Trapping With Inaccuracy: Plagiarism Days Are Marked

Ever since Bob Conrad, author of The Good, The Bad, and The Spin, shared the Wired story about Las Vegas-based Righthaven, we've been wondering about the future of a few "experts."

According to the article, Righthaven has filed "at least 80 federal lawsuits against website operators and individual bloggers who’ve re-posted articles" originally written by their first client. If the infringements are settled, they are worth between $1,500 and $3,000 apiece. If they go to litigation, they could be worth $150,000 or more.

Trapping plagiarists with inaccuracies.

While reposting complete articles is obvious, reframing ideas are not always so obvious, as Ike Pigott illustrated last March with his post Attribution is the Sincerest Form of Flattery. And again, comparing this story with this story. Are there similarities?

It might be more crystal clear if the screen scrapes were even more blatant. And one way to make that happen might be to borrow a page of out The Trivia Encyclopedia by Fred L. Worth. Worth lost his $300 million lawsuit even after inventors of Trivial Pursuit acknowledged that Worth's books were among their sources*, but recently a Wall Street Journal writer wasn't so lucky.

The Wall Street Journal recently reported on one of its contributors. It seems two "Agenda" columns by Bill Jamieson, executive editor of the Scotsman, sourced information without crediting the source. (Hat tip: Regret The Error). The reason it was obvious was because Jamieson had apparently scraped up errors from those sources.

*Interestingly enough, the only reason Worth lost his lawsuit is because the judge had ruled that facts cannot be copyrighted. However, while I'm not an attorney, I wonder if a better counter argument could have been that embedded errors aren't fact at all.

Avoiding the accidental pickup.

I like to give people the benefit of the doubt. So let's assume most people want to write something remotely original, but also want to use the openness of the Web to color their stories with other ideas, thoughts, and opinions. The easiest way to do that is by following some simple guidelines.

• Some facts don't have to attributed. In the States, we'd all be hard pressed to attribute who first told us that the United States declared independence on July 4, 1776.
• Other facts, however, deserve to be attributed anyway. And since we have the ability to link back to the source, readers might benefit from the source.
• Opinions and original thoughts are always attributed. Sure, there are times when two people stumble upon similar topics, but certain phrasing, analogy, and novelty might reveal a different conclusion.
• Full story screen scrapes, even with link backs, are a very, very bad idea. It neglects the rights of the publisher, which is why more firms like Righthaven are very likely to become the publishing industry's new friend.
• Attribution is the sincerest form of flattery, just as Pigott said. It's in your best interest to credit original thought because those credited are much more likely to promote the content.

For some of us, it all seems pretty basic. For others, it seems much more challenging, but not for long. If firms like Righthaven become a profession that publishers and even bloggers embrace, it seems very likely that a few popular names in social media and communication might come crashing down at $1,500 to $3,000 per infraction (or more).

You see, there has been another trend noticed among communication blogs that started about two years ago. As some became more popular, their propensity to attribute has shrunk. Author Geoff Livingston mentioned it last year. And since I built out my reader to the size he sported then, I've seen more "coincidences" than I care to share.

Closing Hollywood: Writers Strike

The NBC hit The Office is one of several shows that are closing down production because some cast members and show runners are either sympathetic to or members of the WGA. In this case, Steve Carell will not cross a WGA picket line, which has effectively shut down the show despite having more scripts ready for production.

“They cleaned out my trailer and just delivered me 3 boxes of my stuff. It is pretty surreal,” writes Jenna Fischer, who plays Pam Beesly on NBC hit The Office.

“We cannot produce new episodes of The Office until the Writer's Guild strike is over.”

Fischer is one of several actors and actresses who are using their mySpace pages and blogs to focus in on one of the primary issues related to the writers strike: the Internet.

Writers are not compensated for rebroadcasts online despite the fact that the networks earn income from advertisements that accompany the content. They also do not receive compensation for downloads on iTunes or Amazon.

It’s a significant part of failed negotiations because the Writers Guild of America (WGA) already knows that the shift to all digital entertainment is the future of television. It’s also important because networks could theoretically hold off on the syndication or rebroadcast (reruns) of television shows, making them available on platforms that can generate more revenue without compensating the creators.

This issue isn’t just important to striking WGA writers. It’s important to everyone who writes on the Internet. It's important to you and me.

All too often, content distributors are screwing content creators by claiming they own all rights as part of their terms of service. I adamantly disagree with this practice.

In fact, this is one of the primary reasons I’m careful about what content I place on platforms such as Facebook, which does claim all content rights — your content, which makes them attractive to advertisers. They don't need all rights to the work of their members. They only need first electronic rights.

Even on this blog, when I hosted the Jericho Fan Fiction contest, I made it explicitly clear that any writers who submitted work only needed to grant us first electronic rights (the right to publish their stories online first). Put simply, Ray Hayton, Myles McNutt, and Nick Lynse retain all other rights. I cannot, for instance, publish a book using their work in entirety without their consent. Many social networks, online content providers, and even blogs claim that they could.

For me, this is one of the best reasons for the general public to consider supporting the WGA strike. The terms that come out of the strike could be used to prompt online content distributors to revisit their terms of service.

According to the WGA, they are still working out how the public might show support of the strike. Right now, they are inviting the public to send e-mails to show support. Some of them will be published online. You can also download the strike graphic that accompanies this post and add it to your blog or Web site.

They have also told me to "stay tuned." There is more to come.

Screwing Originators: How To Do Things

Flattery will get you everywhere. At least that's what HowToDoThings.com seems to think.

“We recently visited your website's copywriteink.com page and thought that as a trusted expert in the field, you might want to write a "how to" article or articles on a topic that you are knowledgeable and passionate about.”

I declined, with exception to one tiny part (explained later), but not because it was a form letter. I declined because if you put aside the gratuitous e-mail and read their content submission agreement, you might find one of the most overreaching and abusive policies that I’ve ever had the privilege, er, pain, to read.

Sure, I’m not an attorney and this is not legal advice, but even slivers of HowToDoThings’ 4-page “take everything, leave nothing” submission policy provides a very clear picture of why content originators (bloggers, writers, etc.) need to read, very carefully, any such terms before entrusting their content to anyone.

You hereby irrevocably assign, transfer, and quitclaim to HowToDoThings (or such third party/ies as HowToDoThings may elect) all right, title, and interest. You may have or hereafter acquire in and to all Published Content, either directly or indirectly, along with all intellectual property rights and other proprietary rights relating to all Published Content, including any and all registrations with respect thereto, whether foreign or domestic, and all renewals and extensions thereof, as well as related rights of priority under international conventions, and all rights to sue and recover damages for past infringements.

Right. For the promise of a 50-50 Google AdSense split on that page (according to the e-mail), the originator would surrender all rights, indefinitely, including intellectual property rights that are a derivative of the work, to the site. That’s terrible and it gets worse.

You authorize HowToDoThings and its successors and assigns to use one or more of the following: (a) your name; (b) pertinent biographical information relating to You; and (c) your likeness in connection with the publication of any Published Content, as well as any derivative works based upon any Published Content, without further compensation or consideration to You, and without your further review or consent.

In other words, not only will they own the originator’s content, but the originator’s likeness and name as well, and reserve the right to attach it to derivative works without review or consent. And there’s more.

If HowToDoThings requests that You sign any documents or take any other actions to confirm the rights granted under this Agreement, You agree to do so. You hereby irrevocably appoint HowToDoThings as your attorney-in-fact (which appointment is coupled with an interest) for the purpose of executing such documents on your behalf.

Not only would the originator sign over their content, likeness, and intellectual property rights related to the work, but also appoint HowToDoThings as their attorney-in-fact, indefinitely, with permission to act on their behalf. All this despite another provision that claims this is not an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship. Unless, of course, there is any libel or copyright infringement. Then, the originator is on their own to protect what the site claims as their property. And there’s more.

You hereby grant to HowToDoThings the exclusive, royalty-free, irrevocable, perpetual, transferable, worldwide right and license (including the right to sublicense through multiple tiers of sublicensees) to use, reproduce, publish in any form, whether tangible or electronic, and sell all Published Content.

I know what some might think. In a world where people are so willing to share, isn’t it a genuine offer to split Google AdSense? Unfortunately, there is no provision of this in the submission agreement. But there is a provision about such promises.

This Agreement, together with the Guidelines, which are incorporated into and made a part of this Agreement, each as in effect and posted on the Site from time to time, constitute the entire agreement between You and HowToDoThings and supersede all prior understandings, whether written or oral with regard to the subject matter of this Agreement.

Add to all this a termination agreement that allows HowToDoThings to terminate the agreement at anytime (with them keeping your content, likeness, and intellectual property rights), and it’s easy to see why content originators need to read these agreements closer than ever. That is, unless you can afford to pursue arbitration in San Mateo County, Calif., which is your only recourse according to the agreement. So what tiny part of what they are doing do I agree to?

We are actively looking for your feedback on our site.

Okay, here is some feedback: I think the submission agreement makes HowToDoThings look like an online piranha, attempting to take advantage of and prey off of less experienced content originators by stealing away their rights, names, likenesses, and intellectual property for the promise of, well, nothing and the loss of, well, everything.

The only rights online publishers need to request is first electronic rights, which would grant such a site the right to publish original content first, perhaps with a built-in provision that the originator cannot resell the material for a set time period, not to exceed 30-60 days. While it makes sense for publishers to retain bylines and likenesses with the published content, it is ridiculous to ask for any provision that assigns such identifiers to derivative works that may or may not have anything to do with the originator.

By the way, it also pays to read the terms of social networks. Some are playing shell games too, claiming to be distribution channels on one hand and publishers on the other hand. Their definition depends exclusively on their win factor.

Ratcheting Up The Language: iPhone

If you think corporate image and brand positioning should be consistent, then no one can accuse Cisco and Apple of not knowing who they are in their public battle over the "iPhone" trademark. The language their executives use in discussing the iPhone trademark dispute tells a story behind the story.

"We've been following our iPhone trademark issue in the blogosphere closely and it's been interesting to see the commentary from some posters suggesting that somehow Cisco either in the US or Europe didn't meet the requirements to maintain the iPhone trademark. Our response is pretty simple: We have met all elements required by all authorities to maintain our mark. We've been pretty direct about the fact that we've been shipping the iPhone since last spring." — John Earnhardt, Cisco, on their blog.

"It's silly." — Tim Cook, Apple, about Cisco's lawsuit during a conference call with analysts today. He also noted how several companies use the same iPhone name for their Internet-based phones.

Courting Brand Value: iPhone

Some writers shy away from attorneys, but I never have. They almost always lend an interesting perspective on communication. Sure, there are a few who get carried away with calling themselves “wordsmiths,” but the one who left a comment on my last Apple vs. Cisco post is not one of them.

If you missed it, Rick suggested the real question will be whether the term iPhone will be considered a trademark or generic term for a type of telephone.

“This question ultimately turns on the understandings of the relevant consumer market,” he wrote, “So I expect Apple and Cisco to introduce consumer surveys in addition to evidence from dictionary and media sources and references to the status of other ‘i-noun’ terms.”

If that is the case, it seems to me that Apple’s apparent dominance over “i” anything may carry the day, because the public seems to want the Apple phone to be an iPhone. Likewise, there seems to be public resistance to the Cisco iPhone, even after it was explained that it owned the trademark. Of course, that is a communication observation; a judge could just as easily rule against Apple and that would be that, er, until the appeal.

On the communication front, we ask, to what end? Sometimes you can win a lawsuit but lose consumer appeal.

In attempting to address “what is,” it seems to me that Cisco has two battles on its hands. It wants to win the lawsuit because it acquired the iPhone trademark in 2000 after completing the acquisition of Infogear, which previously owned the mark since 1996. But, I suspect, it also wants to win over public perception that this is the right thing to do.

"Cisco entered into negotiations with Apple in good faith after Apple repeatedly asked permission to use Cisco's iPhone name," said Mark Chandler, senior vice president and general counsel, Cisco. "There is no doubt that Apple's new phone is very exciting, but they should not be using our trademark without our permission.”

Outside the courtroom, it becomes tricky. First, Ed Bernette at ZD Net wrote an interesting article on the case, noting that Cisco may not own the mark as claimed. Second, in order to sway public opinion on this issue, someone is going to ask under what terms was Cisco willing to grant Apple permission to use the name iPhone. And third, if it was in negotiations over the name, why did Cisco suddenly make a push on a complete line of iPhone products?

According to the aforementioned article, it had to push iPhone products: “If Cisco didn't launch a product using the iPhone name, their trademark registration would be canceled and they would have no bargaining chips with Apple. So in order to keep the trademark active, they had to file the Declaration of Use, and start selling a product under that trademark.”

Add to all this a recent blog post from Chandler: “Was it money? No. Was it a royalty on every Apple phone? No. Was it an exchange for Cisco products or services? No.”

While the post shows how seriously Cisco takes public perception, it also focuses more attention on that other unanswered question: what were the terms that prompted Apple to abandon negotiations and launch an “iPhone” without an agreement? Or was it something else, an eureka moment from Apple’s legal team perhaps, that killed the deal?

At the moment, only a few know. What the public knows is that several people have laid claim to iPhone over the years, including a Toronto-based company that has been marketing voice-over-Internet services under the registered trademark iPhone since 2004 and even has a wireless device called iPhone Mobile.

How a 2004 claim could potentially supersede Cisco’s claim, I am not sure (unless the ZD Net article is right). However, based upon the comment contribution referenced earlier, it could potentially assist Apple if Apple is looking to turn the trademark iPhone into a generic term, which it may or may not do.

What we also know is that Apple and Cisco have appealed their cases to the public; Apple by releasing its product as an iPhone and Cisco by publicly stating it expected Apple was onboard with those mysterious terms. How good a case both sides can make to the public will be decided by the public or perhaps by investors, who never like to hear the term lawsuit associated with their investments, especially when risks seem to outweigh the advantages.

Sure, Cisco is right to challenge Apple over a trademark it considers an asset. Apple is also well within its rights to look for some wiggle room on a name that has been associated with its product concept before it even landed on the drawing board. But given that the courtroom is not the only place both companies have made a case, public perception may weigh in more heavily than the letter of the law. That’s not good, bad, or indifferent — that is "what is."

All the while, both companies have to be careful not to damage their respective brands that have far and away more value than the potential brand value of an “iPhone.”

Branding Term Primer: iPhone

According to BusinessWeek, Cisco Systems Inc.'s global brand value tops $17,532 million whereas Apple Inc.'s global brand value is $9,130 million. Both have seen gains in the last year, with Apple moving up almost 14 percent.

With Cisco now suing Apple over use of the name "iPhone," something I intend to dig deeper into on Tuesday, the terminology might get a little muddled, given that people in the communication and advertising industry often use pertinent terms interchangeably without meaning to (myself included). Here's a quick term primer that might help keep it straight:

1. A brand refers to the general impression of a person, place, or company (total global awareness of the brand, along with the net sum of positive and negative impressions).

2. A logo is the design and/or name that represents the brand.

3. A trademark is a logo and/or name that has been registered with the United States Patent and Trademark Office or other government trademark offices.

4. A mark is the design element of the logo, apart from the name (eg. the Nike swoosh).

5. An identity is the presentation of company's communication material, which usually includes the logo (eg. an identity package).

This may be helpful in the months ahead as Cisco and Apple spend millions of dollars in a high-stakes legal battle over the "iPhone" trademark. However, if it gets equally ugly outside of the courtroom, the trademark may cause both companies "brand" damage.

Branding Agreement Soon: iPhone

On December 19, I posted about a potential brand war over the trademark "iPhone" shortly after Linksys (a division of Cisco Systems, Inc.) launched an "iPhone" family of products.

Reuters reported that Cisco Systems Inc. expects to reach an agreement with Apple Computer Inc. later today on its "iPhone" trademark. They said it shortly after Apple unveiled a phone with the same name.

So why would Cisco reach an agreement with Apple after fending off so many foes from grabbing up the "iPhone" brand? In the December post, I said that Apple would be wise to sit this one out (they did for awhile without comment), letting others fight it out for the right to use a trademark that Apple might not own, but clearly dominates. Today, Steve Jobs showed the world how much it dominates "i" anything by releasing the product before any agreement was signed.

While Apple could have easily called it something else, I am not surprised. Apple is no stranger to the value of a brand nor litigation over brands. In fact, Apple's earliest court action dates to 1978 when Apple Records, The Beatles-founded record label, filed suit against Apple Computer for trademark infringement, a case that has resurfaced several times over the last few decades. You can read more about it at Wikipedia.

It just goes to show you that — right, wrong, or indifferent — owning a trademark and owning a brand are two different things. And today, it's very obvious that Apple knows it too. Clearly, Cisco does too.

Branding Wars Ahead

What's in a name?

Last July, BusinessWeek reported that Apple's global brand value was up almost 14 percent over 2005, placing it 39th among all globally recognized brands. The publication also estimated Apple's total brand value at almost $9,130 million, fueled largely by stylized iPod, iTunes, and iMac product lines. With that in mind, it was no surprise that Apple was rumored to be releasing an "iPhone" sometime in 2007.

What is a surprise: Linksys (a division of Cisco Systems, Inc.) launched an "iPhone" family of products for the holidays. But, despite boasting Internet services that use Skype and Yahoo! Messenger, most reviews have been less than stellar and include the added pressure of Cisco being accused of "stealing" an Apple brand identifier.

Russell Shaw over at ZDNet has a comprehensive overview of the proceedings (which does not include Apple) along with various filing reports. What he did not note, however, was that Cisco filed its "iPhone" trademark 10 years ago, with the mark published for opposition as early as Dec. 1998. That seems to predate most Apple "i" products, with exception to the iMac.

Still, it's a safe bet that Apple is hoping the Linksys phone might eventually get an unfriendly call from the U.S. Patent and Trademark Office, which is currently sorting through four "live" trademark assignments that include "iPhone" or derivative terms. It seems to me that Apple's wish would have less to do with the name of its future phone and more to do with any brand damage caused by a Linksys "i" product that is less phone (as the original application suggested) and more VoIP.

Simply put, Apple might not want to be associated with it. Even more ironic, Cisco's decision to rightfully use a trademark it has owned for 10 years might backfire anyway, forcing the company to spend millions in repackaging. You see, while the "iPhone" might be their trademark, Apple's brand mastery over "i" products has grown exponentially in 10 years.

In the end, Cisco, right or wrong, knowingly or unknowingly, has started a brand war. And, like all wars, there is hardly ever a clear winner when the smoke settles and investors wonder what they got for it. It seems to me that Apple would be wise to sit this one out, letting the others fight it out for the right to use a trademark that Apple might not own, but clearly dominates. Besides, Apple may have never intended to call its product an "iPhone" anyway.

Protecting Intellectual Property

With the recent spike in Website and blog visitors looking for information on 'copyrights' and other intellectual property rights such as patents and trademarks, I thought I would take a moment to point out one of several resources: Patents, Copyrights & Trademarks

Patents, Copyrights & Trademarks For Dummies explains, in layman’s terms, the basic nature, function, and application of intellectual property (IP) rights, including how you can acquire those rights, wield them effectively, or exploit them through licensing agreements and other rewarding adventures. This book covers all of these critical concepts, including working with IP professionals, presenting a patent explanation, determining what is copyrighted and what isn’t, protecting your commercial identity, and where to go for the appropriate government forms.

To clarify, our company is sometimes misidentified when people misspell 'copyright,' as in to obtain a copyright, as opposed to copywriting, which is trade term for writing commercial 'copy' or words for advertising, marketing, and communication. We've also included a link to this informative book on a variety of intellectual property issues (under the Biz Book Shelf).

Copyright vs. Copywrite

Every now and again, someone drops by our site (and now our blog) looking to protect their work with a 'copywrite'. What these fine folks are really looking for is a 'copyright'. We certainly understand the confusion, which I'll explain in a moment.

First, if you are visiting to 'copyright' your work, the best thing to do is type 'copyright' into the google search engine below. Google will list a number of different companies that provide copyright and trademark information, resources, and services. The costs vary, but some companies may make the process a little simpler than contacting the U.S. Register of Copyright in Washington D.C. While I'm certainly no attorney, I have heard of another way to protect your work (and have used it in the past for non-commercial work): mail a copy of the manuscript, story, etc. to yourself and then file the sealed envelope away.

As far as our name, 'Copywrite, Ink.' is a play on the professional designation 'copywriter,' which is used to define people who write for advertising agencies (eg. ad copy as in advertising body copy). When I founded the company in 1991 as a freelance writer, I wanted to create a brand that was immediately recognizable: copywrite (as in copywriter) and ink (for obvious reasons). Our trademark was created a couple years later. It's an ink spot with the 'copyright' symbol inside. Today, it's a registered trademark (a copyright symbol set inside the ink spot). Of course, we make no legal claims on the copyright symbol as tempting as that might sound. Grin.