Update: Fark’s Copyright Policy

Following the controversy over its copyright policy last week, Fark has changed the wording of its policy to correct the errors in the first draft.

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.

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