Tuesday, August 13, 2013

Wants to Curate and Re-Post Content

We would like to curate, gather and re-post content from other publishers or creators -- sort of like Buzzfeed, Tumblr and Pinterest. These sites seem to walk a thin line between curating and plagiarizing/stealing content from other creators. Can you define that line and tell us when it's okay and when it's not? No, sorry, we can't define that line because there's no measurement of how many words you take to constitute infringement. The law regarding curation/aggregation is unclear and most legal cases regarding these issues are settled before a final decision is made. (See this article for more information.) In general, infringement is determined on a case-by-case basis using a standard known as "substantial similarity" --  which generally means somebody had access to your work and copied it such that an observer would believe that the similarities in expression are more than trivial and not coincidence.
Infringement isn't the issue. Anyway, the "line" that most people care about is, “Will I get in trouble for doing this?” -- that is, "Will I get involved in a legal confrontation, typically a lawsuit or the threat of a lawsuit, or some other legal mechanism such as shutting down an account?" In that way infringing is a different issue from getting hassled, much like littering is different than being fined for littering. There are three common ways that a curator/aggregator could get hassled:
  • It's business. You are a suitable commercial target, taking content from another established business – a business to business dispute. For example, that's what happened when the AP sued Meltwater.
  • It's easy. You are an individual or business and you are an easy target for a business – for example, it’s quite simple for Getty Images to determine if someone has infringed one of its photos and to demand a licensing fee from them (see our previous blog entry). Ditto for lawsuits brought by the RIAA or by copyright trolls.
  • It's the principle. Third, you’re an individual or business and a copyright or trademark owner just feels strongly about your use and wants to stop it – for example, you're using their photo in a manner they consider offensive.
Therefore, unless you are competing in business, easy to locate, or your use bothers a principled copyright owner, you're likely to get away with your curation regardless of whether it is an infringement.

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