What is scraped content, as opposed to "fair use"? wpCop explains our rights & examples scenarios to weigh illegality vs. benefit.
Let's kick off this content copyright guide by examining how our content proliferates beyond our WordPress sites and, crucially for content makers, sum up the legal need-to-know.
Scraping and swearing
Scraping is the black hat practice of aggregating content from a variety of sites into the scraper's site for the purposes of generating advertising revenue and search rankings. The largely automated content management provided by WordPress, for example, coupled with its wide choice of preset syndication plugins or third party scripts, offers an ideal platform for non-technical types to set up and flesh out splogs and AdSense farms.
If you have something worthwhile to say, then your content is being targeted. Quite likely, in far-flung corners of the web, it has already been scraped and draped.
The problem with scrapers
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Fair play to fair use
Applicable to laws in most countries, new work is automatically copyrighted. That doesn't mean that content cannot be reused. Fair use, for example, is an exceptional clause in U.S. copyright law allowing a third party to recycle content if they can justify certain criteria. Similarly legislated elsewhere, for example with a fair dealing clause, content recyclers must reasonably balance four factors to keep the courts happy.
- Extending knowledge, generally with non-commercial intent
Improving on content for educational purposes is considered reasonable. Financial gain, meanwhile, weakens a case, but won't necessarily outweigh this wider benefit - The public interest
The more publicly important your content, the more it is deemed fair to share - The amount and value of the extracted material
The less that is recycled, the better. Then again, even a small extract can be precious - The effect on the current and future worth of the original content
If the work loses value, that's an issue. Harmful reviews and parody can make exceptions
If a copyright dispute goes to court, the fight will concentrate on what can be a delicate assessment of the previous points. For us content producers, the regular scenarios are often more easily judged. Here are the commonplace extremes. If original content is reused in a splog, with or without attribution, and without written permission, then copyright has been infringed. This is because the previous factors weigh heavily to the conclusion that the reuse is for commercial gain with no general benefit.
If non-precious content snippets are somehow reviewed, educationally transformed, or of public importance, and reused with no financial gain, there has been no breach of copyright. This is because there is no personal gain, but a wider benefit.
Anything between these two simplistic lines, as we move from one extreme towards the more cloudy center, increasingly intensifies legal debate on a case by case basis.
Illegality vs. benefit
Let's throw another couple of scenarios into the legal wrangle.
Take the blogger who reuses your content by using a title, an excerpt, and crediting you with a no-follow link. While this third party site is not a splog, you could still argue that your copyright is being infringed by a mix of factors such as that your brand is somehow damaged, there is no added public benefit, and because the blogger profits from SEO-induced traffic assisting the conversion of clicks on adverts alongside your material while compromising the marketability of your original work.
The blogger's in breach but, then again, a tweak to the facts may change your attitude. This time, let's say the difference is that the blogger has a PR5 site, is relevant to your market, and is giving you a follow link. Everything else is the same.
The blogger remains in breach but, with your PR3 site, you're happy to turn a blind eye in exchange for this valuable follow link. Sometimes, we choose benefit over the law.
A nice problem to have *
* or, better still, to manage
For most of us, perhaps business aside and irrespective of the follow link, we're often satisfied if someone recommends our content with a friendly nod, particularly if their use of our content is not overtly selfish. Hey, for that matter, we may be downright flattered to get any attention at all. (In which case, like I mooted, read up on SEO.)
Then again, as our sites begin to grow, our content will gain attraction and, while some will be welcome and the recyclers duly thanked, and while some will be unwelcome and the recyclers duly sued, most attention meets a middle ground. This is where a more pragmatic approach comes in. Rather than spending time chasing tails, for many of us, we do better to ask ourselves how can we create a benefit? Remember that in most cases even unsolicited use can help to boost traffic. This depends on what's being reused, where it's being reused and how, if at all, it's being re-mastered. This also depends on us producing content so viewers can determine its originating source.
We'll be coming back to this train of thought but, hold on, what about those wanting not only to share content, but perhaps to encourage others to tear into and redevelop it? Let's spend some time looking at how we can do this while again containing our rights in How to Use Creative Commons to Share Content.
