Scraping: But Aren’t We On The Same Team?

There’s an element of flattery in having someone else scrape your content, assuming that it’s not just some bot mindlessly taking whatever can be found in an RSS feed to fill the void of some scumbag marketer’s scam website, with copyright infringement statement still attached.  But it’s different when the scraping is done by a website that bears some simpatico relationship.

This happens, and sadly, with some frequency.  The proprietor of a website/blog that shares an interest in the subject matter of Simple Justice will see something here and say to themselves, that would do well on my site as well.  It’s an active decision. 

Sometimes, people will email me and ask if they have my permission to do so.  My reaction is generally that they can use a brief excerpt, though I would urge them to add something of value to what they use.  Merely copying and pasting is intellectually empty, it’s already here and there’s no reason to repeat it elsewhere.

Other times, however, it just shows up somewhere, without permission, commentary or added value.

It happened against yesterday, at a blog called Sex Offender Issues.  This isn’t the first time either.  There is no email of the owner(s), but one of those contact forms everyone hates.  I used it, sending them a nice request (no really, it was quite polite) asking them to remove my content and to please not scrape again.  That was yesterday.  Today, it’s still there.  It may be there tomorrow.  It may not.

The post includes a link back here.  It makes no mention of the author or original source, but it does have a link.  At the bottom of the page, however, there is a “fair use statement” that explains its “authority.”

This site may contain copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of political, medical/scientific, economic, and social justice issues, etc. We believe this constitutes a ‘fair use’ of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml and   http://en.wikipedia.org/wiki/Fair_use.
This is both interesting and troubling.  Obviously, whoever is doing this knows what he’s doing, and knows that he’s skirting copyright infringement at every turn.  At the same time, whoever is doing this is seeking to manufacture an exception for infringement based on good intentions.  In other words, because he’s not seeking to capitalize commercially on his scraping, but rather furthering a cause, his scraping is okay.

There are many in the blawgosphere who don’t take issue with people scraping their content, and are happy to spread the word or have the word spread for them.  That’s cool, but that’s their choice.  There’s no obligation that we all hop aboard the free content bandwagon.  My choice is different.  My choice is to keep my content to myself.  Does that make me selfish or greedy? Who cares. It’s still my choice, and I’m allowed to make it.

Underlying this scraping is the belief that we’re all on the same team.  I’m a criminal defense lawyer.  Whoever is running this website is a sex offender advocate of some stripe.  Teammates.  Share and share alike.  All for one and one for all, right?

No.  Not right. 

Initially, I am a lawyer.  As I’ve said before, I am  not a supporter of crime or criminals.  I am a defender of those accused of crimes.  There are many who are advocates for causes relating to those accused of crimes, and I support some of them.  There are criminal defense lawyers who have, but more likely feign, an emotional attachment to their clients, as if they were the people they defend.  They’re not, but it makes for good marketing to pretend otherwise.  They believe clients want a lawyer who can sympathize with their plight.  It’s nonsense, but they think it sells so they cynically pretend to be the downtrodden outlaw with a law license.  They still charge for their services, though.

Being disinclined to lie for business, I make no bones about what I am or what I do.  I defend people accused of crimes, not because we are brothers but because it’s what I do.  Let me know after we beat the case whether you’re disappointed that I don’t share your love of images of child porn or feel that it’s morally wrong to deny your opportunity to indulge in your fetish.  Only kidding, since I don’t do kiddie porn defense, making this all the more ironic.

It’s not that I am necessarily antagonistic to whatever it is you seek to accomplish, but that I’m not a part of your team either.  My work isn’t yours for the taking.  It’s very nice that you like it and wish to spread it around, but that’s not a reason for you to take what’s not yours.

My plan isn’t to send a DMCA takedown notice, or start suit for damages and injunctive relief.  I’m not trying to hurt your endeavor or make your life miserable.  I’m not trying to cost you money or make a few bucks for myself.  I ask that you show others the respect you want for yourself.  I ask that you keep your hands off my posts.

There are plenty of others who either have no philosophical issue with scraping their posts.  If you feel it necessary, go take theirs.  There are others who want their marketing materials spread as far and wide as possible.  They might even pay you to take theirs.  There are still others who are onboard with your purpose and want to contribute to your cause.  Take theirs all day long.

Just don’t take my content because you think we’re on the same team.  Sorry, but that’s the deal.

6 comments on “Scraping: But Aren’t We On The Same Team?

  1. Gritsforbreakfast

    I don’t mind it if there’s a linkback and preferably attribution. Indeed, I operate under a Creative Commons license instead of straight copyright, so with attribution such uses are expressly allowed.

    In general, though, Fair Use exceptions to copyright are interpreted fairly liberally and I can (arguably) see construing this re-posting as fair use. (I’m not a lawyer, but I’ve worked in media for two decades and am pretty familiar with copyright and libel law.) According to the USC (at the link provided in the pull quote):

    “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.”

    By those criteria, only #3 goes in your favor b/c they excerpted the post in its entirety. Otherwise, the blog did it for “nonprofit educational purposes” (#1), and the nature of the copied work (#2) was a blog post distributed for free where the writer makes no profit and has not intention to do so. Because of that, there was no “effect of the use upon the potential market for or value of the copyrighted work” as specified in #4.

    Since Fair Use is a balancing test using all four criteria, IMO Sex Offender Issues is right that their re-publication is Fair Use and your complaints amount to another “get off my lawn” moment. :) If you were charging for your content, the Fair Use analysis would work differently (and probably in your favor).

    That said, on Grits my practice for the most part is to link, excerpt and comment. It’s more polite, and more valuable, but that doesn’t mean not doing so is necessarily a violation of another blogger’s rights under the circumstances described here.

  2. SHG

    As noted, we are all free to make the choices that suit us.  Others are not free to make those choices for us.  But as for the fair use criteria, both 2 and 3 are implicated, and when someone copies over content wholesale, that factor becomes overarching.  So no, I don’t see any salvation under fair use, and I am particularly disturbed by the idea of nonlawyers redefining fair use to suit whatever they want to do, as if each of us gets to define the law for our own purposes.

    But this is less a matter of legal interpretation than it being the wrong thing to do. Don’t steal. It’s a good rule to live by, not just “get off my lawn.” 

    Don’t trivialize wrongdoing. You certainly don’t do it when it’s a problem that bothers you.  Don’t be so free giving away things that aren’t yours.

  3. Eric L. Mayer

    All this time, I thought you were of counsel to the Orlando Personal Injury Network. I wondered why your blog didn’t have a special badge commemorating the honor.

  4. martin

    The Grits analysis is mediocre, until you reach your conclusion, which is utterly idiotic. As a copyright lawyer, it pains me to see people post such utter crap and mislead others. This post should be removed as an insult to copyright and intelligence everywhere.

  5. SHG

    Bear in mind that Grits isn’t a lawyer, though it doesn’t seem to dissuade him from offering his often erroneous “legal opinios” as if he was.  He does good work on his blog, and he has a very good feel for the law for a layman, but on this issue, his reach has far exceeded his grasp.  Perhaps I shouldn’t have allowed his comment to post, though I did delete his subsequent comment, in which he become increasing (and offensively) wrong and strident at the same time. 

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