Copyright, Content, and Consumption

So, I seriously need to stop talking to people on Twitter. First the QR code debate, now this. The issue in question was started by a post over at The Awl discussing if “read later” tools are theft. The theory being that third parties are effectively stealing the content of other sites when they allow users to read the sites’ content out of band. The connecting tissue came from a tweet by the frequently colorful Erin Kissane:

kissane tweet Copyright, Content, and Consumption

Before I go into anything else, I want to make it clear that I do not disagree with Erin philosophically. I use Instapaper. I love Instapaper. The issue comes down to where it falls legally. In that regard, I fear that if challenged in a courtroom, Instapaper - and others like, Readability, or Evernote - would lose. And that’s not ultimately a good thing. This is why I’ve been so big on promoting Creative Commons, because it helps clear up issues that have been created by digital content in a country that has such abused and broken copyright law. It isn’t a perfect solution, but it is a better one. Disclamer: I am not a lawyer, but I play one on TV.

Metaphorically Speaking

I think the best way to start would be to build on an extended metaphor. Imagine your personal blog is like an independent art gallery. You paint pretty paintings (not like that hack Jackson Pollock). You show them. You have decided anyone can come into your gallery and look at your works. Heck, they could sit there staring at one painting for forty-seven hours if they wanted, and you wouldn’t fuss. But, as a condition for viewing your content, they visitor had to agree not to photograph anything. After all, this is your gallery and your hard work. You’ve been kind enough to let them come in and consume it all they want while they are there, but if they want to take some home with them to study later, you’d prefer they buy one of the poster copies in the corner. That is your prerogative, and your right under copyright law. The artist next door may not care, he let’s people look at - and even borrow - the things that he creates. That too is up to him. This is a similar problem with the idea of read later.

This sets up the scenario for those that prop up the RSS position. Some argue that since many sites offer up full text RSS feeds (occasionally ad-free, as well), they are ceding ground to those that would consume their content anywhere. This is certainly legal gray area that has yet to be defined by case law. The caution I would issue is that using an RSS feed is not necessarily the same as scraping the site itself for content. Like the example above, I have the choice to issue an RSS feed. I have the choice to make it an excerpt, or full-text. And, one could argue, I have the right to set expectations on how that is consumed. Yes, you can do many things with an RSS feed, technologically speaking, but that doesn’t preclude the content creator putting stipulations on that usage.

It’s the same reason why things like DRM aren’t illegal. DRM is used to extend the rights of a copyright holder to better reflect the control they want to exert over their creations. Technology has enabled content producers to realize controls they couldn’t before. We aren’t there with RSS yet, just like we weren’t there with eBooks for a long time. But all that takes is time. So to argue that a producer’s inability to control their RSS feed is tantamount to a blessing of “use my content however you want” is not a defense against the argument that ultimately they do possess the right to do so - in the end, some day the tools will match the dream. The only caution is when the technology gets in the way of - or prevents outright - legitimate fair use (we’ll discuss that in a bit). It’s important technology enable positive controls on licensing and rights, and not be used to lock things down just because.

Consumption Shifting

The idea of consumption shifting is defined by the process whereby a consumer is able to either time or space-shift content for use outside of it’s original presentation. There are a lot of comparisons that get thrown around when debating this issues. For example, we can time and/or space-shift things on TV using DVRs and VCRs (ancient machines that recorded audio and video onto magnetic tape reels). We’ve been allowed to do it for ages, and courts have upheld the right. So, why shouldn’t we be able to do the same with web content? The counterpoint is delivery. Broadcast airwaves are considered public property. That’s why you can put up some bunny ears (no, not the sexy kind) and get a half dozen free channels. As such, you have a limited right to time and space shift that content all you want because you’re a tax paying citizen. But downloading a torrent of the latest episode of Dexter when you haven’t paid for Showtime? Guess what that is? Theft. If you pay for cable, it is understood that it comes with the privilege of shifting that content for later consumption, like filling a bucket of water for use later or somewhere else. Same goes for clipping a newspaper or magazine you get. Try that at a bookstore though: “Hey, I appreciate you letting me read some of this in your store. I can’t finish it now, so I’m gonna just take this page home with me to re- hey… why are you chasing me?”

But we pay for internet access, right? Yes, but that’s not the same at all, because none of what you spend is used to compensate content creators, only the service provider. At least in theory, part of what you pay for things like cable ultimately benefit the people making what you watch, as part of the agreement between them and the cable company, and then the cable company and you. This is where Readability is hoping to make a dent, by offering a way to compensate content creators for allowing people to shift their content. It’s novel and noble. They even hold payments for a year, so if you’re just hearing about it, you can claim your domain and get payments from the past year of viewing.

In the tweet above, Erin compares using Instapaper to reading a website in Lynx. Unfortunately, that’s more of a red herring than a justification since it can’t really be considered space-shifting. The debate isn’t about reading content in “plain text,” but rather software companies have the right to repurpose someone’s content for presentation. Usage of Lynx is, realistically, little more than a novelty in today’s web any, and is just a reflection of how the medium has changed to better enable monetization of content (and you know, all those other advances we’ve made in web presentation since 1992). Not to mention that Lynx still does not preclude an author from attempting to derive revenue from something you want to view on their website, it’s just a matter of if it is worth it to go through that effort. In the next section I’ll talk about why just the possibility of a market is justification for defending a copyright, even if the creator isn’t actively making money on something. (Fun fact, Lynx is still actively maintained by Thomas Dickey. The 2.8.8 development release came out in January.)

Understanding Fair Use

Of course, being in higher ed, at some point you will hear a professor talk about how using something in the classroom is fair use. The same is often argued in the debate of reading a page elsewhere. After all, limited home, non-commercial usage of your time-shifted recorded television shows is fair use. The problem is, in many instances, that simply isn’t the case. The extent to which this is a problem varies greatly, and ultimately, the only way to know what qualifies as fair use is to go through the following litmus test that a court would use. That test involves weighing four factors:

  1. the purpose and character of your use
  2. the nature of the copyrighted work
  3. the amount and substantiality of the portion taken, and
  4. the effect of the use upon the potential market.

The final check is the one that really could be the problem in the case of services like Instapaper. As the Stanford page above discusses:

“Depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work.”

This is certainly an issue for sites behind a paywall, but many sites just rely on advertising income (or try to) generated by viewing the content. By removing that context, companies are directly impacting income for the author. Even sites that don’t have advertising can argue that such use infringes, because there is a potential market. Whether you like that or not, it’s an issue a court would take into account, and more often than not, they side with the creator. And keep in mind, simply crediting the source is not necessarily sufficient.

Odds are, if it’s just you printing a page, or event copy/pasting text into Evernote yourself, that would probably end up falling under fair use as “home, non-commercial use.” This becomes a problem particularly in cases like Instapaper or Evernote, that are attempting to create a revenue stream based on the abilities they enable. Readability can argue that they are trying to compensate creators all they want, but in the end, legally speaking, they are infringing on the market without license. That doesn’t make them evil, mind you. In fact, Readability is working towards the greater good (or so I like to hope) - a fact that could play into their favor with a judge. But it’s still more gray than black and white. The question comes down to this: Is Instapaper a VCR, or are they a greedy entity trying to profit on others’ work? I don’t have an answer.

Why CC Matters

So, this brings me back to my point. If you aren’t, please take the time to put a Creative Commons license on things you create. Flickr has allowed this for ages. YouTube just started. You can put one on your own blog (we do here, as you can see below). Why? To protect yourself and make it clear to others what you will permit. It’s not perfect, but it’s a good start that helps bring definition to some of the questions on copyright in the digital world. Better still, getting in to Creative Commons will encourage you to educate yourself about just what is and is not allowed under copyright. Part of the problem in this matter is the amount of ignorance still prevalent with respect to just how copyright works. More to the point, you’ll begin to learn just how screwed up things are, and maybe work to help fix it.

You know what comes next. Share your thoughts below. Do you see things differently? Why? In the end, despite my interpretation of how the law would play out in court, I mentioned that philosophically I agree that it shouldn’t be an issue moving content around for consumption. Ultimately, I’m a strong believer that knowledge and content ultimately want to live freely and they do best when you enable them to move fluidly. But when has law ever made things simpler and logical?

Photo credit: cc icon attribution small Copyright, Content, and Consumption Some rights reserved by Horia Varlan

This post was written by:

Director of Web Marketing - who has written 78 posts on .eduGuru

Director of Web Marketingjoined Pittsburg State University in Pittsburg, KS (NOT Pennsylvania, they spell it wrong anyway) inand is currently the Director of Web Marketing.  He is also CTO for the interactive map provider nuCloud. Web development's role in interpersonal communication is a principle focus of his efforts to improve and enhance higher ed web commodities.  He is an active supporter of the dotCMS community, accessibility advocate, freelance consultant, frequent speaker at web events, and general purpose geek who wears many hats.  Read his complete bio.

  • Director of Web Marketing -->

    If you are interested in encoding your CC license data into your HTML, see the CC REL - CC Wiki

    Also, info on extending meta data with the CC RDF:

  • Andrew Careaga -->

    This is a good discussion of several of the big issues regarding copyright, reusing and remixing content on the web. Honestly, I hadn’t thought much about the impact “read later” tools might have on ownership claims to created work. I’ve gotten into the habit of using Twitter’s “favorite” function to bookmark items I want to read or view later. I’ve been pretty casual about my use of that function (and delicious, etc.) — probably more casual than I should be.

    I too am a big fan of Creative Commons but haven’t included a CC statement on my blog. Time to remedy that. So, should we do the same with our twitter bios? ;)

  • Andrew Whitacre -->

    Hey Michael, nice on-point post. I’d only quibble with one item, namely, “If you pay for cable, it is understood that it comes with the privilege of shifting that content for later consumption.”

    That’s not at all how cable companies or channels remember it. Tivo was viewed as an existential threat, but companies knew Tivo had the VCR precedent to rely upon. They recognized (rightly if slowly) that viewers considered time-shifting incredibly valuable, so they began, under that consumer-preference pressure, to build DVR capability into their cable boxes. So I’d argue it came to be understood, and it was a decade-long process.

    Major advertisers have adjusted to time-shifting as well, not just by diversifying how they deliver ads but through narrative and design changes in their traditional TV ads as well. Commercials are far more “storified”, in the attempt to cut down on that initial urge to fast-forward through ads, and they’re designed more for fast-forward viewing, leaving logos in the bottom right corner for a full 30-second ad for example.

  • George Sackett -->

    Wow - a lot to think about on a Friday morning Director of Web Marketingbut well worth the effort. Thanks for raising my awareness on this. I really need to get myself up to speed. 

  • Chris Syme -->

    Good thought provoking stuff here, Michael. I’m not sure that the courts are ultimately going to side with the creator on digital content that is not behind a wall, but you never know. I believe that there are numerous avenues available to those who want to protect their material online including putting it behind a pay wall and monetizing content there. I think you’re right that this is going to be an evolution, but I don’t see tools like Evernote, Boxnet, etc. going away, just evolving. Personally, I would like the content on my blog to be copied and shared because ultimately, that gives my content a broader audience. If I get to the point where I have an e-book, I can protect that by putting it behind a wall, but it won’t prevent the buyer from copying it, anymore than a library lending out a book can prevent someone from copying their works.  Thanks for getting me thinking early in the morning.

  • Associate Director -->

    I will have to admit, I read this article with Readability. Not because I wanted to remove the ads and reduce revenue but because I want to consume the content in the most optimal way for me.

    From a content producers standpoint it’s the same thing that happened to TV after the VCR invaded mainstream. Initially it was a few outliers who were “skipping past the commercials” but now that it’s mainstream the content producers simply shifted (in addition to commercials) to ad placement as content within the shows. I wouldn’t be surprised if the content producers on the web figure out a way to do something similar, inject their ads only when the page has been “instapapered”.

    The shift feels like all the previous that have come before, the xerox machine, tape recorder, VCR, etc. It’s not stealing content, it’s just capturing it. The author is still the same, the content is the same, just the way it is being presented is altered. It’s not like Instapaper or others are taking credit for the content, now that would be theft.

    Adding a CC license can help but in the end I believe people will consume content how they want to consume it. These changes happen out of demand, the user experience continues to decay until enough people are fed up and route around it. But people will still consume and pay for original, compelling content. Take concerts as an example, you can watch one on TV, but it’s just not the same. 

    This may be a stretch but the larger discussion about “remixing” content is always on my mind. 

    RiP: A Remix Manifesto

    Everything is a Remix

  • Director of Web Marketing -->

    I think you fall into the majority of folks. Most bloggers are more than willing to embrace tools that will help extend their reach, and for most of them, they are losing nothing in the process, realistically. The bad part is, where there is gray area, nothing will be settled until the issue ends up in court over a lawsuit, and that just sucks.

    But, the longer that takes, ultimately I think it works out in our advantage. For example, is Sony v. Universal, between the original case and appeals, eight years passed. Universal tried to then get legislation passed after losing in the Supreme Court that would have made recordings illegal, but by that point, VCRs were so widespread, they didn’t stand a chance with Congress. I think we could see something similar in this case.

  • Josh Nichols -->

    “If you aren’t, please take the time to put a Creative Commons license on things you create.”
    I have to disagree and I think it’s bad advice. Putting a CC license on things just because you don’t understand copyright law is naive and irresponsible. 

    I may choose to give a way some things. I use a lot of other people’s work to learn and I want to pay it back. In that case I would use a CC license, but my default action is to do a standard full copyright. I own what I create and I will not compromise my ability to protect or control my work. 

    Also, you can’t just slap a CC license on work you don’t own, so if you produce something for a university you work for, the institution owns it. This has been true for researchers where patents are becoming a large revenue source for universities. It’s even starting to extend to classroom curriculum. Even students who create, say iPhone apps for class my have to share or give ownership to the university. Some employers even go as far as to claim ownership of anything you do in a certain field even if it isn’t related to your job or done with personal equipment.

    If you aren’t sure who actually owns the work you’re putting a CC license on you may be making yourself liable for damages when that work is distributed. 

  • Director of Web Marketing -->

    I definitely didn’t mean to imply you should use CC if you don’t understand copyright. I just view CC as a way to help yourself better understand copyright and ultimately better protect your creations. Plus, using CC doesn’t preclude reserving all the rights of traditional copyright. You say it like using a CC license somehow diminishes your rights to control your content, but that isn’t the case at all. Traditional copyright is not usurped by CC, it is extended and clarified in use scenarios where it applies. One thing to consider is what happens to content after you are gone from this mortal plane. In many cases, tracking down the executor of a copyright is both expensive and nigh impossible. CC allows you to directly attach some of that information to the item.

    And knowing what you can and cannot license comes back to the broader issue of ownership, which can again be enhanced by educating yourself on the issues. That has nothing to do with CC. You have to be cognizant of your environment and the broader legal implications wrapping the things you create. Obviously I would never recommend trying to license or claim ownership over something that isn’t yours to begin with. Even then, look at stuff on Flickr that is shown as copyrighted that isn’t the creation of the person posting it. The problem is the lack of understanding of copyrights in general.

  • cdmiller -->

    One idea I see perpetuated here is “copyright is theft”.  Copyright is not theft.  Just as “Intellectual Property” is a misleading term.

  • Director of Web Marketing -->

    You are correct to question the phrasing, but I tend to agree with a quote from the article over at Copyhype by Terry Hart (also referenced in your first link) on the subject where he says:
    “The debate over the labels we give to copyright is interesting in an academic sense but largely meaningless in the real world. Creators often use words like “theft” to reflect how they feel about acts of infringement. Shifting the focus from the colloquial meaning of the word to the legal meaning accomplishes little more than arguing for the sake of argument, while misusing language from case law only forecloses a fuller understanding of the law.” (

    The semantics of the situation aside, it doesn’t make it less wrong or okay. And I personally haven’t felt like interchanging the words gets in the way of people understanding the core issues in play. At least, such is my opinion.

  • Anonymous -->

    Very nice and thoughtful discussion.  A couple of points, though, as both an IP lawyer and Instapaper user:

    1. When I use Instapaper, I’m using the “Read Later” bookmark. Which means I’m already *on* the page-displaying the ads and generating the traffic, etc. If the content provider is deriving income from my visit to the page, that goal has been accomplished. Without a tool like Instapaper, I would either just read it then-or more likely-not read the content. So Instapaper doesn’t really deprive the copyright owner of income. Browser plugins like AdBlock do more damage to (non-paywall sites) revenue than services like Instapaper.

    2. I think the “Printing” analogy might be more apt. I view a service like Instapaper like a “digital” printer. A printed copy of the original work from the screen is no less a copy (for purposes of copyright) than that same work in Instapaper. 

    3. EverNote creates a different problem, however. One could argue they add economic value by allowing me to search/index and retrieve that information later. I think *that* is where the crux lies for copyright analysis: is what they create a derivative work (I think it is, if not a straight up copy) and should they be allowed to profit from that. 

    I think Instapaper would have a much easier time with a copyright challenge than EverNote. Since I don’t use Readability, I can’t speak to it. But I do think merely saving the content for later reading is probably not an issue. 

  • discount scrubs -->

    Hey Director of Web MarketingNice information on copyright content. i bookmark this page because because currently i am in content writing field. i just know about technical content but reaching here i have known something new. Is that true copyright content is protected and we can’t use it for our purpose? Thanks for Sharing it with me. Hope to post more related to content.