I’ve never even been inside of Costco, so when Michelle sent an email about how the super-retailer’s lawsuit with Omega, S.A. (over wristwatches of all things) affected me and the rest of the publishing industry, I was confused.

I turned to the Public Knowledge blog to explain it to me:

In plain English, the question is whether copyright law’s “first sale” doctrine—which is what permits you to give a video game as a birthday present, your local public library to lend out books, and the Redbox machine at the grocery store to rent out movies—applies to items manufactured outside of the United States.

Over at PaidContent.org I was confused again when Joe Mullin wrote: “Because the case has everything to do with whether content industries will be able to control their international pricing.” Here I was thinking Ebay-fanatics, and patrons of tag sales and used book stores were the ones who needed to be worried. Then I did what any good reporter does and read a little further. “But copyright holders have been vocal in their support for Omega’s position that “first sale” doesn’t apply abroad, and only they have the right to import copies of their goods.”

Ahhhhh… Now I see. Groups like Public Knowledge are worried about the unintended consequences of siding with Omega — like putting used goods stores and libraries out of business, or encouraging companies to move overseas. Meanwhile, organizations like RIAA and MPAA are concerned with their members bank accounts. But as the Supreme Court mulls over this case, EContent readers should be paying special attention. Whether you’re a publisher or a librarian, this case could have big ramifications for you.

“The internet is cooperative, if you ask people to do the right thing, they will,” according to Jim Pitkow, CEO of anti-piracy solutions vendor Attributor. His upbeat take on the nature of web content users is based upon the results of Attributor’s Graduated Response Trial for News (released today), which it undertook to analyze the viability of alternative approaches for dealing with unlicensed re-use of news content online.  

To date, content creators have responded to other sites’ unlawful use of their content with takedown notices. Essentially: If a content producer finds another site using its content in its entirety and/or serving ads around their content, they ask for the content to be removed from the site or ad network. Attributor has been working to develop alternatives to this approach and conducted this trial to see if content-usage-violators would be amenable to alternatives. 

According to Attributor, the five-month trial conducted between March and July of this year involved many of the nation’s leading news organizations and found that 75% of sites copying full articles complied with the rights-holders requests without them having to resort to content takedown notices per the Digital Millennium Copyright Act (DMCA).

During its trial, Attributor identified over 400,000 unlicensed full copies (which contain more than 80% of the original article and were more than 125 words) across 44,906 sites from 70,101 online news articles from newspapers spanning pay wall, ad-supported and syndication revenue models with local, national and international distribution. The trial randomly selected 107 sites that used 10 or more full copies belonging to a single rights holder in a 30-day period and generated money from online advertising.

Then, Attributor tested the first two steps of its Graduated Response process: 1) courtesy notices of unlicensed copying sent to the site owner and 2) removal requests sent to the search engines to remove the listing from results and to ad networks to remove ads on the page of the copied content. (The third step, which is sending removal notices to the hosting site to remove the content was not part of the trial.) Attributor found that 75% of the copying sites agreed to either pursue licensing agreements or remove content voluntarily within the first two steps.

As Pitkow points out, most companies start with the take down notice, which can create an adversarial situation. He suggests that—given we’ve seen of the litigious approach taken by the music and film industries—there must be a better way, one in which content companies can make incremental revenue from some of the unlicensed proliferation of content online. He says, “Why treat the internet like it is filled with bad actors, when we’ve seen that when you ask the internet to do the right thing it will do so?”

For example, he says, “we could send a notice saying we know that this content your ads are on belong to someone else, so why not split the revenue with the company that produced the content?” While he admits that “The New York Times might not go for that,” he believes that “there are bloggers and others in the content economy who might go for this idea.”

Attributor chose to focus on the news industry in this study to follow up on its December 2009 Fair Syndication Consortium’s report, which found that more than 75,000 unlicensed websites reused U.S. newspaper content over a 30-day period. On these sites, nearly 112,000 unlicensed full copies of articles were detected, with Google’s and Yahoo’s ad networks dominating the unlicensed monetization of U.S. newspaper content. The study also found that articles from large national newspapers were copied as many as 15 times per article.

 In addition, Pitkow points out that “The news industry is at an interesting point in time where they are figuring out their content strategy moving forward, looking at other industries’ attempts to control and manage syndication. We want to show that there are alternatives to what other industries have done in the past and not alienate content companies from their consumers and potential business partners.” Ultimately, Pitkow says, “We want to do for syndication what AdSense did for advertising.”

 Not surprisingly, the study supports the Fair Syndication Consortium’s pursuit of innovating new business models and copyright frameworks for online content syndication. However, Pitkow says, “We certainly recognize that some will view these findings as self-serving, but our response to that is we’re proud to be one of the few if not the only ones producing this type of research and trying to innovate on top of the DCMA and create new syndication models. And if along the way we happen to uncover some interesting data, we will happily continue to share it.”

I find Abbie Hoffman to be one of America’s more intriguing historical figures, and feel confident that he has no problem with my theft of his intellectual property for this blog post. He was, if nothing else, an advocate for cultural free-for-all. The business community didn’t quite get behind Hoffman’s freewheeling attitude, though. In fact, a great deal of copyright law has evolved to reflect fair-use in the digital age. According to one blog post (and another), the folks over at Cook’s Source did not get the fair-use memo and are all for blatant copyright infringement.

“Nihilistic_Kid” says the magazine not only repurposed someone else’s content without compensation, but the magazine didn’t even ask permission. Cook’s Source did not simply quote or reference the post, they allegedly reprinted it in its (edited) entirety in the magazine and online. The managing editor’s response to the distraught author’s inquiries? Well, it was just plain laughable to any journalist worth his or her salt:

But honestly Monica, the web is considered “public domain” and you should be happy we just didn’t “lift” your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me… ALWAYS for free!”

Public domain? Just be glad we didn’t put someone else’s name on it? Sounds like someone needs a refresher course, preferably from a college freshman who has recently been warned about the dire consequences of plagiarism.*

We have people here at EContent who are willing to write for little or no money. They do this for any number of reasons. Our interns do it to build their portfolios and learn the craft of writing. Analysts and consultants do it to promote themselves and their companies. Others do it out of the kindness of their hearts. But all of these people have one thing in common: We get their permission…in writing.

Given how many content providers don’t want you reading their stuff for free, it’s absolutely unfathomable to me that one of those content providers would then steal the work of a fellow provider. We know the struggles that publishers are facing. Cutting costs while continuing to produce good content is not easy. That said, how hard would it have been to simply ask the writer if she was interested in publishing her story in the magazine? She probably would have been thrilled and—if she was smart—would have simply asked the magazine to link to her blog and help her generate traffic. She would have had a nice clip for her portfolio (I wonder if they sent her tear sheets or a copy of the issue in which her article appeared) and the magazine would have forged a new relationship with a writer. Instead, it has a potential PR nightmare on its hands.

Sometimes, a little professional courtesy can go a long way.

*Since this post originally published How Publishing Really Works reported that Cooks Source says it has donated $130 to the Columbia School of Journalism as requested by Monica Gaudio — the stolen post’s author — and has been all but run off the internet, closing its Facebook page and website.