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Thursday, February 16, 2006

Instant article ghost writer and the "fair use" doctrine...

I didn't originally plan on splitting this post off from the earlier one about the Instant Article Ghostwriter software, but I think the copyright issues raised by the program warrant some individual attention.

As noted, Instant Article Ghostwriter is a software package that pulls individual keyword-rich sentences from a variety of sources and then combines them (with user assistance) into a readable article or document.

Although the end user may perform an editing function, the software's expressed aim is to create content without too much effort--the conglomeration of scraped sentences are supposed to approximate a useable final product.

I have noted some of the limitations I believe to be present in the software itself, but another issue of concern to many is the matter of plagiarism and copyright violation.

Instant Article Ghostwriter's team argues that their product does not run afoul of existing copyright regulations due to the nature of the Fair Use Doctrine. They claim that taking single sentences from multiple sources to produce a final product that contains nothing of substance that is original is AOK.

It sounds almost outlandish. However, they may be right!

The Fair Use Doctrine, despite its formalistic name, is really more of a framework than a precise criteria. Judges evaluating copyright claims in which Fair Use arguments are invoked apply a four factor test to determine whether or not boundaries have been overstepped.

Instant Article Ghostwriter's (hereafter IAG) backers have decent arguments on all four fronts...

First, judges evaluate the "purpose and character of the use, including whether such use is of a commercial nature or if for nonprofit educational purposes."

You would think that could be a problem for IAG's users. Not necessarily. The software hopes to be widely used by those submitting free articles to repository sites. The motivation behind doing this is search engine marketing (the pursuit of backlinks), of course, but the article itself is not independentally generating profit of any sort under those circumstances. Additionally, the free distribution of informative materials may seem sufficiently educational in nature to make this less than a slam dunk for IAG detractors.

One would have to find a way to demonstrate that the traffic produced directly by the backlink and/or by enhanced search engine traffic as a result of said link made a freely available informative piece enough of a commercial commodity to warrant outright exclusion under Fair Use.

Obviously, other uses might be more clearly commercial, but you get the idea...

Second, judges look at the "nature of the copyrighted work."

I don't know about you, but I have a hard time believing anyone wearing a robe is going to ascribe signficant value to a brief factual article that appears online. That 500 word piece may be some writer's "baby," but to a judge it probably seems like nothing more than a few paragraphs of general information.

That problem is intensified when one recognizes that Fair Use cases have historically afforded more protection to fictional works than their factual counterparts.

Third, courts will evaluate "the amount and substantiality of the portion used in relation to the copyrighted work as a whole."

This is the real winning argument for IAG, I suppose. It's hard to maintain that the use of a single sentence from a source piece really rips out its heart and soul. This has been the usual judicial determination and there's no reason to think that would suddenly change. IAG even cites this on their FAQ:

"According to fair use regulations you can use a single sentence from a larger work and not be in violation of any copyright laws. This is exactly what Instant Article Ghostwriter does. And quite frankly, what many human ghostwriters do."

Personally, I don't think that is what many human ghostwriters do (at least not the better ones), but that point aside, IAG makes its stance clear. That stance seems to be pretty solid.

Finally, judges examine the "effect of the use upon the potential market for or value of the copyrighted work."

Anyone who is interested in IAG might want to take a look at the product. You can find it here.

See some problems there for those who dislike the IAG approach? I sure do! I doubt many could be persuaded to believe that a lifted sentence from a primary source that lands in some 500 word internet article somehow decimates the value of the original material? I think the answer to that query is probably "zero."

IAG has found a way to take single sentences from tons of people and combine them to create something new--without any real original work involved. Is it a plagiarism machine? That depends on what you mean by plagiarism. My instinct is to say "Sure. Absolutely. Nothing gets cited. The formality of the paraphrase is not even implemented. It robs sentences. Gobs of them."

However, being sort of creepy doesn't make a program illegal or inconsistent with standing doctrine. IAG may be doing somethine we feel to be plagiarism on some level, but it certainly seems to be doing okay for itself on the legal level.

I doubt anyone who worked on existing copyright legislation really considered the prospect of a program harvesting individual sentences and re-organizing them to produce articles that are valued not for their message so much as for their "back end" benefits (i.e. backlinks). As a result, the Fair Use Doctrine (as I see it, anyway) allows IAG to function unfettered.