Back online

The four or five people who read this blog may have been asking themselves why it was unavailable for the last two weeks. Was there a major power outage? Did the web server crash? Did Trevor forget to pay his hosting bills? No. It was all because of a single DMCA take-down notice (more on that later).

It began with a recent post to my blog. I had cut-and-pasted an informative comment Brian D. Foy had made on another blog. The next day I received an email from Mr. Foy, which read, in part:

Can you trim the quoted material please? Taking the whole response oversteps fair use by quite a bit and is a bit rude.

Rude? I went back to look at the post again. Did I insult him somehow? Had I misspelled his name? No, I had given him the proper attribution and linked to both the original post and to two of his websites, which may bring more traffic (and customers!) to him. That doesn’t seem rude to me.

Confused, I replied to his email and told him I thought he was overreacting. After all, I wasn’t copying from a book or article; it was a simple blog comment, only a few paragraphs. Mr. Foy then sent me a reply, which read, in part:

I’m not giving you an implied license to reprint anything. I responded to Erica’s blog and I’d like to keep my reply there. You can excerpt the parts that you like and link to the whole thing, but otherwise I’d like you to respect my copyright now that I’ve made my intent clear.

Okay, so let’s forget about this whole “rude” thing. The real issue here is that Mr. Foy is claiming I have violated copyright law.

Have I? Consider this:

  • Look at the bottom of any page in Erica’s blog. It’s licensed under the Creative Commons. What does that mean? It means I have the right to copy, distribute, and modify the page as long as I provide attribution and don’t use it for any commercial purpose. Clearly, my blog is non-commercial, and as I said, I gave full attribution to the source.
  • Mr. Foy has acknowledged that Erica’s blog is licensed under the Creative Commons; he’s only asserting copyright to his comment. But this is not possible! When one adds content to a public work that’s distributed under an open documentation license (such as Creative Commons or the GNU FDL), that content automatically falls under the same license. This is common practice on Wikipedia, for example, which is licensed under the GNU FDL. If you add content to Wikipedia, you have no right to claim copyright infringement when someone copies that content (assuming, of course, that the copying complies with the FDL). If Mr. Foy did not want to license his words under the Creative Commons, then he should not have posted them to Erica’s blog.
  • The Electronic Frontier Foundation addresses this issue in its Bloggers’ FAQ: “When a person enters comments on a blog for the purpose of public display, he is probably giving an implied license at least for that display and the incidental copying that goes along with it.”
  • Posting a comment to a blog is like sending a letter to the editor of a newspaper. If you write a letter to a newspaper, do you own the copyright to that letter? Can you sue the newspaper for copyright infringement when they publish your letter without permission? I’m not a lawyer, but I doubt any court in the country would allow that. They’d probably say you’re giving the newspaper an implicit copyright to your letter, allowing them to publish it, post it on their website, and so on. And if a third party copies the letter from the newspaper? Well, that’s a gray area, but if anyone were to claim copyright infringement, it would be the newspaper, not the author of the letter. Likewise, I might expect Erica to complain when I copied from her blog, but not Mr. Foy.

Given all of the above, I’m certain I’m not violating anyone’s copyright. Unfortunately, Mr. Foy still didn’t agree, and he immediately shut down my blog! How did he have the power to do that?

It’s all because of a controversial law, passed in 1998, called the Digital Millennium Copyright Act, or DMCA. The law gives copyright holders the right to force potentially infringing material to be removed from the Internet for 10 business days. The two weeks allow them to prepare a lawsuit against the alleged infringer. In other words, the DMCA makes those who post content online “guilty until proven innocent.” Knowing this, Mr. Foy filed a DMCA take-down notice with my hosting provider, who immediately took down my blog.

Well, yesterday was the 10th day, and My. Foy never bothered to sue me. His DMCA take-down notice seems to have been nothing more than saber-rattling. Apparently my copyright violation, if one exists, is not important enough to pursue, which is exactly what I was trying to tell him in the first place. He ended up wasting his time and mine.

And I never did find out why Mr. Foy thought I was being rude or why he was so determined to prevent his blog comment from being copied. Perhaps I would have been more likely to comply with his request if he had simply explained himself. Maybe he posted the comment by mistake, or maybe he was planning to publish the comment in a magazine article. Instead, he simply called me rude and insisted that I meet his demands. Naturally, I wasn’t very receptive.

On the bright side, I got a DMCA take-down notice and a potential lawsuit about a week after I started my blog. That’s gotta be a record, right?

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