Podcamp Pittsburgh: An Appraisal Before the Fact

I happened to be scrolling through the session descriptions for Podcamp Pittsburgh, which happens tomorrow and Sunday (October 10 and 11), and I stumbled across this:

Intellectual Property: What Are Your Ideas Worth?

In this era of “free” Internet content, copyright infringement and rampant plagiarism, who really “owns” an idea? And if you *do* have an idea, is it actually worth anything? Devil’s advocate John Carman moderates this debate about intellectual property changing business models between anti-IP advocates Nick Pinkston & Steve Klabnik and pro-authorship devotees Justin Kownacki & Dawn Papuga.

Good thing I haven't had breakfast yet, or I would have lost it. I blog a lot, but IRL I'm a copyright lawyer (and teacher, and scholar). That description is nuts.

Any "debate" between "anti-IP advocates" and "pro-authorship devotees" is bound to be either misleading or unhelpful. If you're a social media creator or consumer (or more likely, both), you need to know that you live in a world of IP. You create it; you use it. It's unavoidable. In many ways, IP is a great thing; in some ways, it's overbroad and stifling. Learn to make it work for you.

Most important:

No blogger owns his or her ideas. Full stop. Not under the law, and not under any sane definition of ethics. A writer has some specific legal rights in the specific words (and media) that he or she creates (though not in what he or she borrows). You get those rights whether or not you want them; they arise automatically, as soon as you put finger to keyboard. But enforcing those rights requires that there be an actual lawsuit ($$$ required) or an actual threat of an actual lawsuit ($$ required) or, at the very least, that those words or media be registered with the United States Copyright Office ($ required).

Is your work worth anything? The odds are - no, it's not. Of the many thousands of things that are registered with the Copyright Office every year, the vast majority of them never earn a penny for their authors or publishers, and the ones that do are almost always published by established artists and/or established media. If you want to make a few bucks off of your amateur art, there's rarely any harm in registering it with the Office, but you're more likely to see some income if you sign up for ads via Google.

In the IP realm, unless you're a professional creator who is part of a professional enterprise -- in that case, identifying and protecting your original creations is often a good idea -- you have a couple of better options.

One is to let it go. Let the Internet be the Internet; let people quote and link to you and be happy with the attention. If someone outright misrepresents your work as theirs (or their work as yours, which also happens), then scream and shout and call them out, and have your friends help you, and if there is real harm to person or bank account, then hire a lawyer ($$$$ required).

Two, which is very close to One and which is no foolproof technique, is to slap some version of a Creative Commons license on your work. A CC license is a way of telling the world that it can use your work, and under some conditions -- like, the world has to give you credit. That's the good news: you can let it go and sleep a little better at night. The bad news is that no one really knows whether Creative Commons licenses are legally binding. (CC licenses are a lot like open source software licenses, and the world only learned about ten months ago whether open source software licenses are legally binding. It looks like they are - maybe.)

Turn this around. If you want to use (copy, borrow, remix) the words or media of someone *else,* when are you on safe ground, mostly safe ground, and/or sketchy ground?

Linking - is just always OK, but don't misrepresent someone else's words as your own, or your own words as someone else's. That's good manners.

Copying short phrases out of a longer original, even full paragraphs out of a longer original, is often just fine, because it's fair use under copyright law. This is especially true if you're using the excerpt to make some other point (like the original should be ridiculed, or used as part of a teaching moment, or illustrates some historical argument), but that kind of "transformation" of the original doesn't always have to be part of the plan.

Copying the full text of a source, especially if that source is commercial (commercial media, like a newspaper, or commercial creativity, like a novel) is almost always wrong. But not always; videos on YouTube and other online sources are often set up to be embedded in your site. Photos on Flickr often include statements by the photographer that give you guidance regarding what the photographer thinks you may do (note that whatever the photographer might say, fair use is always permitted). When you borrow, giving credit to the source is usually a good idea, because the source is less likely to be unhappy with what you do and because it's often the polite thing to do, but giving credit isn't required by the law.

Copying *ideas,* but using your own words and creativity to express those ideas, is just about always fine. No one owns their ideas; in fact, it's often wrong to say "their" ideas in the first place, because ideas almost always involve borrowing material from *other* sources.

For more:

With my professional (non-blogging) hat, I participate in the production of "best practices" statements about the law of fair use that help non-lawyers navigate this problem in some specific areas of creative production and re-use. The one that likely is of most interest to the Podcast crew is the Code of Best Practices in Fair Use for Online Video.