with the work. They can compile it into a book, CD or video and sell it, they can license it to other sites and redistribute it as they see fit under whatever licenses they see fit.

Third, any Creative Commons License you originally placed the work under would be invalid. Since you are no longer the copyright holder, you no longer have the right to set the licensing terms. This could lead to trouble for anyone that reuses your content under the terms of the license but later runs afoul of Fark’s new licensing scheme, whatever it might be.

Finally, though you have the right to republish your own work, since that right is not perpetual, it can be ended at any time. This can mean that either Fark can terminate the license or they can sell the rights to someone else who will do it instead.

This makes it fortunate that the copyright license Fark is presenting is, most likely, completely invalid. If it were valid, it would create a lot of headaches for copyright holders posting their works to the site. It makes it even more fortunate that Fark is looking to change the license and will, hopefully, have a new one up soon.

Fark Responds

In an email from Drew Curtis, the owner of Fark, he reassured me that of the following:

We’re not, we’re asking for a non-exclusive right to republish. Submitters still own their submissions, we’re asking for reprint rights in case we can use it. We have no intention of acquiring ownership of submissions.

He went on to say that:

“We don’t really have any plans for anything. In the event we did use any content we’d attribute it, in fact I’ve gone out of my way in the past to make sure that whenever media outlets have requested use of Fark photoshops that they contact the owner directly and not republish unless they receive permission from the owner him/herself.”

This certainly is very reassuring and it makes it seem as if it is a case of badly-written license copy, not one of malicious intent. Curtis has asked for input from myself and other in rewriting the copy and I have already provided my input.

We will have to see how and if the terms of use change.

What To Do

Even though the license, most likely, would not be considered valid and it seems as if Fark does have genuinely good intentions, it is still worthwhile to take a few steps to ensure that there are no copyright mix ups on Fark or any other site.

1. Post Things in Links: A license only applies to what actually appears on the site. Rather than post your long essay or your photos, post links to them. No license can be claimed to anything not hosted on the site.
2. Post Only What You Can Lose: Only post what you are ready to give up at least some rights on. I doubt that there will be much interest in reusing general conversation but essays, photos, videos and other works are more likely to become targets for repurposing. Be wary of what you post and realize that, even under the best of circumstances, you will surrender some rights to them unless they are posted on your site.
3. Monitor Your Works: As always, monitor your works and be prepared to act on any infringement that you see. Be mindful of your rights and be prepared to defend them if needed.

All in all, if you take reasonable steps and realize that the copyright license is there and what it says, you’ll probably be safe. The important thing is to simply be aware and keep monitoring the situation.

Conclusions

All in all, I don’t think that Fark is likely to do anything abusive with this copyright policy. It has been in effect for well over a year and nothing has happened to date. By all appearances, it just seems that it was a case of poorly-written license copy that ended up biting both Fark and some of its users in the end.

Furthermore, it appears that it will be rectified very soon.Still, the entire episode highlights the importance of looking at a site’s policy pages before posting anything of value to it. You need to be aware of the rights that you are giving up by participating on any kind of community or forum so that you can be aware of what the rest of your rights regarding the work are.

It makes good sense. We read contracts before we sign them, why not take a few moments and read the terms of use on a site before posting? I admit I am as bad as most about this, but it is a habit that I am working to change.

At the end of the day, this is most likely a learning experience. Nothing bad has happened and, almost certainly, nothing bad will happen, but it shows why everyone should be more careful with where they post. The danger is clearly there.

Update: Just before this story went up, Curtis emailed me with a new draft of the text that addresses all of these issues. Once the new text is looked at by an attorney, he plans on using it.

Update 2: This story has now appeared on Fark. So, with that in mind, welcome Fark visitors! Also, a big congrats goes out to Media Temple for keeping this site alive. Under this kind of load, my old host would be dead and buried.